Value of Treaty Fishing Rights

Value of Treaty Fishing Right.
Cushman School,
Tacoma, Wash., October 30, 1919

Article 3 of the Nisqually treaty of 1854 (10 Stat., 1132) reserves to the Indians “the right of taking fish at all usual and accustomed grounds and stations.” This provision occurs in all of the treaties negotiated in 1854-55 with the Yakima and Puget Sound Indians. (2 Kappler, 534, 661, 674, 683, 694, 702, 719.)

Fishing Provision Opposed by State

During the last 50 years the efforts of the courts, officials of the Government, and friends of the Indians have failed to secure them the unmolested enjoyment of this primeval right except in waters wholly within Indian reservations. Indian agents and commissioners have frequently reported this condition. (A, 47, 51, 52, 54, 56, 81, 82.) Indians of the Muckleshoot Reservation are denied right of taking fish from Green River within 2 miles of their reservation, except by hook and line, although from time immemorial they have taken fish by means of nets and by spearing–their ancient methods–neither of which is now permitted.

A fish hatchery has dammed this stream and is taking the salmon for their spawn. A fish a day is given to some of the Indian families and surplus shipped; thus the Indians can not get a supply for drying for winter use, and they can’t catch enough by hook and line, as salmon seldom bite, except steelhead in the spring. This hatchery is reported to be taking all the salmon which come up the Green River. Its policy is said to vary–some hatcherymen are lenient and permit Indians to catch salmon with nets for their own use, while other employees of the hatchery refuse the Indians this right.

District Farmer C. A. Reynolds, in charge of this reservation, states that last year a Muckleshoot Indian was arrested by State game warden for taking fish in Green River with a spear for his own use, this being in violation of State law. These Indians always preferred Green River to the White River, which runs through their reservation, because the latter is always cloudy from silt and for that reason has never been frequented by fish like the Green has. In 1909, by award in the State courts, the Pacific Coast Power Co. paid 17 of the Muckleshoot allottees $10,000 as damages for diverting a portion of the water in the White River at a point about 6 miles above their reservation. The only thing the Indians surrendered was their use to part of the White River water flowing through their lands. (No. 63960, Superior Court, King Co., Wash. Pac. Coast Power Co. v. Mary Ann Jack, et al. Ex. A, 67) Mr. Reynolds, who has lived among the Muckleshoots for many years and speaks their language, handled this case in its details on the reservation. He states the Indians make as much use of the White River now as they did before the diversion, but they never used it as much as they did the Green River, which is clear. District Farmer William C. Miller, for seven years in charge of the Skokomish Reservation on river of same name and Hoods Canal, gives an instance four years ago when Indian nets were removed from the river on the edge of the reservation by the State authorities. He states that the Skokomish Indians are afraid to get away from their reservation to fish, as they are doubtful about the 5-mile State law (A, 79). Their old fishing grounds were at Lake Cushman Falls , 5 miles away in a straight line, but 8 miles by the river. (A, 64, 65, 69.)

James Nimrod, one of Nisquallies, bought a new home on this reservation. He complains that the white people don’t want him to fish in the river there because he doesn’t belong to that tribe, and they won’t even let the Indians fish in creeks which run through their land. He further states, “There was nothing like that on the Nisqually-nobody bothered us over there. I have fished all I wanted to without being bothered until this time when I am old, now I am bothered when I fish.”(A, 69.) Mrs. Florence Leroy, an intelligent mixed-blooded Nisqually, who was born and raised on edge of the reservation until her home was taken, states that the Nisqually Indians dried large quantities of salmon and sold surplus before the game warden began to bother them. Since then the Indians are afraid to go away from their reservation to fish and that now those who remain will be molested by the whites from the Army’s side of the Nisqually River. (A, 71, 73.)

Father De Decker for 30 years made monthly trips to hold services in his Catholic Mission Church on the Nisqually Reservation. He knows them all and their means of living. He states that they will now be subjected to annoyance and inconvenience when they fish in the Nisqually at points within their former allotments and more so when they attempt to fish away from Indian lands. (A, 76.)

