Changes in the Law, Changes in Practice (Rules for fishing)

Changes in the Law, Changes in Practice

Introduction: The following are examples of laws and practices that helped limit Native Americans access to their “usual and accustomed grounds and stations.”

  1. The controversy began when a settler named Frank Taylor fenced in his land along the Columbia River in order to protect his crops.
  2. Several years ago white men began to encroach on our ground. We were willing to have them share with us the right to fish but not satisfied with equal rights they have yearly made additional obstructions to prevent our catching fish, by setting traps, and placing piling around the grounds. They have driven us from our old camping ground on the beach and have so treated us that we feel we must now appeal to you for assistance.
  3. Restrictions were set on when to fish.
  4. Restrictions were set on where to fish.
  5. Licenses were required for those engaged in fishing.
  6. As early as 1889 the state government passed laws that closed rivers to fishing, allowing Indians to catch only what was needed for their subsistence.
  7. In 1907 all rivers in the Puget Sound were closed to net fishing.
  8. The state tax Indians’ fishing gear like it did non-Indian citizens of the state.
  9. Problems arose for Yakima fishermen who found access to their “usual and accustomed” fishing grounds blocked, this time by a “fish wheel” owned by a man named Winans.
  10. On the Green River the Muckleshoots were forbidden from using their accustomed net methods during spawning season off reservation.
  11. A Muckleshoot was arrested for using a spear in violation of state law.
  12. The state passed a law which limited Indians to fishing within five miles of their reservation.
  13. This fear was a result of state officials removing their nets from the river on a site they claimed to be reservation land. James Nimrod, a Nisqually, told a federal investigator that the sate would not even let him fish on creeks running through the reservation.
  14. As a result of their well organized efforts, the Washington legislature passed a law in 1925 that declared steelhead a “game fish” once it entered fresh water streams and rivers. Up to this time both Indians and non-Indians had considered steelhead a “salmon”. With this new legal designation for steelhead the new state Game Department began to pass new regulations to protect the steelhead for the recreational fisherman. Thus, steelhead could not be taken by net except by Indians on the reservation.
  15. The state law made the sale of steelhead (during a closed season) anywhere in the state a crime.
  16. Two years later… the state extended this net fishing ban to reservation waters as well.
  17. Beginning in 1891 the state built hatcheries to fight the decrease in fish runs. In the case of the steelhead much of the funding for these hatcheries came from the revenues obtained from sport fishing licenses. (This latter development increased the state’s desire to force Indians to obtain licenses). If hatcheries were located upstream from a reservation, the state of Washington believed it had a right to regulate fishing on the reservation as a conservation measure.
  18. At the Cascades of the Columbia the houses used for shelter and fish drying by Indians… were torn down by whites.

1958 – Nisqually Tribe and the Army

The Seattle Times
April 13, 1958
by Hill Williams

The Nisqually Indians and the Army are feuding again. There have been a few skirmishes along the boundary between Fort Lewis and the Nisqually Reservation.

But, in contrast to customs of 100 years ago, the only shots fired have been legal documents. It seems that the Pale faces, in the person of Maj. Gen. William W. Quinn, Fort Lewis commander, want the Indians to restrict their fishing on the Fort Lewis side of the Nisqually River where the stream divides the fort and the reservation.

The Indians said: "Nothing doing." And they instructed their attorney, Malcolm S. McLeod of Seattle, to translate their answer into legal jargon.

The Nisqually Indians’ right to fish in the river is provided in the Medicine Creek Treaty of 1854-signed for the Great White Father by Isaac Stevens, territorial governor, and for the Nisquallys by such notables as Hick Kapoo, Bil Soldier, Buffalo Chief, Missouri Chief and White Water.

General Quinn, in his proposal to the tribe, asked that a new agreement be signed to aid in rehabilitating and increasing the salmon and steelhead runs in the river, and to protect the Indians from hazards incident to military maneuvers. "It would be ‘murder’ if the Indians signed this agreement." McLeod said. "It would impair their treaty rights and hamper their fishing-and they depend on fish for their living."

