Mr. BUTERBAUGH. Yes, sir. Those are correct. Mr. MCCLOSKEY. What about the offshore trolling? What would the Pacific Fisheries Council have permitted last year? Mr. BUTERBAUGH. We don't have the information on that. One problem you have is you can't separate the Klamath stock from the Sacramento. All the stocks are mixed together out in the ocean and it is very difficult to separate them out, if not impossible. Mr. MCCLOSKEY. But these fish from the Klamath and Sacramento Rivers don't get together until some miles out at sea, do they? Mr. BUTERBAUGH. Well, you probably should address this question to Mr. Leitzell. They mix fairly close in shore and I think probably from 3 miles out on they are already mixing. Some of the landing in the Klamath area obviously show the impact on Klamath run. There is a great deal of mixing further out. It is not that easy to separate. Mr. MCCLOSKEY. Let me take your figures for 1979. The 12,000 subsistence would still be allowed. Mr. BUTERBAUGH. That's a very rough estimate of what we feel has taken place in the past. Mr. MCCLOSKEY. The two-fish limit on sport fishing would be roughly 8,000 fish, the same as permitted last year? Mr. BUTERBAUGH. Right. Mr. MCCLOSKEY. So there is 20,000. But you have cut out the additional 15,000 commercial take, so that you have essentially cut the river fishing by 40 percent? Mr. BUTERBAUGH. Correct. Mr. MCCLOSKEY. And your request to the Department of Commerce was that they cut 25 percent in ocean fishing? Mr. BUTERBAUGH. That is right; that is the level we feel is necessary to get the escapement of approximately 100,000 fish. Mr. MCCLOSKEY. They have agreed to a 15-percent cutback thus far? Mr. BUTERBAUGH. Well, I am not sure; the State of California would say that they feel that the restrictions that have been imposed may get us 20 to 25 percent, so there is a disagreement on how effective the regulations that are presently in effect will be. Mr. CLAUSEN. I understand that your original escapement objective was for 115,000 per season and are you saying now that you are cutting back to 100,000 as an acceptable escapement figure? Mr. BUTERBAUGH. The rough estimates have always been between 100,000, 125,000 fish. We don't have the statistics historically on the Klamath system to have a good solid basis or good solid figures on what we need for escapement, somewhere in the vicinity of 100,000 to 125,000 fish. Mr. CLAUSEN. As I see it, essentially the key element in all of this is the adequacy of the escapement to sustain the resources. Mr. BUTERBAUGH. Correct. Mr. BONKER. To clarify the historical pattern for restrictions on outside fishermen, I think it's appropriate to note that in 1977 there was a reduction of 30 to 35 percent on outside fishing, then in 1975, another reduction of 20 to 25 percent, then in 1979, 15 percent. So I think one has to see this in historical perspective as well. Mr. MCCLOSKEY. I have further questions but I think I have probably exceeded my 5 minutes. Mr. BREAUX. I will recognize the gentleman from Washington, Mr. Bonker, for any questions he may have. Mr. BONKER. I have no additional questions. I appreciate the gentleman from California yielding on several occasions and I want to thank Mr. Gerard for his appearance here this morning. We have unique fishing problems in our areas with which he is familiar. I would like to save my questions for the Department of Commerce witnesses. Mr. BREAUX. Let me get to Mr. Davis. Do you have any questions? Mr. DAVIS. No. Mr. BREAUX. Mr. Clausen? Mr. CLAUSEN. No; I think you covered most of them. I want to submit some questions, Mr. Chairman, after the testimony is finished and we have had a chance to review it. Could you state for the record what the migration run is from these various rivers, how far seaward beyond the 200-mile limit does the fish run extend throughout its migration pattern? Mr. BUTERBAUGH. I believe you should ask for that information from the Department of Commerce. It it's available they should provide that. We don't have the information. Mr. CLAUSEN. I think it would be helpful so we have a measure of the parameter that we are dealing with when we talk about managing this resource. We will get it from them or from you. Mr. BREAUX. Thank you. Mr. McCloskey. Mr. MCCLOSKEY. Mr. Secretary, when this committee met last year we all agreed and you agreed that Indian subsistence fishing on the Klamath should have priority over both sports fishing and commercial fishing. Last week in the Alaska lands bill, one of the great provisions of the so-called Breaux-Dingell bill, and amendment which was inIcluded by to the Anderson-Udall bill, was a strict limitation of what is subsistence fishing. In