But for Michael Simmons, a member of the Cowlitz Indian Tribe who owns property on the Quinault Indian Nation reservation a few miles north, the WDFW officer was wrong. According to an incident report filed by Branscomb, Michael argued that because the Quinault Nation has a treaty with the US federal government that gives members the right to take up to 50 knives a day, and because he was also a member of an indigenous tribal group with properties in the territory of the Quinaults, he too could take 50 clams a day. This explanation did not match the state officer, and Branscomb cited the Simmons for fishing without a license and catching more than double the daily limit. Michael and Andrew were each fined $500. The Simmons could not have known that the question of whether they had the right to harvest clams, as their ancestors had done for millennia before, would spark a legal battle over tribal fishing rights that continues today. .
At the heart of the dispute is a key distinction between haves and have-nots: in this case, between Indigenous nations that have a treaty with the U.S. government, like the Quinaults, and those that don’t, like the Cowlitzes. These treaties, often signed more than a century ago, dictate the rights of tribal members to this day.
The Cowlitz people, tribal elder Robin Torner said during his testimony in the Simmons trial, were harvesting and eating razor clams along Copalis Beach long before the United States existed.
In the middle of the 19th century, American representatives negotiated treaties with certain tribes in the region. These treaties, ratified by the US Senate, relegated the tribes to reservations. In exchange, the treaties promised to protect the tribes’ existing fishing rights in their customary and customary locations, including historic off-reservation fishing grounds.
In 1851, the Cowlitz people nearly negotiated a similar treaty with the US government. But the Senate judged the treaty too generous and refused to ratify it. In 1855, the United States proposed a new agreement: a treaty that would preserve the Cowlitz tribe’s fishing rights in historic places, but require the Cowlitz people to move north to a new Quinault reservation. The agreement was scorned by the Cowlitzes and neighboring tribes. “They were like, ‘Oh, no, we want to stay in our home countries. We want reservations here. And so the treaty fell apart,” says Josh Reid, a University of Washington historian and member of the Snohomish Indian tribe.
Then, in 1863, President Abraham Lincoln opened up part of the ancestral lands of the Cowlitz tribe for sale. More than a century later, in 1972, a federal court ruled that the subsequent rush of settlers on Cowlitz land ended the Cowlitz people’s “aboriginal title”, their right to exclusively use and occupy their native lands. .
The Cowlitz Indian Tribe, still untreaty, was unrecognized by the U.S. government — and unqualified — until the 21st century.
Today, tribes with a treaty retain the right to fish their traditional lands. Tribes who refused to give in, or who held out for a better deal, are restricted to fishing on their reservations, if they have one. “In a lot of ways, it was another one of those fuck-if-you-fuck-if-you-don’t type situations that Indigenous nations get together often,” Reid says.
Dan Lewerenz, an assistant professor of law at the University of North Dakota and a member of the Iowa Tribe of Kansas and Nebraska who reviewed the appeals court’s decision, says that, generally speaking, unless Treaty or Act of Congress states other terms for a tribe, “Indians off the reservation are subject to the same law as non-Indians, so long as that law is exercised in a nondiscriminatory manner.”
For the Simmons, then, what’s at stake in the case of a few dozen knives is their tribe’s right to fish in their traditional lands off the Cowlitz reservation.
In their call, which was heard by the Washington State Court of Appeals last June, the Simmons argued that because no treaty or act of the United States Congress explicitly says otherwise, the Cowlitz people have never waived its long-standing right to harvest wild shellfish where it historically did. And even though a federal court ruled that the Cowlitz people lost their occupancy rights to their land in 1863, the Simmons say Cowlitz’s fishing rights remain separate and intact.
But the court found the argument unconvincing and, in August decided to uphold the convictions. Essentially, Michael and Andrew and their attorney failed to convince the court that occupancy rights and fishing rights are independent of each other, at least in this case, Lewerenz says.
Additionally, Washington State argued in its case against the Simmons that because Congress intended dissolving the aboriginal rights of the Cowlitzes, including fishing rights, is the equivalent of dissolving them. The lawyers cited several examples of this intent: First, in 1853, when Congress announced that all tribal lands west of the Cascade Mountains, including the Cowlitzes, would be put up for public sale in 1855 (a year in which U.S. government officials would successfully negotiate treaties with dozens of tribes in the region– but not the Cowlitz); then in 1861, when he set aside funds to move non-treaty tribes, including the Cowlitzes, off their ancestral lands. The final blow, according to state prosecutors, was Lincoln’s proclamation in 1863 ordering the sale of tribal lands in what is now southwestern Washington.
In oral arguments heard in June, District Attorney William Leraas offered an analogy: Landlords tell tenants they’re going to sell the house, and when the landlords put the house on the market, “it’s time to move out.” . But Ben Cushman, the Simmons’ attorney, replied that there was one final step missing from the analogy – effectively giving a legal notice that tenants must move out by a certain date. “Here,” he argued, “the march toward the extinction of Cowlitz rights is not enough to extinguish the rights.”
Ultimately, the appeals court agreed with the state, writing that “Congress’s intent to extinguish aboriginal title may be inferred from its actions”, with the key action being Lincoln’s proclamation of 1863 which opened the lands of Cowlitz for sale.
Lewerenz, however, thinks there was a gap in the court’s logic: “There’s a Supreme Court case that says a president, by executive order, can’t extinguish treaty rights,” he says, and so it is reasonable to conclude that a president alone cannot extinguish aboriginal title either. So when the court wrote in its decision that Lincoln’s executive order terminated Cowlitz’s aboriginal title, Lewerenz said he had not made it clear enough that Lincoln’s power to do so stemmed from the actions of the Congress who he believes were ultimately behind this presidential directive.
This shortcut, according to Lewerenz, appears to continue a trend in Washington that began in earlier federal rulings that make it easier for Indigenous groups to lose their Aboriginal title.
Over the past century and more, even native tribes with treaties struggled to have their rights recognized. At times, many U.S. institutions, including those in Washington, have fought “tooth and nail to prevent even the exercise of treaty rights, which are clearly spelled out in law and have a long history of being confirmed by the Supreme Court of the United States”. said Lewerenz.
“It should come as no surprise,” he adds, “that a right that does not have this clear written pedigree is challenged.”
Ben Cushman, the Simmons’ attorney, as well as District Attorney William Leraas, Cowlitz Tribal Council and Quinault Tribal Council did not respond to requests for comment.
This story was produced for Hakai Magazine on October 17, 2022 and is republished here with permission.