Just as Americans were getting ready to watch the first manned mission to land on the moon 50 years ago, a federal judge in Oregon was rendering a decision that would define Native American fishing rights for decades.
In the case of Sohappy v. Smith, U.S. District Court Judge Robert Belloni found that citizens of the Yakama Nation, the Warm Springs, Umatilla and Nez Perce tribes had a legal right to fish in the waters where their ancestors caught fish, while limiting state efforts to regulate tribal fishing.
The ruling, which was upheld by the Ninth Circuit Court of Appeals, was a foundation for future court rulings solidifying Native American fishing rights.
To understand the ruling, one must go back to 1855, when non-Native people began moving into the territories of the Native American tribes in Central and Eastern Washington and Oregon.
The Treaty of 1855 merged
14 bands and tribes into the Yakama Nation, while forcing them to cede 11 million acres of land and restricting them to a
1.2 million-acre reservation in the Lower Yakima Valley. The treaty gave the Yakamas the right to fish and hunt, not just on the land within the reservation, but “at all usual and accustomed places, in common with the citizens of the Territory” on the ceded land.
This meant that Yakamas would continue to have access to places they traditionally fished, such as Celilo Falls, where they continued to fish in the traditional way with dip nets.
But their fishing rights came under attack. First, it was when non-Native fishermen used fish wheels to scoop large numbers of fish from traditional fishing areas. The U.S. Supreme Court reaffirmed the treaty rights to fishing over commercial fish wheels in 1905.
But Native American fishermen found themselves running afoul of conservation laws for fishing at times or places, or with techniques that state wildlife officials in Washington and Oregon deemed to be in violation of rules. There were numerous arrests during the “Fish Wars” of the 1970s and 1980s.
In 1968, David Sohappy Sr. and Richard Sohappy were arrested for using gill nets to catch salmon on the Columbia River by Oregon officials in violation of conservation laws.
The Sohappys, and 12 other Wanapum people, with the help of University of Washington law professor Ralph Johnson, filed suit against the Oregon Fish Commission, alleging the state’s regulations violated tribal fishing rights as defined in the Treaty of 1855. Richard Sohappy was the lead plaintiff, while Oregon fish commissioner McKee Smith was the defendant.
The plaintiffs were joined by the U.S. government as a co-plaintiff, along with the Yakama, Warm Springs, Umatilla and Nez Perce tribes as intervenors in the case. While the Yakama Nation initially did not support the case because David Sohappy Sr. was violating both state and tribal fishing regulations, the tribal council saw the lawsuit as a way to set a legal precedent clarifying indigenous people’s treaty rights to fishing.
On July 8, 1969, Belloni issued his ruling, stating that the treaty meant that Native American fishermen could catch fish as they had historically. The state wildlife agencies could only impose restrictions that were necessary to safeguard fish, and not interfere with treaty rights or target Native Americans for enforcement more than non-Natives.
“The treaty Indians, having an absolute right to that fishery, are entitled to a fair share of the fish produced by the Columbia River system,” Belloni ruled.
Belloni’s ruling was later strengthened in the 1974 case of United States v. Washington, also known as the Boldt Decision, for U.S. District Court Judge George Boldt who handed it down. Boldt ruled that treaty-right fishermen were entitled to half the harvestable yearly fish catch.
While the ruling did not fully bring an end to the Fish Wars — David Sohappy Sr. and others were arrested in the so-called “Salmon Scam” as Native anglers were blamed for salmon declines later traced to pollution from industries — it did establish legal precedent for the rights of Native Americans to fish on the rivers.