the Alaskan bill, and I want to read you the language, the term subsistence use means the customary and traditional use by rural Alaska residents of wild renewable resources for direct personal or family use or consumption as food, shelter, food, clothing, tools, or transportation, making and selling handicraft articles out of nonedible byproducts, taking for personal or family consumption, for barter, or sharing for personal or family consumption, or for customary noncommercial trade. Would you agree that that is the proper definition for subsistence fishing on the Klamath as contended by the Bureau of Indian Affairs? Mr. GERARD. Mr. Chairman, I would neither agree nor disagree with that on the Klamath namely because I have not had an opportunity to review that in relation to the needs on that river. Mr. MCCLOSKEY. Well, the point that I particularly want to try to define is whether or not a Yurok fishing on the lower Klamath and living on the reservation would be entitled for subsistence purposes to sell fish he had caught in order to maintain the standard of living on that reservation that he chose to maintain? Could he sell any fish and still fit within the subsistence definition as you are enforing your regulations this year? Mr. GERARD. The commercial sales that we envisioned were the large quantities that you and I have discussed in the past, they have gone as far away as the State of Oregon, the larger producers in your own State. However, it would seem to me that if occasional sale permitted that resident of the reservation to maintain some modicum of economic stability, that a sale in those circumstances ought to be justified as contrasted to the large commercial sales. Mr. MCCLOSKEY. Again, I am going back to this bad record of convictions, I wonder how you would determine when an Indian had exceeded the reasonable limits of subsistence, and whether he is allowed to sell any fish at all. I understand the Alaska situation and in the dialogue on that debate we conceded if an Alaskan native in his own Native village sold fish that he had caught or furs that he had trapped in order to have fuel oil, in order to have food, or for some other article of subsistence in Alaska, that would be permitted. But it's more difficult, it seems to me, for an Indian living a few miles away from Eureka on the Klamath River to argue to an Indian jury that if his subsistence taking permits him to sell, say, $5,000 worth of fish, how do you then determine when it becomes commercial rather than subsistence? Mr. BREAUX. Would you yield? Mr. MCCLOSKEY. Yes. Mr. BREAUX. I am not arguing the merits, if I could have the attention of the Assistant Secretary, the latest regulation and the regulations of BIA are very explicit in detail when they say when defined consumptive or subsistence fishing means the taking of fish to be eaten by Indians on the reservation, or the immediate family, I would take it that regulation prohibits any selling of fish, even if the profits would be used to buy food and supplies for his family. Perhaps the definition has changed, but I think it's very clear that the regulations of March 1979, which were the final regulations, would prohibit any selling of salmon. Mr. GERARD. I am prepared to review that and modify my statement. Mr. BREAUX. If after the review it says what I just read, that would preclude any selling of any salmon. The regulations state that subsistence is taking of fish to be either by Indians of the reservation or their immediate families. Mr. GERARD. I would stand corrected that no sales of any kind. are allowed under the departmental regulations. The tribes may later find new ways to define subsistence according to their traditions, and I think this is an area that given the recent efforts to regulate the river is an area that we are going to have to pay additional attention to. Mr. BREAUX. I thank the gentleman. Mr. McCloskey? Mr. MCCLOSKEY. I thank the Chairman for making that point clear because the regulations in effect are stricter than what I think you, Mr. Gerard, would say would be traditional subsistence fishing rights of the Indians along the Klamath River. Mr. GERARD. Given the adverse economic conditions in the area and limited opportunities for livelihood, I think we all agree that in the past there have been occasional sales by even subsistence fishers. Mr. MCCLOSKEY. In any event, these regulations were proposed to both to the Hoopa and Yuroks before they were finalized in the Federal Register. You had input from the Indians before adopting this definition of subsistence? Mr. GERARD. That is right. Mr. MCCLOSKEY. Is that definition of subsistence in your judgment acceptable to the Hoopa