WASHINGTON'S RESISTANCE TO TREATY INDIAN COMMERCIAL FISHING:

In the late eighteenth century European explorers discovered a large and complex native culture in the Pacific Northwest. The Indian population density was higher than almost anywhere else in native North America, north of Mexico.[1] Development over some 10,000 years had made the Indian culture diverse as well as strong. At the western extreme was the fierce Makah tribe; a seafaring people at the mouth of the Strait of Juan de Fuca. One hundred miles east, in the Cascade Mountains foothills which border Puget Sound, was a cultural contrast, the Sauk-Suiattle. The Sauk-Suiattle people spoke a different language and, unlike their neighbors, held no slaves. They placed a premium on maintaining peaceful relations; aggressiveness was regarded with disfavor. A common cultural characteristic of all of the Indian groups, however, was the paramount dependence on the products of an aquatic economy, especially anadromous fish.[2]

Anadromous fish, fish which ascend rivers from the sea for breeding, comprise many species. Five species of Pacific salmon and the steelhead trout are, like the Indian tribes, indigenous to the Pacific Northwest.

The relationship between the tribes and the anadromous fish had religious significance. One aspect of this was the First Salmon ceremony, designed to insure that the fish would perpetually return. The attitudes of respect, reverence, and concern for the salmon, reflected a profound conception of the interdependence and relatedness of all living things, which was a dominant feature of the native Indian world view.[3] Indian procedures insured that salmon were never wantonly wasted and that water pollution was not permitted. Refuse was never deposited in streams during the salmon season and the Skokomish even beached their canoes to bail them. So central to the Indian culture were these fish that the Nisqually, for example, projected their preoccupation with fisheries in their perception of the stars. The constellation Orion was identified as three Indians catching small fish in schools. The sword was said to represent the fish. The Pleiades was described as a species of fish with large heads and small tails. The aurora borealis was attributed to schools of herring turning up the whites of their bellies.[4]

Fish were the major element of Indian trade and economies; they were vital to the Indian diet.[5] Indian harvest and use of salmon and steelhead resources involved fishing equipment, food preservation techniques, storage facilities, and an exchange system.[6] Until the 19th century the fish exchange system was not measured in American dollars, but salmon had long been an important commercial item among Indian groups. Extensive trade, reaching far beyond Western Washington was carried on in order to acquire food stocks, raw materials, and manufactured goods not available locally. Tribes in the interior of Washington traded across the mountains with tribes on Puget Sound, and vice-versa. The Makah Tribe, at the mouth of the Strait of Juan de Fuca, acted as middlemen in the trade from the west coast of Vancouver Island down to Astoria, Oregon and other trading posts on the Columbia River. They traded ocean-going canoes (used for hunting sea mammals), lumber, wooden chests, ceremonial masks, vermilion, slaves, blankets, and other items with tribes up and down the coast. They imported blankets, guns, and kettles from the Europeans which they paid for with dried halibut, smoked salmon, processed oil and other items.[7]

The salmon when taken were preserved by sun drying, wind drying, or smoking. The Indians also found markets for fresh fish among other tribal groups who desired fish of different species, (or fish from the same run caught in a different location), and among the growing number of white settlers. All were supplied with fish by the Indians.[8] The abundance of salmon coupled with adequate food preservation techniques, were important determinants of the relatively high standard of living and high population density of north coast Indians compared with the Indians located elsewhere in North America.

The trade of salmon had wide geographic distribution and high volume. It is believed that Northwest Coast Indians captured about 35 million pounds of salmon annually at the time of the first European contacts.[9] In short, commerce in salmon was Athe crux of the Indian economy in Western Washington.@[10]

In 1790, Manuel Quimper commanded the first European expedition to venture into and explore the inland salt waters of Western Washington. From Clallam Bay Quimper claimed the area for Spain; title was based on prior discovery, exploration and formal acts of possession. Vancouver, sailing for Great Britain, conducted further exploration of the Strait of Juan de Fuca and Puget Sound in 1792. Both Quimper and Vancouver from the outset of their contacts with the Indian culture, reported trade with Indians for fish.[11] During their voyage down the Columbia River in 1805, Lewis and Clark found entire villages engaged in making salmon pemmican. This was traded with other tribes, including the Plains Indians, east of the Rocky Mountains.[12] Sadly, the Europeans brought with them measles and other diseases previously unknown to the tribes. Epidemics resulted which reduced the Indian population substantially.

By a treaty with Spain in 1819, the United States began the process of extinguishing the claim of other sovereigns to the wealth of the Pacific Northwest. An agreement was reached with Russia in 1824, followed by a treaty with Great Britain in 1846. These nations essentially quit-claimed the region to the United States. The first Europeans and Americans reached the rugged Northwest in awkward wooden sailing ships. Soon the overland expansion followed. White settlers began to reach the Western Washington area by land in the 1840s, and in 1848, the United States created the Oregon Territory, of which the Puget Sound country was a part. The Territorial Act explicitly preserved Arights of person or property now pertaining to the Indians.@[13] The influx of white settlers brought with it a strong demand for prime agricultural lands. By law, the United States Government alone could obtain clear title from the Indians, and this the U.S. was anxious to do. The Federal Government wished to avoid friction between Indians and settlers over use of property rights. Therefore, Congress and the Executive authorized Issac Stevens to negotiate with the tribes treaties which would avoid hostilities, and the possibility of a prolonged and distant war. The Federal Government hoped to confine the Indians to small residential reservations thus freeing land for settlement and enclosure by the white settlers. There was no intent to interfere with Indian commercial fishing; to do so would have been highly inconvenient since Indian fishermen caught most of the fish used by the whites.[14]

B. TREATY INDIAN FISHING FROM 1854 UNTIL THE PASSAGE OF INITIATIVE 77

1. Preservation of the fish-based Indian livelihood was guaranteed by treaty.

Although animal pelts were the most important trade item with the earliest European visitors, the coming of the settlers resulted in a substantial increase in the tribes= fishing activities. White residents relied on Indians for fish; the early non-Indian commercial fishing enterprises were rudimentary and largely unsuccessful. In addition to the growing market for fresh fish and the traditional trade with other Indian groups, large quantities of salmon, purchased from the Indians, were salted by the Northwest and Hudson Bay Companies for shipping to markets New York, San Francisco, China, South America, Hawaii, and Great Britain.[15] Thus, an initial effect of the influx of non-Indians into Western Washington was to increase the demand for fish both for local consumption and for export, and this demand relied upon the Indians for supply.

Non-Indians did not engage as fishing competitors on any scale until the late 1870s. Instead the white man concentrated on agriculture and the exploitation of natural resources of the Pacific Northwest other than the salmon fishery. The white man wanted the right to the land, the Indian the guarantee of his right to the fisheries.[16] Thus, by the time the Stevens= treaties were negotiated Indians were deeply engaged with non-Indians in commerce in fish.[17] It was in this economic milieu that the treaties were consummated.

The U.S. delegation was clearly cognizant of the Indians= domination of the fishery when the treaties were negotiated. A December 30, 1854, letter from Isaac Stevens notes,

The Indians on Puget Sound have been for a considerable time in contact with the whites . . . They form a very considerable proportion of the trade of the Sound . . . They catch most of our fish, supplying not only our people with clams and oysters, but salmon to those who cure and export it.[18]

The U.S. negotiators intended that the Indians should be self-sufficient, able to continue the trade of fish with non-Indians and other tribes.[19] For example, the members of the treaty commission at the treaty with the Makah, (Stevens, Gibbs, Shaw, and Simmons), were aware of the commercial nature and the value of the Makah marine economy and they promised the Makah that the United States would assist them in developing their maritime industry. By his promise of kettles and fishing apparatus to the Makah, Governor Stevens clearly indicated that there was no intent on the part of the treaty commissioners that the Indians be restricted to aboriginal equipment or technique.[20] A few years after the treaties, Indian Agent Simmons reported,

The salmon run up the Qui-nai-elt river, in great numbers, are considered the fattest and best flavored of any taken on this coast, and the Indians should be encouraged to open a trade in them. I think they can be more profitably employed in this way than in agricultural pursuits, as it will be a more congenial employment for them.[21]

While the American signatories to the treaties may have understood the importance of fishing to the Indian communities and economies, language and cultural barriers between the parties likely prevented complete communication. The extent of Indian tenure and ownership rights of fish being asserted by the tribes were foreign or unknown to the whites. This is clearly illustrated in the negotiations with the Makah.[22] Nootkan culture, of which the Makah were a part, recognized in various individual members ownership rights to anything that the tides or waves deposited on the members= section of beach. It also recognized ownership of ocean tracts. In the official record of the treaty proceedings, on entry reads:

Tse-Kaw-Wooth - he wanted the sea - that was his country.

Tse-Kaw-Wooth was the leading man of the Ozette Village and was acting as head chief for the Makah at the time of the treaty. From later reports we know that the Ozette owned important fishing rights on the halibut banks northwest of Tatoosh Island. It seems likely that these were what Tse-Kaw-Wooth was asserting rights to at the treaty.[23] The Nootkans recognized ownership not only rivers and fishing places close at hand, but the waters of the sea for miles off shore were all privately owned property.[24] These notions of off-shore rights, comprising privately owned sections of ocean extending many miles from land, or rights to certain species, were foreign concepts, ones which the whites did not comprehend at the treaty talks.[25]

In addition to conceptual barriers between the treaty parties there were serious linguistic barriers to full communication. The evidence indicates that there were no words in the Chinook jargon for Acommon,@ Ausual,@ Aaccustomed,@ Acitizens,@ Asteelhead,@ and many other of the phrases which have now become critical to interpretation of the treaties.[26] The vast majority of Indians at the treaty councils did not speak or understand English so the treaty provisions and the remarks of the commissioners were interpreted by Colonel Shaw to the Indians in Chinook jargon. Chinook was then translated into native language by Indian interpreters, as many of those present did not understand the Chinook jargon.[27] The communications barriers apparently did not greatly concern Isaac Stevens. Owen Bush of Governor Stevens staff is quoted as saying:

I could talk the Indian languages, but Stevens did not seem to want anyone to interpret in their own tongue, and had that done in Chinook. Of course it was utterly impossible to explain the treaties to them in Chinook.[28]

Whether the U.S. Commissioners and the tribal representatives had the same understanding of the Ain common with@ language is unknown. The records of the treaty commission show that George Gibbs= outline draft of the treaty referred to fishing thus,

The rights of fishing at common and accustomed places is further secured to them: Proviso against staked or fenced claims.[29]

Anthropologist Dr. Barbara Lane found that there is no evidence whether Ain common@ was intended to connote fishing at the same place, or on the same run, or something else.[30]

At a council between the tribes and Isaac Stevens shortly after the treaties, S. S. Ford, a participant in the negotiations, referred to the fishing provisions of the Medicine Creek treaty as,

Offering you for fishing privileges of one half of the waters of the rivers and Sound.[31]

On the other hand anthropologist Dr. Carroll Riley testified that the treaty commissioners had no thought that the Indians ever would be restricted in their fishing.[32] This was consistent with Dr. Barbara Lanes testimony that the Indians believed they would never be controlled in their fishing by any non-Indian government and could go on fishing as they did before.[33] Evidently both the U.S. representatives and the Indians themselves, intended that Indian fishing would continue as it had before the treaties; non-Indian settlers would also be able to have access to the Indian fisheries, but without interfering with the continued pursuit of traditional Indian fishing.[34] As Isaac Stevens said in the negotiations of the Treaty of Point-No-Point, AThis paper secures your fish.@[35] Elsewhere George Gibbs reported of the tribes= AWhat is necessary for them, and just in itself, is, . . . the use of their customary fisheries.@[36]

There was no intention of creating a class system society with the Indians on the bottom economic rung as a result of the treaties. There was no intent to prevent the Indians from using the fisheries for economic gain, rather the treaty commission clearly undertook to provide the Indians the means of participating and profiting in the economy of the territory.[37] Isaac Stevens transmitted the treaties to Washington, D.C. for ratification saying,

The provisions as to reserves and as to taking fish, . . . had strict references to their condition as above, to their actual wants and to the part they play and ought hereafter to play in the labor and prosperity of the territory.[38]

The Court in United States v. Washington expressly found that there is no indication that the Indians intended or understood the language Ain common with all citizens of the territory@ to limit their right to fish in any way.[39] Indeed, consistent with this understanding, for many years following the treaties the Indians generally continued to fish in their customary manner.

