Lummi Fishing Rights and the Law

Introduction

For the Lummi Nation of western Washington, the right to freely fish has long been endangered. Westward expansion and the subsequent boom in the commercial fishing industry have undercut the Lummi Nation’s political autonomy, as well as their political claim to resources within their historical land. Through a complex web of court cases and treaties dating back to the mid nineteenth-century coupled with heavy fishing by private firms and corporations, the ability for the Lummi and other Northwest Indians to fish at traditional locations has undergone change.

Legal Background

Following the Oregon Treaty of 1846, Lummi lands fell under the jurisdiction of the Oregon Country. This territory had been a source of dispute between the United States and Great Britain, as both held claims to the land. In the coming decades, the newly formed territory would bring with it a multitude of American settlers. In 1850, the Oregon Land Donation Act was passed, authorizing any adult male citizen of the United States to freely claim 320 acres as his. As western expansion proliferated, and Americans established communities in what is now the Pacific Northwest, a number of treaties were signed between Indian tribal figures and government officials (Boxberger, 1998). Following the formation of the Washington Territory in 1853, Governor Isaac Stevens emerged as an influential figure in American-Indian relations. Stevens had been sent by the federal government to implement treaties with the various tribes inhabiting the region. At this time, the federal government had not yet formalized their claim to present-day Washington and Oregon. The Treaty of Point Elliot of 1855 was a legal landmark that demanded Indian peoples in the greater Seattle area “cede, relinquish, and convey to the United States all their right, title and interest in and to the lands and county occupied by them” (Kaliber, 2014). While the pertinent tribes retained a degree of political sovereignty, upon the implementation of the treaty the Lummi tribe was now legally a part of the United States, living on a reserved plot of land.  In addition to the land settlement, article three of the treaty called for the building of agricultural and industrial schools. This was an attempt on the part of the government to to redirect the Lummi away from their traditional and arguably unsustainable practices of hunting & fishing and steer them towards more modern economic pursuits. The treaty pertains directly to fishing and water rights as article five secures the right of Indian tribal members to fish where they please and traditionally have done so. Because American settlers were arriving in the northwest primarily for farming and agriculture, society did not initially concern itself with Indian fishing practices (Kaliber, 2014). In the coming decades, the ability for the Lummi to fish and gather food off-reservation would become more challenging as they were increasingly limited to the resources located within their allotted area.

Commercial fishing grew rapidly throughout the 1880s and 1890s, bringing relative economic marginalization to the Lummi. Entrepreneurs flocked to the Northwest for the seemingly unlimited supply of salmon, which became a highly profitable commodity. Between 1890 and 1900, the number of fish canneries across the Puget Sound increased from one to nineteen. This growth was accompanied by a massive increase in the production of canned Sockeye and Chinook salmon, both of which are of great importance to the cultural identity and traditional diet of the Lummi people. As business grew in the Pacific Northwest fishing industry, companies developed increasingly efficient and economical methods to catch fish (Boxberger, 1998). It became clear that commercial growth was impinging upon the catch of salmon that the Lummi had been technically guaranteed in the 1855 Treaty of Point Elliot. Under article five: “The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory…” (Kaliber, 2014). The Alaska Packer’s Association, a manufacturer out of San Francisco that produced canned salmon came to the forefront of this issue in 1880 as they erected a trap at Point Roberts, a traditional Lummi fishing site. For generations, members of the Lummi Nation had come to Point Roberts to harvest sockeye salmon, and had traditionally used what are known as reef-nets. In 1893, a state law was passed prohibiting nets of this sort from being within 240 feet of commercial fishing traps and additionally required that persons must obtain a state license if they were to legally fish for salmon. In effect, this legislation technically excluded the Lummi from fully participating in the growing salmon fishing market as they were with their rational nets and practices. Due to their political claims regarding Lummi autonomy, Lummi tribesman were unrecognized as US citizens, and were therefore unable to obtain licenses.

While the land around Point Roberts was owned by the federal government, the land was leased to the Alaska Packer’s Association. When the manufacturer had developed highly efficient methods of catching fish in the early 1890’s, it was apparent that they were heavily contributing to the depletion of the local salmon stock. By 1897, the company was brought to court in United States v. Alaska Packer’s Association, as the federal government tried to sue the business, stating that existing treaties protected the right of the Lummi to fish at traditional locations. The suit proved unsuccessful for Lummi advocates as judge Hanford insisted that both parties had the right to fish around the Point Roberts area. Because the Lummi had been selling a portion of their catch to the company, the judge reasoned that business relationships could be strained upon the courts siding with the Lummi, and therefore concluded that the Lummi peoples would be economically worse off upon a decision favorable to their fishing concerns (Stanley, 1978).

