Indian Fishermen Files Suit Over Nisqually River Arrest
Daily Olympian
June 26, 1963
Olympia, Washington: A fishing squabble that bubbled up in the banks of the Nisqually River carried a $156,000 price tag when it flowed into U.S. District Court in Seattle this week, 18 months after agents of the State Game Department arrested five Indians on charges of illegal fishing.Melvin Iyall, about 35, who says he’s a Nisqually Indian, is seeking a judgment of $156,000 from five state officials, charging he was unlawfully arrested in January, 1962. That’s when Iyall and four other Indians were lodged in a Pierce County jail for allegedly fishing without sanction of the Medicine Creek Treaty of 1855.
The arrests stirred up discontent in the Nisqually Reservation. Much if the debate centered on who held fishing rights under the century-old treaty signed by representatives of the Nisqually tribe and the Federal government. State officials take the stand that only Nisqually Indians are allowed the run of the treaty fishing grounds.
Named as defendants in the Seattle suit are the marital communities of George C. Starland, director of the State Department of Fisheries; John A. Biggs, director of the Department of Game; Walter Neubrech, chief enforcement officer for the Game Department; Ellsworth (Buzz), Slayer, chief game protector for this area, and Roy Betlach, chief of the State Patrol.
As a Nisqually, Iyall maintains his civil rights under the U.S. Constitution and the Medicine Creek Treaty were violated at the time of his arrest. (His attorney says charges later were dropped against Iyall and his fishing gear returned two months after the arrest, when it was established that he was a member of the Nisqually Tribe.)
Iyall also says the arrest held him up to public scorn. He further alleges that he suffered irreparable damages to his reputation in the community and the Nisqually Tribe. Iyall now is said to be living in Tacoma.
Fish Ban Request Irks Nisqually
The Olympian
October 20, 1963
The Nisqually Indians Saturday were studying a request by the State Fisheries Department that they call a temporary halt to salmon fishing in the Nisqually River. The tribal council, meeting at the Nisqually Grange Hall to elect new officers, had before them a letter asking the closure to parallel a ban on commercial silver salmon fishing in Puget Sound.At the same time, members of the tribe were complaining of harassment by the Fisheries Department. Kennith H. Hartman of Tumwater, a Nisqually, said the tribe had recieved word only Friday that the closure was desired to permit silvers to escape to spawning beds. The request came in a letter to the tribe from the Bureau of Indian Affairs at Everett. The letter told the Nisquallys the state desired the closure and was curtailing commercial fishing by non-Indians on Puget Sound. The silver run this year, unlike that of other salmon, has been poor.
The first the Nisquallys knew of the department’s wishes, Hartman said, was when they read an Associated Press story in Friday’s Daily Olympian stating that the tribe had failed to answer a department request. The story said two other tribes on Puget Sound, the Swinomish and the Tulalip, had agreed to a voluntary breather in netting silvers on the Snohomish River and in Skagit Bay.
Hartman said the Nisquallys considered the charge a further “dig” at the tribe in its long feud with the department.
He maintained that the silver salmon run was just beginning in the Nisqually, and fishing in the river had not yet had any effect on the silvers. He said the runs begin at different times in different streams.
Hartman said the silver runs on the Skagit and Snohomish have almost ended. The Tulalip and Swinomish tribes, he said, could easily afford to call a halt to fishing since few fish were going up the streams now.
Hartman said the letter from the Bureau of Indian Affairs was addressed to his sister, Mrs. Elinor Kover, secretary of the tribal council, and Mrs. Mildred Ikebe, the council chairman.
“If any letter had come from the Fisheries Department they’d have known about it,” he said.
Hartman said the Nisquallys have cooperated with the department in permitting escapement of fish to upper reaches of the river.
“We’ve been getting bad publicity,” he said, adding that the Nisquallys have maintained an official closure of weekend fishing for years.
“These fishermen know what this means to them,” he said, adding that the majority observe the ban.
He said two years ago two members of the tribe sent to the fish hatchery on the Green River some quarter million salmon eggs. Under an agreement with the department half of the fingerlings hatched from these eggs were kept by the state and the other half released by the Indians in the Nisqually.
Hartman said the tribe is studying a plan to establish a small hatchery, to be owned by the tribe, on a tributary stream of the Nisqually.
Daily Olympian
October 21, 1963
The Nisqually Tribal Council has restricted week end fishing in their river in an effort to allow silver salmon to escape into spawning beds.The decision stems from a request by the State Fisheries Department, which asks that silver salmon be curtailed because the run of salmon has been poor.
Meeting Saturday in the Nisqually Grange Hall, the tribal council voted that all fish nets should be pulled from the Nisqually River between ten o’clock Saturday morning and Sunday noon until further notice.
Mrs. Elanor Kover, secretary of the group, said she believes the State Fisheries Department wanted more extensive curtailment, however the vote was to enforce only the week end ban.
Backing up the week-end halt to fishing, the Tribal Council elected two river patrolmen – Billy Frank, Jr., and Bap Derickson. Their job is to ensure that no nets are left in the water during the designated hours.
The Nisqually say their silver salmon run just beginning in the Nisqually, and fishing in the river has not yet had any effect in the silvers. They say that runs begin at different times in different streams.
In other business at the tribal meeting, members elected a new chairman. He is Ruben Wells, who replaces Mrs. Mildred Ikebe. Re-elected to their positions were Mrs. Kover, the secretary, and Ernest Gleason, treasurer.
The Seattle Times
November 13, 1963
by Enos Bradner
An order barring Indian fish netting in the Puyallup River was issued late yesterday by Judge Robert Jacques in Pierce County Superior Court.The temporary injunction was granted on a request by the State Game Department and the State Department of Fisheries.
A hearing has been set for November 26 for the issuing of a permanent injunction against Indian gill netting in the Puyallup.
Walt Neubrech, chief of law enforcement for the Game Department, and Robert Josephson, chief of law enforcement for the Fisheries Department, today were issuing stop orders against the Indians netting.
There were 44 individual Indians named in the order granted yesterday, and the writ also applies to any individual engaged in illegal netting practices in the lower part of the river.
John Biggs, state game director, said the department had reached the crossroad in its steelhead program and had to make a firm decision on future policy.
Biggs said the department had engaged in an accelerated plant of steelhead in the past ten years. On rivers such as the Puyallup greater plants of steelhead have resulted in a larger take of fish by the Indians.
Steelhead are reared from moneys obtained from sportsmen’ s license funds. Biggs said the department is in a greater bind than in the past because of decreasing operating funds.
Biggs pointed out that in the steelhead sports catch for 1962 only three of the top 25 winter rivers showed a decrease in the sports take, the Puyallup, Nisqually and Cowlitz. The first two are ” Indian” rivers.
December has been the top month for sport catch of steelhead in the Puyallup, almost twice as good as January, the next best month. The 1962 plant in the Puyallup was 70,000 steelhead, due to return this winter.
This order is a tie-in with the restraining order issued against the Muckleshoots barring netting on the Green River, which was granted November 7 in King County Superior Court by Judge Sollie Ringold.
The Olympian
November 13, 1963
TACOMA (AP) – A temporary order restraining the Puyallup Indians and any other Indian fishing on the Puyallup River was issued in Pierce County Superior Court Tuesday by Judge Robert Jacques.The order was sought by the State Fisheries Department. A hearing on the injunction is scheduled November 26.
It was the second river in the state to be closed recently to Indian fishing.
A King County Superior Court judge has barred Muckleshoot Indians from fishing in the Green River so salmon can escape to an upstream hatchery.
***Game Department Director John Biggs and the State Game Commission recently decided the state organization had reached a crossroads with the Indians on the matter, Clark Pratt, Game Department information education representative, said Wednesday.
For the past 10 years, he added, the department has accelerated a steelhead planting program and feels it is subsidizing Indians who fish commercially with nets in the river.
“The greater we expand the planting the greater the Indians’ take becomes. The planting program is actually being financed by sportsmen,” Pratt said.
Patrol inspectors for both departments began issuing stop orders Wednesday morning to 44 individuals and any other fisherman on the river.
Pratt pointed out that of the 25 top steelhead fishing streans in the state for the 1961-62 season only three showed a decrease in take. They were the Puyallup, Nisqually and the Cowlitz. Last year a plant of 70,000 steelhead was made in the Puyallup.
***A Fisheries Department spokesman said the restraining order also was aimed at protecting the remnants of a silver salmon run headed upstrean for a department hatchery at Orting. The spokesman said Indian catches in the river have increased from several hundred salmon in 1953, when they began fishing the strean to about 70,000 a year at this time. Robert S. Robison, supervisor of administrative services, said only a couple hundred salmon have been reaching the hatchery each season, rather than up to 3,000 a year as in the past.
State Shifts Tactics In Indian Fishing War
The Sunday Olympian
November 17, 19
State officials, weary of what they feel have been fruitless efforts to protect fishing stocks, are trying new strategy in their in legal battle to keep Indian nets out of rivers rich with salmon and steelhead.
One new approach is to question whether some Indian tribes with special fishing rights exist anymore.
“We are also trying to shift the burden of proof from the state to the Indian.” says Robert Robison, supervisor of administrative services for the Fisheries Department.
Previously, Robison says, it has been difficult to convince the courts that Indians were guilty under criminal statutes.
“But now,” he continued, “we are trying civil action by claiming financial damages and forcing the Indians to prove they are not hurting fish resources.”
The new strategy has been at least partially successful in two recent cases.
King County Superior Court barred Muckleshoot Indians from fishing in the Green River and Pierce County Superior Court temporarily restrained the Puyallup Indians from fishing the Puyallup River.
Indians and the state are arguing over about 20 rivers, most of them in Western Washington.
At present the battle is being fought in the courtroom, but it hasn’t always been that way.
In the past the fight has been carried to the river banks, where non-Indian sports fishermen have lost their tempers and torn out Indian nets and groups of Indians have battled among themselves for choice fishing spots .
Indians have the same fishing rights as non-Indians. That is, they can use a hook and line to go after sports fish such as steelhead and use nets to go after commercial fish such as salmon in certain circumstances.
The fight between Indians on one hand and the state and non-Indians on the other hand arises from treaties signed between Indians and the federal government as much as a century ago. These treaties gave Indians the additional rights to unrestricted fishing in their “usual and accustomed places.”
The state contends this means on the reservations, but Indians give “usual and accustomed places” a broader meaning.
Also, the state now claims these treaties were signed with tribes, not individual Indians, and that tribes such as the Puyallup disappeared when their lands were broken up. The Indians argue the tribes still exist.
The crux of the problem is economic.
The state says fishing stocks are an essential resource that must be protected by stringent conservation practices.
It claims unrestricted fishing be Indians has been ruinous to conservation programs in certain cases and that much of the money that has gone into the program has become just a subsidy for Indians.
“The greater we expand the planting, the greater the Indians’ take become,” says a spokesman for the Game Department. “The planting program is actually being financed by sportsmen.”
The Indians, too, argue they have an economic stake in fishing. They say they were dependent in fish long before the white men came and that for them it’s still a matter of fish or starve.
Indians’ Fishing Curbs Upheld
Daily Olympian
December 17, 1963
by The Associated Press
The State Supreme Court ruled Thursday that the state can restrict Indian fishing on Washington rivers in efforts to protect fish resources. It was a major victory for the State Fisheries and Game Departments in their fight to stop unrestricted net fishing by Indians at the mouths of many rivers. The Indians contended century old treaties gave them the absolute right to fish at usual and accustomed places even though off their reservations. The Supreme Court disagreed in a 7-1 opinion written by Judge Hugh J. Rosellini. The court said Washington acquired the sovereign power to preserve its natural resources when it was admitted to the union, and could not be stripped of the power by implication or deduction from a treaty. The judges said salmon will face extinction in Washington without state action to permit salmon to escape upriver to spawning beds for the reproduction of new stocks. The court reversed a ruling by Judge Charles F. Stafford of Skagit County and called for a new trial in an action brought by the state against an Indian charged with fishing in closed waters. Judge Safford had acquired a Swinomish Indian, Joe McCoy, holding that the 1855 Treaty of Point Elliott granted him immunity form state regulatory powers. The state appealed. McCoy was charged with using a 600-foot nylon gill net from an outboard-motor boat to catch salmon at the mouth of the Skagit River during a 10-day closure imposed by the Fisheries Department. The Supreme Court said the treaty gave Indians the right not to be excluded from their usual and accustomed fishing grounds, but this right did not prevent the state from imposing reasonable and necessary regulations to protect the fishery resources. The high court said regulation of the salmon harvest in salt and fresh water was essential to a conservation program. “It is regulation that provides the escapement necessary to maintain a perpetual supply of salmon for the harvest of all people,” the court said. Individual self-restraint by the Indians was a poor substitute for proper state regulation, the court said, in view of the “economic bonanza” to be gained by selling the fish at an average of $10 apiece. The judges said previous court opinions indicate the United States can restrict a state’s police power by treaty, but the treaty should if possible be interpreted so as not to override state laws or impair rights arising from them. “There must be a clear and unequivocal expression of congressional will . . . if state powers are to be pre-empted,” the court said. Judges Matthew W. Hill and Richard B. Ott concurred with the results of the majority opinion. But they contended the Indians could fish at the accustomed places without restriction as long as they used gear in vogue at the time the treaty was signed. A dissent was filed by Judge Charles T. Donworth, who argued the court should not disregard the Point Elliott treaty as supreme law of the land. He said Congress should solve the problem. The opinion was not signed by Judge Frank Hale because the case was argued before he came to the court. The ninth member at the time was the late Judge Harry Ellsworth Foster.
Indians’ Fishing Curbs Upheld
Daily Olympian
December 17, 1963
by The Associated Press
The State Supreme Court ruled Thursday that the state can restrict Indian fishing on Washington rivers in efforts to protect fish resources. It was a major victory for the State Fisheries and Game Departments in their fight to stop unrestricted net fishing by Indians at the mouths of many rivers. The Indians contended century old treaties gave them the absolute right to fish at usual and accustomed places even though off their reservations. The Supreme Court disagreed in a 7-1 opinion written by Judge Hugh J. Rosellini. The court said Washington acquired the sovereign power to preserve its natural resources when it was admitted to the union, and could not be stripped of the power by implication or deduction from a treaty. The judges said salmon will face extinction in Washington without state action to permit salmon to escape upriver to spawning beds for the reproduction of new stocks. The court reversed a ruling by Judge Charles F. Stafford of Skagit County and called for a new trial in an action brought by the state against an Indian charged with fishing in closed waters. Judge Safford had acquired a Swinomish Indian, Joe McCoy, holding that the 1855 Treaty of Point Elliott granted him immunity form state regulatory powers. The state appealed. McCoy was charged with using a 600-foot nylon gill net from an outboard-motor boat to catch salmon at the mouth of the Skagit River during a 10-day closure imposed by the Fisheries Department. The Supreme Court said the treaty gave Indians the right not to be excluded from their usual and accustomed fishing grounds, but this right did not prevent the state from imposing reasonable and necessary regulations to protect the fishery resources. The high court said regulation of the salmon harvest in salt and fresh water was essential to a conservation program. “It is regulation that provides the escapement necessary to maintain a perpetual supply of salmon for the harvest of all people,” the court said. Individual self-restraint by the Indians was a poor substitute for proper state regulation, the court said, in view of the “economic bonanza” to be gained by selling the fish at an average of $10 apiece. The judges said previous court opinions indicate the United States can restrict a state’s police power by treaty, but the treaty should if possible be interpreted so as not to override state laws or impair rights arising from them. “There must be a clear and unequivocal expression of congressional will . . . if state powers are to be pre-empted,” the court said. Judges Matthew W. Hill and Richard B. Ott concurred with the results of the majority opinion. But they contended the Indians could fish at the accustomed places without restriction as long as they used gear in vogue at the time the treaty was signed. A dissent was filed by Judge Charles T. Donworth, who argued the court should not disregard the Point Elliott treaty as supreme law of the land. He said Congress should solve the problem. The opinion was not signed by Judge Frank Hale because the case was argued before he came to the court. The ninth member at the time was the late Judge Harry Ellsworth Foster.
An order barring Indian fish netting in the Puyallup River was issued late yesterday by Judge Robert Jacques in Pierce County Superior Court.The temporary injunction was granted on a request by the State Game Department and the State Department of Fisheries.
A hearing has been set for November 26 for the issuing of a permanent injunction against Indian gill netting in the Puyallup.
Walt Neubrech, chief of law enforcement for the Game Department, and Robert Josephson, chief of law enforcement for the Fisheries Department, today were issuing stop orders against the Indians netting.
There were 44 individual Indians named in the order granted yesterday, and the writ also applies to any individual engaged in illegal netting practices in the lower part of the river.
John Biggs, state game director, said the department had reached the crossroad in its steelhead program and had to make a firm decision on future policy.
Biggs said the department had engaged in an accelerated plant of steelhead in the past ten years. On rivers such as the Puyallup greater plants of steelhead have resulted in a larger take of fish by the Indians.
Steelhead are reared from moneys obtained from sportsmen’ s license funds. Biggs said the department is in a greater bind than in the past because of decreasing operating funds.
Biggs pointed out that in the steelhead sports catch for 1962 only three of the top 25 winter rivers showed a decrease in the sports take, the Puyallup, Nisqually and Cowlitz. The first two are ” Indian” rivers.
December has been the top month for sport catch of steelhead in the Puyallup, almost twice as good as January, the next best month. The 1962 plant in the Puyallup was 70,000 steelhead, due to return this winter.
This order is a tie-in with the restraining order issued against the Muckleshoots barring netting on the Green River, which was granted November 7 in King County Superior Court by Judge Sollie Ringold.
The Olympian
November 13, 1963
TACOMA (AP) – A temporary order restraining the Puyallup Indians and any other Indian fishing on the Puyallup River was issued in Pierce County Superior Court Tuesday by Judge Robert Jacques.The order was sought by the State Fisheries Department. A hearing on the injunction is scheduled November 26.
It was the second river in the state to be closed recently to Indian fishing.
A King County Superior Court judge has barred Muckleshoot Indians from fishing in the Green River so salmon can escape to an upstream hatchery.
***Game Department Director John Biggs and the State Game Commission recently decided the state organization had reached a crossroads with the Indians on the matter, Clark Pratt, Game Department information education representative, said Wednesday.
For the past 10 years, he added, the department has accelerated a steelhead planting program and feels it is subsidizing Indians who fish commercially with nets in the river.
“The greater we expand the planting the greater the Indians’ take becomes. The planting program is actually being financed by sportsmen,” Pratt said.
