Usual & Accustomed Places I – The Medicine Creek Treaty

 

PART I – THE MEDICINE CREEK TREATY (1855-1916)

The origin of the conflict over salmon has its roots in the Medicine Creek Treaty of 1854. During that year Isaac Stevens concluded a number of agreements in which, essentially, Indians surrendered title to much of their land in the region for a series of promises and commitments by the U.S. government.

One of these was the following:

ARTICLE 3.- The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, that they shall not take hellfish from any beds staked or cultivated by citizens . . .

Continued access to fishing grounds was to be protected for Native Americans. In this first agreement between Northwest Indians and the U.S. government the issue of fishing was a very important matter for the Indians to include in the legal relationship which would govern their relations for years to come.

The Medicine Creek Treaty, as well as all of the other treaties signed during this period, is an important document in relation to the future legal battle over salmon fishing rights. The U.S. Constitution defines the status of treaties in the following way:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

The above language means that the rules instituted by the treaty have the power of federal law. In our political system, federal law may not be contradicted or overruled by state law. Thus, a right guaranteed by treaties could not be wiped out even if the state of Washington passed a law abolishing it. The state of Washington could not, for instance, pass a law abolishing Indian reservations.

Yet, our federal system of government allows states to control many types of activities within the state’s borders. For instance, when you decide to go fishing (if you are a non-Indian) you get a state of Washington fishing license and wait for the state to tell you when fishing season is going to open. These are state rules. But what if the state law contradicts a federal law? What happens if a state law says that everyone in the state, Indian and non-Indian may not fish? Would this be a violation of the language of Article 3 of the Medicine Creek Treaty? What then

This is where the courts enter the picture. In our system of government the legislature passes laws and the courts make sure that these laws do not violate the rules laid out in the U.S. Constitution and Bill of Rights. There are state courts and federal courts and their roles are essentially the same. Let’s go back to the imaginary state law forbidding fishing. You decide to go fishing anyway and you are arrested by an agent of the Game Department. You are accused and then convicted of violating the state’s prohibition on fishing. Following the conviction, if you or your lawyer believes that this law violates some part of the state or federal constitutions you might appeal to a higher court and have them analyze if that is actually the case. This is an important function of the courts, the right of judicial review. This is the right of the court to declare a law unconstitutional. If the court believes that this law is wrong, unconstitutional, then they strike down the law. They throw it out. This is a tremendous power and the courts have taken this power seriously and used it carefully.

Here is another relevant example. The language in the Medicine Creek Treaty guarantees the right of Indians to fish in the usual and accustomed places. What does this mean? Can they fish anywhere? May they only fish on their new reservations? Do they have to follow state laws regarding fishing? The court’s ultimate job is to interpret what usual and accustomed actually means. This often puts the court in an unpopular position since a law on the books has been passed by a majority of the legislature which, in turn, must represent a majority of the inhabitants of the state. This is the whole basis of our republican form of government, majority rule. Thus, in some cases, we have a small body of men and women, the court, telling the majority that they may have done something wrong. After all, what may be popular, may not be right (in a legal sense).

The history of fishing rights will, therefore, examine the relationship between the state and federal governments and the state and federal court systems. It will examine the relationship between the Indians of Washington and the state government. The following reading will also examine the relationship between Indians and non-Indians in this state.

AFTER MEDICINE CREEK- GOING TO COURT

 

The treaties signed by Governor Stevens and the tribes of Washington all contained key language related to fishing. This was the wording that promised Indians the right to fish in their “usual and accustomed grounds and stations.” This language would have serious implications in later years. For instance, the Lummi Indians fished around Orcas Island, San Juan Island, Point Roberts, Village Point, Lummi Island, Fidalgo Island and Sandy Point. They sometimes fished as far south as Seattle and as far North as the Fraser River.They fished the Nooksack River and the other rivers which flowed into Boundary Bay. Once the Lummis were restricted to their reservation lands, many of these “usual and accustomed” places would lie beyond their reservation boundaries. Once settlements, farms, and competing non-Indian fishing grew, this language (“usual and accustomed”) would be put to the test.

The first major court test regarding Northwest Indian fishing rights was the case of United States vs. Taylor in 1887. Washington was still a territory and the case was tried in a territorial court. The controversy began when a settler named Frank Taylor fenced in his land along the Columbia River in order to protect his crops. The fence blocked Yakama Indians from using their “usual and accustomed grounds and stations” and they went to district court in order to have the fence removed in accordance with the treaty guarantees. The Yakamas lost in district court, but they appealed to the Supreme Court of the Territory where they won. There the judges ruled that treaty rights had pre-eminence over a homesteader’s rights and the fence had to come down. Subsequent cases would prove not to be so favorable to Native Americans in this state.

As the boom in the salmon canning industry took off in the late 19th century the pressure on Indian fisheries increased. In the case of the Lummi Indians near Bellingham, salmon packers began setting traps and driving pilings into areas considered to be part of the Lummi’s “usual and accustomed grounds and stations.” Upset by this turn of events the Lummis petitioned the Commissioner of Indian Affairs in Washington D.C. to help them in their battle to honor their treaty rights. In a letter dated September 22, 1894 and signed by 52 Lummis they wrote:

Living as we do on the shores of Puget Sound our principal means of subsistence, especially during certain seasons of the year, is fishing our best grounds are situated near the reef of Point Roberts.

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…

We the Indians of this reservation do therefore earnestly pray that you call upon the U.S District Attorney of Seattle to persecute those who are robbing us of our treaty rights.

These Indians realized that their rights were being infringed despite court cases and treaty language. The state did not respond and proceeded to license two fish trap sites in the traditional fishing areas of the Lummis and allowed a man named Waller to tear down structures used by the Lummis for smoking fish since 1859 without any repercussions. The Lummis finally made it to court with their case in 1897. In the case of United States , Hillaire Crocket, Captain Jack vs. Alaska Packers Association and Kate Waller, the Lummis’ suit was dismissed by presiding Judge Hanford. He reasoned that the traps set up by the Alaska Packers were not an infringement because there were plenty of fish elsewhere and, after all, the Lummis were able to sell the fish they did sell to the packers. The packers provided the Lummis with a good living, and driving them away wouldn’t make economic sense. Also, the judge maintained that recognizing the Lummi’s arguments would be granting them “special rights.” Thus access to “usual and accustomed” fishing grounds was being restricted with the force of law.

PROTECTING THE FISH; REGULATING THE FISHERMEN

As fishing in the region increased there began to appear concerned about the impact it was having on the salmon runs. As early as 1894 the Oregon Fish Protector contained the following warning:

It does not require a study of statistics to convince one that the salmon industry has suffered a great decline during the past decades, and that it is only a matter of a few years under present conditions when the chinook of the Columbia will be as scarce as the beaver that once was so plentiful in our streams. Common observance is amply able to apprehend a fact so plain. For a third of a century, Oregon has drawn wealth from her streams, but now, by reason of her wastefulness and lack of intelligent provision for the future, the source of that wealth is disappearing and is threatened with annihilation.

This increasing concern led to a series of state efforts to “protect” the salmon. Restrictions were set on when and where to fish, and licenses were required for those engaged in fishing. As early as 1889 the state government passed laws which closed rivers to fishing, allowing Indians to catch only what was needed for their subsistence. In 1907, all rivers in the Puget Sound were closed to net fishing. These would become another area of conflict between non-Indians and Indians. How would these regulations apply to Indians? Would they apply to them merely off reservation or would they apply to them in all situations in order to prevent their having “special rights”.

Once Washington became a state the tribes and state government began a series of struggles over their legal relationships which would extend to today. In 1899, early in Washington’s state history, Attorney General P.H. Winston, wrote an opinion representing the state’s view on whether or not the state could tax Squaxin Indian’s fishing gear like it did non-Indian citizens of the state. He wrote: “the Indians on the Squaxin Reservation are not discriminated against by the license laws of the state… They have the right to fish at usual and accustomed places with all citizens of the state. No more, no less.” In other words, everyone in the state, Indian and non-Indian, would obey the same laws. At the Cascades of the Columbia the houses used for shelter and fish drying by Indians, and protected by treaty language, were torn down by whites.

GOING TO COURT: U.S. v. WINANS (1905)

Problems arose for Yakima fishermen who found their access to their “usual and accustomed” fishing grounds blocked, this time by a “fish wheel” owned by a man named Winans. Columbia fish wheels were revolving wheels (9-32 feet wide) and rotated due to the force of the current. Salmon were guided into the revolving wheels and then down a long chute into a bin on the shore. Some wheels had long lines of pilings set in the river bed to help lead the salmon to the wheel which might help explain a daily catch at some sites of 3000 fish. One particularly effective wheel (Seufert’s No. 5) once caught 209 tons of salmon in one year. In its worst year, it only snared 10 tons of fish. Fish wheels were state licensed methods of catching large quantities of fish. In court Winans’ attorneys argued the following two points: 1) since the fish wheel was a superior method of fishing to Indian’s techniques it therefore gave Winans superior rights (i.e. the right to ignore treaty obligations); and 2) since Washington was now a state the treaty between the Yakamas and the federal government was no longer binding on the residents of the state.

The case was appealed all the way to the U.S. Supreme Court. In an opinion written by Justice Joseph McKenna the U.S. Supreme Court would have none of these arguments. Technical advancement had nothing to do with treaty rights; and in spite of statehood, the Indian’s rights, guaranteed under the treaty, gave them the right to cross land, fish in rivers, and build temporary shelters at their fishing sites. the decision also introduced a concept which would be used in court decisions made in the 1970’s. The treaty had to be interpreted as the Yakamas might have in the 1850’s. The court went further by establishing the “reserved rights doctrine.” By this the court meant that “the treaty was not a grant of rights to the Indians, but a grant of rights from them–a reservation of those [rights] not granted.” Fishing privileges had been granted to whites, while still Indians reserved the right to continue fishing as they always had done. The U.S. had the authority to protect off reservation fishing rights if it did not “restrain the state unreasonably in the regulation of the right.” The latter language left open the possiblity of state regulations. It implied that some state regulations of Indian fishing were constitutional as long as they were reasonable.

The state of Washington, however, was not particularly impressed by the Winans decision. In 1915, the Washington Director of Fisheries, Leslie Darwin wrote:

the Indians off the reservations have no rights superior to those of the White. Practically every Indian has an allotment of land, and a home of his own. This is very much more than is possessed by the average fisherman of this state. It would seem unfair, therefore, to tax the white man for a license and not require one of the Indians, particularly where the Indian engages in competition with the white man… But much more objectionable yet is the insistance of the Indians upon the right to disregard the closed season which our laws established.

Thus, taking the opening provided by the Winans opinion, the state of Washington applied its fishing laws to Indians. In cases argued before the Washington State Supreme Court in the same year, Indians argued that they could not be criminally prosecuted for fishing off reservation without a license. In one case, a Yakama Indian named Towessnute was arrested for catching a salmon with a gaff hook, a violation of state law. In the other case, Alexis, a Lummi Indian, was arrested for fishing without a license and fishing during a closed season. In the case of Alexis he was convicted in the local court and fined $250.00. Both Indians appealed their cases to the State Supreme Court. There, in a 1916 case entitled State vs. Towessnute, the court ruled against both Indians stating that they were bound to obey state laws. Traveling to and having acess to “usual and accustomed” fishing grounds was not in question here. Obeying state laws to protect fisheries was. State Supreme Court Justice Bausman wrote:     

The premise of Indian so vereignty we reject. The treaty is not to be interpreted in that light. At no time did our ancestors in getting title to this continent ever regard the aborigines as other than mere occupants, and incompetent occupants, of the soil. Any title that could be had from them was always disdained… Only that title was esteemed which came from white men… The Indian was a child, and dangerous child of nature, to be both protected and restrained. In his nomadic life, he was to be left , as long as civilization did not demand his region. When it did demand that region, he was to be alloted a more confined area with permanent subsistence… These arrangements were but the announcement of our benevolence which, notwithstanding our frequent frailties, has been continuously displayed. Neither Rome nor sagacious Britain ever dealt more liberally with their subject races than we with these savage tribes, whom it permitted to squander vast areas of fertile land before our eyes. 

 

The state court decision appeared to contradict the Winans decision, but an appeal to the U.S. Supreme Court was not made by the Indians who lost their cases. The decision, however, did not stop Indians from exercising the rights they believed were granted by treaty. Throughout this time period there were many incidents related to fishing. On the Green River the Muckleshoots were forbidden from using their accustomed net methods during spawning season off reservation. Non-Indians running a new hatchery on the riverhad the stream dammed and were taking the salmon for their spawn. As a form of good will the hatchery crew would give a salmon a day to some Indian family. A Muckleshoot was arrested for using a spear in violation of state law. The state passed a law which limited Indians to fishing within five miles of their reservations, but on the Skokomish River Indians were afraid to fish at the “usual and accustomed” site at Cushman Falls because the falls were five miles away in a straight line, but eight miles away as the river flows. This fear was a result of state officials removing their nets form the river on a site they claimed to be reservation land. James Nimrod, a Nisqually, told a federal investigator that the state would not even let him fish on creeks running through the reservation. He summed up the problem this was, “Now I am bothered when I fish.” Other developments were also limiting Indian fishing. When Pacific Coast Power Company diverted part of the White River above the Muckleshoot Reservation, silt built up and hurt fish runs, and the company eventually paid $10,000 to 17 Muckleshoots for damages to the fishery. As one neighbor of the Nisquallies said in 1920, the only place the Nisquallies, “could fish accustomed” fishing grounds was being effectively curtailed.

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