UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 5, No.1FALL 1981
COMMENTS
Pacific Northwest Indian Treaty Fishing Rights
Thomas C. Galligan, Jr. Michael T. Reynvaan
I. Introduction
In 1854 and 1855 the United States entered into a series of treaties with the Western Washington Indians to insure peace and prosperity for the growing population of settlers.(fn1) The Indians exchanged vast tracts of land(fn2) for monetary payments(fn3) and other minimal guarantees(fn4) while reserving certain smaller parcels for their exclusive use.(fn5) In each treaty, the signatory tribes expressly reserved the right to fish at "all usual and accustomed grounds and stations . . . in common with citizens of the territory."(fn6) Throughout the twentieth century, state and federal courts have labored over a workable delineation of the extent and meaning of those rights. Representative of the judiciary's failure to adequately resolve the conflict is a series of seven United States Supreme Court decisions, from 1905 to the present, interpreting the key treaty phrase "in common with."(fn7) Despite these decisions, the conflict and litigation among treaty fishermen, non-treaty fishermen, and the State of Washington continues.(fn8)
This Comment analyzes and discusses this ongoing controversy, focusing on the treaty Indians' history,(fn9) the background of the treaty negotiations and signings,(fn10) the principles of construction governing the interpretation of Indian treaties,(fn11) and the relevant legal precedents.(fn12) It attempts to construct a coherent approach to the Washington fishing rights controversy emphasizing that the Washington Indians' paramount purpose in these treaties was maintaining the right to fish. Two lower court cases that successfully took account of the Indians' purpose and meaningfully effectuated that purpose in relation to twentieth century developments are Judge Boldt's decision in United States v. Washington (Boldt)(fn13) and Judge Orrick's opinion in United States v. Washington (Phase II).(fn14)This Comment endorses the innovative approach of those two decisions.
II. Background
Before the white population of the Northwest began to grow in the 1840's, the area's Indians roamed freely, fishing and hunting where they pleased.(fn15) With the arrival of the white man, however, the Indian culture changed drastically. The pioneers demanded that the federal government negotiate treaties with the Indians to free the land for unimpeded settlement.(fn16) Consistent with its policy of taking Indian lands by consent rather than by conquest,(fn17) the United States appointed Isaac I. Stevens the first governor of Washington and superintendent of Indian affairs;(fn18) his primary responsibility was negotiating treaties with the Indians.(fn19) Stevens initially proposed to centralize the Northwest tribes on one or two large tracts of land, thus avoiding further conflict with the settlers and facilitating federal control over the Indians.(fn20) The government hoped this move would also convert the Indians to an agrarian culture.(fn21) What Stevens had not considered was the Indians' refusal to give up the right to fish.
Fish have always played a very important role in the Pacific Northwest Indians' economy and culture; the right to continue fishing dominated treaty negotiations. The Western Washington Indians were traditionally known as "fish-eaters" because their diets, social customs, and religious practices centered around the fish.(fn22) Tribes traded fish among themselves and with the white man.(fn23) The tribes also performed religious rites to insure the return of salmon each year.(fn24) A special dignitary, the salmon chief, supervised these religious services, the actual fishing, and the ultimate distribution of the catch throughout the village.(fn25) The common cultural link between all the signatory tribes was their dependence on fish.(fn26)
The Indians' obvious dependence on fish and their desire to maintain the freedom to fish apparently impressed Stevens because each of the treaties includes a phrase assuring the Indians the right to fish "in common with" all citizens of the territory.(fn27) Retention of this right was the one indispensable requirement to any treaty with the Northwest Indians.(fn28) As Stevens himself acknowledged: "it was . . . thought necessary to allow them to fish at all accustomed places."(fn29)
It is important to note that the Indians reserved these rights. "In other words the treaty was not a grant of rights to the Indians but a grant of rights from them . . . a reservation of those not granted."(fn30) Felix Cohen, a noted expert, has called this the most basic principle of Indian law.(fn31) Fundamentally, the treaty Indians intended to and did keep the right to fish. Any superior fishing right they may have results from that reservation and not from special government treatment.
III. Precedent
The first United States Supreme Court case interpreting these treaties, United States v. Winans,(fn32)set the tone for future litigation. In Winans the Court upheld the Indians' right to fish at all usual and accustomed places, concluding a private landowner could neither exclude treaty fishermen from his land nor set up fish wheels(fn33) which could destroy an entire fish run. Although the Court recognized that the treaty accorded Indians a special status and construction of treaty language must give effect to the central purpose of the treaty,(fn34) the Court, in unsupported dictum, also recognized state regulation of treaty rights. In reference to the retained fishing right, Justice McKenna, speaking for the court said: "Nor does it restrain the state unreasonably, if at all, in the regulation of the right."(fn35) This dictum narrowed and confused the ultimate holding.
In the years following Winans, Washington courts, relying on this dictum, upheld state power to regulate the treaty fishermen and routinely sustained treaty Indians' convictions for failure to comply with regulations imposed equally on all fishermen.(fn36) In 1942, however, the United States Supreme Court decided Tulee v. Washington,(fn37) and held that the state could not require treaty fishermen to purchase licenses. The Court reasoned that it was anomalous to charge the treaty fishermen for exercising the very right their ancestors had expressly reserved.(fn38) Nonetheless, the Court upheld the state power to regulate as long as those regulations were "necessary for conservation of the fish."(fn39) The Court concluded that license fees were not necessary for conservation.(fn40) Unfortunately, Tulee failed to give the lower courts any guidance in applying the new conservation standard.(fn41)
After Tulee, the lower federal courts and state courts wrestled with the inadequately framed "necessary for conservation" standard. Some courts attempted to give meaningful content to the phrase,(fn42) while others refused to recognize any state power over federal treaty rights.(fn43) The accommodation of these competing interests continued in Puyallup Tribe v. Department of Game (Puyallup I).(fn44)That case began when the Washington State Departments of Fisheries and Game brought suit against the Puyallup Tribe seeking declaratory judgment that the tribe was not immune from state regulation of net fishing. In an attempt to refine the Tulee standard, the majority enumerated a vague three-part test for acceptable state regulation: the regulation must be necessary for conservation, must meet "appropriate standards," and must not discriminate against the Indians.(fn45) Like the Winans dictum on the state's right to regulate,(fn46) however, the Puyallup I standards were too vague to have any practical significance. Although the Court authorized application of a different standard for measuring the validity of regulations when applied to treaty fishermen, it did not spell out the elements of that standard. On remand, the Washington courts upheld the ban on net fishing under the Puyallup I test,(fn47) but in a pivotal decision the United States Supreme Court reversed.
In Washington Game Department v. Puyallup Tribe (Puyallup II)(fn48) Justice Douglas' majority opinion held that the state's regulations discriminated against treaty fishermen because the state allowed non-treaty sports fishermen to catch steelhead and thus had effectively preempted the Indian fishery.(fn49) More importantly, the Puyallup II Court determined that acceptable regulations must apportion the number of harvestable fish between treaty and non-treaty fishermen.(fn50) The Court construed the "in common with" treaty language as requiring that Indians receive a proportionate share of the fish,(fn51) but Douglas refused to devise an apportionment formula because of the many variables involved.(fn52)
While state reconsideration of the apportionment was pending in the Washington courts, Judge Boldt, a Federal District Judge in Western Washington, decided United States v. Washington.(fn53) The case began in 1970 when the United States and seven Indian tribes initiated an action against the State of Washington for declaratory and injunctive relief concerning off-reservation treaty fishing.(fn54) Although Boldt succeeded in giving meaning and content to several of the vague phrases courts had dealt with throughout the fishing rights controversy, such as "in common with" and "necessary for conservation," the decision did not gain universal...