Patrol inspectors for both departments began issuing stop orders Wednesday morning to 44 individuals and any other fisherman on the river.
Pratt pointed out that of the 25 top steelhead fishing streans in the state for the 1961-62 season only three showed a decrease in take. They were the Puyallup, Nisqually and the Cowlitz. Last year a plant of 70,000 steelhead was made in the Puyallup.
***A Fisheries Department spokesman said the restraining order also was aimed at protecting the remnants of a silver salmon run headed upstrean for a department hatchery at Orting. The spokesman said Indian catches in the river have increased from several hundred salmon in 1953, when they began fishing the strean to about 70,000 a year at this time. Robert S. Robison, supervisor of administrative services, said only a couple hundred salmon have been reaching the hatchery each season, rather than up to 3,000 a year as in the past.
State Shifts Tactics In Indian Fishing War
The Sunday Olympian
November 17, 19
State officials, weary of what they feel have been fruitless efforts to protect fishing stocks, are trying new strategy in their in legal battle to keep Indian nets out of rivers rich with salmon and steelhead.
One new approach is to question whether some Indian tribes with special fishing rights exist anymore.
“We are also trying to shift the burden of proof from the state to the Indian.” says Robert Robison, supervisor of administrative services for the Fisheries Department.
Previously, Robison says, it has been difficult to convince the courts that Indians were guilty under criminal statutes.
“But now,” he continued, “we are trying civil action by claiming financial damages and forcing the Indians to prove they are not hurting fish resources.”
The new strategy has been at least partially successful in two recent cases.
King County Superior Court barred Muckleshoot Indians from fishing in the Green River and Pierce County Superior Court temporarily restrained the Puyallup Indians from fishing the Puyallup River.
Indians and the state are arguing over about 20 rivers, most of them in Western Washington.
At present the battle is being fought in the courtroom, but it hasn’t always been that way.
In the past the fight has been carried to the river banks, where non-Indian sports fishermen have lost their tempers and torn out Indian nets and groups of Indians have battled among themselves for choice fishing spots .
Indians have the same fishing rights as non-Indians. That is, they can use a hook and line to go after sports fish such as steelhead and use nets to go after commercial fish such as salmon in certain circumstances.
The fight between Indians on one hand and the state and non-Indians on the other hand arises from treaties signed between Indians and the federal government as much as a century ago. These treaties gave Indians the additional rights to unrestricted fishing in their “usual and accustomed places.”
The state contends this means on the reservations, but Indians give “usual and accustomed places” a broader meaning.
Also, the state now claims these treaties were signed with tribes, not individual Indians, and that tribes such as the Puyallup disappeared when their lands were broken up. The Indians argue the tribes still exist.
The crux of the problem is economic.
The state says fishing stocks are an essential resource that must be protected by stringent conservation practices.
It claims unrestricted fishing be Indians has been ruinous to conservation programs in certain cases and that much of the money that has gone into the program has become just a subsidy for Indians.
“The greater we expand the planting, the greater the Indians’ take become,” says a spokesman for the Game Department. “The planting program is actually being financed by sportsmen.”
The Indians, too, argue they have an economic stake in fishing. They say they were dependent in fish long before the white men came and that for them it’s still a matter of fish or starve.
Indians’ Fishing Curbs Upheld
Daily Olympian
December 17, 1963
by The Associated Press
The State Supreme Court ruled Thursday that the state can restrict Indian fishing on Washington rivers in efforts to protect fish resources. It was a major victory for the State Fisheries and Game Departments in their fight to stop unrestricted net fishing by Indians at the mouths of many rivers. The Indians contended century old treaties gave them the absolute right to fish at usual and accustomed places even though off their reservations. The Supreme Court disagreed in a 7-1 opinion written by Judge Hugh J. Rosellini. The court said Washington acquired the sovereign power to preserve its natural resources when it was admitted to the union, and could not be stripped of the power by implication or deduction from a treaty. The judges said salmon will face extinction in Washington without state action to permit salmon to escape upriver to spawning beds for the reproduction of new stocks. The court reversed a ruling by Judge Charles F. Stafford of Skagit County and called for a new trial in an action brought by the state against an Indian charged with fishing in closed waters. Judge Safford had acquired a Swinomish Indian, Joe McCoy, holding that the 1855 Treaty of Point Elliott granted him immunity form state regulatory powers. The state appealed. McCoy was charged with using a 600-foot nylon gill net from an outboard-motor boat to catch salmon at the mouth of the Skagit River during a 10-day closure imposed by the Fisheries Department. The Supreme Court said the treaty gave Indians the right not to be excluded from their usual and accustomed fishing grounds, but this right did not prevent the state from imposing reasonable and necessary regulations to protect the fishery resources. The high court said regulation of the salmon harvest in salt and fresh water was essential to a conservation program. “It is regulation that provides the escapement necessary to maintain a perpetual supply of salmon for the harvest of all people,” the court said. Individual self-restraint by the Indians was a poor substitute for proper state regulation, the court said, in view of the “economic bonanza” to be gained by selling the fish at an average of $10 apiece. The judges said previous court opinions indicate the United States can restrict a state’s police power by treaty, but the treaty should if possible be interpreted so as not to override state laws or impair rights arising from them. “There must be a clear and unequivocal expression of congressional will . . . if state powers are to be pre-empted,” the court said. Judges Matthew W. Hill and Richard B. Ott concurred with the results of the majority opinion. But they contended the Indians could fish at the accustomed places without restriction as long as they used gear in vogue at the time the treaty was signed. A dissent was filed by Judge Charles T. Donworth, who argued the court should not disregard the Point Elliott treaty as supreme law of the land. He said Congress should solve the problem. The opinion was not signed by Judge Frank Hale because the case was argued before he came to the court. The ninth member at the time was the late Judge Harry Ellsworth Foster.
