[env-trinity] Hoopa’s Commercial Fishing Controversy Continues

[Tom Stokely]

Hoopa’s Commercial Fishing Controversy Continues
http://www.tworiverstribune.com/2011/04/hoopas-commercial-fishing-controversy-continues/ 
By Kay Heitkamp / Two Rivers Tribune


Hoopa Tribal Council Vice-Chairman, Byron Nelson Jr., is speaking out about a controversy that continues to escalate – should commercial fishing be allowed? Is it or is it not legal?

“It just seems to me the tribal membership is not that well informed about everything that’s been going on,” said Nelson. “I’m coming to the newspaper – it’s one of the best ways for that to happen. Facebook too – you can read the discussions that are going on between tribal members. So many of them are totally in the dark. They’re frustrated and angry.”


Hoopa Valley Tribal Council Vice-Chairman, Byron Nelson Jr. / Photo courtesy of B. Nelson.

Nelson feels that speaking out may be a way to bring some transparency to recent events.

“That’s why I’m speaking out – because of what happened in Tribal Council chambers earlier this week,” he said. “We had a meeting on March 28, a working session. Everyone was there. I don’t consider a working session to be a closed session, although I guess some members do.”

Council members brought up the whole issue of the commercial fishing controversy. The Tribal Council called long-time tribal attorney, Tom Schlosser, for a conference call to give his opinion.

Schlosser gave his legal opinion that portions of Title 16, the Fishing Ordinance codified in the Hoopa Valley Tribal Code, adopted in 1976 and amended in 1986 that banned the sale of any fishery resource according to Section 11(a) no longer apply.

His interpretation is that this is because the 1989 Commercial Fishing Referendum Measure that does allow commercial fishing supersedes Title 16 and does allow the taking of fish for subsistence, ceremonies, or commercial sales.

According to several dictionaries, supersede means to replace, take the place of, set aside, overrule, annul, or repeal.

The attorney based his interpretation on his belief that the 1989 referendum has two parts that operate separately. It is his opinion that one part is the question whether the ban on commercial fishing should be discontinued. The second part asks whether the Tribal Council should develop an ordinance to regulate a commercial fishery on the Hoopa Valley Reservation. Schlosser said approval of the referendum discontinued the prohibition on commercial fishing whether or not the council formulates an ordinance.

Nelson was on the tribal council when the referendum was developed.

“The whole idea behind the referendum was the tribal government would set it up so the entire tribal community would share. The title of the referendum clearly stated, tribally operated commercial fishery,” Nelson said. “That would have prevented individuals from going out and profiting. That’s what the people thought they were voting for.”

The referendum passed. Voter turnout was poor – the vote was 152 – 100.

Schlosser countered by saying that maybe the specific wording contained in the actual referendum wasn’t on the ballot, but it was in the text – legalese, according to Nelson, that the community would not necessarily have had access to.

Schlosser also said Hoopa’s constitution provides for continuous operation (if there is no mention of a specific time frame) of rules and regulations – in this case, the 1989 referendum.

This raises another question. “Why, in 1991, did the council authorize a special seasonal regulation to allow a commercial fishery for fall Chinook for just a three-month period?” asked Nelson. “Why did the council need to create a special provision to open up, just for one season, a commercial fishery if the 1989 referendum allowing commercial fishing was continuous?”

When asked if he knew who called Schlosser to give his interpretation during the meeting, Nelson said, if he had to guess, the person who’s been in touch with the attorney most frequently for the last 20 years, sometimes on a daily basis – the Self-Governance Coordinator, Danny Jordan.

“He’s the person who has the most to gain from Schlosser’s interpretation that Title 16 is superseded by the 1989 referendum,” said Nelson.

At the special Tribal Council meeting held later in the afternoon, Nelson made a motion that until such time a clear and concise fishing ordinance is agreed upon and adopted by the tribal council, a moratorium should be placed on commercial fishing on the Hoopa Valley Indian Reservation.

“I feel the whole process is moving along so quickly that people aren’t getting the chance to speak out or learn what’s been going on,” said Nelson. “The Fish Commission already held it’s last public meeting. That’s why we need a moratorium to give the council, the commission and the community the time to sort everything out and see how we want to manage our fish resource.”

The vote went around the table. Marcellene Norton, Byron Nelson, and Oscar Billings voted for the moratorium. Ryan Jackson, Leroy Jackson, and Joe LeMieux voted against it.

“The tie was broken by Chairman Masten who voted against the moratorium,” said Nelson. “This is the first time the council has had to say where each member stands on commercial fishing.”

Nelson had a feeling his request wouldn’t pass, but he wanted to get it on record. The chairman asked if he wanted the vote to be held in closed executive session and he said, “No,” because he knew it could be killed and could just disappear. He wanted it on record in open session.

Before the Tribal Council meeting was over, the council insisted that Schlosser put in writing what he talked about during the conference call. The attorney sent a memorandum via electronic mail on the firm’s letterhead. Nelson feels that the council had Schlosser give his interpretation to cover all the bases.

After speaking out about what went on at the meeting, the vice-chairman said the 1989 referendum called for an ordinance to be developed to manage commercial fishing. However, there are no such ordinances. Nelson said over the years, separate ordinances have been passed for different resources, but there is not an ordinance in support of commercial fishing.

“It all needs to be pulled together,” said Nelson. “That’s what I’ve been advocating. It’s our codes and ordinances and even our constitution that need to be brought into modern times in terms of being able to run a tribal government effectively.”

Nelson thinks sentiments have changed in the years since the referendum. He feels it should go back to the people to decided whether they want commercial fishing or not.

“There’s nothing wrong with doing that. That’s what we should do – revisit it. I think the vote would go against allowing commercial fishing,” said Nelson.

“There seems to be a lot of sentiment out there against commercial fishing and there are some good reasons for that,” Nelson said. “One is cultural tradition – fishing is tied to our dances.”

He talked about the direct connections between fisheries and the dances.

“When you dance, you pray for abundance. I do that myself when I dance,” Nelson said. “How can you justify exploitation of our source of food when you pray for an abundance? Praying for an abundance, yet allowing a few individuals to make a lot of money from that abundance – that’s sacrilegious.”

The vice-chairman said this is what keeps coming to his mind. He is adamant in his belief that sales to outside interests will take precedence over cultural and tribal interests.

“This capitalistic approach is not what our culture is about,” Nelson said. “I really feel that we as a tribe have been fighting, trying to retain our culture, ever since non-Indians came to this valley, and we’ve done a good job. We still retain our dances, our morality. Some basic old thoughts have kept things together. I think we have to fight even harder now to try to retain our cultural integrity by including our rights and traditions in our laws.”

He feels the tribe needs to develop a resource management ordinance that covers all resources including fish, acorns, mushrooms, and timber because everything the tribe has is a resource.

The Fish Commission is responsible for making recommendations to the Tribal Council which, in turn, is responsible for creating an ordinance to enforce the tribally-operated commercial fishery referred to in the 1989 referendum and submitting it through the LPA process. .

Nelson’s opinion is that some council members are making it really hard for the Fish Commission to continue their work. He said after a great deal of effort, the commission printed surveys to find out from tribal community members what they want in a commercial fishing ordinance. Evidently, the chairman has questioned the money needed for postage to send them out and the surveys are still just setting there.

“A certain few tribal members already have it in their mind they want commercial fishing for individuals,” said Nelson. “Most people don’t realize just how much money is involved. In the gorge, an individual can easily catch 100 salmon a night.

He did the math. At an average weight of 20 pounds per fish selling at $3 a pound in Eureka or $6 a pound if you drive on up the coast – that’s either $6,000 or $12,000 a night.

Nelson said the people who want commercial fishing keep saying if we don’t use the tribal allocation of about 7,000 fish, they’ll be given to other tribes. He says it’s a scare tactic.

The vice-chairman said, “If there’s any chance of losing our fishing rights because we don’t take the allocation, then I say take it and get the salmon back into our traditional diets. We’ve had fish in our diets for thousands of years and it’s ingrained into our physical makeup. That’s who we are as a people. It’s healthy food.”

Nelson went on to say he thinks the tribe should develop a system to reintroduce fish back into peoples’ lives.

“The system should be part of an ordinance that covers ways to distribute fish to the community so we can provide for our elders and bring fish into the schools for our kids. We could even have a tribal smokehouse. There’s ways to use the allocation for all the tribe collectively rather than selling it for top dollar to the outside so plush restaurants benefit from our resource.”

Nelson said towards the end of the meeting, a request was made for a motion to adjourn. He spoke up and said before adjourning, there was one more thing he wanted to say.

“I believe our attorneys are tainted over this fishing issue and that they’ve been tainted by key persons within our own tribal government.”

Now that the 1989 referendum is law, the tribal council needs to draft a commercial fishing ordinance. Then it will have to go through the lengthy LPA process. Delays in the process of developing an ordinance will benefit those who can continue to exploit commercial fishing for their own gain.

“People stand to make a great deal of money, especially during the fall. The ones who benefit from no regulations are the ones who are profiteering,” said Nelson. “The potential for trouble is possible, even probable. That can lead to violence, more than we’ve had in the past..

Asked if there’s any recourse to Schlosser’s action, Nelson said a group of tribal members are trying to get a measure on the ballot for the June election.

“It’s a lot of work – they’ll need hundreds of signatures in a short length of time,” said Nelson. “It’s too late for the spring run, but a vote to support a ban on commercial fishing in June could save the fall run from exploitation. It would be close.”

Another option would be for a tribal member to take the issue to court.

According to Nelson, the tribe has many well-educated, intelligent members who don’t agree with allowing commercial fishing. A lawsuit could be filed by a tribal member whose standing to bring a lawsuit could be a claim that he is being injured by the profiteering of a few individuals who are taking and using a tribal resource for their own use.

“If that happens, the court could issue an order to prevent fishing until the case is decided,” said Nelson. “If this goes to court, I think Schlosser’s opinion is flawed and he would be ruled against. Having been a judge, I don’t think some of his interpretations would stand up in court because his assumptions are too vague.”

“If the majority of tribal members want it, I would be for tribally-operated commercial fishing, even though my own personal feeling is when you pray for the salmon and then allow for a profit to be made from them – it seems hypocritical,” said Nelson.

Attempts to contact opposing Hoopa Tribal Council members were not successful, as there were no responses before press time.

Watch for follow-up and continuing coverage in future issues of the Two Rivers Tribune.

###
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://www2.dcn.org/pipermail/env-trinity/attachments/20110420/9b366809/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: 1714byronnelsonjr.jpg
Type: image/jpeg
Size: 20462 bytes
Desc: not available
URL: <http://www2.dcn.org/pipermail/env-trinity/attachments/20110420/9b366809/attachment.jpg>