Mr. Stephen Judson, of Steilacoom, Wash., has known the Nisquallies for 66 years and speaks their language. Until 1907 he had lived for 51 years on his ranch adjoining the condemned part of their reservation. Mr. Judson states that toward the last of his residence on the ranch about the only place the Nisquallies “could fish unmolested was in the Nisqually River within their reservation,” owing to bother from State fish authorities.

Mr. Judson is probably the only best authority living on the Nisqually Indians and early history. Tacoma city is partly built on his fathers homestead. Mr Judson served many years as sheriff, county treasurer, and legislative representative of Pierce County. His present home is at Steilacoom is only 10 miles north of the Nisqually Reservation. (A, 78.)

For 50 years the Yakima and Warm Springs Indians have been trying to enjoy their right to fish in their ancient fishing grounds–called Tumwater Fisheries–at the Cascades of Columbia River. As long as 35 years ago the white people tore down their homes and dry houses and fenced them away from their ancient fishing village and stations. The materials of which these houses were built was hauled upon by Indian ponies long distances from the mountains. Gradually the Indians have been dispossessed and a fishing monopoly has seized the fisheries. Efforts to retain the Indians’ right to fish there have been successful in part at intervals, and once troops had to be stationed at the fisheries to see that the Indians could enjoy for a short time a part of their treaty rights to fish.

A suit entitled “United States as trustee for Yakima Indians and Sam Williams v. Seufort Bros Co.,” the monopoly, was brought in March, 1916, by the United States attorney in the United States District Court of Oregon to restrain the Seufert company from molesting old Sam Williams, a Yakima, in his right to operate his fish wheel at a station laboriously prepared by him in the laval rock. The suit also seeks to secure to both the Yakima and Warm Springs Indians the right to fish at the Dalles at one of the Oregon side of the Cascades, where for untold generations the Indians have caught salmon.

In the United States attorneys brief in this case he quotes as follows from report of the Commissioner of Indian Affairs to the Secretary of the Interior: “The Agents of the Government and friends of the Indians have been at their wits ends to devise some means thereby the Indians might obtain access to the river, and occasionally temporary accommodations have been secured for them, but always of a most unsatisfactory character.” (26 House Ex. Doc., 1st Sess., 50th Cong., 1887-88, Doc. No. 183.)

In an effort to protect a Yakima Indian in his treaty right to fish in the Yakima River in Benton County, Wash., United States Attorney Francis A. Garrecht, of Spokane, Wash., appealed in a recent case from judgement of the Superior Court of Benton County against this Indian for violating the State fishing laws. The appeal was taken to the Supreme Court of State of Washington. (State of Washington v. Alec Towessnute.) In his brief before the supreme court, ably presented, this conviction is expressed (p. 38): “The Indians’ claim is not merely meritorious but is an impregnable right founded on the Constitution.”

The Lummi Indian Reservation is a cape on the eastern shore of Georgia Strait near Bellingham, Wash., and the Lummi or Nooksack River cross the reservation. Their fishing rights are reserved in the usual and accustomed fishing grounds on the Lummi beach. The reef net is an ancient fishing method of these Indians an can only be operated a few hours a day and requires constant attendance from the Indians. It operates like a large dip net. The case against Alexis was appealed by his attorney to the State Supreme Court which confirmed the lower court’s judgement against him. I understand that intention to appeal the case to the Supreme Court of the United States has been dropped because of a recent decision in that court adversely to the New York Indians who were being prosecuted by the state of New York for violation of the State’s guaranteed under an old treaty covering the ceded territory where they were fishing, but the court decided that changing conditions nullified this treaty right on the ceded territory. I have not access to this decision but if such is the purpose of it the Indians out here will be governed by the same rule. As a result of the decision in this Lummi case it is doubtful whether Indians will be able to fish for their own consumption within 5 miles of their

reservations as provided by section 42, chapter 31 of the Session Laws of Washington, 1915, which, you will notice (A, 7), excepts the Nooksack (Lummi) River from privileges of that section. Alexis’s attorneys in their briefs on appeal to the State supreme court (p. 80) state as follows:

In presenting this matter to the court, we desire, if possible, that the decision be based upon other grounds, as the 1915 law makes it an offense to fish without a license for food, fish by any means except hook and line, and it was one of the objects in this case to obtain a construction of the treaty, as the Fish Commissioner insisted on making arrests if licenses were not procured by the Indians fishing in their ancient grounds. This well states the attitude of the State authorities toward the treaty-fishing rights of the Indians. And all this shows that the only place an Indian can unmolested enjoy this treaty right is in waters within his reservation.

