Usual & Accustomed Places IV – On the Banks of the Puyallup & Nisqually Rivers

PART IV – ON THE BANKS OF THE PUYALLUP & NISQUALLY RIVERS

In the early 1950s some Puyallup Indians decided to cast their nets on the Puyallup River in order to go to court to challenge the state law of 1934 which outlawed the use of fixed nets in rivers. According to one of the participants, the relevant state agencies were contacted about this illegal act, but no one was arrested. In 1954 Bob Satiacum and another Puyallup tribal member, James Young, carried out the same act of defiance in full view of Tacoma’s rush hour traffic. This time they were arrested, charged, and convicted of illegal fishing. In 1957, on appeal before the state Supreme Court (State vs. Satiacum, 1957) Satiacum and Young had the charges dropped against them as a result of a 4-4 tie among the justices. Although the case did not strike down the state laws which the tribes believed unconstitutional, the verdict did seem like a minor vindication.

In the sixties things really heated up. Newspapers were filled with accounts of confrontations between Native Americans and agents of law enforcement for the state of Washington. Headlines in local papers read:

Indians Face Fish Charge

Two Indians Are Convicted

Indian Fish-Netting Barred in Puyallup

Indians Win Contempt Case

State May Add 35 Indians to Net Fishing Ban

Tacoma’s Boys in Blue Quash Indian Uprising

Indians-State Tangle on Banks of the Nisqually

Indians Up in Arms Over Raid

Indians were fishing in violation of state law, but, in their minds, this fishing was legal according to the treaties. Eventually these demonstrations of Native American assertiveness for their rights became known as “fish-ins.” For some Indians this fishing was merely a continued attempt to put food on the table or money in their pockets. For others they did this in order to be arrested and draw attention to their complaints. Along with the numerous arrests that were taking place along the Nisqually River, there were marches on the state capitol and “Treaty” and “Canoe Treks” across the state. Indian groups released information to the public to help educate non-Indians about the Indians’ side of the struggle, and there were even appearances by American celebrities to help gain public support for the Native Americans. The “Survival of the American Indians Association” and the “National Indian Youth Council” and their leaders in the area helped attract Indians from around the state and the nation to help participate in the demonstrations and distribution of information. This activism was summarized by a Paiute, Mel Thom, this way:

Awareness of our situation had brought out anger. With anger and concern hope was born. We were aware [that] if we did not take action, in our time, future generations of Indians would be denied the right to share our own heritage. This was a direct threat to us, and we knew it. It was a matter of how to set up action to fight this threat and how we [would] rally our forces together.

Throughout the sixties there were tribal members willing to be arrested on the Quileute, Puyallup, Columbia, Green, Nisqually, and many other rivers in the state. This struggle cost its participants dearly. Men and women were arrested. For those that relied on fishing for 75% of their income, this was a particular hardship. Families were split up. Money had to be raised for lawyers and bail. Nets and boats were confiscated by the state as evidence and not returned for years, sometimes even after Indians were acquitted of their crimes. Violence broke out and Indians and state officials were hurt. Vigilantes cut nets, and divisions appeared within the Indian community about the wisdom of these protests. Court injunctions were issued to prohibit Indians from fishing on the rivers, and these legal cease-and-desist orders were promptly broken by tribal fisherman. Letters to the editors of local newspapers argued the case for both sides. Some confrontations made the national news.

For some in the state this series of confrontations tested their sense of justice and their prejudices. As in the case of civil rights protesters participating in sit-ins or ride-ins (attempts by blacks to bring attention to segregation policies), many thought that breaking the law was simply the wrong way to get the public’s sympathies and change laws. Whenever violence erupted the news stories often contained contradictory versions of what happened. News articles reporting the fish-ins often referred to Indians being on the “warpath” or being involved in “uprisings,” both stereotypical references straight out of the 19th century.

The strategy of the Native Americans was two-fold. One purpose was to draw attention to their cause and the second was to develop a test case which would go before the Supreme Court of the United States and clarify the meaning of the state court’s Satiacum decision and the U.S. Supreme Court’s decision in Tulee.

PUYALLUP TRIBE V. DEPARTMENT OF GAME OF WASHINGTON, ET. AL

In the early 1960s the state of Washington Game Department sought an injunction (a court order to halt a certain action) to stop the Puyallups from fishing on the Puyallup River. In 1964 a Pierce County Superior Court judge issued an injunction against all net fishing on the Puyallup River. Judge Cochran’s reasoning was that there was, in a legal sense, no Puyallup tribe and no Puyallup Reservation. (This is an interesting and complicated story. The Puyallups later went to the Supreme Court, which decided in the favor of the Puyallup Tribe. The Supreme Court ruled that they did indeed exist and that their non-existent reservation had been taken away by illegal actions of non-Indians.) If neither the Puyallup Tribe nor the Puyallup Reservation existed, Judge Cochran reasoned, then the state had a right to take “reasonable” actions to protect fish runs (a use of the Tulee case as discussed earlier). Even with this injunction in place, the Indians fished anyway. They were arrested, charged and convicted of violating Cochran’s injunction. They appealed to the state Supreme Court. Other cases involving the Muckleshoot and the Nisqually Indians were combined in this appeal. The Washington State Supreme Court handed down a decision in a case called Puyallup Tribe vs. Department of Game of Washington, et. al., in January 1967.

