and Karina Brown
At Friday’s meeting of the Oregon Department of Fish and Wildlife, not an empty seat could be found. Members of tribes in Oregon, Washington and Idaho filled the 150 chairs set out at the department headquarters in Salem. Dozens more crowded around the edges of the room.
The item at hand was a proposed agreement allowing the Confederated Tribes of Grand Ronde to issue its own hunting and fishing licenses to tribal members for subsistence and ceremonial harvest only – an agreement similar to those the state agency has already approved with four other tribes in Oregon.
The seven-hour meeting included testimony from dozens of members of five tribal nations. The commission, which has no Indigenous members, voted four-to-three to approve Grand Ronde’s historic agreement.
One side of the room erupted in celebration. For Grand Ronde, the decision was a step toward righting a major historical wrong.
“This agreement, I believe, is an important step forward, beyond some of the dark history the state of Oregon holds,” said Kathleen George, a member of Grand Ronde’s tribal council.
Grand Ronde members exchanged hugs, many with tears of joy streaming down their faces. Dancing and drumming filled the dimly lit state meeting room.
“It’s a good night,” Grand Ronde Chairwoman Cheryle Kennedy said, wiping tears from her eyes just after the decision was announced.
Members of other tribes there, including Warm Springs Chairman Jonathan W. Smith, saw it differently.
“It’s clear this agreement would impact our rights on the Willamette and lower Columbia, and they were not considered by ODFW in their decision,” Smith said. “We’re evaluating our legal options.”
Ultimately, the agreement could spark a federal lawsuit. The conflict taps into more than 150 years of historical injustices perpetrated by state and federal governments' handling of treaty rights. And critics of the decision Friday say it also reveals modern-day ignorance about how sovereign Indigenous nations govern themselves.
‘The elephant in the room’
After hours of conflicting testimony, Oregon's commissioners urged their own staff and tribal leaders to find a compromise over what Commissioner Leslie King called "the elephant in the room.”
Willamette Falls.
Umatilla, Warm Springs, Yakama and Nez Perce all have treaty rights to fish at their “usual and accustomed places,” which they say includes Willamette Falls.
But Grand Ronde, and ODFW Director Curt Melcher, say the opposite. That Umatilla, Warm Springs, Yakama and Nez Perce do not have treaty rights at the falls, or anywhere on the Columbia River downstream of Bonneville Dam.
To avoid inflaming this dispute, representatives for Umatilla, Warm Springs, Yakama and Nez Perce have requested — through letters and public testimony — revisions to Grand Ronde’s agreement with ODFW that would exclude Willamette Falls altogether.
“We suggest this revision because [Grand Ronde] disputes the existence of treaty-reserved rights at locations in these units, and we have had conflicts in the past,” N. Kathryn Brigham, chair of the Umatilla board of trustees, wrote in a July 18 letter.
A compromise was not possible in the one-hour time period provided by ODFW commissioners, in part because the governing structure of the tribes involved requires leaders present at Friday’s meeting to discuss the matter with their tribal councils before publicly advocating for a new position.
“The chair and commissioners do not understand the treaty tribes and how they operate,” Jeremy Takala, Yakama Nation tribal councilman and vice chair of Columbia River Inter-Tribal Fish Commission, told Underscore News after the meeting.
When it came time to vote, some ODFW commissioners seemed unclear about what they were voting on, with questions about an option to delay a vote to allow further consultation. Two of three who voted not to approve the agreement advocated for more time to confer between tribes.
“If we make this decision right now, and we just pick winners and losers, we are stepping out of what I believe is our role. I don’t believe that’s what we should do,” said ODFW Commissioner Becky Hatfield-Hyde, who voted against approving the agreement. “I absolutely want the Grand Ronde tribe to have a co-management agreement with the state of Oregon, and I want more alignment with the rest of the tribes when that happens.”
But the commission voted to approve the agreement as-is, without building consensus among tribes.
Grand Ronde joins four other tribes who operate under such agreements — The Confederated Tribes of Siletz Indians, the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians, Cow Creek Band of Umpqua Tribe of Indians and the Coquille Indian Tribe.
‘We were held hostage’
The fundamental issue – disagreement about the rights of multiple tribes at Willamette Falls – is informed not only by tribes’ own individual and shared histories, but also by the limitations and concessions forced by colonization.
