Thank you for your consideration.
Sincerely,

JAMES BERGESON.

JOHN BREAUX,

BLUE LAKE, CALIF., June 20, 1979.

Chairman, Subcommittee of Fisheries and Wildlife, Merchant Marine and Fisheries Committee, U.S. House of Representatives, Washington, D.C.

DEAR CONGRESSMAN BREAUX: We are attorneys for numerous Indian fishers of the Hoopa Valley Indian Reservation on the Klamath and Trinity Rivers in Northern California. We are writing with our comments on the fishery conflict, and we request that you include this letter in the record of the hearings which your subcommittee held last month in Eureka and Washington, D.C.

1. The tribes have extensive rights to fish on the Klamath and Trinity Riversincluding the right to fish commercially

In the establishment of the Hoopa Valley Reservation, Congress determined that the land be reserved for "the purpose of Indian reservations." Act of April 8, 1864, 13 Stat. 39. "Indian purposes" includes the right to fish on the reservation, free from state regulation. Elser v. Gill Net Number One (1966) 246 Cal. App. 2d 30, 54 Cal. Rptr. 568; Arnett v. 5 Gill Nets (1975) 48 Cal. App. 3d 454, 121 Cal. Rptr. 906. In Crichton v. Shelton (1906) 33 L.D. 205, 217, the Interior Department stated: "The prevailing motive for setting apart the reservation was to secure to the Indians the fishing privileges of the Klamath River."

Unless terminated by an act of Congress or ceded away by the Hupa or Yurok tribes, the government cannot encroach upon these aboriginal rights. Oneida Indian Nation v. County of Oneida (1974) 414 U.S. 661, 667. The relinquishment of these rights has never occurred and the tribes therefore, have an unquestionable right to fish.

The fishing right includes commercial fishing. The Department of the Interior in its 1978 fishing regulations for the Hoopa Valley Reservation states its conclusion that the Indians' reserved fishing right includes the right to use fish for commercial purposes. The Under Secretary stated: "* (T)he Indians must be allowed to fish commercially as long as statistics show there can be effective conservation with simultanous regulation of other forms of fishing by all persons. Federal Register, Vol. 43, No. 135, July 13, 1978."

The federal government recognizes this right to fish commercially based on caselaw and on the history of Indian fishing on the Klamath. The Courts have often upheld the right of Indians to fish commercially. See U.S. v. Washington (1975) 520 F.2d 676, cert. den. 96 S.Ct. 877 (1977); Alaska Pacific Fisheries v. United States (1918) 248 U.S. 78, 39 S. Ct. 40.

Therefore, it is clear that the tribes do maintain their sovereign right to fish, which includes commerical fishing.

2. The survival of the fishery is of central importance to the Hupa and Yurok people The fish is a basic traditional food of these tribes. Many Indian families fish on the river in the spring and fall to put food on their tables. The fish are eaten fresh in season, and are canned or smoked for use later.

The reservation has a highly depressed economy-some estimate that unemployment is as high as 85 percent. Most reservation Indians live long distances from urban job centers. There is a dearth of federal programs and services on the Extension. Any limitation on Indian fishing would be a serious economic blow to the tribes.

It is difficult for non-Indians to appreciate the significance that fishing plays to the Yuroks and Hupas. A recent statement prepared by the Hupa Survival Group describes their perspective on the importance of the fishery: "Fishing is central to our way of life. Since the beginning of the time, Hupa people have fished in our homeland. According to our traditions we have a responsibility to fish and provide for our people. The salmon cycle and our ceremonial cycle are woven together as the source and expression of our being. We feed those who take part in our ceremonies. We fish for our community, giving fish to our elders, children, and those who are unable to fish. Our customs and practices respect and protect the fish which are born in and return to our streams. Fishing is the exercise of our traditional and religious freedom. Fishing is at the center of the relationship between our people and their land. We have a sovereign right to fish in our traditional ways without being controlled by non-Indians."

The Indians of the reservation are at least as concerned as others about the survival of the fishery, for they see that their own survival as a people is directly connected to the survival of the fishery.

3. The Federal Government has breached its trust responsibility to protect the fishery for Indian uses.

It is well established that the federal government has the strictest fiduciary obligations towards the assets and lives of Indian people. The Supreme Court observed in Seminole Nation v. U.S. (1942) 316 U.S. 286, 296, 62 S.Ct. 1049, 1054: "Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, (the United States government) has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore, be judged by the most exacting fiduciary standards." The present state of the Klamath fishery is, in large part, the result of the failure of the U.S. to comply with its fiduciary obligation to gather information and take remedial action concerning this resource. The Under Secretary's introductory comments to the 1978 regulations make clear that inadequate record-keeping has occurred. Federal Register, Vol. 43, No. 135, July 12, 1978. By failing to gather information and keep records on the fish population, the federal government has violated its trust responsibility to manage the trust assets effectively. Passamaquoddy Tribe v. Morton (2nd Cir. 1975) 528 F.2d 370.

The federal government has not effectively regulated the causes of the decline of the Klamath fishery, nor has it pursued means to enhance the fish_habitat. The March 1979 report filed by U.S. Fish & Wildlife Service biologist Gary Rankel, entitled "Hoopa Valley Indian Reservation: Inventory of Reservation Waters, Fish Rearing Feasibility Study, and a Review of the History and Status of Anadramous Fishery Resources of the Klamath River Basin," details the effects of several factors in the reduction of the Klamath fish resource:

(a) Irrigation diversions.-The construction of the Lewiston Dam in 1963 resulted in a 79 percent reduction in preproject flows of the Trinity River through 1976. Central Valley Project construction caused the loss of 59 miles of chinook salmon spawning and nursery habitat, 109 miles of steelhead habitat and an undetermined amount of coho salmon habitat located above Lewiston Dam. Rankel, p. 8. Reduced flows have also resulted in earlier and more rapid warming of downstream areas during spring months, increased sedimentation and a considerable loss of spawning and nursery habitat below Lewiston Dam. Rankel, p. 8. Irrigation diversions, many of which are unscreened, also occur on smaller streams located on the reservation resulting in the loss of unknown numbers of fish each year to irrigated fields. Rankel, p. 39.

(b) Offshore fishing.—Mr. Rankel cites a California Department of Fish and Game report which estimated that 88 percent of the harvest of Klamath-originating chinook salmon was attributable to ocean fisheries. Since so little information is available on the offshore harvest ratios of Klamath Salmon, Rankel estimates that they resemble the ratioes of Columbia River salmon. Columbia River figures show an ocean harvest from 3.6 to over 7 times greater than the harvest of fish from the river, depending on type and origin (upper or lower river) of the salmon. Rankel, p. 35. Ocean fishing, which is regulated by the Pacific Fishery Management Council (made up of representatives from State governments), has been virtually unrestricted until this year, though the season was shortened in some areas.

(c) Logging.-"Logging of the Klamath River drainage has resulted in considerable degradation of stream ecosystems and fish habitat. The degree to which largescale clear cutting operations have altered stream temperatures, sedimentation rates in spawning gravels, nursery habitat and aquatic and terrestrial insect production remains unknown but appears considerable. Visible evidence of past logging in the form of log jams and debris barriers can be observed in many locations. A field inventory of reservation waters conducted by Fish and Wildlife Services biologists in 1977 and 1978 revealed that all drainages have been partially or extensively clearcut and that 22 streams have undergone major or moderate alterations, nearly all as a result of logging operations. Fourteen streams had impassible log jams near their mouths, many resulting from improper logging practices." Rankel, p. 39. The U.S. has the regulatory authority, fish bioligists, engineers, timber and water specialists to halt the depletion of and rehabilitate the fishery. However, federal efforts to maintain the Klamath fishery have been non-existent or wholly inadequate. Fishing restrictions have been placed primarily on Indian people, even though the government is aware that traditional Indian fishing has a negligible impact. If the government is serious about its plans to preserve the Klamath fish resources, it should fulfill its trust responsibility to Indian people by taking affirmative steps to (1) regulate water diversion, (2) regulate ocean fishing, (3) restrict

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timber practices and (4) rehabilitate fish habitat destroyed by its own failure to oversee and control sources of that destruction.

