Tribes press governor, AG’s office for answers after years-long investigation into tribal fishermen
TULALIP, Wash. - The Affiliated Tribes of Northwest Indians (ATNI) – a group representing 57 tribal governments – is calling on Governor Jay Inslee and/or Attorney General Bob Ferguson to investigate the Washington Department of Fish and Wildlife, and Ferguson’s office after a 5+ year investigation and prosecution of two Tulalip fishermen that ended with charges being tossed out.
The case centers on two tribal fishermen – Hazen Shopbell and Anthony Paul. The two men owned Puget Sound Seafood Distributors before being arrested while being investigated for shellfish trafficking. Eventually the state paid a $50,000 settlement over claims of false arrest, but didn’t admit guilt. The case – which amounted to five felony charges – was still being pursued in court until the end of 2021.
Lawyers have argued that the case threatened the Tulalip Tribe’s way of life. That if the fishermen lost their case it opened the door to state laws being enforced on tribal lands, effectively undoing decades of case law which protected tribal fishing rights – rights that were fought for throughout the Fish Wars, a civil rights era movement to affirm treaty rights.
As the case played out in court the Tulalip Tribe had written WDFW on multiple occasions protesting the prosecution of Shopbell and Paul.
In late-December, a Skagit County judge determined that the case never fell under the court’s jurisdiction.
"This court shouldn’t be involved in those issues," said Judge Stiles.
The Attorney General’s Office is denying involvement beyond it’s actions as legal counsel to WDFW. Governor Inslee’s office isn’t commenting on the calls from ATNI to investigate, while Gabe Galanda – Hazen Shopbell’s lawyer – is warning that career attorneys are on a crusade to overturn decades-old cases that protect Coast Salish tribes.
A HISTORY ON THE WATER
Hazen Shopbell grew up on the water. On a chilly Tuesday afternoon, he met up with FOX 13. As fog drifted over the water, he stood near the back of a research vessel pointing out various spots where he fell in love with fishing.
"It’s always been a battle even from us growing up as kids," said Shopbell. "We hear the stories. This fight will never end, but I never thought I’d be so heavily involved."
Shopbell recalls his grandparents complaining about dock prices for a day’s catch like it was yesterday. It’s what he attributes to a "fire deep within him" to start Puget Sound Seafood Distributors, a company that would buy/sell fish at the docks.
Until PSSD started tribal fishermen generally sold their catch to non-tribal wholesale businesses. Shopbell said his business – which he began with Anthony Paul – had the ability to corner the market.
Shopbell said that Tulalip, Upper Skagit, Swinomish, Port Gamble and Port Townsend tribal fishermen began selling to him – in a short time, with tribal fishermen allowed to catch 50-percent of fish stocks and PSSD purchasing a majority of it, PSSD became one of the largest buyers in the state.
Not everyone was happy about the new company at the dock.
WDFW had begun looking into PSSD by 2015 – less than two years into the company’s existence – Sgt. Wendy Willette, then a detective, had heard of Shopbell and Paul, their names had come up in another shellfish investigation.
REVERSE-RACISM
In case notes from a conversation Willette had with a competitor, she wrote "reverse-racism," and noted that a non-Indian fish buyer complained about tribal fishermen saying "we’re going to sell to our own kind."
In a separate note she questioned whether PSSD was trying to "monopolize the Tulalip crab fishery."
"It’s one thing to believe that a crime has occurred and you think you have jurisdiction," said attorney Gabe Galanda. "What we saw is totally different. This is an investigation that began with overt racial bias, the belief being that it was reverse-racism for treaty fishermen to sell to treaty fish buyers."
In past conversations with WDFW they’ve denied that the case started because Shopbell and Paul are Indigenous – that they were simply followed leads, and where they took them.
After the case concluded, Chief Steve Bear gave a written statement to FOX 13 stating that WDFW’s job requires them to investigate and document apparent violations of law.
"The Washington Department of Fish and Wildlife (WDFW) and tribal co-managers take the protection of natural resources seriously," said Bear.
"Both state and tribal commercial fish dealing licenses and their associated laws and rules are designed to help enforcement agencies track natural resource products from the point of harvest all the way to the consumer."
Galanda argues that this case was something more. While the case was dismissed, PSSD is no more. The multi-million dollar business collapsed under the weight of suspicion following Shopbell’s public arrest at the Everett Marina in 2016. Shopbell said there was too much heat on him, and the business – and their sellers evaporated.
Years later, the state would settle a lawsuit against WDFW for unlawful arrest of Shopbell and Paul for $50,000 – but the prosecution of the shellfish trafficking case continued.
THE NEW FISH WARS?
Over the course of several years charges against Shopbell and Paul were discussed in various counties around Puget Sound. The case ultimately landed in Skagit County, but prior to that the case was brought up with prosecutors in Pierce, King, Snohomish and Kitsap counties.
Galanda called it "shopping" the case. In an earlier ruling Judge Stiles called it "troublesome."
Galanda’s biggest concern is what the prosecution could have meant. According to Galanda, a successful prosecution could have breached the 1855 Treaty of Point Elliott – a treaty that created a government-to-government relationship with the U.S. and tribes, and laid out fishing rights for tribal members.
Those rights were challenged throughout the Civil Rights era, leading to what are now known as the Fish Wars. Tribal fishermen were beaten, arrested and jailed for exercising their rights to fish. Protests and fish-ins drew national attention, and catapulted Billy Frank Jr. to fame.
Eventually, the United States intervened suing the state of Washington leading to U.S. v. Washington, leading to what we now call the Boldt decision. The judge’s decision allows tribes to fish 50-percent of harvestable fish, and fives them an equal voice in management of the fishery. The decision was later upheld in the Supreme Court.
"This was a crusade by the state of Washington, and it’s Attorney General’s Office and WDFW to contend with the U.S. v. Washington decision," said Galanda. "To basically shill for non-Indian fishermen who now feel displaced by fishermen like my client who’ve emerged and captured some of the fishing market. This is a 50-year fight – the Fish Wars never stopped, there are still people within the Department of Fish and Wildlife and the Attorney General’s Office who have fought the Fish Wars for decades, for careers. They are not intent on going away quietly."
The A.G’s Office has denied involvement in the prosecution beyond their role as WDFW’s counsel, while Galanda has accused them of guiding the prosecution throughout the case. E-mails between the Skagit County prosecutor and a member of the A.G’s office shows strategizing in the days leading up to arguments in court.
"The Attorney General’s Office serves as the law firm for the Department of Fish & Wildlife," a spokesperson said, declining an on-camera interview. "In our capacity as legal counsel, our attorneys often work with county prosecutors who are prosecuting or evaluating cases that the Department of Fish & Wildlife investigated."
As for the Tulalip Tribe, dating back to 2018 they had called on WDFW to back down. Chairwoman Marie Zackuse wrote a letter stating the tribe’s belief that, "these matters are within the purview of the Tulalip justice system." Three years later, Judge Stiles agreed.
WDFW INVESTIGATION
Detective Willette first caught wind of PSSD during the spring of 2015 when a detective – investigating an unrelated matter – was told that PSSD had purchased 400+ pounds of crab a day after the season, and back-dated documentation.
Willette’s investigation expanded over time as she questioned legally required paperwork filed by PSSD – specifically discrepancies between the amount of fish purchased, and the amount accounted for in their paperwork.
Eventually, Willette would expand the investigation to involve warrants to obtain bank records, tax records, cell phones and physical searches of both Shopbell and Paul’s homes.
Before searching their homes, notice was not given to the Tulalip Board of Directors – in a warrant she reasoned: "Due to concern regarding confidentiality, the Tulalip Tribes will not be contacted regarding this matter until after service of the search warrant."
That move, along with surveilling homes without warrant or permission has rankled both Shopbell – and others in tribal governments, those concerns were raised to both Governor Inslee and the A.G’s Office in a recent letter from ATNI.
In court, Willette argued that Tulalip Tribal police were involved throughout her investigation.
The shellfish in question were seized in August, 2016 – Willette and a team of officers found 1,185 pounds of PSSD bait clams held at a cold storage facility in Burlington, WA.
Those clams, according to Willette, were part of an illegal purchase out-of-season for either state or tribal harvesting. Raising more concern, the clams were not dyed to indicate that they weren’t for human consumption – something that is required by state law.
Eventually, the majority of those clams were destroyed – which led to more court arguments over whether enough evidence was preserved for the tribal fishermen to defend themselves in court, though ultimately those questions became moot when the case was thrown out over a lack of jurisdiction.
WHAT’S NEXT
The Affiliate Tribes of Northwest Indians wants to know more information about the cost of the case, and want an investigation into whether WDFW or the A.G’s office broke policy or laws during the case of Shopbell and Paul.
In a letter sent to Governor Inslee in early 2022, the group called on four things:
- Attorney General Robert Ferguson to forgo any appeal of the Skagit County Superior Court dismissal to the Washington State Court of Appeals.
- Governor Jay Inslee and/or Attorney General Ferguson to initiate an investigation of any WDFW and AGO violations of law or policy associated with the agencies’ investigation and prosecution of PSSD, Mr. Shopbell, or Mr. Paul; and report the findings to the Northwest Indian Fish Commission.
- The Washington State Legislature to require WDFW to disclose the direct and indirect costs associated with its investigation and prosecution of PSSD, Mr. Shopbell, and Mr. Paul.
- WDFW to impose a moratorium against impounding Tribal members’ boats and vehicles from Treaty territories and waters and instead defer to Tribal authorities for appropriate enforcement under applicable federal and Tribal law.
The A.G’s office – as noted – disputes how their involvement has been characterized. A spokesperson told FOX 13 that "it is not our case to appeal," in reaction to the first bullet point. The period in which the case could have been appealed has no come, and gone.
A bigger question remains: will the governor, and A.G. Ferguson launch an investigation?
Some damage appears to be done, as the Northwest Indian Fish Commission (NWIFC) has wrote WDFW with concerns about enforcement actions beyond this case, nothing: "DFW is confiscating tribal members’ boats and vehicles from treaty territories and waters. These unnecessary actions leave tribal members without any way to work and put food on their families’ tables. . . . DFW is focusing its enforcement efforts against tribal members who typically do not have the resources to defend themselves."
The Tulalip Tribe has similarly raised concerns about the prosecution of these types of crimes, nothing that it, "perpetuates our community’s perception that WDFW is disproportionately targeting tribal members for enforcement actions."
As for Shopbell, he has since become an elected-official within the Tulalip Tribe. He lost his business, but said he’s gained a lot of knowledge about treaty rights.
"You think about the ones that fought before us – what all they did – all they gave for us to be out here as we speak," he said, motioning to a young crew of fishermen on the boat. "We have kids in the cab, here. They’re learning from their captain here. He’s tribal and that’s important. Now they’re learning how to do this and pass it on to their children and so forth."
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