Violence did break out between settlers and some Indian tribes in the Puget Sound country. In the first well known conflicts interference with Indian fishing was only a minor issue. The exact causes of the skirmishes are not certain, but a serious rift developed between the Governor of Washington Territory and the settlers on one hand, and General John E. Wool and the regular army on the other hand. Wool, Commandant of the Pacific Military District, with headquarters at San Francisco, agreed with many regular army men that in most instances settlers were responsible for troubles with the tribes; and that the army=s duty was as much to protect the Indians as whites. Wool explicitly charged that the Northwest troubles in the 1850s were fomented by whites who hoped to relieve their depressed economy in 1854-1855 with army expenditures. Some of these troubles, he believed, stemmed from the failure of Governor Isaac Stevens to prohibit settlers from entering ceded lands before the treaties were ratified.[40]

2. 1870-1900: Exclusion of Indians from accustomed fishing places and overfishing by settlers diminishes the tribal fishing right.

Before Washington was admitted to the Union in 1889, most interference with treaty Indian fishing stemmed not from acts of the legislature, but from settlers= attempts to monopolize traditional Indian fishing spots. In the 1870s one farmer is reported to have speared 400 salmon in two hours to be used for fertilizer for his fields. Others put out nets blocking the Skagit River to make their task of taking spawning fish easier. The Indians naturally objected to the waste of the fish which they had traditionally used and tore out the nets, but after the settlers threatened violence to them they sullenly withdrew.[41] The first reported litigation regarding the treaty-protected livelihood arose in United States v. Taylor, 3 Wash. Terr. 88 (1887). There the Supreme Court of the Territory ruled in favor of the United States and Yakima Indians who complained of being prevented from reaching a traditional site on the Columbia River because of the fences of a landowner. The Court stated:

[I]t seems to us that the Indians in making the treaty would have been more likely to have intended to grant only such rights as they were part with, rather than to have conveyed all, with the understanding that certain rights were to be at once reconveyed to them. What did the Indians intend to reserve to themselves by the words Aas also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory?@

It will be seen by the statement of facts above set out that at the time this treaty was made there existed within the Territory which was the subject matter of the treaty certain ancient fisheries which had for generations been used as such by said Indians, who had certain well defined habits and methods connected with such use.[42]

Preemption of the Indian fisheries by settlers did not widely occur in the two decades following the treaties, in part because white settlement came later to Western Washington than it did to the lands along the Columbia and Willamette Rivers. With the initial settlers in the Puget Sound area came an initial concentration on agriculture.[43] The early returns to the farmers were extremely high in part because clearing the land allowed them to supply the early timber industry. Overland transportation facilities were initially rather poorly developed. Even following the completion of Northern Pacific=s transcontinental railroad line in 1883, the market for salmon in the eastern United States grew slowly.

The development of the canning process greatly increased the interest of investors and non-Indian fishermen in the commercial potential of Washington anadromous fish runs. Canning of salmon on the Columbia River was introduced in 1866, and by 1883, the number of canneries had reached 39 with a total pack of 629,000 cases. Overfished, the salmon runs there soon began to decline.

The first salmon cannery was built on Puget Sound in 1877, but production was minimal until the middle 1890s. Although the economic and ecological disasters attendant to the canning industry came to Puget Sound later than to the Columbia River, they came nonetheless. It soon became apparent, even to the scientifically unsophisticated minds of the day, that fish could not be harvested recklessly without doing damage to the runs. The resulting fishing restrictions principally impacted Indian fisheries. In 1871, the Territorial Legislature prohibited use of most types of fishing gear in lakes.[44] This preempted important fisheries of the Muckleshoot, Nisqually and Skagit Rivers tribes in Lake Washington, Baker Lake and other waters.[45] No limitation was placed on fishing elsewhere along the migration paths of the runs, in part because the settlers knew little of spawning requirements or the cyclical migrations of the salmon.