Indians’ Fishing Curbs Upheld
Daily Olympian
December 17, 1963
by The Associated Press
The State Supreme Court ruled Thursday that the state can restrict Indian fishing on Washington rivers in efforts to protect fish resources. It was a major victory for the State Fisheries and Game Departments in their fight to stop unrestricted net fishing by Indians at the mouths of many rivers. The Indians contended century old treaties gave them the absolute right to fish at usual and accustomed places even though off their reservations. The Supreme Court disagreed in a 7-1 opinion written by Judge Hugh J. Rosellini. The court said Washington acquired the sovereign power to preserve its natural resources when it was admitted to the union, and could not be stripped of the power by implication or deduction from a treaty. The judges said salmon will face extinction in Washington without state action to permit salmon to escape upriver to spawning beds for the reproduction of new stocks. The court reversed a ruling by Judge Charles F. Stafford of Skagit County and called for a new trial in an action brought by the state against an Indian charged with fishing in closed waters. Judge Safford had acquired a Swinomish Indian, Joe McCoy, holding that the 1855 Treaty of Point Elliott granted him immunity form state regulatory powers. The state appealed. McCoy was charged with using a 600-foot nylon gill net from an outboard-motor boat to catch salmon at the mouth of the Skagit River during a 10-day closure imposed by the Fisheries Department. The Supreme Court said the treaty gave Indians the right not to be excluded from their usual and accustomed fishing grounds, but this right did not prevent the state from imposing reasonable and necessary regulations to protect the fishery resources. The high court said regulation of the salmon harvest in salt and fresh water was essential to a conservation program. “It is regulation that provides the escapement necessary to maintain a perpetual supply of salmon for the harvest of all people,” the court said. Individual self-restraint by the Indians was a poor substitute for proper state regulation, the court said, in view of the “economic bonanza” to be gained by selling the fish at an average of $10 apiece. The judges said previous court opinions indicate the United States can restrict a state’s police power by treaty, but the treaty should if possible be interpreted so as not to override state laws or impair rights arising from them. “There must be a clear and unequivocal expression of congressional will . . . if state powers are to be pre-empted,” the court said. Judges Matthew W. Hill and Richard B. Ott concurred with the results of the majority opinion. But they contended the Indians could fish at the accustomed places without restriction as long as they used gear in vogue at the time the treaty was signed. A dissent was filed by Judge Charles T. Donworth, who argued the court should not disregard the Point Elliott treaty as supreme law of the land. He said Congress should solve the problem. The opinion was not signed by Judge Frank Hale because the case was argued before he came to the court. The ninth member at the time was the late Judge Harry Ellsworth Foster.
The Nisqually Tribal Council has restricted week end fishing in their river in an effort to allow silver salmon to escape into spawning beds.The decision stems from a request by the State Fisheries Department, which asks that silver salmon be curtailed because the run of salmon has been poor.
Meeting Saturday in the Nisqually Grange Hall, the tribal council voted that all fish nets should be pulled from the Nisqually River between ten o’clock Saturday morning and Sunday noon until further notice.
Mrs. Elanor Kover, secretary of the group, said she believes the State Fisheries Department wanted more extensive curtailment, however the vote was to enforce only the week end ban.
Backing up the week-end halt to fishing, the Tribal Council elected two river patrolmen – Billy Frank, Jr., and Bap Derickson. Their job is to ensure that no nets are left in the water during the designated hours.
The Nisqually say their silver salmon run just beginning in the Nisqually, and fishing in the river has not yet had any effect in the silvers. They say that runs begin at different times in different streams.
In other business at the tribal meeting, members elected a new chairman. He is Ruben Wells, who replaces Mrs. Mildred Ikebe. Re-elected to their positions were Mrs. Kover, the secretary, and Ernest Gleason, treasurer.
The Seattle Times
November 13, 1963
by Enos Bradner
An order barring Indian fish netting in the Puyallup River was issued late yesterday by Judge Robert Jacques in Pierce County Superior Court.The temporary injunction was granted on a request by the State Game Department and the State Department of Fisheries.
A hearing has been set for November 26 for the issuing of a permanent injunction against Indian gill netting in the Puyallup.
Walt Neubrech, chief of law enforcement for the Game Department, and Robert Josephson, chief of law enforcement for the Fisheries Department, today were issuing stop orders against the Indians netting.
There were 44 individual Indians named in the order granted yesterday, and the writ also applies to any individual engaged in illegal netting practices in the lower part of the river.
John Biggs, state game director, said the department had reached the crossroad in its steelhead program and had to make a firm decision on future policy.
Biggs said the department had engaged in an accelerated plant of steelhead in the past ten years. On rivers such as the Puyallup greater plants of steelhead have resulted in a larger take of fish by the Indians.
Steelhead are reared from moneys obtained from sportsmen’ s license funds. Biggs said the department is in a greater bind than in the past because of decreasing operating funds.
Biggs pointed out that in the steelhead sports catch for 1962 only three of the top 25 winter rivers showed a decrease in the sports take, the Puyallup, Nisqually and Cowlitz. The first two are ” Indian” rivers.
December has been the top month for sport catch of steelhead in the Puyallup, almost twice as good as January, the next best month. The 1962 plant in the Puyallup was 70,000 steelhead, due to return this winter.
This order is a tie-in with the restraining order issued against the Muckleshoots barring netting on the Green River, which was granted November 7 in King County Superior Court by Judge Sollie Ringold.
The Olympian
November 13, 1963
TACOMA (AP) – A temporary order restraining the Puyallup Indians and any other Indian fishing on the Puyallup River was issued in Pierce County Superior Court Tuesday by Judge Robert Jacques.The order was sought by the State Fisheries Department. A hearing on the injunction is scheduled November 26.
It was the second river in the state to be closed recently to Indian fishing.
A King County Superior Court judge has barred Muckleshoot Indians from fishing in the Green River so salmon can escape to an upstream hatchery.
***Game Department Director John Biggs and the State Game Commission recently decided the state organization had reached a crossroads with the Indians on the matter, Clark Pratt, Game Department information education representative, said Wednesday.
For the past 10 years, he added, the department has accelerated a steelhead planting program and feels it is subsidizing Indians who fish commercially with nets in the river.
“The greater we expand the planting the greater the Indians’ take becomes. The planting program is actually being financed by sportsmen,” Pratt said.
Patrol inspectors for both departments began issuing stop orders Wednesday morning to 44 individuals and any other fisherman on the river.
Pratt pointed out that of the 25 top steelhead fishing streans in the state for the 1961-62 season only three showed a decrease in take. They were the Puyallup, Nisqually and the Cowlitz. Last year a plant of 70,000 steelhead was made in the Puyallup.
***A Fisheries Department spokesman said the restraining order also was aimed at protecting the remnants of a silver salmon run headed upstrean for a department hatchery at Orting. The spokesman said Indian catches in the river have increased from several hundred salmon in 1953, when they began fishing the strean to about 70,000 a year at this time. Robert S. Robison, supervisor of administrative services, said only a couple hundred salmon have been reaching the hatchery each season, rather than up to 3,000 a year as in the past.
State Shifts Tactics In Indian Fishing War
The Sunday Olympian
November 17, 19
State officials, weary of what they feel have been fruitless efforts to protect fishing stocks, are trying new strategy in their in legal battle to keep Indian nets out of rivers rich with salmon and steelhead.
One new approach is to question whether some Indian tribes with special fishing rights exist anymore.
“We are also trying to shift the burden of proof from the state to the Indian.” says Robert Robison, supervisor of administrative services for the Fisheries Department.
Previously, Robison says, it has been difficult to convince the courts that Indians were guilty under criminal statutes.
“But now,” he continued, “we are trying civil action by claiming financial damages and forcing the Indians to prove they are not hurting fish resources.”
The new strategy has been at least partially successful in two recent cases.
King County Superior Court barred Muckleshoot Indians from fishing in the Green River and Pierce County Superior Court temporarily restrained the Puyallup Indians from fishing the Puyallup River.
Indians and the state are arguing over about 20 rivers, most of them in Western Washington.
At present the battle is being fought in the courtroom, but it hasn’t always been that way.
In the past the fight has been carried to the river banks, where non-Indian sports fishermen have lost their tempers and torn out Indian nets and groups of Indians have battled among themselves for choice fishing spots .
Indians have the same fishing rights as non-Indians. That is, they can use a hook and line to go after sports fish such as steelhead and use nets to go after commercial fish such as salmon in certain circumstances.
The fight between Indians on one hand and the state and non-Indians on the other hand arises from treaties signed between Indians and the federal government as much as a century ago. These treaties gave Indians the additional rights to unrestricted fishing in their “usual and accustomed places.”
The state contends this means on the reservations, but Indians give “usual and accustomed places” a broader meaning.
Also, the state now claims these treaties were signed with tribes, not individual Indians, and that tribes such as the Puyallup disappeared when their lands were broken up. The Indians argue the tribes still exist.
The crux of the problem is economic.
The state says fishing stocks are an essential resource that must be protected by stringent conservation practices.
It claims unrestricted fishing be Indians has been ruinous to conservation programs in certain cases and that much of the money that has gone into the program has become just a subsidy for Indians.
“The greater we expand the planting, the greater the Indians’ take become,” says a spokesman for the Game Department. “The planting program is actually being financed by sportsmen.”
The Indians, too, argue they have an economic stake in fishing. They say they were dependent in fish long before the white men came and that for them it’s still a matter of fish or starve.
Indians’ Fishing Curbs Upheld
Daily Olympian
December 17, 1963
by The Associated Press
The State Supreme Court ruled Thursday that the state can restrict Indian fishing on Washington rivers in efforts to protect fish resources. It was a major victory for the State Fisheries and Game Departments in their fight to stop unrestricted net fishing by Indians at the mouths of many rivers. The Indians contended century old treaties gave them the absolute right to fish at usual and accustomed places even though off their reservations. The Supreme Court disagreed in a 7-1 opinion written by Judge Hugh J. Rosellini. The court said Washington acquired the sovereign power to preserve its natural resources when it was admitted to the union, and could not be stripped of the power by implication or deduction from a treaty. The judges said salmon will face extinction in Washington without state action to permit salmon to escape upriver to spawning beds for the reproduction of new stocks. The court reversed a ruling by Judge Charles F. Stafford of Skagit County and called for a new trial in an action brought by the state against an Indian charged with fishing in closed waters. Judge Safford had acquired a Swinomish Indian, Joe McCoy, holding that the 1855 Treaty of Point Elliott granted him immunity form state regulatory powers. The state appealed. McCoy was charged with using a 600-foot nylon gill net from an outboard-motor boat to catch salmon at the mouth of the Skagit River during a 10-day closure imposed by the Fisheries Department. The Supreme Court said the treaty gave Indians the right not to be excluded from their usual and accustomed fishing grounds, but this right did not prevent the state from imposing reasonable and necessary regulations to protect the fishery resources. The high court said regulation of the salmon harvest in salt and fresh water was essential to a conservation program. “It is regulation that provides the escapement necessary to maintain a perpetual supply of salmon for the harvest of all people,” the court said. Individual self-restraint by the Indians was a poor substitute for proper state regulation, the court said, in view of the “economic bonanza” to be gained by selling the fish at an average of $10 apiece. The judges said previous court opinions indicate the United States can restrict a state’s police power by treaty, but the treaty should if possible be interpreted so as not to override state laws or impair rights arising from them. “There must be a clear and unequivocal expression of congressional will . . . if state powers are to be pre-empted,” the court said. Judges Matthew W. Hill and Richard B. Ott concurred with the results of the majority opinion. But they contended the Indians could fish at the accustomed places without restriction as long as they used gear in vogue at the time the treaty was signed. A dissent was filed by Judge Charles T. Donworth, who argued the court should not disregard the Point Elliott treaty as supreme law of the land. He said Congress should solve the problem. The opinion was not signed by Judge Frank Hale because the case was argued before he came to the court. The ninth member at the time was the late Judge Harry Ellsworth Foster.
Indians’ Fishing Curbs Upheld
Daily Olympian
December 17, 1963
by The Associated Press
The State Supreme Court ruled Thursday that the state can restrict Indian fishing on Washington rivers in efforts to protect fish resources. It was a major victory for the State Fisheries and Game Departments in their fight to stop unrestricted net fishing by Indians at the mouths of many rivers. The Indians contended century old treaties gave them the absolute right to fish at usual and accustomed places even though off their reservations. The Supreme Court disagreed in a 7-1 opinion written by Judge Hugh J. Rosellini. The court said Washington acquired the sovereign power to preserve its natural resources when it was admitted to the union, and could not be stripped of the power by implication or deduction from a treaty. The judges said salmon will face extinction in Washington without state action to permit salmon to escape upriver to spawning beds for the reproduction of new stocks. The court reversed a ruling by Judge Charles F. Stafford of Skagit County and called for a new trial in an action brought by the state against an Indian charged with fishing in closed waters. Judge Safford had acquired a Swinomish Indian, Joe McCoy, holding that the 1855 Treaty of Point Elliott granted him immunity form state regulatory powers. The state appealed. McCoy was charged with using a 600-foot nylon gill net from an outboard-motor boat to catch salmon at the mouth of the Skagit River during a 10-day closure imposed by the Fisheries Department. The Supreme Court said the treaty gave Indians the right not to be excluded from their usual and accustomed fishing grounds, but this right did not prevent the state from imposing reasonable and necessary regulations to protect the fishery resources. The high court said regulation of the salmon harvest in salt and fresh water was essential to a conservation program. “It is regulation that provides the escapement necessary to maintain a perpetual supply of salmon for the harvest of all people,” the court said. Individual self-restraint by the Indians was a poor substitute for proper state regulation, the court said, in view of the “economic bonanza” to be gained by selling the fish at an average of $10 apiece. The judges said previous court opinions indicate the United States can restrict a state’s police power by treaty, but the treaty should if possible be interpreted so as not to override state laws or impair rights arising from them. “There must be a clear and unequivocal expression of congressional will . . . if state powers are to be pre-empted,” the court said. Judges Matthew W. Hill and Richard B. Ott concurred with the results of the majority opinion. But they contended the Indians could fish at the accustomed places without restriction as long as they used gear in vogue at the time the treaty was signed. A dissent was filed by Judge Charles T. Donworth, who argued the court should not disregard the Point Elliott treaty as supreme law of the land. He said Congress should solve the problem. The opinion was not signed by Judge Frank Hale because the case was argued before he came to the court. The ninth member at the time was the late Judge Harry Ellsworth Foster.
An order barring Indian fish netting in the Puyallup River was issued late yesterday by Judge Robert Jacques in Pierce County Superior Court.The temporary injunction was granted on a request by the State Game Department and the State Department of Fisheries.
A hearing has been set for November 26 for the issuing of a permanent injunction against Indian gill netting in the Puyallup.
Walt Neubrech, chief of law enforcement for the Game Department, and Robert Josephson, chief of law enforcement for the Fisheries Department, today were issuing stop orders against the Indians netting.
There were 44 individual Indians named in the order granted yesterday, and the writ also applies to any individual engaged in illegal netting practices in the lower part of the river.
John Biggs, state game director, said the department had reached the crossroad in its steelhead program and had to make a firm decision on future policy.
Biggs said the department had engaged in an accelerated plant of steelhead in the past ten years. On rivers such as the Puyallup greater plants of steelhead have resulted in a larger take of fish by the Indians.
Steelhead are reared from moneys obtained from sportsmen’ s license funds. Biggs said the department is in a greater bind than in the past because of decreasing operating funds.
Biggs pointed out that in the steelhead sports catch for 1962 only three of the top 25 winter rivers showed a decrease in the sports take, the Puyallup, Nisqually and Cowlitz. The first two are ” Indian” rivers.
December has been the top month for sport catch of steelhead in the Puyallup, almost twice as good as January, the next best month. The 1962 plant in the Puyallup was 70,000 steelhead, due to return this winter.
This order is a tie-in with the restraining order issued against the Muckleshoots barring netting on the Green River, which was granted November 7 in King County Superior Court by Judge Sollie Ringold.
The Olympian
November 13, 1963
TACOMA (AP) – A temporary order restraining the Puyallup Indians and any other Indian fishing on the Puyallup River was issued in Pierce County Superior Court Tuesday by Judge Robert Jacques.The order was sought by the State Fisheries Department. A hearing on the injunction is scheduled November 26.
It was the second river in the state to be closed recently to Indian fishing.
A King County Superior Court judge has barred Muckleshoot Indians from fishing in the Green River so salmon can escape to an upstream hatchery.
***Game Department Director John Biggs and the State Game Commission recently decided the state organization had reached a crossroads with the Indians on the matter, Clark Pratt, Game Department information education representative, said Wednesday.
For the past 10 years, he added, the department has accelerated a steelhead planting program and feels it is subsidizing Indians who fish commercially with nets in the river.
“The greater we expand the planting the greater the Indians’ take becomes. The planting program is actually being financed by sportsmen,” Pratt said.
Patrol inspectors for both departments began issuing stop orders Wednesday morning to 44 individuals and any other fisherman on the river.
Pratt pointed out that of the 25 top steelhead fishing streans in the state for the 1961-62 season only three showed a decrease in take. They were the Puyallup, Nisqually and the Cowlitz. Last year a plant of 70,000 steelhead was made in the Puyallup.
***A Fisheries Department spokesman said the restraining order also was aimed at protecting the remnants of a silver salmon run headed upstrean for a department hatchery at Orting. The spokesman said Indian catches in the river have increased from several hundred salmon in 1953, when they began fishing the strean to about 70,000 a year at this time. Robert S. Robison, supervisor of administrative services, said only a couple hundred salmon have been reaching the hatchery each season, rather than up to 3,000 a year as in the past.
State Shifts Tactics In Indian Fishing War
The Sunday Olympian
November 17, 19
State officials, weary of what they feel have been fruitless efforts to protect fishing stocks, are trying new strategy in their in legal battle to keep Indian nets out of rivers rich with salmon and steelhead.
One new approach is to question whether some Indian tribes with special fishing rights exist anymore.
“We are also trying to shift the burden of proof from the state to the Indian.” says Robert Robison, supervisor of administrative services for the Fisheries Department.
Previously, Robison says, it has been difficult to convince the courts that Indians were guilty under criminal statutes.
“But now,” he continued, “we are trying civil action by claiming financial damages and forcing the Indians to prove they are not hurting fish resources.”
The new strategy has been at least partially successful in two recent cases.
King County Superior Court barred Muckleshoot Indians from fishing in the Green River and Pierce County Superior Court temporarily restrained the Puyallup Indians from fishing the Puyallup River.
Indians and the state are arguing over about 20 rivers, most of them in Western Washington.
At present the battle is being fought in the courtroom, but it hasn’t always been that way.
In the past the fight has been carried to the river banks, where non-Indian sports fishermen have lost their tempers and torn out Indian nets and groups of Indians have battled among themselves for choice fishing spots .
Indians have the same fishing rights as non-Indians. That is, they can use a hook and line to go after sports fish such as steelhead and use nets to go after commercial fish such as salmon in certain circumstances.
The fight between Indians on one hand and the state and non-Indians on the other hand arises from treaties signed between Indians and the federal government as much as a century ago. These treaties gave Indians the additional rights to unrestricted fishing in their “usual and accustomed places.”
The state contends this means on the reservations, but Indians give “usual and accustomed places” a broader meaning.
Also, the state now claims these treaties were signed with tribes, not individual Indians, and that tribes such as the Puyallup disappeared when their lands were broken up. The Indians argue the tribes still exist.
The crux of the problem is economic.
The state says fishing stocks are an essential resource that must be protected by stringent conservation practices.
It claims unrestricted fishing be Indians has been ruinous to conservation programs in certain cases and that much of the money that has gone into the program has become just a subsidy for Indians.
“The greater we expand the planting, the greater the Indians’ take become,” says a spokesman for the Game Department. “The planting program is actually being financed by sportsmen.”
The Indians, too, argue they have an economic stake in fishing. They say they were dependent in fish long before the white men came and that for them it’s still a matter of fish or starve.
Indians’ Fishing Curbs Upheld
Daily Olympian
December 17, 1963
by The Associated Press
The State Supreme Court ruled Thursday that the state can restrict Indian fishing on Washington rivers in efforts to protect fish resources. It was a major victory for the State Fisheries and Game Departments in their fight to stop unrestricted net fishing by Indians at the mouths of many rivers. The Indians contended century old treaties gave them the absolute right to fish at usual and accustomed places even though off their reservations. The Supreme Court disagreed in a 7-1 opinion written by Judge Hugh J. Rosellini. The court said Washington acquired the sovereign power to preserve its natural resources when it was admitted to the union, and could not be stripped of the power by implication or deduction from a treaty. The judges said salmon will face extinction in Washington without state action to permit salmon to escape upriver to spawning beds for the reproduction of new stocks. The court reversed a ruling by Judge Charles F. Stafford of Skagit County and called for a new trial in an action brought by the state against an Indian charged with fishing in closed waters. Judge Safford had acquired a Swinomish Indian, Joe McCoy, holding that the 1855 Treaty of Point Elliott granted him immunity form state regulatory powers. The state appealed. McCoy was charged with using a 600-foot nylon gill net from an outboard-motor boat to catch salmon at the mouth of the Skagit River during a 10-day closure imposed by the Fisheries Department. The Supreme Court said the treaty gave Indians the right not to be excluded from their usual and accustomed fishing grounds, but this right did not prevent the state from imposing reasonable and necessary regulations to protect the fishery resources. The high court said regulation of the salmon harvest in salt and fresh water was essential to a conservation program. “It is regulation that provides the escapement necessary to maintain a perpetual supply of salmon for the harvest of all people,” the court said. Individual self-restraint by the Indians was a poor substitute for proper state regulation, the court said, in view of the “economic bonanza” to be gained by selling the fish at an average of $10 apiece. The judges said previous court opinions indicate the United States can restrict a state’s police power by treaty, but the treaty should if possible be interpreted so as not to override state laws or impair rights arising from them. “There must be a clear and unequivocal expression of congressional will . . . if state powers are to be pre-empted,” the court said. Judges Matthew W. Hill and Richard B. Ott concurred with the results of the majority opinion. But they contended the Indians could fish at the accustomed places without restriction as long as they used gear in vogue at the time the treaty was signed. A dissent was filed by Judge Charles T. Donworth, who argued the court should not disregard the Point Elliott treaty as supreme law of the land. He said Congress should solve the problem. The opinion was not signed by Judge Frank Hale because the case was argued before he came to the court. The ninth member at the time was the late Judge Harry Ellsworth Foster.
Indians’ Fishing Curbs Upheld
Daily Olympian
December 17, 1963
by The Associated Press
The State Supreme Court ruled Thursday that the state can restrict Indian fishing on Washington rivers in efforts to protect fish resources. It was a major victory for the State Fisheries and Game Departments in their fight to stop unrestricted net fishing by Indians at the mouths of many rivers. The Indians contended century old treaties gave them the absolute right to fish at usual and accustomed places even though off their reservations. The Supreme Court disagreed in a 7-1 opinion written by Judge Hugh J. Rosellini. The court said Washington acquired the sovereign power to preserve its natural resources when it was admitted to the union, and could not be stripped of the power by implication or deduction from a treaty. The judges said salmon will face extinction in Washington without state action to permit salmon to escape upriver to spawning beds for the reproduction of new stocks. The court reversed a ruling by Judge Charles F. Stafford of Skagit County and called for a new trial in an action brought by the state against an Indian charged with fishing in closed waters. Judge Safford had acquired a Swinomish Indian, Joe McCoy, holding that the 1855 Treaty of Point Elliott granted him immunity form state regulatory powers. The state appealed. McCoy was charged with using a 600-foot nylon gill net from an outboard-motor boat to catch salmon at the mouth of the Skagit River during a 10-day closure imposed by the Fisheries Department. The Supreme Court said the treaty gave Indians the right not to be excluded from their usual and accustomed fishing grounds, but this right did not prevent the state from imposing reasonable and necessary regulations to protect the fishery resources. The high court said regulation of the salmon harvest in salt and fresh water was essential to a conservation program. “It is regulation that provides the escapement necessary to maintain a perpetual supply of salmon for the harvest of all people,” the court said. Individual self-restraint by the Indians was a poor substitute for proper state regulation, the court said, in view of the “economic bonanza” to be gained by selling the fish at an average of $10 apiece. The judges said previous court opinions indicate the United States can restrict a state’s police power by treaty, but the treaty should if possible be interpreted so as not to override state laws or impair rights arising from them. “There must be a clear and unequivocal expression of congressional will . . . if state powers are to be pre-empted,” the court said. Judges Matthew W. Hill and Richard B. Ott concurred with the results of the majority opinion. But they contended the Indians could fish at the accustomed places without restriction as long as they used gear in vogue at the time the treaty was signed. A dissent was filed by Judge Charles T. Donworth, who argued the court should not disregard the Point Elliott treaty as supreme law of the land. He said Congress should solve the problem. The opinion was not signed by Judge Frank Hale because the case was argued before he came to the court. The ninth member at the time was the late Judge Harry Ellsworth Foster.