Bick Law LLP Publishes An Article In Law360 – A New Question On Tribal Fishing Rights For High Court

By: Corrie Plant

The U.S. Supreme Court recently heard oral argument in Washington v. United States, a case involving the off-reservation fishing rights of 21 Native American tribes in the Pacific Northwest. At issue are culverts built by the state of Washington under roadways it constructed across salmon-bearing streams. The tribes allege the culverts allow the passage of water, but not the passage of salmon, and thus are an unlawful interference with tribal fishing rights under its longstanding treaties with the United States. Specifically, the issue is whether the treaties guarantee the Tribes protection of salmon populations, i.e., habitat protection, or instead if they only protect the tribes’ right to a share of available fish. This question has not previously been answered by the Supreme Court.

The state claims the total cost to remove the culverts is over $2.3 billion, although that amount is contested. In addition, the state argues the case potentially has far-reaching implications because the tribes could use the court’s decision regarding its treaty rights to attack a host of other practices throughout the Pacific Northwest, including regulations related to climate change, transportation and zoning, morphing the treaties into de facto environmental regulation.

Background on Washington v. United States

The off-reservation fishing rights of the Pacific Northwest tribes are formalized in a series of treaties with the United States (called the “Stevens Treaties” after the lead treaty commissioner). These treaties each provided that the Tribes would surrender significant portions of territory (nearly 64 million acres of land) in exchange for periodic monetary payments, smaller tracts of land set aside for their exclusive use (i.e., reservations), and the preservation of fishing rights in the ceded areas. Each of the Stevens Treaties contains a virtually identical “fishing clause.” This fishing clause provides the tribes with “the right of taking fish at all usual and accustomed places, in common with the citizens of the Territory …”

In 2001, the tribes and the United States as trustee, initiated the case against the state as a subproceeding in United States v. Washington.  That underlying action has been pending in district court in the state of Washington since the 1970s, where the district court has overseen numerous disputes related to the fishing rights of various parties in the Puget Sound. The U.S. Supreme Court also previously examined the fishing clause as part of the underlying litigation in Washington v. Washington State Commercial Passenger Fishing Vessel Association[1], holding the right to take fish “in common” means “[b]oth sides have a right, secured by treaty, to take a fair share of the available fish.”[2] Ultimately, the allocation to the tribes was determined to be as much as 50 percent, although the parties in the current case now dispute that holding.

Lower Court Proceedings

The lower federal court concluded the state’s culverts violated the tribes’ fishing rights under the Stevens Treaties and must be removed. The injunction issued by the district court created a specific timeline for compliance.

The Ninth Circuit agreed, and upheld the injunction requiring the removal of culverts. Relying on the Supreme Court’s decision in Fishing Vessel, the Ninth Circuit held the Stevens Treaties not only guaranteed the tribes a share of fish, but also protection for their supply of fish, finding “that the number of fish would always be sufficient to provide a ‘moderate living’ to the tribes.” The dissent stated that Fishing Vessel imposed a ceiling on the quantity of fish — either a 50 percent share of harvestable fish or enough for a moderate living, whichever was less.

Competing Standards for Violation of the Fishing Clause

The arguments presented by the parties at oral argument before the Supreme Court evolved considerably from those made in the lower court proceedings. In the lower court proceedings, the state argued it essentially had the right to “destroy” the fisheries, arguing the treaties did not guarantee the tribes any habitat preservation or any specific amount of fish. It has since backed off that argument.

Instead, at oral argument, the state asked the U.S. Supreme Court to, at a minimum, clarify what legal rule the Stevens Treaties impose and then remand to the district court to apply it. The state argued the “moderate living” standard imposed by the Ninth Circuit was unworkable for the state as a standard. The state further argued there are “many, many things” that affect salmon and that the standard for what constitutes a treaty violation therefore must be set at some reasonable level. In addition, the state argued it has a substantial compelling interest in the culverts which justifies their construction, and that it has an equitable defense given the federal government granted permits enabling the construction of the culverts.

Specifically, the state advocated that the standard for a treaty violation should be that a state barrier is causing a large decline in a particular river and that the decline is not justified by a substantial compelling interest. The justices expressed skepticism at this argument, noting that “substantial compelling interest” does not appear in the text of the treaties. The state responded that when the Stevens Treaties ceded land to the federal government, they ceded control of that off-reservation land such that the government could regulate it in the future to serve the public interest.

As the justices noted, the state at times conflated causation issues with the standard for violation of the Stevens Treaties. For instance, if the court were to find that the standard for a violation was a 5 percent decline in the salmon population, the state believes it would still be free to argue about the various causes of that decline before the district court.

At oral argument, the United States advocated for a standard that was “durable and appreciable, meaning the type of thing that shows up year after year, despite normal fluctuations.” Although the U.S. Supreme Court inquired about a numerical figure, the United States noted the district court took a habitat-focused approach and tailored its injunction in that fashion. The United States further argued the district court’s injunction prohibited the state from taking affirmative action to obstruct and degrade the fishery, and that the Supreme Court should affirm that injunction as it was issued by the lower court. Regarding the “moderate living” standard discussed by the Ninth Circuit, the United States asserted it was really seeking to prevent the state from degrading the fishery, and that was the standard to apply.

As pointed out by Justice Stephen Breyer, the controversial statement by the Ninth Circuit regarding the “moderate living” standard could perhaps best be interpreted as a two-part standard because the state’s culverts had to appreciably degrade fish passage and interfere with the tribes’ ability to obtain a moderate living. This standard would be consistent with the Supreme Court’s prior holding in Fishing Vessel.


The U.S. Supreme Court has consistently interpreted treaty provisions in general, and the fishing clause in particular, in favor of Native American tribes. A treaty, including one between the United States and a Native American tribe, is treated as a contract between two sovereign nations, and it can only be abrogated by acts of Congress. Further, Supreme Court jurisprudence generally holds that Native American treaties must be interpreted as the Native Americans would have understood them at the time they were entered. As noted by Justice Neil Gorsuch, if the Stevens Treaties were interpreted to allow regulation of the tribes’ fishing rights where the state has a substantial compelling interest, it would defeat the point of the treaties entirely. As he noted at oral argument, the point of a treaty is to “freeze in time certain rights” and “ensure their existence in perpetuity.”

Based on the oral arguments, the Supreme Court appears likely to announce a standard of what constitutes a violation of tribal fishing rights.  The court then may send the case back to the district court for further application of that standard or simply affirm the injunction.

Justice Anthony Kennedy recused himself based on his participation in this matter as a Ninth Circuit justice back in the 1980s, and only eight justices will participate in the decision.

Corrie L. Plant is a partner at Bick Law LLP in Newport Beach, California.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979).
[2] 684-85.

Click here to read the article on Law360.