May 13, 2020 Feature

Yurok Tribe Fishing Court: A Judicial Profile

By Kori Cordero

The Yurok Tribe’s Justice Center sits near the western end of the Yurok Reservation, an hour south of the Oregon-California border and six hours north of San Francisco. Fishing Court is in session, but the parties are outside discussing the last case from the commercial fishing season. The respondent is self-represented and has just been told that the citing Tribal officer unexpectedly couldn’t make it to court. So, the Yurok Tribe’s plan was to request a dismissal because the government is unable to meet its burden of proof without a witness and unwilling to take advantage of the self-represented party’s likelihood to self-incriminate if the hearing began without him understanding the implications of the Tribe’s missing witness.

In any other jurisdiction, one would expect this news to be met with joy—a lucky break for the respondent. Instead, this chance to leave without a consequence was waived away. Repeatedly. The self-represented litigant, a Yurok fisherman, found the situation to be an unfair technicality. He planned to oppose any attempt to dismiss the case and insisted on seeing the judge so he could admit his actions and get a fair sentence. Just before he walked back in, the respondent’s ethics became more relatable; he asked the Tribe’s attorney to again confirm the sanction limits for his particular citation. Satisfied that the possibilities were acceptable, he squared his shoulders and entered the Justice Center. Around 15 minutes later, the judge ordered community service; the fisherman left contentedly. This outcome was a typical experience in the Yurok Fishing Court.

Every fisher before the Yurok Tribe’s inaugural Fishing Court admitted his actions and none expressed dissatisfaction with the outcome. However, almost everyone was frustrated by the context; there aren’t enough salmon in the Klamath River. Upriver dams block fish migration, massive fish kills have been caused by limited water and toxic algae blooms, and the Yurok fishery was being harmed by other environmental changes caused by the climate crisis. The Fishing Court has the impossible task of meting out justice against this backdrop. Before these impacts, fish runs of over 500,000 had been recorded; oral histories describe even more. But those numbers have dwindled over time and, to protect the resource, the Yurok Tribe had to cancel its past few commercial seasons. The 2019 commercial season had to be capped at a relatively small amount; people expected the cap to be reached within a few days if California’s state projections were correct.

What makes the job tough is that I know that a lot of Yurok people depend on fishing for food, buying school clothes, and catching up on bills. I know how important the commercial season is to people. The only thing that outweighs that concern—the needs of Yurok people now—is the need to maintain the resource for future generations.

—William D. Bowers. II, Associate Judge, Yurok Tribal Court

The Yurok Tribe is the largest surviving Tribe within the borders of the land currently known as California, with more than 6,000 enrolled members. The current Yurok Reservation is approximately one mile on either side of the last 45-mile stretch of the Klamath River. The modern Yurok Tribe’s government operates under a constitution, which sets out its obligations to restore, enhance, and manage the Yurok fishery, water rights, forests, and natural resources and to ensure peace, harmony, and protection of individual human rights within its jurisdiction.1 As part of that management, the Yurok Tribe has carefully worked to protect and restore the Yurok fishery.

The Klamath River used to be the third-largest salmon producer in the West; however, its fish runs have been declining for decades. The dams block fish passage, degrade water quality, and have caused disease epidemics resulting in unprecedented fish kills. This impacts Tribal members’ ability to harvest fish for sustenance and commercial sale.2

Fast-forward to spring 2019 and the Yurok Tribe is preparing for its first commercial fishery in a few years; the Tribe had canceled previous commercial fisheries in the interest of conservation and revitalization. “When fishing season is going on, everybody in this community is alive; the tempo picks up. The season brings out who, I believe, we are innately as Yurok; we are a fishing community and a fishing people,” explains Judge Bowers. Judge Bowers is a fisherman and associate judge for the Yurok Tribe. The 2019 commercial fishing season brought a change to his usual preparations. Along with maintenance of his nets, boat, and gear, he spent time with the chief judge and Tribal attorneys, discussing Yurok due process and planning for a new community court—the Yurok Tribe Fishing Court. The Fishing Court was created to help fast-track the inevitable increase in fishing cases, ensuring justice while allowing Yuroks to get back on the water before the short commercial season ended. You can’t fish if your gear is impounded pending the outcome of a case in the Yurok Tribal Courts monthly civil docket. The Klamath River salmon runs are part of the Yurok cultural heritage; the ability to fish has been a central part of the Tribe’s exercise of sovereignty—from the fishing wars of the late 1970s, the largest dam removal project in U.S. history, and now, the Fishing Court, as led by Judge Bowers.

Why a Fishing Court?