Tribe? Mr. GERARD. Mr. Chairman, Mr. McCloskey, I have not discussed that specific definition with the Hoopa Tribe. Mr. MCCLOSKEY. When these regulations were first published and then became formalized, is there any record of what attitude was expressed by first, the Hoopa, second, the Yuroks, third, the various factions of the Yurok Indians, on that definition of subsistence? Mr. GERARD. We have Mr. Finale, the Bureau Director, with us today who has been involved in a lot of local meetings. With the committee's permission, I would like to ask he be given an opportunity to respond. Mr. MCCLOSKEY. I would welcome that. I think we ought to clear this point before we go out to the Klamath, as to whether the Indians themselves accepted this definition of subsistence during the moratorium period. Mr. FINALE. Mr. Chairman, there were public hearings held on the extension on the square also in Eureka, and the Indians did have an opportunity to express themselves specifically on the language that is written in the regulations. We had greater response from the Yuroks than we did have from the Hoopas, for the simple reason that the Hoopa Tribe has maintained a position of opposing the regulations because of tribal sovereignty. Mr. MCCLOSKEY. Say that again. Mr. FINALE. Well, the Hoopa Tribe maintains that they don't have to follow the regulations because of tribal sovereignty. In other words, they wish to control fishing regulations within the square based upon the tribal ordinance. Mr. MCCLOSKEY. Mr. Finale, the subsistence or commercial taking of fish isn't a problem with the Hoopa Tribe though, is it? Mr. FINALE. No; it is not. Mr. MCCLOSKEY. So they may object to the regulations but they are in effect abiding by them, I take it? Mr. FINALE. That is correct. Mr. MCCLOSKEY. And the real problem with your commercial and subsistence taking is below the Hoopa square, in any event, is it not? Mr. FINALE. That is correct. Mr. MCCLOSKEY. What about the various factions of Yuroks, did they accept this definition of subsistence? Mr. FINALE. I would have to say yes, they did. Mr. MCCLOSKEY. They did. Does that include those who had commercially fished in 1978, Mr. Lara and the group he represents? Mr. FINALE. Yes; it did. There were meetings with that group specifically, also. Mr. MCCLOSKEY. Do you have any comments to add on this rather dismal record of Indian injury convictions? Mr. FINALE. The only thing I could add is that the Indian community in the last year, when the regulations were published, didn't feel the need for them and there was strong opposition to the Department's taking the initiative. So overall if you say it has been a dismal record, I would have to perhaps disagree with that. Taking into consideration the attitude of the Indian community toward the regulations, the fact that we have gotten that many convictions I think is a tribute to the Indian community realizing that they have to participate in enforcing those regulations. Mr. MCCLOSKEY. What about ceremonial fishing: Do you have a definition of ceremonial fishing; is there agreement between the Indians and the Bureau of Indian Affairs? Mr. FINALE. No specific definition. We are aware of the fact that up and down that River, during certain times of the year, there are ceremonials undertaken. For example, very recently the tribal chairman has informed me of ceremonies on the square as a kind of advanced information stating they will take fish presumably to feed the people who participate in the ceremony. Mr. MCCLOSKEY. How many fish do they need for ceremony purposes, in your estimation? Mr. FINALE. I could not answer that. Mr. MCCLOSKEY. Can anybody? Mr. FINALE. The tribal chairman is here; maybe he could answer that. Mr. MCCLOSKEY. We will ask him later. Let me go to the final question. Mr. Secretary, you had a policy change last year to the effect that the Bureau of Indian Affairs would commence to assist the Yuroks to organize into a tribal council. Can you state for the record what you have done and what the current status of those efforts to organize the Yurok Tribe are? Mr. GERARD. Mr. Chairman, I think it would be useful to insert for the record my message to the Hoopa-Yurok people dated November 20, 1978, which announces our intention to begin working with the Yurok organization. Mr. BREAUX. Without objection that will be made a part of our record. [The information follows:] A Message U.S. DEPARTMENT OF THE INTERIOR, To: The Hoopa and Yurok People of the Hoopa Valley Indian Reservation. The purpose of this message is to indicate to you, the Hoopa and Yurok people, a course of action which I propose to take in order to resolve the dispute over the use 50-664 0 - 79 - 3 |