Each of these factors is either under the direct control of the Interior Department or subject to federal regulation for the protection of the watershed or inland fisheries. Federal and state court decisions have made it clear that the government has an obligation to pursue other means of conservation before restricting Indian fishing to protect the resource.

The BIA regulations placed on Indian fishing do not deal with the actual causes of the depletion of the fishery. Indian fishing has a minor impact on the resource. "The Department recognizes that regulation of the Indian fishing will provide only a small degree of protection for this resource," according to the introductory remarks to the 1978 regulations. Federal Register, Vol. 43, No. 135, p. 30048.

Thus, the federal government's practice of ignoring the causes of the decline in the fishery, but expending a massive enforcement effort against Indian fishers, both violate the government's trust responsibility towards those Indian people.

4. Among the various users of the fishery, the tribes have a legal priority to catch fish

As noted above, Indians of the reservation have a reserved right to catch fish on the Klamath and Trinity Rivers. This right is one which non-Indians (whether they be off-shore or sports fishermen) simply do not have. The Indian right to fish is based on the special history of tribes in this country as separate nations, on their aboriginal right to fish (which has never been taken away), and on the federal recognization of this right. The right to fish is as vitally important today as it ever was-and it is consistent with the current federal policy of promoting Indian sovereignty, economic independence and self-determination. (See Report of the American Indian Policy Review Commission.)

State and federal courts agree that where Indian fishing rights are concerned, the tribes are the last users who may be regulated in the interest of conservation. In U.S. v. Washington (1975) 520 F.2d 676, cert. den. 96 S. Ct. 877 (1977), the court hold, at 686: "Direct regulation of treaty Indian fishing in the interests of conservation is permissible only after the state has proved unable to preserve a run by forbidding the catching of fish by other citizens

And, the Court limited the definition of "conservation" to mean the "insuring (of) optimal spawning escapement for perpetuation of the run.' U.S. v. Washington, supra, at 686. Elsewhere in the opinion, the Court stated: "The state may interfere with the Indian's right to fish when necessary to prevent the destruction of a particular run of a particular species in a particular stream. U.S. v. Washington, supra, 685."

In other words, in the event of a decline in the fishery, non-Indian fishing must be the first to be limited, since it is not based on a federal right.

Similarly, the California Court of Appeal held, in Arnett v. 5 Gill Nets (1975) 48 Cal. App. 3d 454, 464, 121 Cal. Rptr. 906, as follows: "Before the state is permitted to make inroads into subsistence fishing by Indians on their own reservation, all other conservation methods should be exhausted."

This limitation on the power of the government to limit Indian fishing in the name of conservation, applies with equal force to federal regulation. The federal government is further limited from cutting back on Indian fishing by its trust responsibility toward Indian tribes. See above.

If this subcommittee wishes to enact conservation measures to preserve the fishery on the Klamath and Trinity Rivers, it must limit itself to restricting non-Indian fishing, such as the offshore commercial fishing, and to regulating the other factors which have caused the decline in the fishery.

5. The tribes have the right to a substantial allocation of the fish

The right to fish has little meaning if insufficient fish are permitted to enter the river. Indian fishing rights were retained by Indian nations and recognized by the U.S. with the understanding that a meaningful opportunity would be provided for the exercise of these rights.

It is well established that when a reservation is created for Indian use and that reservation includes rights in movable resources, such as water or fish, the resources must first be allocated to meet the needs of the Indians for whom the reservation was created. This principle was first acknowledged in regard to water rights. Winters v. U.S. (1907) U.S. 564. This principle has also been applied to the area of Indian fishing rights. In U.S. v. Washington (1974) 384 F. Supp. 312, 342, the court stated as follows: "In Arizona (v. California) the United States Supreme Court held that irrigation water rights reserved by implication in an Indian treaty could only be limited in an amount to the total reasonably required by the needs of the treaty tribe as determined from time to time indefinitely in the future. That holding

cannot be distinguished in principle or application from the fishing rights specifically reserved by the plaintiff tribes and recognized by the United States."