The Yurok Tribal Court is one of the more robust Tribal Courts in the area. Much of the court’s docket is dedicated to family law and is usually only in session two weeks each month, with two days per month dedicated to civil offenses, like violations of the Yurok Tribe’s Fishing Rights Ordinance.3 Because the 2019 commercial season was not expected to last more than a few weeks, the Yurok Tribe sought to fast-track fishing cases. At Yurok, at least for fishing offenses, the court and Tribe weighed the usual procedural process against the potential injustice of temporarily depriving a Yurok member of his only gear during the short commercial season. An innocent Yurok could lose his biggest financial opportunity of the year while he waited to explain the context of a fishing violation or pay a fine to get his gear back.

The solution was to create a Fishing Court, according to a procedural process that looks more like traffic court. Yurok law enforcement could cite observable fishing violations, and the court would hear the case within one week. Citing officers would appear in court every week, available to offer testimony if a hearing occurred. Unlike traffic court, respondents had a lot of procedural flexibility. Respondents had the ability to appear at their week’s court date and the option to discuss their case with the Tribe’s attorney, reach a settlement agreement, and move forward with a same-day hearing. Or they could request a hearing for a later date when they could bring in additional evidence or witnesses—perhaps meet with an attorney or advocate at the Yurok Tribe’s free Legal Access Center. Respondents who weren’t able to make their first court date could request a later date, and such requests were approved at the discretion of the judge. This idea was developed with help from many Yurok Tribe governmental departments, but the Tribal Court, Yurok Fisheries Department, and Yurok Public Safety were key partners that maintained momentum amid many other priorities. With all stakeholders agreeing to this new process, and no conflict with the Yurok Constitution or ordinances, the Yurok Tribe’s Fishing Court was created. The Fishing Court met every Thursday and paralleled the commercial fishing season, with a few extra weeks on either side to handle the seemingly inevitable chance someone would try to extend his personal fishing season beyond what was allowed under Yurok law.

Judge Bowers Presides

The Yurok Tribe has been fortunate to have a great legal minds within its membership; perhaps most recognizable is Chief Judge Abby Abinanti, the first Native woman to pass the bar in California and the first to become a state judge. While Judge Abinanti’s work is legendary in the California Indian law community, and she is a proponent and practitioner of restorative justice, she chose to entrust the Fishing Court to Judge Bowers. Bowers is relatively new to the bench and has an educational background in social work. But for justice in Fishing Court, it made the most sense for Judge Bowers to preside. He is a respected Yurok fisherman with many decades of experience on the river and a wealth of knowledge that would allow him to easily parse out the inexperienced mistake from an intentional violation, or the facts from excuses. He also understands the passion of the fishing community and the delicate balance between exercising a contemporary right to fish with the obligation to protect the resource for future generations.

Judge Bowers is an enrolled Yurok Tribal member, and his family is from the Requa village, near the mouth of the Klamath River. Generations of his family have always relied on the Klamath River for subsistence and sometimes for a living. Bowers began fishing when he was five years old and has netted on the river every year since. As Bowers got older, he learned the craft of making and mending nets and eventually shared his love of fishing with his children and grandchildren, bringing them back to the Klamath River every year. “We’re all fishermen from cousins to nephews, nieces, and aunties, all of the above,” states Bowers.

When asked about the commercial season, he stated:

This year, we were ready. Expectations were high; gear was sold out from Eureka to Crescent City. They were projecting a good fishing season and a lot of people got ready. In contemporary society, the season brings hope. You can buy your kids school clothes; you can catch up on bills, fill your pantry; the season gives the whole community a boost. I think that must be what it has felt like for thousands of years out here—the community coming together and being sustained for the winter. The fall run was set up that way; the Creator set it up to get this community through the hard winter months when food is scarce. Fishing really brings this community together, especially when there’s a good run; everyone is in a good mood and there is hope.

Unfortunately, the season didn’t pan out as expected. The commercial season began and the fish weren’t running. Judge Bowers credits the poor run for some of the more frustrating cases before his court.

In Fishing Court what I felt was the frustration; people were doing things they wouldn’t normally do because of the poor season. Sometimes external pressures make people take risks they wouldn’t. Most of the people I saw in Fishing Court this year were really good people who felt pushed into a corner and made the wrong decisions. Out in the community, I heard that a lot of folks bought the wrong web for their nets, expecting the usual size fish. Fish were fewer, smaller; they’d pop right through the net. Imagine spending $300 to $500 for a new net, money that could cover part of your rent or food for the month, all as an investment that didn’t pan out. People were just trying to break even. When the fish don’t run, it’s hard times.

