By Darren Smith, Weekend Contributor

A three judge panel of the Ninth Circuit Court of Appeals ruled June 27th that in addition to recognizing tribal fishing rights, pursuant to the Stevens Treaties entered in the middle 1850s between Indian tribes of the Pacific Northwest and the Washington Territorial Governor, the government is mandated to protect the viability of sustainable fishing to preserve the allocation to local tribes.

In signing these treaties, the tribes relinquished “swaths of land, watersheds, and offshore waters adjacent to these areas…in what is now the State of Washington. In exchange, the Tribes were guaranteed a right to engage in off-reservation fishing.”

The panel held that in building and maintaining barrier culverts within Washington, the state violated, and continues to violate, its obligation to the Tribes under the treaties.

The several Tribe plaintiff consisted of Suquamish Indian Tribe, Jamestown
S’Klallam, Lower Elwha Band of Klallams, Port Gamble Clallam, Nisqually Indian Tribe, Nooksack Tribe, Sauk-Suiattle Tribe, Skokomish Indian Tribe, Squaxin Island Tribe, Stillaguamish Tribe, Upper Skagit Tribe, Tulalip Tribes, Lummi Indian Nation, Quinault Indian Nation, Puyallup Tribe, Hoh Tribe, Confederated Tribes and Bands of the Yakama Indian Nation, Quileute Indian Tribe, Makah Indian Tribe, Swinomish Indian Tribal Community, and the Muckleshoot Indian Tribe–joined with the United States.

Tribes alleged in their complaint that Washington had “had violated, and was continuing to violate, the Treaties by building and maintaining culverts that prevented mature salmon from the sea; and prevented very young salmon from moving freely to seek food and escape predators.” In a long standing dispute, (in excess of one hundred years) contention flares up between the state and the Tribes.

The panel detailed both an informative, and in most ways tragic history regarding the plight of Indians’ fishing rights and culture:

For over a hundred years, there has been conflict between
Washington and the Tribes over fishing rights under the Treaties. We recount here some of the most salient aspects of this history. quantities of salmon, first on the Columbia River and then in Puget Sound as well, supplying large-scale canneries.

When white settlers arrived in the Washington territory in the second half of the nineteenth century, many settled on riparian land and salt-water shoreline. Even though the majority of these settlers were not themselves fishermen, they blocked access to many of the Tribes’ traditional fishing sites. By the end of the century, white commercial fishermen were catching enormous

In 1894, L. T. Erwin, the United States Indian Agent for the Yakimas, complained that whites had blocked access to the Indians’ “accustomed fisheries” on the Columbia River: “[I]nch by inch, [the Indians] have been forced back until all the best grounds have been taken up by white men, who now refuse to allow them to fish in common, as the treaty provides.” Report of the Secretary of the Interior, 1894 (3 vols., Washington, D.C., 1894, II, 326). In 1897, D. C. Govan, the Indian Agent for the Tulalips on Puget Sound reported that “the Alaska Packing Company and other cannery companies have practically appropriated all the best fishing grounds at Point Roberts and Village Point, where the Lummi Indians have been in the habit of fishing from time immemorial.” Annual Reports of the Department of the Interior, 1897: Report of the Commissioner of Indian Affairs
(Washington, D.C., 1897, 297). In 1905, Charles Buchanan, the new Indian Agent for the Tulalips, complained, “The tremendous development of the fisheries by traps and by trust methods of consolidation, concentration, and large local development are seriously depleting the natural larders of our Indians and cutting down their main reliance for support and subsistence. Living for them is becoming more precarious year by year.” Annual Reports of the Department of the Interior, 1905: Indian Affairs (Washington, D.C., 1906, Part I, 362). During this period, “[t]he superior capital, large-scale methods, and aggressiveness of whites . . . quickly led to their domination of the prime fisheries of the region.” Donald L.
Parman, Inconstant Advocacy: The Erosion of Indian Fishing Rights in the Pacific Northwest, 53 Pacific Hist. Rev. 163, 167 (1984).

