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10 Environs 1 (1986-1987)

handle is hein.journals/environs10 and id is 1 raw text is: UCD School of Law Environmental Law Society Vol. 10 No. 1 August 1986 Catching Salmon by Court Order: Treaty Fishing Rights in Puget Sound by Joe Robinson When white settlers began to occupy the Pacific Northwest in the mid-nine- teenth century, they encountered a thriving Indian culture whose prosperity depended heavily upon the abundant supply of salmon and steelhead trout. Although subsequent treaties deprived Indians of their ancestral lands, many tribes specifically reserved the right to continue taking fish at their accustomed spots. This seemingly straightforward formula grew increasingly difficult to interpret as non-Indian fisheries claimed a largershare of the resource, and habitat degradation dramatically reduced the populations of migrating salmon and steelhead. This article examines the de- velopment of this treaty fishing right in northwestern Washington, where the value of the salmon catch, or harvest, approaches fifty million dollars a year in Puget Sound alone. The Stevens Treaties Represented by Washington Territorial Governor Isaac Stevens, the United States in 1854 and 1855 acquired nearly all of northwestern Washington from the Indian tribes living there. In exchange the tribes received small reservations on tribal homelands and annuities amount- ing to less than 1/ cent peracre. However, identical provisions in each of the five treaties that Stevens negotiated with the Puget Sound tribes stated: 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... (Treaty of Medicine Creek, 10 Stat. 1133) Indian tribes continued to harvest most of the fish for several decades after the treaties. Their right of taking fish was not a controversial issue because fish were plentiful and significant non-Indian fisheries had not yet developed. In ad- dition, the Indian population was itself declining because of exposure to Euro- pean disease. But as white settlement increased and the development of modern canning techniques made the fish more valuable, non-Indians began to dominate the fishery. Inevitably, the State of Washington started to regulate off- reservation fishing by treaty Indians. In 1916, the Supreme Court of Wash- ington affirmed the State's right to regu- late off-reservation fishing in spite of the Stevens Treaties, based on the State's inherent police power over wildlife within its borders. State v. Towessnute, 89 Wash. 478,154 P. 805 (1916). Twenty-five years later, the same court convicted a Yakima Indian of catching a salmon without a license, as required by State law. The U.S. Supreme Court reversed the conviction in Tulee v. Washington, 315 U.S. 681 (1942), and limited the State's jurisdiction over treaty fishing to regulations necessary for the conserva- tion of fish. Although Tulee restricted the scope of permissible State regulation, the phrase necessary for the conservation of fish was subject to varying interpretations. Frequent State seizures of Indian nets and equipment, in the name of conser- vation, led the tribes to contest State jurisdiction over their treaty rights in the federal courts. Makah Indian Tribe v. Schoettler, 192 F. 2d 224 (9th Cir., 1951), held that the State could not prohibit net fishing by treaty Indians without proof that such regulations were necessary to preserve the salmon run. In Maison v. Confederated Tribes of the Umatilla Indian Reservation, 314 F. 2d 169 (9th Cir., 1963), the Court of Appeals again rejected State regulation of treaty fishing, because the State failed to prove that the regulations were indispensible to the effectiveness of the State conservation program. In 1973, the U.S. Supreme Court added a new wrinkle, interpreting the original treaty phrase in common with to mean that the fish must be fairly apportioned among treaty and non-treaty fishermen. Puyallup Tribe v. Washington Depart- ment of Game (Puyallup II), 414 U.S. 44 (1973). This fair share requirement was

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