The state Supreme Court stated that the lower court (the Pierce County Superior Court) had overstepped its bounds when it denied the existence of the Puyallup tribe. Such a decision was only something the federal government could make. But the court also said that treaty fishing rights “were not absolute.” Protecting the fish runs to “conserve the resource was a “reasonable and necessary” step for the state to take. The Indians had lost.

The case was next appealed to the U.S. Supreme Court and a decision on Puyallup Tribe v. Department of Game of Washington, et. al. was issued by that body on May 27, 1968. In the first part of their decision the court summarized state regulations:

As respects the fishing within its territorial waters, Washington specifies the time when fishing may take place, the areas open to fishing, and the gear that may be used. Fishing licenses are prescribed. Steelhead may be taken only by hook and line and not commercially. Salmon may be taken commercially with nets of a certain type in certain areas. Set nets or fixed appliances are barred in “any waters” of the state for the taking of salmon or steelhead. . . . The nets used [by Indian fishermen] are concededly illegal if the laws and regulations of the state of Washington are valid; and it is to that question that we now turn. (emphasis added)

In its decision the court touched on several of the complaints that non-Indians were making about Indian fishing. The first was a complaint that Indians were a particular danger to fish runs because of their use of modern technologies. Washington state claimed that it could control Indian fishing by forbidding the commercial sale of steelhead. The Supreme Court tackled this issue in the following way. The court stated:

We assume that fishing by nets was customary at the time of the treaty; and we also assume that there were commercial aspects to that fishing as there are at present. But the manner in which the fishing may be done and its purpose, whether or not commercial, are not mentioned in the treaty. We would have quite a different case if the treaty had preserved the right to fish at the “usual and accustomed places” in the “usual and accustomed” manner. But the treaty is silent as to the mode or modes of fishing that are guaranteed.

In other words, the Court ruled that earlier treaties did not restrict Indians to fishing only in the old ways. The above language was good news for tribal fisherman. In particular this language overturned a Washington State Supreme Court decision Washington vs. McCoy (1963). This latter case had involved a Swinomish Indian named Joe McCoy. He had been arrested for fishing at the mouth of the Skagit River with an illegal net. McCoy had been found innocent in his original trial, but the state had appealed the case to the Washington State Supreme Court, where they won. The state court had stated:

None of the signatories to the treaty contemplated fishing with a 600 foot nylon gill net. . . [Where an Indian is fishing] at all accustomed grounds and stations he should be limited to the gear and implements with which the treaty signatories were accustomed.

Once again, however, the state court (in McCoy) had reiterated the concept of the Tulee case that the state could regulate off reservation fishing in a “reasonable and necessary” method that would help conserve the resource. In this new 1968 U.S. Supreme Court case, however, Justice William O. Douglas added the following language, “provided the regulation meets appropriate standards and does not discriminate against the Indians.

In previous cases the court upheld the concept that Native Americans could fish in the “usual and accustomed places,” but that the court also held that the state could regulate these rights on off-reservation areas if those regulations were “reasonable and necessary.” Now the court had added an important new criterion for the state to meet. State fishing regulations must now be “appropriate” and non-discriminatory.

Part of the difficulty the Supreme Court was having was what was meant by the language of the original Medicine Creek Treaty which stated that Native American fishing rights were to be held “in common with all citizens of the territory.” The State of Washington argued that this phrase must mean that Indians must follow the same rules as anyone else in the state. Could it mean something else? Also, the court did not believe that the “conservation” issue had been sufficiently defined in terms of evidence; consequently the court returned the case to the courts in Washington for a more definitive answer.

While this was taking place the Game Department in Washington state was taking action which would bring the same parties back into court. Remember that back in the 1920s the state of Washington had removed the steelhead from the area of commercial fishing and had made it a game fish, much to the dismay of the Indians that had traditionally fished it for commercial purposes. In 1968 the Game Department banned all Indian net-fishing for steelheed. In the minds of decision makers in the Game Department, steelhead caught with rod and reel were not as important to spawning as those netted by tribesmen. To the Indians impacted by this decision this was exactly the sort of discriminatory regulation prohibited by the Puyallup I decision. Here was an example of the state imposing a regulation which it considered “reasonable and necessary.” Now, however, the state had to demonstrate, using Justice Douglas’ language once again, that the regulation was both “appropriate” and not discriminatory. The Indians went to court once again to show that this state rule was “not appropriate” for its stated purpose (conserving salmon) and was “discriminatory” in that it forbade all Indian net fishing. Janet McCloud, one of the leaders of the Indian efforts, once had summarized the Indians’ position on this issue in the following way:

They promised us that we could fish – Long as the mountain stands, the grass grows green, and the sun shines, [but now the state of Washington had decreed that the steelhead trout] is a white man’s fish. They must think that the steelhead swam over behind the Mayflower.

The Indians had the makings of a case to bring the fishing rights issue back before the courts. Soon, as it would turn out, they would have an important ally: the United States government.

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