By Lisa Soronen
In the mid-1800s, Indian tribes in the Pacific Northwest entered into treaties guaranteeing them a right to off-reservation fishing.
In Washington v. United States the Supreme Court will decide whether the “fishing clause” guarantees “that the number of fish would always be sufficient to provide a ‘moderate living’ to the tribes.”
The “fishing clause” of the Stevens Treaties guaranteed “the right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory.” In 2001 the United States and a number of tribes sued Washington state claiming that it violated the treaty by building culverts that prevented salmon for reproducing leading to the salmon supply significantly plummeting.
Washington argued it has no “treaty-based duty to avoid blocking salmon-bearing streams.” The Ninth Circuit disagreed construing the treaty in favor of the Indian Tribes stating: “The Indians did not understand the Treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs.”
Washington also argued that it had worked with the United States to develop a 15-year schedule for “remediation of fish problems on forest roads.” Washington alleged that it “reasonably concluded that by approving or failing to object to the state’s 15-year remediation schedule for forest roads, the NMFS [National Marine Fisheries Service] had determined that the schedule satisfied any treaty obligation.” The Ninth Circuit pointed out that only Congress may abrogate a treaty with an Indian tribe. Congress has not abrogated the treaties in this case.
The Ninth Circuit ordered Washington to remediate over 800 barrier culverts. Washington argued that the Tribes failed to make “any specific showing that those culverts have significantly diminished fish runs or tribal fisheries, or that replacing them will meaningfully improve runs.” But a 1997 report to the Washington Legislature prepared by the state's Department of Fish and Wildlife and the state Department of Transportation said: “Fish passage at human made barriers such as road culverts is one of the most recurrent and correctable obstacles to healthy salmonid stocks in Washington.” Washington claims it will cost several billions of dollars to replace all of the culverts.
In its certiorari petition Washington points out this case has implications beyond its borders as “the same fishing rights are reserved to tribes in Idaho, Montana, and Oregon.” More generally, Washington claims that the Ninth Circuit interpretation of the treaty “conflicts with [the Supreme] Court’s holdings about treaty interpretation.” “By inferring a massive commitment nowhere mentioned in the treaties, never contemplated by the parties, and never recognized by the parties during the decades after the treaties, the panel ignored this Court’s direction.”
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog.