Treaty History and Interpretation

Treaties and Tribal Governments

As the number of settlers increased in the Washington Territory in the mid-1800s, the United States wanted to ensure that land was available for settlement. Isaac Stevens, the first governor and superintendent of Indian Affairs of the Washington Territory, was authorized by the United States to negotiate with Washington tribes for the peaceful settlement of their traditional lands.

Stevens ultimately negotiated eight treaties with tribes in what would become Washington State. The treaties established reservations for the exclusive use of the tribes. In addition, the tribes reserved their right to continue traditional activities on lands beyond these reserved areas. The “Stevens Treaties” all contain substantially similar language reserving the right to hunt, fish, and conduct other traditional activities on lands off of the reservations:

The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with the citizens of the territory…together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands.

There are 24 tribes that have off-reservation hunting rights within Washington State. Two of the tribes, the Confederated Tribes of the Umatilla Indian Reservation and the Nez Perce Tribe, are located outside of the state, but they reserved hunting rights within Washington.

Not all of the tribes signed treaties with the federal government. Several of these tribes have reservations designated by executive order. These include the Colville, Spokane, and Kalispel reservations in eastern Washington, and the Chehalis and Shoalwater reservations in western Washington. Tribal hunting rights for these tribes are typically limited to areas on the reservation, although the Colville Confederated Tribes’ hunting rights extend to an area formerly part of the reservation, which is known as the “North Half.” The Colville’s hunting rights to the North Half were upheld by the U.S. Supreme Court’s decision in Antoine v. Washington in 1975.

There are additional tribes that are recognized by the federal government, but have no specific reservation or tribal hunting rights. Members of those tribes are subject to state hunting regulations.

Treaties are formal contracts between sovereign nations and in the United States are sources of federal law. As federal law, treaties preempt inconsistent state law under the Supremacy Clause of the Federal Constitution. The courts have ruled that state regulation of tribal exercise of off-reservation hunting rights on open and unclaimed land is preempted by the Stevens Treaties, except where state regulation is necessary for conservation purposes.

The courts apply specific rules when interpreting Indian treaties. These rules apply where treaty language is ambiguous, and are based on an understanding that the tribes were at a disadvantage in terms of English language skills and understanding of white legal concepts at the time of the treaty negotiations.

The Stevens Treaties say that the tribes have a “right” to fish and a “privilege” to hunt. While distinctions have often been made between rights and privileges in other legal contexts, both state and federal courts have determined that the two terms should be construed as equivalent in the context of Indian treaties. The Washington Supreme Court directly addressed this issue in State v. Miller in 1984, when the court held that there cannot be a distinction between the words “right” and “privilege” when interpreting treaties between Indians and the federal government.

Treaty hunting rights are not rights granted to the tribes, rather they are rights reserved by the tribes. By signing the treaties, the tribes retained those rights that they have possessed since time immemorial. Treaty rights belong to tribes, and are not the property of any individual tribal member. Only tribal members may exercise treaty hunting rights. Members of one tribe cannot exercise the treaty rights of another tribe. Also, treaty rights must be exercised in accordance with tribal regulations.

The courts have created a narrow exception to the general rule that state regulation of tribal treaty hunters is preempted by the treaties. This exception applies in situations where the state is regulating the fishing or hunting of a particular species in order to conserve that species.

Geographical Scope of Off-Reservation Hunting Rights

The treaties do not expressly specify the geographical extent of the hunting right. In State v. Buchanan (1999), the Washington State Supreme Court ruled that this right extends to 1) the lands formally ceded by the tribes to the United States as those lands are described in the Treaties; and 2) other areas where it can be shown that those areas were “actually used for hunting and occupied [by the tribe] over an extended period of time.” The court did not provide a formal mechanism to evaluate and determine traditional hunting areas.

For game management and enforcement purposes, WDFW produced a map showing the areas formally ceded in the treaties.

Click on map for high resolution PDF

Medicine Creek

In December 2000, as a result of the Buchanan decision, WDFW with the assistance of the State Attorney General's (AG) office entered into an agreement with the four tribes that signed the 1854 Medicine Creek Treaty (Puyallup, Nisqually, Muckleshoot and Squaxin Island), and prosecutors for Thurston, Mason, Lewis, Pierce and Grays Harbor counties. Because of an imprecise description in the treaty, the location of the southern boundary of the Medicine Creek cession area had been a source of disagreement between the Medicine Creek tribes and the state.

The intent of the agreement was to use independent mediators with technical expertise in geography and law to determine a useable southern boundary of the area ceded by the Medicine Creek tribes. This determination, in turn, would be used by state and tribal managers to craft scientifically sound wildlife management plans and provide biologists with the certainty needed to carry out their work.

In June 2001, the mediators issued their determination of the southern boundary of Medicine Creek treaty ceded area. The parties to the agreement specifically agreed that the determination was not a final determination of the southern boundary, but was an interim determination that the parties would use for resource management and enforcement purposes. The line was adopted by the Washington Fish and Wildlife Commission into the Washington Administrative Code (WAC 232-12-253).

Open and Unclaimed Land

Federal and state courts have ruled that public land is “open and unclaimed” unless it is being put to a use that is inconsistent with tribal hunting. For example, in U.S. v. Hicks, a federal district court ruled that the Olympic National Park was not “open and unclaimed” because one of its purposes is the preservation of native wildlife and because hunting is generally prohibited in the park. In contrast, national forests have been held to be “open and unclaimed.” In State v. Chambers (1973), the Washington Supreme Court stated that private property is not “open and unclaimed,” but a tribal hunter may not be convicted unless such private property has outward indications of private ownership observable by a reasonable person.