Legislative restriction of Indian commercial fishing began in earnest almost as soon as Washington was admitted to the Union on November 11, 1889. In 1890, the legislature outlawed salmon fishing in most of northern Puget Sound during the months of March, April and May. This halted traditional Indian salt water harvest of spring chinook salmon runs.[46] It can accurately be said that statehood, the influx of settlers, and the introduction of the canneries created the governmental mechanism, the political power, and an economic incentive for the non-Indian majority to exclude the Indian tribes from their domination of the commercial salmon fishery.

As non-Indians began to imitate the use of Indian fish traps for harvesting salmon, regulation by the State Legislature increased. Most of these regulations bore no actual relation to conservation but represented as one writer said, AThe net outcome of one or another of the endless struggles among owners of different kinds of gear, fishermen in different geographic areas, among resident and non-resident fishermen . . . .@[47] As early as 1892, state law required traps to be physically removed from the water during a part of each year.[48] Depth, length, spacing and mesh standards also guaranteed escapement by reducing the efficiency of individual traps.[49] Each session a new legislature would retain, amend, or repeal the previous laws, largely depending upon the effectiveness of special interest lobbies. Between sessions, no changes could be made in the regulations. Unfortunately, the legislators knew little of salmon biology.

The first State Fish Commissioner, James Crawford, believed that the legislature should restrict only stream fishing, and that there was little need to have restrictions on salt water fishing.[50] This was a practice which discriminated against the Indians who generally fished on the salmon runs in rivers, rather than in the open water.

At the time the treaties were signed the tribes monopolized the harvest of salmon through their large scale fisheries on rivers and streams. Since the anadromous fish which hatch and rear in a river return to the same spot in the river when they reach maturity, the Indian nets, traps, weirs, and other fishing gear could efficiently harvest as much or as little of the run in rivers or nearby bays without interfering with other tribes= harvest of other fish runs. Preservation of the tribal livelihood which was based on these cyclical fisheries would have required the state to recognize property rights in traps sites and to protect trap site owners, Indian and non-Indian, from the preemption of their productive fisheries by marine fishing farther Adownstream@ along the migration path. Nevertheless, the development of marine fisheries was tolerated.

As Professor Barsh has pointed out[51] all marine fisheries suffer from a diseconomy usually referred as the common goods problem. The common good is something of value that cannot be reduced to private ownership, either because individual control is prohibited or because it is prohibitively costly. Anadromous fish cannot be economically processed throughout their life cycle. Thus, the rule of capture vests individuals with property rights in the fish caught. If the quarry must simply be pursued until caught many people bear search and pursuit costs, but only one eventually benefits. Furthermore, the capturer must either kill the fish or sustain its life at some cost; the fish cannot remain at large until the best opportunity to market it.

Traditional tribal fisheries minimized these diseconomies by minimizing search and pursuit costs and maximizing fish growth prior to capture. At full growth the fish returned to natal streams where they were easily harvested in traps and nets. The settlers, unrestrained, could and did capture returning fish before they reached their fresh water destinations. An advantage was thus obtained by intercepting the resource farther Adownstream.@ Following the treaties, unlimited entry and competition among marine fishermen led to a struggle for the fish ever farther from fresh water Aterminal@ areas. Since the settlers captured spawning fish which would otherwise be available for propagation or harvest in the rivers and streams of origin, they were inconsistent with the preservation of tribal fisheries and preempted the fisheries which the tribes sought to preserve.

In the 1890s increasing calls for hatchery construction signaled the decline of Washington salmon runs due to overfishing and spawning area destruction. In 1891, and again in 1893, the legislature authorized the Fish Commissioner to collect license fees for fish wheels, traps, and certain nets; it ordered all such money to be used to build fish hatcheries.[52] Non-Indian commercial fisheries grew by leaps and bounds in the 1890s. From three canneries in 1894, the industry expanded to 24 canneries in 1905. Investment syndicates formed companies to operate canneries. In the Sixth Annual Report (1895), Commissioner Crawford noted, AThe people of this portion of the State are just awakening to the value of the fish of Puget Sound and industry has almost doubled since my last report. Particularly this is so of the salmon industry.@

In 1897, the legislature closed to fishing all tributaries of Puget Sound and salt waters within three miles of the mouths of the tributaries. Although by its terms the restrictions did not originally apply to Washington Indians taking fish, Aby any means at any time for the use of himself and family@[53] it, of course interfered severely with traditional Indian fishing for trade or sale.

The public held an almost idolatrous belief in the ability of hatcheries to restore over-fished salmon runs. In the 1930s, this belief was shown to have been far too optimistic. Even the Washington Fish Commissioners, who advocated hatcheries, began to make periodic warnings against indiscriminate and unregulated fishing. One said, AIn the history of the salmon fisheries of the Atlantic Coast there is a warning against the extravagant manner in which our Pacific Coast salmon fisheries have been carried on for many years past.@[54]

In 1898, the Lummi Indian traditional practice of going to Semiahmoo Spit and to Point Roberts to catch and dry fish during the bountiful runs of Frazier River salmon was frustrated when white men claimed the shores beside the Indian fishing site. Native reefnetters trying to erect temporary fish-drying houses on the shore were driven away by the whites with threats of violence and a show of arms. The canneries in nearby Blaine quickly bought fishing rights from the local landowners in front of the Indian fishing sites. The United States, on behalf of the Indians, brought suit to halt the interference. The case was heard by Judge Hanford, who, while conceding that some injustices had been done to the Indians, ruled that there were other sites on which the Indians could fish and that the treaty did not guarantee fisheries at all usual and accustomed places or imply an easement to use privately owned land.[55] Judge Hanford based his decision on his construction of the treaties in United States v. Winans, a decision later reversed by the United States Supreme Court.[56] An appeal from Judge Hanfords ruling regarding the Lummi fisheries was dismissed in the Supreme Court by stipulation of the parties.[57] Meanwhile, non-Indian monopolization and preemption of the most productive traditional Indian fishing sites continued.

In 1899, the Pacific American Fish Company of Chicago spent one million dollars to acquire control of inner Sound trap sites. Individual sites sold for between $5,000 and $55,000 with an average of almost $20,000; by 1917, many sites were valued at over $100,000.[58] To reduce the effectiveness of all fisheries at these productive locations, the Washington State Legislature, also in 1899 modified and expanded its closure of fresh water. It closed all rivers and streams to salmon fishing for two of the most productive months of the year, and also totally closed six rivers to salmon fishing.[59] All of these rivers were usual and accustomed grounds for a number of the treaty tribes.

As early as 1900, fisheries officials argued that tribal traps threatened to destroy the states "hatchery runs," and complained that tribal fishermen were asserting treaty rights in their defense. However, there are reports of only eight prosecutions of Indians for fishing violations between 1891 and 1901, less than one percent of all fisheries prosecutions.[60]

While crews hired by the cannery companies and investment syndicates built larger and stronger fish traps in the deep waters outside the mouths of rivers and along major migration pathways, some traditional Indian net, trap, and weir fishing continued. By 1897, huge traps, mostly owned or controlled by cannery interests because they were the only ones with enough resources to construct them, dominated the industry south of the 49th parallel. The traps at Pt. Roberts ruined the Indians traditional reefnet fishery there.[61] With the state legislature at the helm enacting and repealing Aconservation@ regulations, non-Indian fishing companies were, by the turn of the century, effectively preempting the fish runs that formed the Indian tribes= livelihood.

Preemption of the fish runs came before the United States Supreme Court in 1905, in the context of a settler along the Columbia River. Winans had placed four fish wheels along 1-1/2 miles of the river bank; he sought to exclude tribal fishermen from their usual and accustomed fishing place. The Court found that the right to resort to the fishing places was not much less necessary to the existence of the Indians than the atmosphere they breathed.[62] The settlers urged an argument based on the different capacities of white men and Indians to devise and use fishing gear to enjoy the common right. The Court replied,

It needs no argument to show that the superiority of a combined harvester over the ancient sickle neither increased nor decreased rights to the use of land held in common.[63]

The attempt to monopolize the fishery was struck down.

3. 1910-1934: State interest groups vie for the salmon harvest - the Indians are excluded.

The traditional Indian tribal fishery was a highly efficient one. Tribes trapped and netted salmon primarily in the bays, channels, and falls of rivers and tributaries. These locations were highly productive ones; they took full advantage of the growth of the salmon as the maturing fish migrated through the ocean and the open waters of Puget Sound. As early settlers imitated the Indians= approach the fish trap industry grew to a position of economic domination. The mouths of the many small, short river systems emptying directly into the salt water of Puget Sound provided perfect sites for the erection of fish traps.

The rapid growth of the industry in Washington and elsewhere convinced the State Fish Commissioner that restrictions were necessary if the fish runs were to be preserved. Following the conventional wisdom of the day these regulations typically restricted the most efficient harvesters of salmon: the Indians and non-Indian fish trap operators. As has been the pattern ever since, the fishing regulations maximized inefficiency to reduce harvests. State law regulated the spacing, acquisition, abandonment of trap sites. It provided for the size and depth of the traps and the width of their mesh. The State limited individuals to ownership of three traps.[64]

Because Indian and non-Indian fish traps were stationery they were also the easiest to regulate. The annual reports of all State Fish Commissioners in the years following 1890, were filled with complaints of their inability to get enough staff and enough money to do the job they were expected to do. One Fish Commissioner said, AIf it is the intent of the legislature that these laws should be enforced, certainly they should provide sufficient appropriations to pay for the expenses of the same.@[65] The brunt of both regulation and enforcement naturally enough fell upon the location-oriented fisheries. The Fish Commissioners Annual Report for 1899-1900, included a discussion entitled, ATrouble With Indians on Our Hatchery Streams,@ which announced,

The general fisheries laws passed by the last legislature provide that any Indian residing in this state may take salmon or other fish by any means at any time for himself and family. The Attorney General has advised us that . . . this clause . . . does not allow the Indians to violate the general fishing laws.

Even the non-Indian fish trap operators complained that traps were closed and remained closed but that the growing number of fishermen in marine waters using gillnets worked any time they wished without being arrested.[66]

In 1904, the Fish Commissioner closed a state hatchery on the Skokomish River because he felt that only the Indians of the area would benefit from it.[67] The big blow to Indian fisheries, however, came in 1907, when the legislature again closed all Puget Sound tributaries above the tide line to the taking of salmon except by hook and line. Fishing on the salmon runs elsewhere was permitted. The legislation also implemented general weekly closures of all commercial fisheries.[68]

State laws, typically, were not extended to Indian reservations since the federal government had retained exclusive control over those lands. A number of reports, however, indicate that the State made early efforts to control Indian fishing on reservations just as it controlled fishing elsewhere. The agent for the Tulalip reservation reported that in 1913, two Lummi Indians were arrested while fishing within the boundaries of their reservation. The State Fish Commissioner, when the case resulted in an acquittal, threatened to rearrest Indians again and again for the same offense.[69]

The increase in canning of Puget Sound Salmon for export to American and European markets was not a steady one. In 1894 and 1895, years of economic depression, sockeye taken in reefnets brought 10 to 15 cents apiece for white fishermen, and 5 to 8 cents apiece for Indians. Other species could be purchased by the canners for as little as 2 cents apiece.[70] However, lack of demand cannot be considered a factor in the demise of the fish trap industry. One factor was the discriminatory tax charged to trap operators equal to $1.00 per every 1,000 fish or about 1%. Other fishermen paid only the license fees.[71] When wholesale salmon prices were low trapmen consistently undersold marine fishermen, demonstrating superior economic efficiency of fixed gear.[72] The most significant factor in the decline of traps and other location oriented fisheries was the rise of marine (salt water) fishing technology, principally the purse seine boat.

