Sandy River smelt case

“Until the lion tells his side of the story, the tale of the hunt will always glorify the hunter.”

-African proverb

 

White Swan, Washington is probably the most tribally dense part of the Yakama Reservation.  It was the home of both my parents, grandparents, great-grandparents and so on.  Even though I've lived in nearly all four corners of this country, I've always made it back "home".  When you don't live in any one place for longer than 5-7 years, "home" is a flexible concept.  The Yakama Reservation was my home and I never knew what any of the names of the towns meant (i.e. Wapato, Toppenish). Little did I know that the derivation of White Swan would have such significance in my adulthood. 

In 2013, my friend Patrick Luke, Yakama, Pacific lamprey biologist at the time, was ticketed by Oregon State Police for taking “eels” (as call Pacific lamprey) out of state season at Willamette Falls, located south of Portland, Oregonour annual first foods feasts.  The Yakama Nation has over 17 different ceremonial “churches”; the most of any of the Columbia River Tribes.  In the process of citing Patrick, the state removed all of the fish and laid them out on the hot pavement to essentially rot and record as evidence against Patrick and the other fishermen. 

Patrick wanted to fight this case.  The state had produced a historical report that attempted to show that Yakama people had absolutely no right to fish in this area.  He asked that I review the report and give him my thoughts.  I raked over the report for two weeks during and after work, fact-checking, and looking for holes in the arguments made by the author.  You could strain pasta through the holes in this report. Patrick wasn’t getting the help he felt was needed to combat this report.  Fisheries staff in charge of helping fishers had always felt that the Yakama Nation needed a “professional” report to support fishing in usual and accustomed areas.  Yet, no one seemed to be helping Patrick’s case in this way.  I had spent most of my time at work writing about people and places significant to the Yakama Nation and this would be no different than what I usually work on.   I got to work.  For the next 6 months, I unofficially began a report that would eventually become a two-year obsession.  Patrick's case was eventually dropped because Oregon Department of Justice missed the statute of limitations required to take this case to a higher court and give the Yakama Nation a shot to the back of the ear in terms of fishing at Willamette.  It's never been clear to me why the ODOJ worked so hard against the Yakama Nation when Yakama tribal fishers had been fishing there for thousands of years.  I am still looking for answers to that quandary.  

After Patrick’s case was dismissed, I had the foundation of a report and still continued to conduct research on my own time to identify all usual and accustomed areas below Bonneville Dam.  In February 2014, my research would gain new focus.  A young Yakama fisher was cited taking smelt near the mouth of the Sandy River outside the state season.  The state season allows for weekend fishing only and he fished on a Wednesday.  Again, these fish were taken ceremonially as we have always done.  An interesting thing about smelt is that they migrate in the late winter months up to the Columbia River and fill its tributaries up to Sandy River.  They are very temperamental fish which are very sensitive to chemistry and conditions of the water.  Unlike salmon, they don’t always return to a specific tributary.  They migrate up the tributary that comes first and the run spills over into the next tributaries.  Sandy River is the last tributary utilized.  Most of the time there aren’t enough smelt in a given run and won’t appear in the Sandy for years, perhaps even decades.  The best fishing is the Cowlitz River, Washington State, which is the lowest Columbia River tributary and even then there aren't nearly the runs they used to be.   Yet, despite their scarcity, they remain a sacred food to Yakama people.

Thaleichthys pacificus aka Smelt

Almost immediately, another report was submitted into discovery by the ODOJ.  This report was produced by another author.  It was better written but still contained slanted arguments against the Yakama rights by reinterpreting existing historical sources, case law, and Treaty law to suit the state's argument.  The report was primarily consistent of written, historical sources.  No linguistic work or tribal oral history interviews were conducted for this report.  The author concluded that because there was no written historical account of Yakama people fishing on the Sandy, the Yakama had no rights on the Sandy River.  Challenge accepted. 

I spent the next year addressing the report and producing primary research in support of our case.  This included identifying any and all Yakama place names, reviewing primary sources, sifting through secondary sources, visiting archives available to me with absolutely no budget or research assistant, conducting oral history interviews, thumbing court documents and land records.  Mostly I found that, yes, there is not one account of a Yakama fishing on the Sandy.  Yet, there are no accounts of any humans fishing the Sandy River.  Thus, it was concluded based on the author’s testimony in March 2013, that no Tribe fished the Sandy, therefore no Tribe had a right to the Sandy.  This came to the dismay of one tribe who sat on the side of the ODOJ throughout the case.  This has begged the question: Is the absence of proof, proof of absence in this case? 

The answer should be no, if one follows existing Treaty-law, understands the oral history of the Yakama Nation, has a comprehension of Yakama tribal subsistence strategies, provides an extensive list of significant Yakamas who were in the area, and can show a continuous complex of Yakama place names along the entire lower stretch of the Columbia River. The judge disagreed.  He compared the testimony of our Yakama Tribal elder to a Louis L’amour romance novel, likened Yakama oral history to make- believe, and relied heavily upon the face value of the lack of one single account of a Yakama fishing on the Sandy.  His decision flew in the face of linguistic, ethnographic, and judicial precedence.  That just because Yakama people lived across the Columbia at Washougal, WA, had canoes, and ate smelt traditionally, doesn’t mean that they cross the river to fish on the Sandy River confluence for smelt.  That just because it has been widely known that Yakamas have fished for smelt on the Cowlitz River (geographically further), doesn’t mean that they fished for smelt on the Sandy River.  And even though Yakamas intermarried with Tribes in that area, the Yakama were only “shirt-tail relatives” and had no inherent right to fish at the Sandy. 

Chief White Swan

Chief White Swan, aka Joe Stwyre (Klickitat)

In my research, one person stuck out to me the most: Chief White Swan, aka Joe Stwyre.  Chief White Swan was the Klickitat band who lived near Vancouver, WA at the time the Yakama Treaty of 1855 was signed.  As a boy, like Yakama boys do, he went out on a vision quest from which he nearly died.  In a near-death state, he fell into a lake from which he was brought back to life by the song of Swans who were swimming in the lake.  From then on he was known as White Swan and this body of water was Vancouver Lake.  Chief White Swan would become one of the principal chiefs of the Vancouver Klickitat, who were removed to the White Salmon Reservation in 1856 after the commencement of the Yakama Wars.  Isaac I. Stevens promised the Vancouver Klickitat a treaty the following year and recognized that they controlled this area.  Isaac I. Stevens never followed through on his word to extinguish the land title of the Vancouver Klickitat which was known to go deep into the Umpqua Valley.  Two court case decisions in the Willamette Valley support the existence of the Vancouver Klickitat land title.    

Chief White Swan would go on to serve as the second principal chief of the Yakama after Chief Spencer in 1868.  Later, he was a lead plaintiff in the most significant fishing cases in history known as the US. v. Winans.  His testimony was key to the success of the Supreme Court decision that established what is known as the “reserved rights doctrine” which Judge McKenna stated

“Treaty between the United States and the Indians... is not a grant of rights to the Indians, but a grant of rights from them—a reservation of those granted”. 

Furthermore, it was determined that

“[a]t the treaty council the United States negotiators promised, and the Indians understood, that the Yakamas would forever be able to continue the same off-reservation food gathering and fishing practices as to time, place, method, species and extent as they had or were exercising.”

The one connection between the Vancouver Klickitat and the most significant fishing cases in US history that helped determine all subsequent fishing cases is but one small-statured man known as Chief White Swan from which a tiny town on the Yakama Reservation derives its name.

Since the Sandy River case, more stories of significant people have made themselves available to me at the most random moments.  Each of them sort of jumps out wanting to be noticed and shared.  For what reason, I am not certain, but the story of the Vancouver Klickitat and people like White Swan is worth telling.  It is the only way I can think to honor a relatively untold, unappreciated part of history.  After all, Yakamas were described by the ODOJ's lead witness, and author of the State's report, in the Sandy River case as "opportunists" who took advantage of the disease ridden tribes in the Willamette Valley for their own benefit.

That story sounds familiar.

Everything I have shared with you is now part of public record and does not reflect the opinions of the Yakama Nation. 

 

 

 Click on link to view report or copy and past url to your browser to view report that was submitted into finding for the case.  

 

https://cdn.shopify.com/s/files/1/1771/8023/files/Final_Sandy_River_report_packet_for_submittal.pdf?18193994023155548655

 


2 comments

  • Jon, I went to school with your mom and dad, from 1st grade on. I just wanted to tell you how proud and glad I am that there is someone who cares about the history of the Yakamas. You are extremely well spoken and a fantastic writer, and your parents should be proud.

    Becky Teegarden Hogg
  • Hi, interesting report, well written and well done. Can you direct me to a copy of the ODOj report you reference. I have a feeling I know the origin and probably the author. thanks

    David Lewis

Leave a comment

Please note, comments must be approved before they are published