Richard Arlin Walker
Special to Indian Country Today
The settlement is small, but the message is big.
“The message is: Go away. And if you consider coming back, you will be fought tooth and nail,” attorney Gabe Galanda said of the $50,000 the Washington Department of Fish and Wildlife paid on April 23 to settle the false-arrest claims of two Tulalip Tribes fishermen who owned and operated a seafood distribution business.
Although the state Fish and Wildlife Department did not admit liability, “we can infer an apology from a $50,000 check,” said Galanda, a citizen of Round Valley Indian Tribes and managing lawyer at the Seattle-based Galanda Broadman firm.
Fishermen Hazen Shopbell and Anthony Paul, who owned the now-defunct Puget Sound Seafood Distributors, were arrested and their homes on the reservation were searched by state fish and wildlife officers in 2016 during an investigation into allegations they unlawfully used their fish-buying license and trafficked in fish or shellfish.
The arrests made tribal fishermen fearful of selling their shellfish to Puget Sound Seafood Distributors, Galanda said, and the business died.
Paul and three other fishermen were charged in Pierce County Superior Court with illegal trafficking of shellfish; Paul and Shopbell were charged in Skagit County Superior Court with illegal trafficking of bait clams. Paul and Shopbell, in turn, filed a lawsuit in U.S. District Court, charging the state Department of Fish and Wildlife with false arrest and violating their civil rights.
A prosecutor dismissed the Pierce County charges, saying state officials withheld information “that would be a complete defense in this case” – namely, that the men had had a problem with their boat and were not able to participate in a scheduled one-day crab fishery, and were permitted by the Tulalip Tribes’ shellfish program manager to harvest crab on another day once their boat was operable.
The Skagit County Superior Court dismissed the trafficking charge filed there, though a state appeals court returned the case to Superior Court, saying the lower court judge must determine whether fish and wildlife agents acted in bad faith during the investigation.
In court documents and in an interview with Indian Country Today, Shopbell said he and Paul started Puget Sound Seafood Distributors to improve the prices that tribal fishermen were being paid for crab and fish.
He said the battle will continue to protect the right of treaty tribes to harvest resources in their usual and accustomed territories and engage in commerce.
“I believe it does send a message,” Shopbell said of the settlement. “Whether it’s $1 or $1 million, it’s not the point of the money, it’s the principle. They wouldn’t have paid anything if they weren’t wrong. They know they’re wrong.
“I think they got off cheap – it’s nothing compared to the amount of money we spent on this case. But again, more importantly, it sends a message. And maybe our children and grandchildren won’t have to fight as hard as we did today.”
Dominating the wholesale market
Under an 1855 treaty, tribes and non-tribal fishermen in Washington state are each entitled to 50 percent of the state’s fishery. Before Puget Sound Seafood Distributors was founded, non-tribal fish buyers dominated the wholesale market and controlled the price per pound that fishers were paid for their catches.
“With us being a tribal buyer, all of our cousins came to sell to us to support us – not just Tulalip, but Upper Skagit and Swinomish started selling to us, and then Port Gamble and Port Townsend,” Shopbell said. “Within a year, we were the biggest crab buyers in Washington state. Now, the 50 percent abundance that was caught by tribal fishermen – we were getting a majority of that. They weren’t selling to non-tribal buyers.”
Shopbell said he and Paul paid tribal fishermen double what they received from non-tribal wholesalers.
“We were buying crab for $10 a pound. The average price on the dock [from non-tribal wholesalers] is roughly $4 to $6 a pound at the max,” Shopbell said.
“You couldn’t get more than $4 per pound for king salmon [from non-tribal wholesalers]. When we bought fish, we were paying $8 a pound. The average boat in Tulalip made $12,000 to $20,000 more that year.”
Although retailers paid a higher price for fish and shellfish, they could go to one source – Puget Sound Seafoods – rather than several middlemen to get the seafood they needed.
“We started telling our buyers, ‘Look, we can guarantee you 200,000 pounds or we can go somewhere else, but we need to up this price,’” said Shopbell, who is now a member of the Tulalip Tribes’ council. “That’s how we were able to leverage and raise our stock price.”
Shopbell said Puget Sound Seafood Distributors, in turn, invested its profits in warehouse space, trucks and equipment to further grow the business. But the company soon attracted the scrutiny of fish and wildlife detectives – scrutiny that Shopbell and Paul say was driven by ethnic and racial animus.
The lead detective in the case wrote “reverse racism” in her investigation notes in reference to tribal fishers selling solely to the Native-owned company. Another detective’s family owns a non-tribal, wholesale fish-buying business.
Puget Sound Seafood Distributors' quick success made state fish and wildlife Detective Wendy Willette suspicious, according to court documents.
According to the agency’s website, Willette grew up hunting and bottom-fishing in Washington – experiences that “ignited her passion for protecting Washington's rich natural resources.” She joined the Fish and Wildlife department after earning a geoscience degree from Pacific Lutheran University.
Willette focuses on “large-scale trafficking of natural resources and her primary goal is to identify how poachers move trafficked goods in and out of the state,” the website states. “Her favorite part about being a detective is working cases that have had a large impact on the sustainability of the resource.”
Willette began an investigation of Shopbell and Paul in fall 2015, following an allegation that the two had purchased 444 pounds of illegally harvested crab. Michael E. McHugh, the Tulalip Tribes’ shellfish program manager, wrote on Jan. 31, 2017 that his office could find “no record of any illegal sales between Tulalip fishers and Puget Sound Seafoods.”
According to an incident report dated Sept. 8, 2015, Willette suspected Shopbell and Paul were engaged in an illegal monopoly of the crab fishery and questioned whether the company was “a ruse to launder money through for other exploits like fireworks or cigarettes.”
In addition to fishing, both men operate fireworks stands in the summer and Paul operates his late Puyallup grandmother’s smoke shops on the Puyallup Reservation. Shopbell owns an auto detailing business.
“PSSD [Puget Sound Seafood Distributors] has the money to ship directly,” Willette wrote in the incident report. “Is PSSD using any other forms of transport to move crab? … Is there enough here to get the search warrant for financials?”
She wrote that a Puget Sound Seafood Distributors employee could be a source of information “if she’s not on the take.”
In handwritten notes dated March 1, 2016, mostly related to comparative fish prices, Willette noted some unattributed comments: “Heard through the grapevine” … “Buyers screw tribal fishers” … “We’re gonna sell to our own kind now.”
Next to those notations, she wrote, “reverse racism.”
An attack on treaty fishing
Willette and other detectives searched Shopbell’s and Paul’s homes on June 13, 2016. The men were arrested and released after two hours. Officers sawed open a safe at Paul’s home, according to court documents, and seized computer hard drives.
Shopbell and Paul filed a civil rights lawsuit on Oct. 29, 2018 in U.S. District Court, alleging Willette and others acted with intent to “attack Indian Treaty fishing and destroy intra-tribal Treaty fish distribution and commerce.”
Named as defendants were the state Department of Fish and Wildlife, Willette and 10 other officers, a department biologist, the department director and her predecessor.
The federal court dismissed the lawsuit, citing a “qualified immunity” doctrine that shields law enforcement officers from prosecution as long as the officers did not violate “clearly established law.”
However, the federal court left the men’s false-arrest claims intact and sent it to the state courts for consideration. Rather than go to trial, the state Fish and Wildlife Department decided to settle.
The state denied all allegations but did make some admissions in its response to the Tulalip men’s lawsuit:
- That the family of one of the detectives involved owns a non-tribal, wholesale fish-buying business.
- That Willette placed computer hard drives seized from Shopbell and Paul’s homes into a previously used evidence bag that contained methamphetamine residue from an unrelated case. The state said she did so without prior knowledge of the presence of the residue.
- That on Aug. 22, 2016, Willette and other fish and wildlife officers went to a cold-storage unit used by Puget Sound Seafood Distributors and seized and disposed of clams being stored for use as crab bait. The state alleges the clams were illegally harvested. A Superior Court judge in Skagit County, where the cold storage is located, dismissed the case because officers did not have a warrant to enter the cold-storage unit and did not have a court order allowing for the removal and destruction of the bait clams.
The state Court of Appeals on April 19 reversed the Skagit County Superior Court’s dismissal, ruling the judge did not make an express finding that fish and wildlife agents acted in bad faith. The lower court must now determine that officers didn’t act in bad faith in order for charges of illegal trafficking of bait clams to proceed against Shopbell and Paul.
Willette and the state Department of Fish and Wildlife are represented by Eric A. Mentzer, assistant attorney general. He did not respond to phone and email messages requesting comment from Indian Country Today.
‘Since that day, I made it a mission’
In an interview with Indian Country Today, Shopbell remembered being in the back of his grandfather’s car after having sold their catch to non-tribal fish buyers.
“I had sandy feet because we had been beach seining – that’s one of the old styles of fishing – and the adults were complaining, ‘Those goddamn buyers, they ripped us off.’”
“Since that day, I made it a mission to create a seafood business that could raise prices for our fishermen,” he said.
Shopbell told the federal court in a hearing on the case, “I have grown up listening to the stories of the Fish Wars and U.S. v. Washington. I have been taught by my elders how the State of Washington and the Washington state Department of Fish and Wildlife waged war against the Tulalip Tribes. ... I know state police racism. We all do at Tulalip.”
The Fish Wars of the 1960s and 1970s came during a period of resistance against state fish and wildlife efforts to restrict off-reservation fishing despite treaties that preserved the right of treaty tribes to fish in their usual and accustomed areas. While treaty fishing rights were upheld in 1974 in the case of U.S. vs. Washington – establishing treaty tribes and the state as co-managers of the state’s fisheries – Shopbell said his case shows that the Fish Wars never ended.
The Tulalip Tribes are no strangers to challenges to their sovereignty.
The State of Washington has refused to recognize Quil Ceda Village, on the Tulalip Reservation, as a municipality, even though it was incorporated in 2001 under Tulalip Tribes law and is recognized by the U.S. Bureau of Indian Affairs as a municipality and by the Internal Revenue Services as "a political subdivision of the federally recognized tribe" under provisions of the Indian Tribal Governmental Tax Status Act of 1982.
Quil Ceda Village is believed to be one of only two federally chartered municipalities in the United States; the other is Washington, D.C.
Despite lacking the constitutional authority to do so, the state collects sales and use taxes on business transactions at Quil Ceda Village. The state rebuffed Quil Ceda Village’s requests for a share of tax revenue generated by businesses in its jurisdiction, just as other municipalities receive to help fund local public services.
Tulalip Tribes and Quil Ceda Village filed a lawsuit in 2015 in federal court; the Tribes, Quil Ceda and the state are now nearing a tax revenue sharing agreement.