By fishing Ain front@ of traps, purse seines robbed traps of their superior locational advantage and reduced the number of fish reaching the trap sites. Even as early as 1903, American purse seiners had become a significant factor in the profitable sockeye fishery when their mobility was greatly increased with the advent of gasoline powered boats. By 1910, each of the three major types of fishing gear extant today was well established in Puget Sound; the respective catch characteristics tended to delineate areas of most efficient use: (1) gillnets in streams and murky estuaries in the day, at night spread throughout the Sound; (2) traps in shallow water, especially in estuaries; and (3) purse seines in deep water on the approaches to river mouths and the Strait of Juan de Fuca. Until they were restricted by the State, traps and seines were taking an increasingly large share of the catch.[73] As these non-Indian marine fishermen began to intercept larger and larger numbers of fish before they reached the rivers the Indians found their livelihood dwindling. With the 1907 closure of fresh water areas, what had begun with the Indians= agreement that whites could fish with them at the traditional grounds had become an exclusion of Indians from those grounds for the benefit of non-Indian harvesters elsewhere.

In addition to frustration of Indian livelihood there were substantial economic and social costs associated with the shift to the marine fishery. As early as 1915, the Fish Commissioner recognized that purse seine fishing resulted in an increasingly heavy harvest of small, immature fish, at higher unit cost. During the First World War motorized trolling boats appeared explosively because they could operate on the high seas in front of purse seines and other nets. These were even less efficient than purse seiners.[74] The number of cans of salmon packed continued to rise to great peaks in the period of 1913-1919. During this time span there was an average of 34 canneries active with an average total production of approximately 1.4 million cases. The heavy demand for high protein food such as salmon for combatants in World War I, was a primary reason, just as the Armistice may explain part of the decline in the 1920s.

High salmon prices during and following World War I attracted an increasing number of boats into the marine fishery, intercepting a growing proportion of the fish bound for trap sites. This decreased the physical harvest of traps and thereby increased their unit cost. As prices increased and trap yields declined canneries that had always supported and owned traps began to back purse seiners= resistance to state regulation.[75] The Washington Fish Commissioner reported, AIt is safe to say that the capacity of the appliances for the taking of fish in 1913 was at least twice, if not four times, as great as 12 years previous.[76] The rapid growth of fishing effort, spurred on by high prices, persistently threatened preservation of the fish runs. Fish Commissioner, Darwin, noted that the growing number of licenses and increased efficiency of fishing gear (meaning the widespread use of diesel motors on the purse seiner) Acan only hasten the depletion of the fisheries until they cease to be of economic importance.[77]

Destruction of salmon spawning areas closely rivaled non-Indian overfishing as the cause of preemption of Indian fish harvesting. Settlers coming to the rugged Northwest had a deep-seated belief that the resources of the frontier were inexhaustible. Calvinists were impelled to go forth, multiply, and subdue the earth. The Duwamish River system was one of the first subdued in Western Washington. A canal was constructed linking Lake Washington to Puget Sound, lowering the level of the lake nine feet. The Black River dried up as the salmon returned to spawn in 1916.[78] The White River was changed from a tributary of the Duwamish River to that of the Puyallup River in 1906.[79] A large number of productive Muckleshoot, Duwamish, and Snoqualmie fishing sites were eliminated.[80]

A. INDIAN DOMINATION OF THE SALMON TRADE BEFORE THE STEVENS TREATIES

B. TREATY INDIAN FISHING FROM 1854 UNTIL THE PASSAGE OF INITIATIVE 77

1. Preservation of the fish-based Indian livelihood was guaranteed by treaty.

2. 1870-1900: Exclusion of Indians from accustomed fishing places and overfishing by settlers diminishes the tribal fishing right.

3. 1910-1934: State interest groups vie for the salmon harvest - the Indians are excluded.

A. INDIAN DOMINATION OF THE SALMON TRADE BEFORE THE STEVENS TREATIES