Treaty-Fishing Right Nearly As Valuable as Lands

Rev. Father DeDecker states that “this fishing privilege (of the Nisquallies) was the most valuable right they lost by being dispossessed of their lands;” that “their main dependence for meat was fish secured by them form the Nisqually River where it passes through the reservation where they fished unmolested and dried large quantities of salmon for winter use during the salmon runs;” that “their daily diet consists mostly of potatoes, bread, and fish, and often when the potatoes gave out it would be only biscuits and fish, principally the latter – sometimes they had little to eat but fish which they caught from the Nisqually,” and that, “Most of the Nisqually Indians ate fish daily, in fact if deprived of fish some of them would have nearly starved.” (A, 75, 76.)

Rev. Mr. Allen, for 16 years a missionary among the Nis-Quallies, states “their whole meat supply for food was from fish which they caught in the Nisqually River on their reservation;” that “judging from quantities of fish we have seen stored at their homes we can say that fish was the main item in the diet of the Nisqually Indians;” that “we can not recall a time that the Indians did not have fish on the table during our visits.” Mr. Allen adds that the dispossession of the Nisquallies seriously crippled their source of fish supply and worked a hardship on them. (A, 74.)

Worth of Fish Consumed By a Nisqually Family was $100 to $200, Wholesale Prices

Mr. Stephen Judson states (A, 78) that “The Nisqually Indians have always been fish-eating Indians and half of their living came from fish they caught,” and that –

During the three or four months of the fishing season the Indians used to come from the outside, as far at the Puyallup and Yakima Reservations to catch and dry salmon at the Nisqually River, and the Nisqually Indians used to trade fish which they dried to other Indians. In late years the salmon were not so plentiful and the Nisqually Indians used what they caught mostly for their own consumption. The Nisqually Indians selected their reservation because they knew it was a good fishing ground, and if the river had not been handy so they could get fish there are times when some of the Indians would have starved for food.A Nisqually family ate salmon every day and it was about all the meat they had during recent years. They had a way of drying the salmon in their smokehouses which took a month to thoroughly cure them and then the dried fish would be dry and hard and keep for a long time.

Mr. Judson adds, “When the dispossessed Nisqually Indians lost their fishing right they lost something worth to them more than their land, as the river fish was a great part of their living,” and that “an Indian family ate annually fish worth $200 on average.”

Mr. Wm. C. Miller, agency farmer, who was a member of the Indian board of appraisers of the Nisqually lands, states “The principal diet of the Puget Sound Indians is the salmon, of which I found large quantities dried in the homes of the Nisquallies at that time (time of the appraisal), there being no fresh salmon at that season of the year”; that, “the salmon are smoked and dried by the Indians in houses built especially for that purpose along the river bottom, and nearly every family also had a smokehouse for that purpose at their home near the escarpment overlooking the river”; that in every house he found fish, and judging from that, he estimates “tat about 75 per cent of their food consisted of fish.” Mr. Miller states, that from his experience, where the Indian does not own the shore lands, “there would be more or less opposition and molestation from the owners of the river lands which they would have to use in anchoring their nets, cleaning the fish, and if the Indians lived at a distance they would have to dry their catch at the river bank.” Mr. Miller estimates that the value of fish consumed annually on an average by a Nisqually family would be from $100 to $150 if sold in the market. (A, 63.)