The United States Supreme Court first addressed the conflict over fisheries in United States v. Winans, 198 U.S. 371 (1905). The Winans brothers had acquired land at a prime Yakima fishing site on the Washington side of the Columbia River. See Michael C. Blumm and James
Brunberg, ‘Not Much Less Necessary . . . Than the Atmosphere They Breathed’: Salmon, Indian Treaties, and the Supreme Court — a Centennial Remembrance of United States v. Winans and Its Enduring Significance, 46 Nat. Resources J. 489, 523 (2006). Under an exclusive license from the State, the Winanses operated “fish wheels” at the site. Fish wheels were essentially mechanized dip nets “capable of catching salmon by the ton.” Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n,
443 U.S. 658, 679 (1979). The Winanses refused to allow the Yakimas to cross over or to camp on their land in order to fish at the site.

The Yakimas had signed one of the Stevens Treaties in 1855. The United States brought suit against the Winanses on the Yakimas’ behalf. The Supreme Court held that the land owned by the Winanses, previously conveyed by patent from the government, was by virtue of the treaty subject to an easement allowing access to the Yakimas’ “usual and  accustomed” fishing site. The Court held, further, that the State could not license the Winanses to “construct and use a device which gives them exclusive possession of the fishing places, as it is admitted a fish wheel does.” Winans, 198 U.S. at 382. See also Seufort Bros. Co. v. United States, 249 U.S. 194 (1919) (holding that the Yakimas had rights under the
treaty on the Oregon, as well as the Washington, side of the river).

In 1915, Charles Buchanan, still the Indian Agent for the Tulalips, complained to the Washington legislature of the diminished supply of salmon and the harsh application of Washington’s fish and game laws against the Indians. He wrote:

[M]ore recently, the use of large capital, mechanical assistance, numerous great traps, canneries, etc., and other activities allied to the fishery industry, have greatly lessened and depleted the Indians’ natural sources of food supply. In addition thereto the stringent and harsh application to Indians of the State game and fish laws have made it still and increasingly precarious for him to procure his natural foods in his natural way.

The next year, the Washington Supreme Court upheld the sort of “stringent and harsh application . . . of game and fish laws” of which Buchanan complained. In State v. Towessnute, 154 P. 805, 806 (Wash. 1916), a member of the Yakima Nation named Towessnute was charged with off reservation fishing without a license in a manner forbidden by state law. Towessnute defended on the ground that he was fishing in the traditional manner at one the Yakimas’ usual and accustomed places, and that he was entitled to do so under the treaty at issue in Winans. Id. Characterizing the treaty as a “dubious document,” id., the Washington Supreme Court rejected the defense:

The premise of Indian sovereignty we reject. The treaty is not to be interpreted in that light. At no time did our ancestors in getting title to this continent, ever regard the aborigines as other than mere occupants . . . of the soil.

The Court read the Supreme Court’s holding in Winans as requiring easements across private land, but at the same time as endorsing the authority of the state, through the exercise of its “police power,” to enact regulatory laws restricting Indian fishing rights. Id. at 809. See also State v. Alexis, 154 P. 810 (Wash. 1916) (holding the same under the
Stevens Treaty with the Lummi Tribe in Puget Sound).

Much traditional Indian fishing was done with traps and nets in rivers, catching mature salmon when they returned to their native habitat to spawn. White commercial fishermen, by contrast, often fished in salt water, using equipment that most Indians could not afford and catching both mature and immature salmon. Beginning in the early 1900s, the State
regulated the salmon fishery in Puget Sound in such a way that Indians who fished in rivers were increasingly unable to exercise their off-reservation treaty right to fish in their usual and accustomed places and in their traditional manner. For example, in 1907 the Washington legislature forbade all off reservation fishing above the tide line — by whites and Indians alike — except by hook and line. Wash. Sess. Laws Ch. 247, Sec. 2 (1907).

In Tulee v. Washington, 315 U.S. 681, 684–85 (1942). Where Yakima Nation Sampson Tulee was cited for illegal, off-reservation commercial fishing for refusing to pay a licensing fee. The U.S. Supreme Court held “that while the State had the power, consistent with the treaty, to regulate fishing by both Indians and non-Indians to the degree “necessary for the conservation of fish,” the exaction of a license fee “cannot be reconciled
with a fair construction of the treaty.”

Despite this, Washington State continued in its decades-long enforcement practices; severely harming and limiting tribal fishing rights, as noted by Walter Taylor in Uncommon Contribersy: Fishing Rights of the Muckleshoot, Puyallup, and Nisqually Indians (1970):

Over the years the state fish and game authorities have asserted that Indian treaty protected fishing exists only on the reservations, and have acted to enforce this position. Injunctions against off-reservation fishing by Indians of the Nisqually, Puyallup, and Muckleshoot tribes have been obtained and enforcement actions carried out even while the injunctions are being contested in the courts. Arrests of fishermen and confiscation of gear have seriously hampered the Indians. Valuable gear held by the state as evidence can effectively put the fisherman out of business during several runs of fish, even though he may eventually win his case.

“As a result of the State’s hostility to off-reservation fishing, the Indians’ share of the overall catch was relatively small. For example, from 1958 through 1967, the shares of the total salmon catch in Puget Sound were 6% for Indian fishing, 8.5% for sports fishing, and 85.5% for commercial fishing.”

“Beginning in the early 1960s, the State substantially increased its enforcement against off-reservation fishing in Puget Sound. See generally Bradley G. Shreve, “From Time Immemorial”: The Fish-in Movement and the Rise of Intertribal Activism, 78 Pacific Hist. Rev. 403, 411–15 (2009). In response, in 1964 the National Indian Youth Council organized a large demonstration in Olympia to demand that the State acknowledge their treaty fishing rights. See Uncommon Controversy, supra, at 107–13. During the 1960s and early 1970s, in what came to be called the “fish wars,” some Indians fished openly and without licenses in
“fish-ins” to bring attention to the State’s prohibitions against off-reservation fishing. State reaction to the “fish-ins” sometimes led to violence. See, e.g., Associated Press, “Shots Fired, 60 Arrested in Indian-Fishing Showdown,” Seattle Times, Sept. 9, 1970; Alex Tizon, “The Boldt
Decision / 25 Years — The Fish Tale That Changed History,” Seattle Times, Feb. 7, 1999 (describing the State’s “military style campaign,” employing “surveillance planes, high-powered boats and radio communications,” as well as “tear gas,” “billy clubs,” and “guns”).

This is truly a sad history, repeated many, many times in the history of the United States that continues to this day.

Many outside Tribal society fail to recognize the cultural and financial significance of salmon and other fishing to these peoples. The Court noted eloquently:

Salmon were a central concern. An adequate supply of salmon was “not much less necessary to the existence of the Indians than the atmosphere they breathed.” Winans, 198 U.S. at 381. Richard White, an expert on the history of the American West and Professor of American History at Stanford University, wrote in a declaration filed in the district court that, during the negotiations for the Point-No-Point
Treaty, a Skokomish Indian worried aloud about “how they were to feed themselves once they ceded so much land to the whites.” Professor White wrote, to the same effect, that during negotiations at Neah Bay, Makah Indians “raised questions about the role that fisheries were to play in their future.” In response to these concerns, Governor Stevens repeatedly assured the Indians that there always would be an adequate supply of fish. Professor White wrote that Stevens told the Indians during negotiations for the Point Elliott Treaty, “I want that you shall not have simply food and drink now but that you may have them forever.” During negotiations for the Point-No-Point Treaty, Stevens said, “This paper is such as a man would give to his children and I will tell you why. This paper gives you a home. Does not a father give his children a home? . . . This paper secures your fish. Does not a father give food to his children?” Fishing Vessel, 443 U.S. at 667 n.11 (ellipsis in original).

The Indians did not understand the Treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs. Governor Stevens did not make, and the Indians did not understand him to make, such a cynical and disingenuous promise. The
Indians reasonably understood Governor Stevens to promise not only that they would have access to their usual and accustomed fishing places, but also that there would be fish sufficient to sustain them. They reasonably understood that they would have, in Stevens’ words, “food and drink . . .
forever.”

As hopeful I am that this will force compliance for the State of Washington to respect both treaty rights, knowing this state I am certain the battle will continue for many years to come, if history is to be a reliable predictor of future litigation.

In 2007 the U.S. District Court for Western Washington held that in building and maintaining these culverts Washington caused the size of salmon runs in the state to diminish that the state violated its obligation under the Treaties. In 2013, the court issued an injunction ordering Washington to correct its offending culverts. Nevertheless the struggle continues.

The cost, however, to the state will be staggering.

The Court noted that blocking culverts diminished salmon runs along 1,000 linear miles of streams and waterways and the District Court ordered the state to replace these within seventeen years. The state argued that it spend already hundreds of millions of dollars on salmon protection and that the money would be better spent in other programs to vitalize the habitats. Costs of compliance could reach into the billions.

By Darren Smith

Sources:

Ninth Circuit Court of Appeals, USA v. Washington No. 13-35474
KOMO News

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