Weaver, Timothy Roy (1944-2010)

  • By Glenn Drosendahl
  • Posted 2/12/2010
  • HistoryLink.org Essay 9316
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Tim Weaver didn’t set out to become a lawyer, let alone a lawyer specializing in Indian fishing rights. He just knew he wanted a profession that would allow him to control his work hours and leave time to hunt and fish. As a young sportsman, he thought Indians were catching more than their share of fish. But after becoming a legal counsel for the Yakama Nation, he quickly changed his mind. Starting in the early 1970s and continuing for nearly four decades, he was involved in a string of precedent-setting court victories for the Columbia River tribes and the river’s depleted salmon runs. Weaver was diagnosed with colon cancer in June 1992, but continued to work vigorously on the tribes’ behalf. When he retired on January 1, 2010, he was widely recognized as one of the Northwest’s leading experts on treaty law, especially regarding salmon.

"Nothing came easy for the tribes," he said. "We thought, gee, when we had U.S. v. Washington and U.S. v. Oregon (major court victories for Indians in 1969 and 1974, respectively), that that was going to settle everything and everybody was going to play nice. Well, that turned out to be one of the bigger jokes of the century. We litigated and litigated and litigated on just about every subject, because states weren’t willing to sit down and look at what those cases really say and bite the bullet and fully implement them. We had to drag them kicking and screaming most of the way" (Weaver interview).

"Tough Guy," Loved the Outdoors

Timothy Roy Weaver was born on November 28, 1944, at Fort Lewis and grew up in Ellensburg, Washington. His father, Keith, was a dentist; his mother, Thelma, was a schoolteacher who stayed at home to take care of Tim and his older brother, Jud.

He developed a lifelong love of the outdoors from his parents. One of the family’s favorite activities was picking huckleberries in the Cascades Mountains, especially around Stampede Pass. Keith was an avid hunter and fisher and passed those interests to his rambunctious second son. Tim also played football and baseball at Ellensburg High School. Despite being only 5-foot-6, he was an offensive lineman and linebacker, displaying the aggressiveness and tenacity that would surface later in the courtroom. "I always thought of myself as a tough guy. I don’t know if anybody else did," he said, with a laugh (Weaver interview).

In 1963, Weaver entered the University of Washington where he majored in history. With a grandfather, father, and brother who were dentists, he considered going on to medical school, but decided he couldn’t handle the science courses he would need. Meanwhile, the Vietnam War was heating up and male college students were being drafted into the army once they were out of school. That possibility, and the desire to find a career that would allow him to set his own hours, motivated him to join some friends who were planning to take the Law School Admission Test. He did well enough on the LSAT to decide he would pursue a career in law.

From Law School to Yakima

After graduating from UW in 1967, Weaver married Gail Hartman, a classmate from Ellensburg High School. They moved to Salem, and he entered law school at Willamette University. But in the spring of 1968, draft deferments for graduate students without children were eliminated. At the start of his second year of law school, Weaver got a notice ordering him to take a pre-induction physical. He reported, fully expecting to be drafted, but was rejected because of a knee injury from his high school football days. "I was not resisting the draft," he said, "but I was hoping I would not get drafted" (Weaver interview). Failing his physical was so unexpected that he didn’t have a way to get home. He had to arrange for a classmate to pick him up and give him a ride.

His law degree in hand, Weaver took a job clerking for Judge Morrell E. Sharp (1920-1980), a recent appointee to the Washington State Supreme Court in Olympia. Sharp had to run for office the following November, however, and he lost, leaving Weaver temporarily without a job. He ended up as the No. 3 clerk for the head justice, "which was OK, but it wasn’t the deal I had signed on for," he said (Weaver interview).

By then, Weaver was tired of the rain in Western Washington and missed duck and pheasant hunting east of the mountains. He began looking for a job in Eastern Washington and in May 1971 landed one with the Yakima law firm of James Hovis. He would stay with that firm until he retired, 38 and a half years later.