F. Marion Wilkes, another appraiser, makes statements similar to Mr. Miller. Mr. Wilkes estimates the average Nisqually Indian family consumed annually fish worth $150, and he adds that the Nisqually is a much better fishing stream than the White River on the Muckleshoot Reservation. Mr. Wilkes also testifies as to the numerous smokehouses on the Nisqually Reservation for drying fish. He is a native of western Oregon and familiar with fishing conditions. (A, 60, 61.)

The appraisers of Pierce county note seven smokehouses by name, and there is no doubt but what many structures designated by them as “shacks” and by some other general term were used for that purpose. (C, 2, 7, 20, 27, 28, 31, 32.)

During the trips I made over the Nisqually Reservation I noted that at nearly every home there was a small building which apparently had been used for smoking fish. There were also some in the bottom along the Nisqually River where the Indians camped during the summer.

Dr. Charles M. Buchanan, in his 1901 report (Ex. A, 54, 55) states: “The Puget Sound Indian is self-supporting, because he is a fisherman;” that they “are almost entirely dependent upon the never-failing supplies of salmon, clams, shellfish, etc.;” and that it is because of this that rations are not issued to them. For nearly 30 years Dr. Buchanan has been a physician and superintendent among the Sound Indians and talks their dialect. He is recognized as an authority on their history and customs and has greatly aided in attempts to uphold their fishing and other rights. He had charge of the Muckleshoots when payment was made in the sum of $10,000 for partial diversion of White River waters. In 1904 the Fort Madison Indians, then under his charge, secured by treaty from the War Department $80 per acre for some of their reservation, mostly rocky shore, besides additional sums for individual clearings, buildings, and other improvements. There is quite a contrast between this and the methods and prices at camp Lewis. (A, 31, 36.)

James Nimrod, an intelligent full-blood Nisqually, about 65 years old, who speaks good English is one of the living allottees dispossessed of his land. He states (A, 68, 69) that “one family can eat a whole fish in one meal; they eat three fish in one day. That’s why they like Nisqually; they lived cheap on fish;” that “from the early days up to this time they have lived on fish;” that “some of the Indians would dry 400 or 500 salmon for winter just for their own use.” Nimrod further states that such fish as they caught sell for 50 cents to $1 each, but if they bought them at retail they would cost $1.50 to $2 each.

At my request the superintendent secured from the Glacier Fish Co., of Tacoma, Wash., the wholesale prices they paid to fishermen for salmon, from which it will be noted that this season dog salmon bring 45 cents each and silver salmon 75 cents each. (A, 80.) Newspaper market reports show selling prices, wholesale, 7 to 19 cents, and retail, 15 to 25 cents per pound. (A, 77.) I am told that salmon run in size, according to variety, from 4 to 12 pounds, and some as high as 50 pounds.

Mrs. Florence Leroy states (A, 71, 73) “the advantages of this salmon supply form the Nisqually River can not be calculated in money. The river ran back of their homes and through reservation for 4 miles. They owned the land on both banks and did not have to secure anyone’s permission to travel over the land in getting to the fish.” She estimates that the average Nisqually family consumed yearly an average of $200 worth of salmon, but “if the Indians had to pay the market price prevailing among the whites, the const would be a great deal more.” She further states (A, 71):

Having lived all my life on the Nisqually Reservation, or rather next to it, I was well acquainted with all the Indians living of that reservation. Ever since I can remember the Nisqually Indians have depended for most of their food on the salmon, which they caught in the Nisqually River on their reservation. They dried the salmon in their smokehouses for winter use. There were very few meals during the year that the Nisqually Indians were without salmon to eat. Salmon was their main meat, and about the only meat for most of them, especially the older ones.

Map marked “Exhibit G” herewith shows by red crosses how widely scattered the dispossessed Nisquallies now are. It was impossible to locate them together with advantages equal to those surrendered. You will note that neither the county appraisers (Ex. C) nor the Indian board (Ex. B) nor the Army board placed any value on the Nisqually fishing right provided by their treaty, which the law does not permit to be transferred to any other place or land.

Alloted Nisqually Indian Lands Senate Document No. 243, 66th Congress 2nd Session