Furthermore, under the trust responsibility, the federal government has an obligation to ensure that Indian people are provided with the opportunity to catch the amount of fish appropriate to their needs.

The Fisheries Management Act (16 U.S.C. 1801) in conjunction with case-law, federal statutes, and regulations, requires a substantial allocation be made to the Indian fishery. Fishery management plans must both describe Indian fishing rights and be consistent with the applicable law protecting those rights, 16 U.S.C. § 1853. Currently, the Indian fishery is restricted in large part because it has not been considered by those who manage offshore fishing.

An allocation should be made which ensures that every Indian family has all the fish necessary to their diet-enough fish to eat fresh in season, and canned or smoked for off-seasons. It should ensure that adequate amounts of fish are available for religious and ceremonial purposes. Finally, it should ensure that enough fish are available to the tribes as a whole, so that they can develop, if they so chose, a viable commercial fishery with employment for tribal members and income for the tribes. 6. The tribes have the power to regulate their own fishing as well as non-Indian fishing on the river

*

The starting point in any analysis of jurisdiction over Indian affairs is that the power to regulate is in the tribe, unless explicitly taken away by Congress. Recently, the Supreme Court held that: "Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory they are "a separate people" possessing "the power of regulating their internal and social relations * *”. U.S. v. Mazurie (1975) 419 U.S. 544, 557; U.S. v. Antelope (1977) 431 U.S. 678, 51 L.Ed.2d 701, 707. Further: "* (The Constitution, as construed by the Supreme Court, recognizes the existence of tribes as quasi-sovereign governing bodies possessing all rights of sovereignty except where restrictions have been placed by the U.S. itself. Iron Crow v. Oglala Sioux Tribe" (8th Cir., 1956) 231 F.2d 89, 92.

*

Since the right to regulate fishing has never been taken away from the tribes by Congress, the Yurok and Hupa tribes have the right to determine the fishing regulations to be imposed on their members as well as on non-Indian fishing on the reservation rivers.

The BIA recognizes that the tribes have the sovereign power to regulate fishing of their own members. The 1978 fishing regulations state that the purpose of the regulations are to protect the fishery "until such time as the tribal government issues of the_reservation have been resolved so that the Indians can regulate themselves." Federal Register, Vol. 43, No. 135, June 13, 1978. In 1977, the fishing regulations stated as one of its purposes to protect the fishery "until such time as the tribe assumes control over those resources. Federal Register, Vol. 42, No. 107, June 3, 1977. Thus, the Department of the Interior recognizes the right of the tribes to regulate their own fishing over tribal members on the reservation.

In the introductory comments to the 1978 regulations, the BIA takes no position on whether the tribes have jurisdiction to regulate non-tribal members' fishing activities. However, the California Court of Appeal, in Donahue v. Justice Court (1971) 15 Cal. App. 3d 557, 93 Cal. Rptr. 310, held that tribes of the reservation have the power to control licensing and fishing by non-Indians who fish in the reservation rivers. This power to regulation non-Indians on the reservation is part of the tribes' sovereign right to control reservation affairs and resources.

Thus, it is clear that the Yurok and Hupa tribes possess the inherent power to regulate the fishing of their own members as well as non-members. This result is consistent with the federal policy of self-determination of Indian nations and of selfsufficiency in the development and use of reservation resources.

7. The Federal Government has demonstrated its inability to regulate Indian fishing in an appropriate manner

Given the fact that Indian fishing has a minimal impact on the fishery, the massive federal effort of 1978 to control Indian fishing would almost be comical-if it weren't so deadly serious.

The method of enforcement during the fall run was shameful. Rather than hire local Indian people to patrol the river, the Fish and Wildlife Service imported dozens of out-of-state enforcement agents to this area. We both know from our monitoring of the enforcement effort that 26 people were arrested during this period-and over one-third of those people were injured by the federal agents. Many of the arrests were illegal and were made for harassment purposes only. Only one of the people arrested went to trial-all other cases either were not charged or were dropped shortly thereafter. Five Indians were arrested on felony charges (conspiracy

to block a road) while standing in their driveway; two men were arrested for resisting arrest when they simply tried to motor boat away from armed federal agents; two men were arrested while fishing at the mouth of the river during the moratorium-a civil violation only.

Agents seized items which they had no authority to seize. A Fish and Wildlife enforcement memorandum dated January 22, 1979, notes that agents seized 3 boats and motors, 7 anchors, 1 oar, 1 bag of personal gear, and 52 packages of roe-none of which may be seized under the civil regulations.

We received numerous complaints from Indian fishers about violence, harassment and racial epithets directed at them by federal agents. We both personally observed this type of conduct from federal agents.

The agents brought with them a SWAT-squad mentality which reflected a fear and hatred of Indian people, rather than a concern for the fish. On one occasion, on a peaceful, sunny afternoon, a young Indian man who had had too much to drink (it was his birthday) stood on the bank of the Klamath River and fired a few shots toward the other side, not seeing the people who were standing there. No one was injured. Federal and local authorities who were notified immediately jumped to the conclusion that a sniper was at work. In the process of arresting him, a Del Noret County Sheriff's deputy fired into a fishing camp where a dozen other Indian people were standing-without first firing a warning shot, calling out, or in any way giving them notice that he was there. Federal agents assisted in this law enforcement effort. They easily could have killed someone.

The regulations themselves have little support in the Indian community. They were adopted with virtually no consultation with, or notice to, Indian fishers. Many Indians charged with violations had no idea they were fishing in violation of the regulations, or of the in-season adjustments. A number of Indian people face trials today for the simple problem of oversleeping, and thus being unable to get their nets out of the water by 6:00 a.m. The requirement that Indian fishers obtain identification cards is objectionable to many Indian people. For Indian people who have fished the river for years, requiring them to prove to armed federal agents that they have the right to fish is an insult.

Making the regulations criminal for 1979 was a step in the wrong direction. For the federal government to desire to lock up Indian people who don't have a number on their net, while ignoring the massive damage to the spawning beds by Simpson Timber Company, for example, is a misplacement of priorities of the highest order. The resources being poured into this enforcement effort would be better spent by ignoring Indian fishing and instead by addressing the real causes of the decline in the fishery. Indian people can regulate themselves; the federal government should be regulating off-shore fishing, logging practices, and water diversion.

8. Recommendations

(a) The federal government should join in the lawsuit against Simpson Timber's logging practices.

(b) Allocate funds to clean up spawning grounds.

(c) Ensure appropriate water levels in the Klamath and Trinity Rivers.

(d) Halt all plans for future dams which might affect the fishery adversely. (e) Limit off-shore fishing.

(f) Insure substantial allocation of fish for Indian purposes.

(g) Turn over regulation of all Indian fishing and non-Indian sport fishing to the tribes.

(h) Provide the tribes with adequate funding for enforcement, enhancement, and further scientific studies.

(i) Continue to conduct scientific research.

Thank you for your consideration of this statement.

Very truly yours,

CAROL STRICKMAN.

PAUL CONTOLELLA.

STATEMENT OF ALTA M. ROGERS AN INDIAN OF THE HOOPA VALLEY INDIAN

RESERVATION

We appreciate the opportunity to offer testimony to help seek possible working solutions to the abuse of the fish stocks in the Klamath and Trinity Rivers. It is common knowledge among the Indian people of the Hoopa Valley Indian Reservation of how and why the fishery is abused. The Bureau of Indian Affairs. has gone to great lenghts to coerce the Jessie Short plaintiffs to submit to a tribal organization. The BIA has not hesitated to sacrifice the fish stocks in order to achieve their goal. They have layed heavy emphasis of the need for a tribal organization to help