where this court held the treaty fishing rights of Indians who were parties to the Treaty of Point Elliott were impliedly abrogated by Washington’s admission to the Union
How later courts described this case
- where this court held the treaty fishing rights of Indians who were parties to the Treaty of Point Elliott were impliedly abrogated by Washington’s admission to the Union
Written by the judges who cited it.
The opinion
Hill, J.
(concurring in the result) — I concur in the result of the majority opinion.
I agree with the dissent in principle, but with an exception on which I will hereafter enlarge which, for me, takes the present case without the protection of the treaty.
I disagree with the majority’s position that for certain specified periods of time the right of the treaty beneficiaries can be suspended under the state’s regulatory powers.
The rights of the Indians to fish by the methods and with the gear in use at the time of the treaty cannot be suspended or abridged. Had the defendant, Joe McCoy, been so fishing the state would have had no right to interfere with his activities.
However, none of the signatories to the treaty contemplated fishing with a 600-foot nylon gill net, which could prevent the escapement of any fish up the river for spawning purposes. (See discussion in Judge Finley’s concurring opinion in State v. Satiacum (1957), 50 Wn. (2d) 513, 535 et seq., 314 P. (2d) 400 , 412 et seq.
I would not limit the type of gear used by an Indian when he is exercising the right to fish that anyone else is entitled to exercise; but where his right to fish “at all accustomed grounds and stations” rests solely on his treaty rights, then he should be limited to the gear and implements with which the treaty signatories were accustomed.
I would grant the state a new trial.
Ott, C. J. concurs with Hill, J.