McLeod added that the Nisqually Indians, whose ancestors have fished the river since ancient times, are well aware of the necessity of conserving the salmon. He said the tribe imposes fishing restrictions on its members to insure an adequate escapement of fish.

McLeod said unpleasant incidents between the Army and the Nisqually Tribe have been few. Some fish nets have been cut by boats in the Nisqually River. Fish have been taken from nets in a few cases. And once a heavy Army tank rumbled right over a shack that a Nisqually called home.

However, the Army has paid damages and the Indians are slow to anger. McLeod feels the chances are good for another 104 years of peace under the Medicine Creek Treaty.

McLeod, 37, spends about half of his time on Indian matters. He represents more than a dozen tribes, covering two thirds of Western Washington. And, strangely enough, he has yet to receive a dime in pay.

The lawyer, in behalf of the tribes, has filed claims against the United States totaling hundreds of millions of dollars. The suits seek damages for land which the Indians assert was taken illegally, or for which the tribes never have been paid.

McLeod works on a fee of 10 percent of damages collected-if and when. A little arithmetic is exciting to almost anyone except McLeod.

"I doubt if I’ll ever be rich," said the attorney. "But I have a lot of fun. I don’t know of any other field of law that offers more challenge-trying to convince the courts of treaty rights of the Indians."

McLeod, reared in Bellingham, became acquainted with the Indians as a boy while fishing the Nooksack River and Squalicum Creek. He grew to know members of the Nooksack, Lummi and Samish Tribes. He has performed legal services for Indian tribes since 1950.

The attorney has obtained a judgment against the United States for 10,000 acres for the Nooksack Tribe. (The tribe contended that more than 500,000 acres had been taken, including the Nooksack River Valley and the site of Bellingham.) The tribe now is waiting a decision as to value of the land. McLeod is shooting for $10 an acre. Witnesses have included historians, to testify as to the value of land 100 years ago, and economists, to establish the erosion of the dollar by inflation since that time. McLeod has taken some unusual exhibits to court in his Indian cases.

In a case where the Makah Tribe on the Olympic Peninsula sought damages for lost fishing and whaling rights. McLeod exhibited whale bones 150 years old. They had been excavated from the site of an old Makah village. Hudson’s Bay Co. trinkets were found in the layer above the bones.

McLeod used the bones in an attempt to prove that Indians had depended traditionally on whales for food, off and implements. The Indians contend they lost their whaling rights when the government curtailed their activities near the turn of the century. Some 550 Makah Indians still live on their reservation near Neah Bay. More hearings are scheduled on the $11,000,000 Makah claim.

McLeod once dragged an Indian fishing canoe into a Tacoma courtroom for use in defending two Puyallup Indians against charges of violating state fishing regulations. The Indians were freed and, at last report, still were exercising their treaty rights to use nets from a canoe in the Puyallup River.

McLeod has been a thorn in the side of the City of Tacoma in its efforts to build power-producing dams on the Cowlitz River. The attorney, in behalf of the Cowlitz Tribe, sued Tacoma for $480,000,000 for loss of salmon fishing in the river. McLeod said the sum is "a very conservative figure, and can always be adjusted upward."

McLeod said the Cowlitz Tribe never signed a treaty with the government. He estimated the land "owned" by the tribe in the Cowlitz River Valley at about 1,000,000 acres.

However, the suit was denied in United States District Court, an appeal was dismissed by the Ninth Circuit Court of Appeals and the Supreme Court of the United states recently denied a petition for a writ of review.

"The United States has given patents to white people to live on the land and to sell it, but this is illegal," aboriginal title to the land never has been extinguished.

"The Supreme Court of the United States has ruled in the past that aboriginal rights of the Indians survived government grants of land." McLeod’s suit conceivably could have cast a cloud on ownership of the vast Cowlitz Valley.

Indian claims are filed with the Indian Claims Commission, established by Congress in 1946. Rulings of the Commission may be appealed to the Court of Claims and the Supreme Court of the United States.

McLeod has made some interesting friends in his work with the Indians. He once had occasion to visit Johnny Bob, an elder in the Nisqually Tribe, who lives along the Nisqually River about four miles upstream from its intersection with Highway 99.

As the attorney approached the old Indians home, he noticed a rifle, resting in a forked stick, protruding from an open end of a second story loft. However, it wasn’t pointed at McLeod so he proceeded to the door.

Bob told McLeod that whenever he needed venison he climbed to the loft, sat behind the rifle until a deer wandered into the clearing and-bang! (It’s legal on a reservation.)

"I’ve learned a lot from men like Johnny Bob," said McLeod.

"Most Indians feel that their way of life is superior to ours-and in many ways it is. They don’t have our anxieties and tensions. And they enjoy the beauty of nature and their art."

"I enjoy the Indian. He is part of an essentially Stone Age culture and has had a hard time adjusting to our civilization. And in the process he has been treated shamefully, in many cases, by federal, state and some local governments."

 

The Seattle Times
Sunday, October 5, 1958
by Stanton H. Patty

Conflict Over Indian Fisheries Flares Into Open

A long- simmering conflict between the State Fisheries Department and Washington Indian Tribes is flaring into the open.

Milo Moore, state fisheries director, says salmon runs will be depleted seriously in several areas unless steps are taken soon to restrict the Indian fisheries.

The Indians’ fishing rights are guaranteed by the 104 year-old Medicine Creek treaty signed by the tribal leaders and Isaac I. Stevens, Washington’s first territorial governor.

The Indians are standing firm on those rights.

Treaty Upheld

The treaty has been backed up several times by the courts. Article 3, a key section of the treaty, reserves for the Indians the right to take fish "at all usual and accustomed grounds and stations…" This means that the state simply has no power to regulate Indian fishing on lands covered by the treaty. Moore recognizes this and is searching for a solution. "One possibility is to try to get a separate treaty with each tribe involved-and the get these new treaties ratified by the Legislature and Congress," Moore said. "Some of the tribes have indicated they might be willing to go along in the interest of conservation."

Congress Help Suggested

At a meeting of the Legislature’s Interim Fisheries Committee in Seattle last week, Moore suggested that the next Legislature send a memorial to Congress asking for help in regulating Indian fisheries.

"It’s beyond us," Moore told the legislators. "We have no jurisdiction, but something must be done or we will lose a good part of our salmon."

More Fish For Indians

"On the other hand, if the fisheries are regulated right, there will be more fish for the Indians and the whites."

Here is the fisheries Department’s side of the story:

There are 22 Indian fisheries in the state. Seven are operated on important salmon streams in the Puget Sound area, ten on coastal streams and five on the Columbia River and its tributaries.

The Indian salmon catch last year was 459,370 fish. This included 38,443 chinooks and 86,284 sliver salmon, regarded as the state’s most valuable species. Other takes were 219,358 pinks, 64,182 chums and 51,103 sockeye. The fisheries Department says the main problem is that the Indians in many cases are intercepting ready-to-spawn salmon on or near the spawning grounds. "The results are ruinous," Moore said. "There is no chance for proper escapement to seed the streams for future runs."

Gear Is Better

The Indians also are steadily increasing the efficiency of their gear and taking a higher toll of the ripening salmon, the department observed. "Years ago the Indians fished with primitive equipment and caught the salmon for their own use," said Bob Josephson, chief of the Fisheries patrol. "Now they are using modern equipment and selling a lot of the fish commercially."

Some Tribes Co-operate

The department said some tribes-notably the Tulalip and Lummi Indians- have co-operated by imposing tribal closures for spawning escapements. "But in most cases the Indians have broken just about every informal agreement the department has been able to negotiate with them," Josephson declared. "You just can’t talk conservation to some of them. Sometimes the tribal councils are willing to go along on conservation, but they are unable to control their own people to enforce this conservation."

Meeting Suggested

Moore recently received a letter from Miss Clara S. Sicade of Fife, secretary-treasurer of the Puyallup Tribal Council, suggesting a meeting of the council and the Fisheries Department. Miss Sicade said most Puyallup tribal leaders favor state regulation because "a few of our people are not going by the rules and fishing all the time."

Here is the Indian’s side of the story: