Who's in Charge of Fishing?

Abstract

Fronda Woods Who's In Charge of Fishing? For thousands of years before 1854, Indian peoples whose ancestral lands lie within what Americans call the Pacific Northwest depended on fishing, gathering, trading, and hunt ing for their livelihood. Groups migrated between summer camps on mountain slopes, where they gathered wild plants, and winter villages along rivers and shores. Fish, especially salmon, sustained them. Large fisheries developed where the salmon had to overcome obstacles in their upstream migrations, such as at Celilo and Kettle Falls on the Columbia River. Indian people today retain that deep connection to the landscape and the foods itproduces.1 In 1854-1855, as they negotiated treaties with Isaac Stevens and Joel Palmer, Indians in Washington and Oregon insisted that they be allowed to continue traditional food-gathering practices outside the reservations. Each of the ten treaties of cession that Stevens and Palmer concluded con tains a provision substantially similar to this paragraph from the Treaty with theYakamas: The exclusive right of taking fish in all the streams,where running through or bordering said reservation, isfurthersecured to said confederated tribesand bands of Indians, as also the rightof taking fish at all usual and accustomed places, in common with citizens of theTerritory,and of erecting temporary buildings for curing them; togetherwith theprivilege of hunting, gathering roots and berries, and pasturing theirhorses and cattleupon open and unclaimed land.2 The Stevens-Palmer Treaties are federal laws that preempt any state laws thatmight be in conflict. Yet, under our federal system the states, not the federal government, have the primary authority to protect, preserve, and regulate the use offish and wildlife. The treaties say nothing about states. Did the treaty-makers expect the "right of taking fish" to affect future states' 412 OHQ vol. 106, no. 3 ? 2005 Oregon Historical Society OHS neg.,CN 007247 The YakamaTribalCouncilmeetswithofficials fromthe UnitedStates Army Corps of Engineers in 1954 todiscuss payment to the tribefor theflooding of tribal usual and accustomed fishing places at Celilo Falls anticipated from the construction of The Dalles Dam. authority over fish and wildlife? What did the treaties'"right of taking fish" mean for the Indian tribes and their relationships with future states? Today, the U.S. government recognizes twenty-five tribes as parties to the Stevens-Palmer Treaties. Their ancient fishing places include the Columbia River Gorge and rivers innortheastern Oregon aswell as places in Washington, Idaho, and Montana and in the ocean off the Washington coast. Twenty-four tribes have usual and accustomed fishing places within the boundaries of the present-day state ofWashington. So it is not sur prising that questions about who is in charge of fishing under the treaties should have the greatest urgency in Washington.3 United States v. Hinaus After the treaties were executed, Indians continued to fish at their usual and accustomed fishing places. As settlersmoved in, many of the old fish ing places came to be on lands owned by non-Indians, some of whom desired to exclude the Indians from their private property. Conflict arose, leading to litigation by themid-i88os. The courts ruled that the treaties had something to say about the relationship between settlers and Indians Woods, Who's InCharge of Fishing? 413 ON THE RIGHTTO SUBSISTENCE_ Ten of the treaties negotiated by Isaac Stevens and JoelPalmer included a provision retaining Indians' right to utilize places outside of the reser vation for food gathering and preparation. There are small differences in language among the treaties and some larger distinctions indicating the variety offoodways practiced among Indians ofwhat isnow Oregon and Washington. 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 shell fish from any beds staked or cultivated by citizens, and that they shall alter all stal lions not intended forbreeding horses, and shall keep up and confine the latter. ?Treaty with the Nisquallys, Etc., 1854 [The right topasture animals was also...