The Lummi Nation, along with other Washington tribes, continued to engage in legal and economic conflicts throughout the 1900s.  In 1970, the federal government filed another suit against the state in US v. Washington, claiming that the tribes had certain rights outlined in the various treaties of the 1850s. Again, the federal government pointed towards article five of the Pont Elliot Treaty and argued that these clauses were being violated. George Boldt, the Judge in this case ruled in 1974 that each tribe in the state of Washington was to be granted 50 percent of the year’s fishing harvest. The landmark Boldt Decision was additionally significant for the precedent it set. The ruling had ongoing political and economic repercussions for Indians nation-wide in the struggle for tribal sovereignty, and fishing rights (Carson, 2014).

Ongoing Contestation

The Boldt decision did not come without contestation. Outcries from both the sport and commercial fishing community were heard as they decried the ruling as a granting of “special rights” towards local native communities. They argued that a group representing merely one percent of the state’s population should not be entitled to half of the fishing harvest at the substantial expense of the rest of its residents. The Lummi on the other hand, in conjunction with other Northwest tribes based their arguments upon the clause located in article five of the Point Elliot Treaty (Tizon, 1999; Kalliber, 2014). While the state of Washington understood this to mean that Native Americans should fall under the same rules and regulations as its citizens, George Boldt upheld the Indian’s treaty claim as he interpreted article five to be synonymous with equal sharing of the fishing stock. Since activity by commercial actors and the sport fishing community had exploited the salmon stock so heavily, Boldt asserted the right of Northwest natives to have a guarantee towards fifty percent of the annual catch. While the state, in coalition with these two interest groups were infuriated by the Boldt decision, the ruling came as a victory to Indian tribes who had engaged the courts for decades (Kamb, 2004; Johansen, 1998).

Throughout the 1960s and 70s, Indian tribes across the greater Seattle area had staged a ‘war of position’ as they organized and staged ‘fish-ins’ where they would openly fish illegally despite state regulations that restricted Indian fishing to the reservation. Citing the Point Elliot Treaty of 1855, Indians claimed they had a right to fish where they pleased. Influenced by the sit-ins that had been organized by Black civil rights groups like the NAACP and the Congress for Racial Equality (CORE), the ‘fish-ins’ were symbolic acts led primarily by the Survival of the American Indian Society (SAIA). These ‘fish-ins’ included a number of protests, with several notable celebrities showing their support (Chrisman, 2008). Actor Marlon Brando stood in solidarity with Northwest Indians in March of 1964 when he dropped a fishing net into the Puyallup River. Direct action continued as Brando marched towards the state capitol of Olympia with roughly 1, 000 Indians and activists the following day (AP, 1973). State forces countered the ‘fish-ins’ with  ample physical force (Tizon, 1999).

State policy and market forces were complementing each other, the commercial fishing industry had a vested interest in a state that would pass legislation excluding disproportionate Indian access to salmon fishing and the market therein. Large-scale commercial fishing traps throughout the late 1800s and through the twentieth century obstructed the traditional and comparatively inefficient Lummi reef nets, and reduced their share of the salmon catch. Over this time period, Indian protesters were often described as the ‘bad guys.’ Tizon explains that during this period American society at large “did not look kindly upon Indians, when they looked upon them at all. They were viewed as a nuisance, a hindrance to progress. In the Northwest, tribes were widely seen as poaching communities – lawless, primitive, skulking around in the dark.” (1999). Indian fishing suffered throughout the first half of the twentieth century due to such commercial practices. The fishing industry experienced a boom, as they harvested and sold millions of tons of salmon. Because tribes like the Lummi could not obtain licenses and therefore fished illegally, the state government placed blame almost solely on the tribes. The tribes on the other hand pointed towards the commercial fishing industry and their methods of mass-production and resource exhaustion as the reason for dwindling salmon populations (Tizon, 1999).

American Values

            Through the course of the complicated history of Lummi fishing rights; all actors have displayed elements of traditional American values. The Lummi have argued for political sovereignty, self-determination, and justice. Many of their claims regarding their right to fish appeal to the certain kind of freedom-freedom from government intrusion, which is a fundamental American principle that speaks to the founding of this country. The United States has always, from its inception been theoretically opposed to a big state that hinders the ability of the citizenry to order their own actions. The Lummi’s claim to fishing rights then, is one of liberation and self-determination; to be able to live one’s life as one sees fit.

Earlier state actions, such as the push to convert the Lummi into more of an agricultural people represents American notions of assimilation and Anglo-conformity. When article three of the Point Elliot Treaty called for the buildup of industrial and agricultural schools, there was a major economic-assimilationist component at work. Not only were the Lummi people encouraged to adopt a western lifestyle and culture, but also the capitalist ethic. Capitalism has been the dominant form of economic organization from the very beginning of the country, and has been a huge driving force behind American history and innovation. If American society could raise these Indians to be good farmers, or good craftsmen-they could then become productive members of the labor market. It is in this way that traditional notions of American assimilation extended greatly into the economic realm.