Treaty Rights and Salmon

When Weaver joined the firm, Hovis was chief counsel for the Confederated Tribes and Bands of the Yakama Indian Nation, and Indian fishing rights were an increasingly contentious issue. The construction of The Dalles Dam in 1957 had been a traumatic experience for the tribes of the Columbia Basin. It inundated Celilo Falls, an Indian fishing spot for thousands of years and one of the most productive fisheries in North America. The states of Washington and Oregon then shut down commercial fishing above Bonneville Dam. The tribes were outraged. Citing rights to fish granted them in treaties they signed in 1855, Indians staged "fish-ins," demonstrations, and protest marches. Actor Marlon Brando and others joined their cause.

In 1968, Oregon officials arrested Yakama fishermen Richard Sohappy and his relative David Sohappy Sr. for gillnetting on the Columbia. Disputing the legality of that arrest, University of Washington law professor Ralph Johnson and others filed Sohappy v. Smith in federal court in Portland. The Justice Department intervened on behalf of the Indian fishermen and brought the case of United States v. Oregon. Ruling on both cases in 1969, U.S. District Court Robert C. Belloni (1919-1999) held that the tribes were entitled to a "fair share" of the fish runs and that the state could regulate Indian fisheries only when "reasonable and necessary for conservation" (Columbia River Inter-Tribal Fish Commission, "A Short Chronology").

Crux of the Dispute

Belloni’s ruling was a significant victory for the tribes, but it raised myriad questions. Hostilities continued between Indians and state fish and game officials, leading the Justice Department in 1971 to file United States v. Washington on behalf of seven tribes. Seven more tribes intervened. The suit asked for clarification of treaty rights west of the Cascades and north of the Columbia River drainage. At issue was the language in the 1855 treaties. The Yakama treaty defined reservation borders and said: "The exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured ... as also the right of taking fish at all usual and accustomed places, in common with the citizens of the Territory" (Columbia River Inter-Tribal Fish Commission, "Treaty with the Yakama, 1855"). The case was assigned U.S. District Court Judge George H. Boldt (1903-1984), and the stage was set for another historic ruling.

Becoming an Indian Lawyer

Meanwhile, Weaver was learning the ropes under Hovis’s guidance. As the firm’s new lawyer, he took on divorce, criminal, drunk driving, and other cases, but soon the majority of his work was for the tribes -- this despite the fact he had no background in Indian law. In fact, Weaver initially was skeptical of Indian treaty claims regarding fish and wildlife, based on his experience as a hunter and fisher coming of age during a time of increasing militancy by tribal members. "I always thought the Indians were taking advantage of the situation," he said. "It took me about six weeks to realize how silly that was and how much they were being abused by the non-Indians" (Weaver interview).

United States v. Washington went to trial in August 1973. After hearing months of testimony, Boldt delivered an historic decision -- that the tribes’ fair share of the fish headed for their traditional fishing places was 50 percent. The implications were enormous.

Boldt’s ruling, delivered in February 1974, rejected the state of Washington’s position that Indian fishermen must be treated like any other citizens and thus were bound by state regulations. Although some Indians were disappointed by the 50-50 split, insisting all the fish were theirs, most took it as a major victory for the tribes. It was a boost for Indian pride. According to historian Alexandra Harmon, the Boldt decision had "momentous significance for Indians’ self-definition," and validated their "depiction of themselves as heirs to a unique and precious legacy" (Harmon, 230-232). Identity boost aside, the decision prompted a multitude of challenges by Indians of state and federal practices.

First Big Case

Between the filing of U.S. v. Washington and the Boldt decision, Weaver landed his first big case on behalf of the Yakamas. He took over for Hovis in Settler v. Lameer, a long-running case in which a tribal fisherman, Alvin Settler, was challenging the Yakama Nation’s right to enforce its fishing laws outside its reservation. "The treaty said that the Yakama Nation reserves the right for its fishermen to fish in all usual and accustomed fishing places, most of which are 50 or 60 or even 100 miles outside the reservation boundaries," Weaver said. "The issue here was whether or not the tribe had jurisdiction over its fishermen when they were down there using those fishing sites" (Weaver interview).

