April 6, 2023

Breaking the Law to Uphold it

Legal challenges protect tribal rights to traditional fishing, hunting and gathering.


Underscore News

The Food Sovereignty Project tells stories about traditional Indigenous knowledge and practices that honor and strengthen the relationship to the plants and animals that sustain all of us. The seven-story project was co-managed by Nicole Charley and Jackleen de La Harpe for Underscore News with generous support from The Roundhouse Foundation. Read the entire series here.


The South Slough of the Coos River is a beautiful place.

Eelgrass flourishes within the shallow tidal waters of the estuary. Harbor seals haul out on the tideflats at low tide. Herons hunt along the shorelines while juvenile salmon mature in shady side channels before heading out to saltwater. Elk graze and bald eagles nest in tall cedars.

This is the place where Coquille Elder Tom Younker was cited by Oregon state fish and wildlife officers in 2011. Younker’s supposed infraction was harvesting clams, which he and his people have done since time immemorial. But in the eyes of the state, Younker should have gotten the same permit required for non-Indigenous fishers and followed rules set by state authorities, not the guidelines put in place by tribal government.

Tom Younker cleans clams in a boat in the South Slough in Charleston, Ore. in 2020, accompanied by his “clam buddy,” Lambeau. (Photo courtesy of Shirod Younker)

Younker’s citation turned out to be a watershed event for the Coquille people. And it was one of many battles that Indigenous peoples in the Pacific Northwest have had to fight to preserve their access to traditional foods — most often defined as food sovereignty. Those battles have often led to the courtroom.

In the 1960s and 1970s, tribal members in the Puget Sound area were beaten and arrested by Washington state fish and wildlife officers for fishing in their ancestral waters. A resulting lawsuit, U.S. v. Washington, led to a federal district court ruling in 1974 that upheld Indigenous peoples’ right to fish “in their usual and accustomed stations.” That was the language in the treaties of the 1850s.

The ruling by U.S. District Judge George Boldt established the treaty tribes as co-managers of the state’s finfish and shellfish populations, including determining catch limits, restoring habitat and operating hatcheries. The Northwest Indian Fisheries Commission in Olympia was created to help its member tribes in their co-management role.

On the Oregon side of the Columbia River, David Sohappy (1925-1991) and 13 other Yakama fishermen were arrested in 1968 by state fish and wildlife officers for gillnetting on the river they know as Nch'i- Wána. A federal judge ruled in 1969 that Oregon must ensure tribal fishers have access to “a fair and equitable share” of available salmon. But the judge also ruled that Oregon could regulate tribal fishing “only to an extent that might be proven to safeguard natural resources.”

The ruling didn’t resolve the animosity that state fish and game officials and the sportfishing industry had toward Indigenous fishers. The state’s view: Treaty rights were special rights. The tribes’ view: The state was discriminating against them so non-Indigenous fishers could take all the fish. The issue would not be finally resolved in tribal fishers’ favor until 1991, after Sohappy had spent five years in prison on charges of illegally catching and selling salmon.

“Yakama fishers still face challenges to their birthright to fish in all the usual and accustomed places, such as the Willamette River, Sandy River and beyond,” Emily Washines of Yakama Nation Fisheries told ICT in 2017. “The states are still spending thousands of dollars in court cases attempting to limit [the] River People’s rights. While these modern-day fish attacks may represent a small fraction of the Fish Wars, the fishers know to continue the legacy and never give up.”

Like those earlier rulings in federal court, Younker’s case was a turning point in Coquille’s defense of its right to fish, hunt and harvest within its historical territory.

Tribal leaders in Oregon signed treaties in the 1850s and 1860s with the U.S. that made land available for newcomers. Some treaties specified that the signatories retained the right of “taking fish in the streams running through and bordering” their reservations and “at all other usual and accustomed stations.” Some did not contain that language, but those rights were seen by the signatories as inherent and unceded.

“In our treaty, we never gave up those rights,” said Younker’s son, Jason Younker, elected chief of the Coquille Indian Tribe and assistant vice president at the University of Oregon. “But we were never recognized [by the government] as having those rights.”

Coquille was a signer of the Oregon Coast Tribes Treaty of 1855. But the treaty was never ratified by Congress and non-Native settlers encroached on lands that had been reserved exclusively for Indigenous use. In the ensuing years, federal authorities looked the other way as the state prosecuted coastal Indigenous people for hunting, fishing and gathering shellfish in their usual and accustomed areas.

A Coquille tribal member cooks clams in June 2022, during the tribe’s annual Restoration Celebration in Bandon, Ore.  Under the tribe’s Memorandum of Agreement with the Oregon Fish and Wildlife Commission, the tribe can issue permits to harvest traditional foods for food and ceremonial purposes. (Photo courtesy of the Coquille Indian Tribe)

Jason Younker said the arrest happened after the tribe asked his dad to dig some clams for an elders’ luncheon.

“He went out and dug about 12 dozen empire clams,” Younker said. “That was about 11 dozen over the state’s limit. And for the first time in his life, he was pinched by Oregon Department of Fish and Wildlife.”

The case, he said, set in motion a prolonged process of the tribe asserting its inherent and treaty-protected hunting, harvesting and fishing rights that continues to this day.

It turned out that when Congress created the Oregon Territory in 1848, it provided that “nothing in [the 1848 Act] shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty.”

The Oregon Coast Tribes Treaty, ratified or not, did not extinguish those rights. Younker’s case led to an agreement with the state, recognizing the Coquille tribe’s authority to license and regulate shellfish harvesting by tribal members.

“Taking care of and giving thanks for the resources we depend upon – that’s part of our existence.” – Jason Younker, elected chief of the Coquille Indian Tribe

The state benefited from the agreement, too, in that it now had a partner in habitat restoration and resource protection. And so, when the state and the tribe had concerns about declining salmon populations, they negotiated a June 2022 agreement making the tribe co-manager of southwest Oregon’s fish and wildlife.

Jason Younker called the agreement “restorative justice.”

“For the Coquille, we believe we should play an active role in the preservation of the resources we depend upon, especially salmon,” he said. “Our Coquille River has been diked, dammed and polluted and now our spring chinook salmon run is endangered. We should have a right in making sure these things don’t fall by the wayside. That is part of self-determination, which is what sovereignty means.”


Lead image: Chief Jason Younker presides over the 2022 Salmon Ceremony at Bullards Beach State Park near Bandon Ore., a deeply significant site for the Coquille Indian Tribe. It was the first salmon ceremony after the tribe signed its Memorandum of Agreement with the Oregon Fish and Wildlife Commission. By establishing cooperative management of resources in the tribe’s homeland, the agreement cemented and broadened the rights that Tom Younker had asserted when he was cited while for digging clams in 2011. (Photo courtesy of the Coquille Indian Tribe)

About the author

Richard Arlin Walker

Richard Arlin Walker, Mexican/Yaqui, is an ICT correspondent reporting from Western Washington.