When asked about his comfort presiding over the court absent some of the legal accolades of his colleague Judge Abinanti, Judge Bowers expressed the challenges mastering due process in the legal sense but comfort with the substantive issues and cultural norms around sanctions. “I understand the cultural piece, and if there’s a violation, there’s a matching penalty. I can match the outcome of a hearing with a fisher’s actions,” a difficult task that he takes very seriously. Before serving as associate judge, Bowers was a social service case worker for 34 years, managing the teen caseload and working with families that had substance abuse issues. “The cultural piece is why I’m here in this role. I didn’t know Judge Abby really well, but we connected at a brush dance. We talked all night long and that was an important step; she got to know me and mentioned the job when it came up. I initially said no, but she wouldn’t accept that . . . I started in October of 2018.”

While Bowers is modest about his legal expertise, he is a diligent student and frequently attends trainings or meets with Judge Abinanti and other attorneys to learn more about Yurok law, federal Indian law, due process, and other subjects crucial for a Tribal Court judge. It’s rumored that Judge Bowers earned the highest score on the Yurok Tribal Bar Exam, taken by all attorneys and advocates who wish to practice in Yurok Tribal Court. While Judge Bowers is sometimes reluctant to take on a broader docket, his role in the Fishing Court has been much more comfortable.

It’s appropriate for me to be here in part because of my age; the older men have always helped the younger men learn their responsibilities as men in the village. The court is just another iteration of that; I’m helping the community learn about the resource and take responsibility, reminding them of their place in what is essentially a big village. Help them learn and make the right decisions going forward—Fishing Court is similar to Wellness Court in that way. But there have to be consequences to breaking Yurok fishing rules; we have to keep in mind that the generations to come need fish. The tough part about making decisions when you know the community and most of the fisherpeople—when you know them on a personal level and see them and their families in town—it can add stressors to the choice.

In terms of his goals for the first term of Fishing Court, Judge Bowers explained that “I wanted people to feel that when they come into the court, they can say what they need to say and state what they believe in. I didn’t want it caught up in any red tape from the Western world. The people who have been on the river have respect for that river and understand what it has done for the Yurok people over thousands of years.” When Judge Bowers first heard the story that opened this article, about the man who wouldn’t accept a dismissal, he wasn’t surprised.

People spoke from their hearts in Fishing Court; I want to think that most Yurok people are honest. Out on the river, you basically have a pretty good group of people. There are always a few people who will stretch the limits or the rules. But that’s what this court is about. Folks could try to get all kinds of deals, but that’s not what it’s about; it’s about expressing how they feel about the river and taking some responsibility for their actions. This year people really wanted to express their feelings to the judge, and it’s my job to listen to that. The great thing about the Fishing Court is we can listen and make a decision grounded in our cultural beliefs; we can come to a resolution that fits the situation. Back in the old days, working things off for a violation was normal; in this case, it can be community service for the river or the Yurok people. If we keep that in mind—as we have in Fishing Court—it creates a balance between the natural resources, the current people, and what’s right for future generations.

Looking forward, 2021 will bring the removal of four large dams on the Klamath River, from Oregon through California. The dam removal and restoration should help the health of the river and its fish, including wild salmon. Judge Bowers is hopeful that the fish will return to their previous health, in part due to the Yurok Tribe’s work to protect the Klamath River. “My personal belief is that if we don’t take care of these fish, we will lose the lifeline of this Tribe. To me, there is no better feeling or more Yurok thing to do than pulling up to the dock with a load of fish. My genetic ancestors from thousands of years ago were fishing and eating the genetic ancestors of those fish.” n

Endnotes

1. Yurok Const. pmbl., available at https://yurok.Tribal.codes/Constitution/Preamble.

2. Joseph L. James, Opinion, The Klamath River Basin Is Headed Toward Disaster. Here’s How We Can Save It, Sacramento Bee (Sept. 17, 2019), https://www.sacbee.com/opinion/op-ed/article235138887.html#storylink=cpy (discussing the chairperson of the Yurok Tribal Council’s opinion on the importance of dam removal on the Klamath River for the Yurok People).

3. See generally Yurok Tribal Code, tit. 17 (Fishing Rights), available at https://yurok.Tribal.codes/YTC/17.

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Kori Cordero

Kori Cordero serves as an associate general counsel for the Yurok Tribe and has been practicing Tribal and federal Indian law, with a particular interest in restorative justice. Mx. Cordero is a member of the ABA Civil Rights and Social Justice Section’s Native American Concerns Committee and has served on the board of the National Native American Bar Association (NNABA), as an NNABA representative to the ABA Young Lawyers Division Assembly, and as a commissioner for the ABA Commission on Sexual Orientation and Gender Identity.