Spilyay tymoo., September 22, 1978, Page 8, Image 8

PAGE 8 SEPTEMBER 22, IW8
Know Your Treaty, Part 4 — ----- ----------- — ----------
— by Cynthia Stowell--------- —
i—
— ----------------------
Rights Reserved in Treaty Have Been Challenged
It is a well-established fact
local citizens. This prompted the
that when the Wasco and Walla-
drafting and signing of a new
Walla bands transferred title to
treaty in 1865, a little-discussed
their land to the U.S. Govern­
fiasco that historians have been
ment in 1855 they did not give up
hard-pressed to explain, attor­
their right to hunt, fish, and
neys and judges unable to de­
gather wild foods at the “usual
fend, and tribal members eager
and accustomed stations.”
to forget.
These off-reservation rights
The 1865 document stated,
have weathered many challeng­
“ It having become evident that
es through the years. Perhaps no
the provision of article 1 of the
other aspect of Indian relations
treaty (of 1855) . . . which
with the non-Indian population
permits said confederated tribes
has created more tense moments
to fish, hunt, gather berries and
— in the courtrooms and on the
roots, pasture stock, and erect
rivers of the nation.
houses on lands outside the
But the federal courts have
reservation, and which have
continually upheld off-reserva­
been ceded to the United States,
tion treaty rights, interpreting
is often abused by the Indians to
broadly the few simple words of
the extent of continuously resid­
the treaty, and building a strong
ing away from the reservation,
framework of precedents within
and is detrimental to the inter­
which disagreements are resolv­
ests of both Indians and whites;
CELILO FALLS— A “USUAL AND ACCUSTOMED STATION” NO MORE
ed today.
therefore it is hereby stipulated
SURVIVAL OR FORESIGHT
and agreed that all the rights
fining Indian water rights. The
The struggle for depleted
enumerated .
. are hereby
TREATY WITH THE TRIBES OF MIDDLE OREGON, 1855
.
decision,
which
involved
tribes’
resources could not have been
relinquished by the confederated
rights to the Colorado River,
anticipated at treaty time when
Indian tribes . . .”
ARTICLE I (cont’d)
stated that such aboriginal rights
the land offered ample plant and
Members of the tribes were
Provided, also, That the exclusive right of taking fish in the
are
not
lost
by
disuse,
pertain
to
animal life to the sparse inhabi­
ordered to stay on the reserva­
streams
running
through
and
bordering
said
reservation
is
hereby
the entire stream system , are not
tants. The white newcomers
secured to said Indians: and at all other usual and accustomed tion, and could leave only with a
quantified or measured, and
brought seed and plows and
stations, in common with citizens of the United States, and of erecting written pass from the superin­
exist
for
whatever
purposes
the
seemed more interested in mea­
suitable houses for curing the same; also the privilege of hunting, tendent or agent. In exchange for
reservation was established.
suring and dividing the land than
-gathering
roots and berries, and pasturing their stock on unclaimed the off-reservation rights, more
On the local basis, the status
in laying claim to its fish, game
lands^Hr'common with citizens of the United States, is secured to money was to be poured into
of Indian water rights was tested
and vegetation.
them. And provided, also, That if any band or bands of Indians, agricultural efforts.
and upheld in Federal Power
Whether it was survival or
The much-maligned treaty
residing in and claiming any portion or portions of the country in this
Commission
v.
Oregon
(1954),
at
foresight, the Indians knew that
has been discredited by court
article,
shall
not
accede
to
the
terms
of
this
treaty,
then
the
bands
the time the Pelton Dam Project
they must hold on to these re­
becoming parties hereunto agree to receive such part of the several decisions since it was revised,
was being planned. The state’s
sources. Even into the third day
and other payments herein named as a consideration for the entire and was finally dashed in U.S. v
objection
to
the
licensing
of
the
of treaty negotiations Sim-tus-tus
country described as aforesaid as shall be in the proportion that their Oregon.
power project was discounted on
was still asking that the land
aggregate number may have to the whole number of Indians residing THE LONGEST FISH STORY
the basis of consent given by the
itself be retained.
in and claiming the entire country aforesaid, as consideration and
Again and again in the years
Confederated Tribes — whose
“The Falls where we catch
payment in full for the tracts in said country claimed by diem. And since the original treaty of 1855
reserved
land
and
water
would
the fish, we would like to reserve
provided, also, That where substantial improvements have been made was signed, the rights retained
be affected by the project.
it. You have seen our country
by any members of the bands being parties to this treaty, who are therein have been upheld in
The question today seem s to
where we get our Roots this is the
compelled to abandon them in consequence of said treaty, the same federal court cases directly in­
be how much water is reserved
shall be valued, under the direction of the President of the United volving the Confederated Tribes
country that I spoke about. I wish
for
Indians.
Congressman
Lloyd
States, and payment made therefor; or, in lieu of said payment, or applied from other Indian liti­
to keep the section of country
Meeds (R-Wash) has introduced
improvements of equal extent and value at their option shall be made gation. Indians’ reserved rights
beyond the Tygh. . . there we
his quantification bill
which
for them on the tracts assigned to each respectively.
gather our Berries.”
have repeatedly been found to be
would limit the right to the extent
But later on, Iso saw the
superior to state rights.
that
it
was
exercised
in
the
five
futility of changing
General
Winans v. United States
years prior to enactment of the ered treaty right and the result­ along with the Deschutes River
Palmer’s mind, saying, “I wish­
(1904) involved the Yakimas and
bill, a possible contradiction of ant loss of a way of life. So long
at Sherar’s Bridge. Many still
ed to have a piece of country on
their traditional use of the Col­
the Arizona v. California de­ and established was the tradition
make an annual trek to Oregon
the other side of Deschutes at the
umbia River for fishing. State-
cision.
at Celilo that Indian fishermen
City to capture eels in the Wail-
xouch (a type of root) country.”
licensed fish-wheel operators on
USUAL AND ACCUSTOMED could not think of a day when the lamette River.