For the commercial interests, such as the Alaska Packers Association, their arguments rested on the freedom to participate and make profits in a competitive marketplace. Treaties and legislation that impeded their ability to conduct business ran counter to the notion of American free enterprise as such laws imposed rules on where one could and could not fish. The institution of private property is additionally an essential piece of this case. Traditional notions of American life revolved heavily around the Lockean philosophy of property, in that humans have an “inalienable right” to maintain a plot of land to live on, and/or develop it for economically productive purposes (Locke, 1986).

Type of Policy

            In the case of Lummi fishing rights, it is evident that public policies have been based primarily on ethical grounds. Due to the historic fact that American society and governments at all levels have  generally declined citizenship to American Indians. Many rulings, such as those relating to the Alaska Packer’s Association, appear to have been made in favor of the interests of the legal owners of capital and private property. The Boldt decision however, was one made on grounds that accounted for the interests and desires of Native tribes. George Boldt’s ruling enforced the ideal of equality, as he understood it, under the law-as he reasoned that Washington tribes have a right to half of the fishing harvest, a right which dated back to treaties signed over a century earlier (Carson, 2014). In this way, judge Boldt imposed a personal set of values on American law.

Private Institutions and Actors

Organized groups within civil society, especially during the 1960s and 70s have actively worked to promote Lummi rights and have continually detested state laws that hindered such. Along with the SAIA, the National Indian Youth Council (NIYC) was an organization that took a vocal stance against assimilation, and advocated indigenous cultural strength. When the NYIC staged fish-ins, their cause became publicized by the support of prominent celebrities such as Marlon Brando. The group also played a significant role in changing public opinion about Native Americans. American attitudes were influenced as images of struggle and discontent were broadcasted nationwide. Through demonstrations and increased publicity, the group placed pressure on policy makers. Their messages were also crucial in influencing the Bodlt decision (Chrisman, 2008).  It is one thing to have equality under the law and another thing to have an integrated, multicultural polity that embraces one another. These groups can bind people together and change mainstream culture in a way that government cannot.

 

References

(1973, March 29). Brando arrested 9 years ago today as he led ‘fish-in’ by Indians. The Freelance Star. Retrieved from http://news.google.com/newspapers?nid=1298&dat=19730329&id=zuFNAAAAIBAJ&sjid=L4sDAAAAIBAJ&pg=7021,3692629

Belsky, Martin H., Indian Fishing Rights: A Lost Opportunity for Ecosystem Management (1996). Journal of Land Use & Environmental Law, Vol. 12, 1996. Available at SSRN: http://ssrn.com/abstract=2219485

Boxberger, D. L. (1998). In and out of the Labor Force: The Lummi Indians and the Development of the Commercial Salmon Fishery of North Puget Sound, 1880-1900. Ethnohistory35(2), 161-190. http://dx.doi.org/10.2307/482701

Carson, R. (2014, February 9). Boldt Decision on tribal fishing still resonates after 40 years. The News Tribune, Politics.

Chrisman, G. (2008). The Fish-in Protests at Franks Landing. Retrieved May 28, 2014, from http://depts.washington.edu/civilr/fish-ins.htm

Greaves, T. (1998). Water Rights in the Pacific Northwest. In J. M. Donahue & B. R. Johnson (Eds.), Water, Culture, and Power (pp. 35-46). Washington, DC: Island Press.

Johansen, B. E. (1998). The Encyclopedia of Native American Legal Tradition. Westport, CT: Greenwood Publishing Group, Inc.

see pgs. 32-33.

Kaliber, K. (2014, January 19). Point Elliot Treaty 159 Years Later. Tulalip News. Retrieved from http://www.tulalipnews.com/wp/2014/01/19/point-elliott-treaty-159-years-later/

Article includes a complete, original copy of Point Elliot Treaty of 1855.

Kamb, L. (2004, February 11). Boldt Decision ‘very much alive’ 30 years later. Seattle P.I., Local.

Locke, J. (1986). The second treatise on civil government. Amherst, N.Y: Prometheus Books.

Lummi v. (2014). Lummi Natural Resources: Salmon Enhancement. Retrieved May 30, 2014, from nnr.lummi-nsn.gov/LummiWebsite/ website: http://lnnr.lummi-nsn.gov/LummiWebsite/Website.php?PageID=43

Stanley, S. (1978). American Indian Economic Development. Chicago, IL: Mouton Publishers.

Tizon, A. (1999, February 7). The Boldt Decision / 25 Years — The Fish Tale That Changed History. Seattle Times, Business.