Today, Grand Ronde tribal members have a limited ability to fish for lamprey and salmon at Willamette Falls under agreements with the state of Oregon. It’s something their ancestors have done since time immemorial.
The Willamette Valley Treaty of 1855, negotiated between Grand Ronde leaders and Joel Palmer, includes Willamette Falls. But it doesn’t specifically name fishing or hunting rights, or reserve the tribe’s rights to “usual and accustomed places” – a phrase common in treaties negotiated by Isaac Stevens. That language is included in the treaties signed by Umatilla, Warm Springs, Yakama, Nez Perce and others.
But David Harrelson, cultural resources manager for Grand Ronde, says the tribe still has hunting and fishing rights on its off-reservation ceded lands because Indigenous tribes retain “all rights not expressly granted” under the treaties.
Another mechanism of colonization sets Grand Ronde apart from Umatilla, Warm Springs, Yakama and Nez Perce: termination.
During the Termination Era of federal Indigenous policy, the U.S. government enacted devastating laws based on the idea that Indigenous people should be forced to assimilate into American society by giving up their tribal identities.
The Western Oregon Termination Act of 1954 ended federal recognition of Grand Ronde’s tribal sovereignty, along with all other tribes west of the Cascades in Oregon. In all, Congress passed 46 laws terminating 109 tribes around the U.S., 62 of which were in Oregon.
In 1983, after decades of tireless work from tribal members, the Grand Ronde Restoration Act reinstated the federal government’s recognition of Grand Ronde’s sovereign status.
While the Grand Ronde Restoration Act rendered the Western Oregon Termination Act “inapplicable to tribes and restores all rights and privileges which may have been diminished or lost under it,” the law also states that it “precludes the restoration of any hunting, fishing or trapping rights under this act.”
“The restoration act very specifically says everything that was terminated has been restored,” Harrelson said. “There's an argument we have heard for years now from up-river tribes that says, ‘They were terminated, so they don't have rights.’ And that’s not how that works.”
Additionally, the state of Oregon balked at returning land the government seized from Grand Ronde as part of termination. The tribe was forced to make a terrible choice: gain back some of its land by agreeing to give up the hunting and fishing rights outside their reservation.
The Confederated Tribes of Siletz Indians had to sign a similar consent decree.
“We were held hostage — the choice was remain a landless people or sign the decree," Kennedy told commissioners on Friday.
The new state agreement will expand fishing and hunting access for Grand Ronde, but it is “not intended to increase the consent decree,” according to Davia Palmeri, conservation policy coordinator at ODFW.
However, it is intended to allow the tribe to once again oversee fishing and hunting management for tribal members. It applies only to subsistence and ceremonial fishing, not commercial fishing.
“This agreement does not affect any other tribes,” Kennedy said during the commission meeting. “It’s not about treaty rights, it’s an agreement with the state of Oregon.”
Tribal leadership from Nez Perce, Warm Springs, Umatilla and Yakama Nation worry this is not the case.
“We do not deny that [Grand Ronde] is a victim of historical injustice like all tribes, which is why our elders supported the restoration of [Grand Ronde’s] status as a federally-recognized tribe,” Warm Springs Chairman Jonathan W. Smith wrote in a June 5 letter to ODFW. “[Grand Ronde], however, ought not be allowed, as a matter of fairness and equity, to remedy any injustice visited upon it by the United States, the State of Oregon, or others at our expense or that of other Oregon tribes.”
‘It feels like an attack’
In a June 5 letter to ODFW, Chairman Smith said Grand Ronde’s agreement with the state could interfere with rights reserved under Warm Springs’ 1855 treaty. Warm Springs tribal citizens, like citizens of Umatilla, Yakama and Nez Perce, have the treaty-reserved right to fish off-reservation “at all usual and accustomed areas.”
This right has been repeatedly affirmed by the U.S. Supreme Court. The four Columbia River treaty tribes exercise these rights through harvest and restoration work, both individually and through their work together at the Columbia River Inter-Tribal Fish Commission (CRITFC).
Tribal leaders from Umatilla, Warm Springs and Yakama told Underscore News they see a threat to their usual and accustomed, treaty-reserved rights, which they say apply at Willamette Falls and in the Columbia River below the Bonneville Dam.
“It feels like an attack from Grand Ronde that’s going to impact our treaty resources,” Takala said.
The commission incorporated some, but not all, of the feedback objecting tribes provided.
The agreement adopted on Friday excludes "state-owned lands at Willamette Falls" and "any area on the Columbia River upriver of the Bonneville Dam."
Another addition to the version adopted by the commission: “The summit and any area east of the summit of the Cascades included in the Santiam Unit are also excluded to ensure that there is no overlap between the geographic scope of the proposed Agreement and the ceded lands of the Confederated Tribes of Warm Springs as described in the Treaty of 1855.”
Both ODFW representatives and Grand Ronde Chairwoman Kennedy explicitly stated that the agreement will not impact treaty rights of other tribes.
“An agreement of this sort does not have the authority or the scope or the intent to change any other tribe’s treaty rights,” Grand Ronde Councilwoman Kathleen George told Underscore News. “An agreement like this is not the vehicle for that. It really is a co-management agreement intended to let Grand Ronde tribal members hunt and fish in their ceded lands. It really is not about any other agenda.”
Corinne Sams, an elected member of the Umatilla board of trustees and chair of the board of commissioners for the Columbia River Inter-Tribal Fish Commission, made clear that the dispute is confined to the geography of the agreement.
"We were not opposing the entirety of the Grand Ronde [agreement], rather voicing our concerns for the lack of consultation from ODFW and Grand Ronde with the treaty tribes," Sams said. "The four Columbia River treaty tribes were simply asking ODFW to complete consultation to address our specific concern regarding the broad geographical area proposed."
But some opposed are concerned that this is an attempt for Grand Ronde to assert rights at places where Umatilla, Warm Springs, Yakama and Nez Perce currently hunt and fish – including at Willamette Falls.
“The Confederated Tribes of Grand Ronde seeks to assert nonexistent and nonrecognized rights to these same areas fished by the Nez Perce Tribe and the other CRITFC member tribes that have valid fishing rights to the area,” said Erik Holt during testimony, chairman of the Nez Perce Fish and Wildlife Commission.
Takala also took issue with ODFW’s failure to consult with Yakama Nation. The commission consulted only with tribes based in Oregon before proposing this agreement. But tribes in both Washington and Idaho also have ancestral ties to land in northern Oregon.
“You have to understand that treaty tribes do have rights in the state of Oregon,” Takala said after the meeting. “There were no boundary lines before the settlers came here.”
A threat of litigation
Seated behind tribal leaders for Warm Springs, Umatilla, Nez Perce and Yakama during the meeting was a row of men in dark suits – Warm Springs’ attorneys.
A July 27 letter to the commission from Warm Springs Chairman Jonathan W. Smith foreshadowed their presence, urging the commission not to approve the agreement with Grand Ronde “to avoid triggering possible federal litigation.”
The fear of a potential lawsuit was clear among the commissioners, who paused the meeting at one point to hold a closed door session where they discussed the possibility that their decision on the agreement could trigger a lawsuit akin to U.S. v. Oregon, one of the longest running lawsuits in U.S. history and a case that has revamped the government’s responsibility to enforce tribal fishing rights guaranteed in treaties.
Dozens of Grand Ronde tribal citizens made the trek to Salem on Friday. Prior to the commission meeting they ate together and passed out Grand Ronde flags. When the commission announced its decision, Grand Ronde tribal members celebrated together, giving hugs all around.
“Our hearts are filled with joy and gratitude — we took a step toward righting a historic wrong,” said Grand Ronde Council Member Kathleen George. “We know that we can work with the state, and with other tribes, to make fish and wildlife resources better for everyone. And we can do that in cooperation.”
Others were not so happy.
“There will be steps taken,” Takala told Underscore. “It’s not over.”
Lead photo: A panel that includes Grand Ronde tribal chairwoman Cheryle Kennedy, second from right, addresses the Oregon Department of Fish and Wildlife Commission at a meeting held in Salem on Aug. 4, 2023. Photo by Karina Brown / Underscore News
Corrections: An earlier version of this story incorrectly stated that the agreement excluded state-owned lands in the Santiam Management Unit. The story also inaccurately said that ODFW wants to sign agreements similar to the one it approved with Grand Ronde with all nine federally recognized tribes in Oregon. The state planned to adopt these agreements with all federally recognized tribes west of the Cascades. Grand Ronde's agreement is the final one in that series. The four federally recognized tribes east of the Cascades already have treaty rights to hunt, fish and co-manage land. Additionally, An earlier version of this story misspelled Corinne Sam's name. Underscore News regrets the errors.