Hovis had taken the case to trial, then seen it reversed and sent back for a re-hearing. Taking over at that point, Weaver won a summary judgment and won again in 1974 when the U.S. Ninth Circuit Court of Appeals upheld the decision. "That was the first case where Indian jurisdiction had been upheld to cover situations located well outside Indian reservations," Weaver said. "With regard particularly to the Northwest (tribes), all of whose treaties have that language in there about the ‘usual and accustomed’ fishing places, it was a very big case" (Weaver interview)

More Challenges, More Victories

As the legal victories for the tribes accumulated, so did arguments over what the rulings meant. Adding fuel to the controversies was the ongoing construction of dams on the Columbia. The dams provided power, transportation, flood control, and reliable irrigation, but they also acted as barriers to salmon and steelhead attempting to head upriver to spawn. The U.S. Army Corps of Engineers completed the last of four lower Snake River dams in 1975, bringing the total number of dams on the mainstream Columbia and the Snake to 18. The fish runs were dwindling, their survival in doubt.

The tribes, thanks to their success in court, now had a say in fish management. They stayed on the offensive, challenging what they saw as violations of the rulings by judges Boldt and Belloni. "In the mid-70s to the early 80s, I always carried a clean pair of jockey shorts and my toothbrush in my brief case when I went off to fish hearings in Seattle and Portland," Weaver said, "because I never knew whether I’d be coming back the next day or not, or whether we’d be over there in federal court having a big fight over something (the states) had done" (Weaver interview).

Over the years, Weaver would find himself battling such groups as the Corps of Engineers, Bureau of Reclamation, National Marine Fisheries Service, Federal Columbia River Power System, the Northwest Power Planning Council, and the Bonneville Power Administration. His personality was a plus. He could be tough and relentless as a litigator, but also open-minded and willing to collaborate in search of solutions. Above all, he earned respect for his knowledge of the law and his devotion to the cause of Indian treaty rights. "He's really been an unwavering advocate for the tribes and the fish," said Lorraine Bodi, senior salmon adviser for the Bureau of Reclamation, who first met Weaver in the late 1970s when she was an attorney for the National Marine Fisheries Service. "When he spoke, I listened very carefully, because he knew what he was talking about," said U.S. District Court Judge Malcolm M. Marsh (Oregonian).

Not All Cases Involved Fish

Although he gained prominence for his role in the fish wars along the Columbia, Weaver tackled other issues on behalf of the Yakama. He wrangled with the state over upland bird hunting and conservation. He argued one non-fish case before the U.S. Supreme Court (Yakama Nation v. Brendale, which involved zoning and non-Indian activity on the reservation); and served as co-counsel on another (Yakama Nation v. Yakima County, which dealt with whether the county could tax land on the reservation not held in trust by the United States). He also got involved in the late stages of the controversy over Kennewick Man, a prehistoric skeleton found along the Columbia riverbank and dated at more than 9,000 years old. The Yakamas were one of five tribes that claimed the bones and wanted them for re-burial. Scientists wanted the bones for study. The tribes lost that one; the court ruled that they had no claim to the bones.

Fish, however, were at the heart of much of Weaver’s tribal work. And some of those cases went on for decades. Based on the Boldt and Belloni rulings, the tribes challenged the right of Oregon and Washington to allow offshore catches of fish bound for the Columbia without counting them as part of the catchable total. That led to rulings in 1975 and 1976 that said, yes, those fish must be counted, and if they amounted to more than 50 percent, the states had to shut down all other non-Indian fishing in order to leave sufficient stock for the tribes. "That caused some fireworks, to say the least," Weaver said. "It had the effect of bringing people closer to the table for working out fishery management plans" (Weaver interview).

Ever-Widening Consequences

As the battles raged on, Weaver had to confront a major health issue. In June 1992 he was diagnosed with colon cancer. By then he and Gail had two grown sons -- Tyler, born in 1970, and Ryan, born in 1974. Tim got treatment and continued to work, on cases with ever-widening consequences.

In a 1994 case he helped win, the Ninth Circuit Court of Appeals rejected the Northwest Power Planning Council’s 1992 "Strategy for Salmon," saying the plan favored hydropower interests and industrial power users and gave insufficient consideration to recommendations by state and tribal fish and wildlife managers. Another ruling, for essentially the same reasons, threw out the National Marine Fisheries Service’s 1993 plan for Columbia Basin hydroelectric operations. A third ruling, also in 1994 by the Ninth Circuit Court, ordered restrictions on logging, grazing, and road building in two national forests in Eastern Oregon to protect Snake River chinook spawning streams. The tribes also had a big part in shaping the Pacific Salmon Treaty, which brought an end to unrestricted Canadian and Alaskan harvest of Columbia River fish in the ocean. "That was crucial," Weaver said. "And it took more than 20 years" (Weaver interview).

No One Case Most Important

Salmon litigation was like that. It went on and on, with one case leading to another and another and another. A resolution adopted by the Affiliated Tribes of Northwest Indians in 2009 to recognize Weaver’s career achievements cited as examples 11 of his cases that led to "favorable, precedent-setting legal rulings." Asked which he considered most important, Weaver said, "They were all pretty darn important, I guess, because of the on-going nature of the salmon resource. ... There were a number that I think really moved the ball down the court a long ways, but no one that was the end-all, be-all." To illustrate the seemingly endless nature of the debate, he noted that the 1974 Boldt decision, widely considered a landmark ruling, was still being argued in a 2010 case involving culvert repair.

Nearing the end of his long fight with cancer, his weight down more than 60 pounds to 130, Weaver officially retired at age 65. Because of the disease, he had known for years that his time was limited. "But until the last three or four months, I didn’t realize it was quite as limited as it turned out to be. I wish I had quit earlier," he said, before adding with a laugh, "but what the hell would I have done?"

Taking stock of his work on behalf of the Yakamas, he said he was proud of what he had accomplished but stressed, "I was not Superman. I had lots of people working with me in this. I dragged a few of them kicking and screaming, but I was not alone" (Weaver interview).

After years of trials and meetings, he took a recent development as a hopeful one. Under the Columbia Basin Fish Accords signed in May 2008, the tribes agreed to stop litigation for at least 10 years in exchange for about $900,000 from federal agencies, the majority from Bonneville Power Administration. The money was to be used by the Indians to help salmon. "This is not going to be the federal agencies, these are the Columbia River tribes who are going to be out there," Weaver said. "Actual boots on the ground, people out there changing habitat, fixing habitat, planting the right fish, those sorts of things. And giving the tribes a seat at the table for a relationship with the people who pull the levers that run the river -- I just think that’s a giant step forward and will continue to be one, and a great help in returning the Columbia to what it once was" (Weaver interview)

The Affiliated Tribes resolution hailed Weaver as "a role model for all Indian Law attorneys who have followed in his large and influential footsteps." It praised his humor, spirit, wisdom, "his exemplary character, his solid integrity, his zealous advocacy, and his vigorous devotion to the cause of protecting and enhancing the rights of Indian people." It concluded: "He truly has made a difference."

Weaver lost his long battle against colon cancer on March 22, 2010. He died at his home in Yakima, surrounded by family. He was 65. His memorial services included a traditional seven-drum ceremony at the Yakama Nation Cultural Center Winterlodge in Toppenish, Washington -- a rare honor for a non-tribal member.


Glenn Drosendahl interview with Tim Weaver, January 29, 2010; HistoryLink.org Online Encyclopedia of Washington State History, "Frank, Billy, Jr. (b. 1931)" (by Robert O. Marritz) and "Kennewick Man" (by Kit Oldham) www.historylink.org (accessed February 2010); Columbia River Inter-Tribal Fish Commission (CRITFC), "A Short Chronology of Treaty Fishing on the Columbia River" and "Treaty With the Yakama, 1855," CRITFC website accessed February 2010 (www.critfc.org); Alexandra Harmon, Indians in the Making: Ethnic Relations and Indian Identity Around Puget Sound (Berkeley: University of California Press, 1998); Matthew Preusch, "Tim Weaver, Yakama Tribes' Salmon Champion, Says His Goodbyes," The Oregonian, January 1, 2010, www.OregonLive.com; Neil Modie, "Salmon are Landing Victories in Court," Seattle Post-Intelligencer, September 19, 1994, p. A-1; Mary Hopkin, "Feds, Tribes Strike Deal on Dams, Fish," Tri-City Herald, April 8, 2008, p. A-1; "Honoring Tim Weaver," Affiliated Tribes of Northwest Indians, 2009 Conference Resolutions, Resolution 09-61Affiliated Tribes of Northwest Indians website accessed Februrary 2010 (http://www.atnitribes.org/); Matthew Preusch, "Tim Weaver, Advocate for Native American Salmon Rights, Succumbs to Colon Cancer," The Oregonian, March 23, 2010 (http://www.oregonlive.com/).

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