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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