Much has been written recently about our Indian fishing problem and at times our position and our actions have been misunderstood. We have not stopped the Indians from fishing, nor do we want to. They not only have the rights of the non-Indian to fish anywhere and at any time other citizens do and without a license, but also the right to fish on their reservations as they see fit. It should be noted that Congress granted full citizenship to all Indians in 1924. The Indian fishing issue hinges on the interpretation of a 100-year-old treaty which guarantees the Indians the right to fish in their "usual and accustomed grounds in common with other citizens." The State of Washington believes this guarantees the Indian the right to fish unhindered on reservations, but that off the reservation he has only the same rights as the non-Indian to hunt and fish, and no more. The Indians claim it gives them a superior right and that they are not bound by state law.
WE DON’T believe this claim is either logical or legal. The Department of Fisheries has the responsibility of maintaining our stocks of salmon and to do so, mush have control of all fisheries involved. A restricted net fishery in the rivers will undo all other efforts to protect the spawning escarpment. If continued, unregulated Indian fisheries could expand at the expense of other regulated fisheries and destroy many runs of salmon. At the same time the total harvest would diminish from poor escarpment to the spawning grounds, inevitably resulting in few, if any, salmon for all fishermen, including Indians. The extent of the Indians’ fishing rights must be determined and defined. Once this is won, the state agencies involved will manage accordingly.
OFTEN overlooked is the fact that we have never attempted to control Indian fishing on their reservations nor has their discrimination against them in legal commercial or sport fisheries. Indians caught and sold 240,312 salmon in 1964, 815,290 in 1963 with no fanfare and no controversy. This figure does not include the salmon caught by Indians fishing in our regular commercial fisheries. What has come to be called "the Indian fishing problem" has a simple cause. Some Indians have fished in off-reservation waters, which happen to be salmon and steelhead streams, where they catch salmon and steelhead with little thought for conservation or future yield. This unrestricted fishing can completely wipe out runs of fish. We say they should not be allowed to do this; that they must observe conservation rules to perpetuate the runs as do other fishermen. We have been upheld in our views by Superior Court restrains, which a few Indians have continued to ignore. This controversy has a long legal history. It is significant to note that prior to the State Supreme Court decision (State of Washington vs. Joe McCoy) in 1963, in which the right of the state to apply reasonable regulations to Indian off-reservation fishing was affirmed, no state court had held solidly in favor of the state. Indian plaintiffs or defendants have been given every benefit of the doubt. Problems posed by unregulated off-reservation fishing include the following:
- DOES A RESERVATION OR accustomed fishing grounds exist?
- DOES A TRIBE EXIST which is a beneficiary of a treaty?
- IS THE PLAINTIFF or defendant an Indian? (few tribes have membership rolls).
- DOES THE TREATY apply to the defendant or plaintiff?
- CAN REGULATION, even if it means total restriction, be substantiated as conservation or preservation of the resource?
- WHAT IS CONSERVATION as management today as comported to the needs of the resource in 1855?
- WHAT IS MEANT by fishing in common with other citizens?
- DOES THE INDIAN citizen have superior rights to the other citizens off the reservation?
The three Indian fisheries that have been under contention recently include the Green, the Puyallup and Nisqually Rivers. The latter two have been the scene of fish-ins and resulting publicity for arrest or non arrests.
THE BACKGROUND of the present court strainers that ban unrestricted fishing by Indians in these areas should help clarify the issues involved. On the Green River the state successfully instituted civil action in 1964 and gained a restraining order against the Muckleshoot Indians who were fishing contrary to state law. The trial court ruled that the state successfully sustained the burden of necessity of conservation and regulation by proving that the Soos Creek (Green River stock of chinook) salmon are unique and have special characteristics that make them desirable for brood stock and conservation programs; that the run of chinook salmon in the Green River and Soos Creek was the result of development work by the state and no Chinook run existed there at the time of the treaties; and that the continuance of any salmon run is dependent upon sufficient brood stock escaping to spawn and significantly, that once a salmon run is destroyed, it is generally impossible to reestablish it. The court ruled that the present Muckleshoot Tribe, composed of remnants of various groups and bands, were not a party to the Treaty of Point Elliott and have no enrollment to show affiliation of treaty Indians as required by the Secretary of Interior.
THE DEFENDANTS and all alleged members of the Muckleshoot Tribe were permanently enjoined from fishing in the Green River contrary to the laws of the state. Notice of appeal to the State Supreme Court by the Muckleshoot Tribe was given. The next fishery concerned was the Puyallup and the state asked for a temporary restraining order because over a 12-year span, the Indian fishery in Commencement Bay, Tacoma, and the Puyallup River, had placed chinook silver, pink and chum salmon and steelhead runs in jeopardy. The court ruled that there was no Puyallup Tribe which succeeds in interest the rights of the signers of the Treaty of Medicine Creek, that there is no present existing reservation on the Puyallup Tribe and that the regulations sought to be enforced were reasonably necessary for the conservation of fish. The Puyallup were permanently enjoined from fishing in the disputed areas. They gave notice of appeal to the State Supreme Court.
A COMPANION case, or the third river fishery – the Nisqually – after a court hearing, had the same result. The court thought the state had the right to enforce regulation necessary for conservation and permanently enjoined the Indians from fishing off the reservation contrary to state law. This case has also been appealed to the State Supreme Court. The future seems to hold more such cases and we hope that one of the cases will go to the United States Supreme Court for final decision so both the Indians and the State will clearly understand their respective rights and responsibilities.
IN THE MEANTIME a great many Indians will continue to fish legally either on the reservations or with other citizens in the many sport and commercial fisheries open to them with no license required.
THE UNREGULATED Indian fishing is one of the problems now facing us that must be solved so we can get along with our 10-year plan to do the things we can and must do to assure the continuation of our fisheries resources and their wise use by all citizens of the state.
Thor Tollefson Director – Washington State Department of Fisheries