But realizing that Palmer would
land along the Columbia sought
STATIONS
falls would not be there. Now the
Berries are still gathered in
not make reservations “here and
to exclude the Indians from the
Since
the
parcel
of
land
re­
feeling exists that anything is
the Mt. Hood area, although
there” Iso said he would be con­
exercise of their fishing rights,
served in the treaty was largely possible as Indians cling to their
timber and brush are crowding
tent “to go there every spring to
but the Supreme Court ruled that
unfamiliar to the Wasco and remaining sites.
them out, and roots are still dug
dig xouch if you give m e the
“the right to resort to the fishing
WallaWalla bands, they insisted
But the Dalles Dam agree­ near Prineville and Shaniko des­
privilege.” A provision
was
places in controversy was a part
on access to their traditional ment as well as the Bonneville
pite private landowners fencing
made in Article 1 for the exercise
of larger rights possessed by the
fishing, hunting, and gathering Dam construction could also be
of such privilege.
the ladies out on occasion.
Indians. . . which were not much
places outside the reservation considered acknowledgements of
less necessary to the existence of
1865 TREATY: A FLUKE
boundaries.
These
rights
were
treaty rights, despite the out­
EXCLUSIVE RIGHTS ON THE
the Indians than the atmosphere
Apparently in the years after
“in common with citizens of the come. When Bonneville was built
RESERVATION
they breathed.”
the treaty was signed, the tribes
United States,” a phrase that has Congress authorized the Army
In the treaty, the exclusive
The decision also reaffirmed
took full advantage of their off-
undergone
considerable
defini­
Corps
of
Engineers
to
replace
right of fishing was guaranteed
reservation rights, to the con-
(Continued on Next Page)
tion
and
interpretation
through
destroyed fishing sites with “in
on the reservation and in the
sternation of the government and
the
years.
lieu”
sites
at
Cascade
Locks,
bordering streams. Hunting and
REFERENCES TO DATE FOR “KNOW YOUR TREATY”
Wasco Chief Nelson Wallula­ Lone Pine, Wind River and
gathering are rights that flow
tum describes many accustomed Cooks (one promised site was
from ownership and occupancy.
Part 1 - (Treaties are Living Documents)
stations along the Williamette
never provided).
Although nothing was said in
Felix S. Cohen, Handbook of Federal Indian Law
River,
the
Columbia,
and
the
The
Dalles
Dam
construction
the treaty about rights to water,
upper Deschutes where
his was preceded by years of negoti­ Vine Deloria, Jr., Behind the Trail of Broken Treaties
the right to fish has been con­
people and other tribes and ation between the Army Corps of Ralph Shane, “Early Explorers through Warm Springs Reservation
sidered meaningless if a mini­
bands fished for salmon, steel­ Engineers and the Warm Sp­ Area,” Oregon Historical Quarterly, Volume IL, No. 4, December 1950
mum stream flow is not main­
head, trout, Whitefish, sturgeon,
rings, Yakima and Umatilla
tained in streams traversing and
Thelma Drake Cliff, “A history of the Warm Springs Reservation.”
eels and even m ussels, crawdads
tribes. The key to the agreement
bordering the reservation.
graduate thesis for U. of Oregon Master of Science, June 1942.
and an occasional seal. Not only was the sum of $27 million of­
The first major court de­
“A Short History of the Warm Springs Indian Reservation”
have many sites been given up fered in exchange for the sub­
cision confirming water rights on
Minutes of the 1855 Treaty Council (photostat of original handwritten
but the variety of the Indians’ ordination of fishing rights.
and off the reservation was
document)
fish diet diminished to the point
Although most feel that no Attorneys Owen Paneer and Dennis Karnoop
Winters v. United States (1904),
where only salmon, steelhead
price could have been attached
where rights to the use of water
and eels have retained their to these rights, it was at least Part 2 - (Treaties grew from tension between settlers and middle
in the Milk River were upheld for
Oregon Indians)
popularity, says Wallula turn.
recognized by the government
members of the Ft. Belknap
Ralph Shane, “Early Explorers”
Although
many
accustomed
that
the
rights
belonged
to
the
Reservation in Montana. The
stations were given up volun­ tribes and merited compensa­ Thelma Drake Cliff, “A History”
Winters Doctrine asserted the
Minutes of the Treaty Council
tarily in deference to the in­ tion.
right of the Indians to “waters
creasing non-Indian population
It is generally understood “A Short History of the Warm Springs Indian Reservation”
which made it (the reserved
and changing palates, there were
(and upheld in U.S. v. Oregon) Nelson Wallulatum, Wasco Chief
land) valuable or adequate.”
some heavily-used and well­ that the Celilo settlement did not Part 3 - (Ten million acres ceded, reservation established)
These watfer rights were not
loved sites that were altered or relinquish a general right to take Minutes of the Treaty Council
given up when Montana was
destroyed by civilization’s en­ fish at other locations but only “A History of the McQuinn Strip”
admitted to the Union, the de­
croachments.
those fishing rights exercised in Atty. Dennis Karnoop
cision stated.
The inundation of Celilo Falls
the areas flooded.
Mark McClanahan, claim s attorney for the Tribes
Nearly sixty years later in
was much more than the des­
Today, the Columbia River B.I.A. Realty
Arizona v. C alifornia. The
truction of a fishing site. It has
about Bonneville Dam continues Charles C. Royce, Indian Land Cessions, 1900. (Map)
Supreme Court reaffirmed the
come to symbolize the surrend-
to be the primary fishing site,
Winter’s Doctrine, further de-