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, along with Joel Palmer his counterpart in Oregon Territory, were authorized by the United States to negotiate with tribes living in the area 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 fishing rights within Washington state reserved by federal treaties. Three of the tribes – the Nez Perce and the Confederated Tribes of the Umatilla and Warm Springs Indian reservations – are located outside of the state, but they reserved fishing 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 fishing rights for these tribes are typically limited to areas on the reservation.
There are additional tribes that are recognized by the federal government, but have no specific reservation or tribal fishing rights. Members of those tribes are subject to state fishing 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 fishing rights at their usual and accustomed fishing places is preempted by the Stevens-Palmer 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.
Treaty fishing 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 fishing 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 following resources may be helpful to understanding these issues: