UPDATE: Extent of Habitat Protection Required for Indian Treaty Fishing Sites: Washington v. United States

UPDATE: Extent of Habitat Protection Required for Indian Treaty Fishing Sites: Washington v. United States

Legal Sidebari

UPDATE: Extent of Habitat Protection
Required for Indian Treaty Fishing Sites:
Washington v. United States
Updated June 12, 2018
UPDATE: On June 11, 2018, an evenly divided Supreme Court affirmed the decision of the U.S. Court of
Appeals for the Ninth Circuit (Ninth Circuit) in Washington v. United States, upholding a trial court
decision and injunction finding Washington State in violation of Indian tribal treaty fishing rights and
requiring remediation of state-built culverts that impede salmon from swimming to customary habitats
protected by the treaties. Justice Kennedy had recused himself, having participated in the long-running
case while he was serving as a judge on the Ninth Circuit.
The original post from May 22, 2018, is below.
On April 18, 2018, the Supreme Court heard argument in Washington v. United States, a case that arises
out of a long-running dispute between Washington State on one side, and certain Indian tribes and the
federal government on the other, concerning the scope of tribal fishing rights under treaties negotiated
between the United States and 21 Indian tribes in the Pacific Northwest in the 1850s. Washington is
challenging a U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) decision that affirmed a lower
court decision holding that Washington violated the treaties by erecting and maintaining culverts, which
enable streams to flow below highways, that substantially impede salmon passage to and from tribal
fishing sites and, thereby, deprive the tribes of access to the quantity of fish required for culture,
sustenance, and commerce. In challenging the Ninth Circuit’s decision, Washington argues, among other
things, that the culverts do not violate the treaties, and to construe the treaties in such a way would
interfere with the state’s ability to manage its lands. The tribes and the U.S. argue, among other things,
that the treaties provide the tribes a right to take fish, and the culverts directly interfere with that right,
thus the Ninth Circuit’s decision was correctly decided. As discussed further below, the Supreme Court’s
ruling has the potential to affect land management practices and tribal rights in Washington and other
states in the Pacific Northwest. A decision is expected by June.
Background
Washington v. United States arises out of various 1854 and 1855 treaties in which Indian tribes—in what
was then the Washington Territory—ceded large land areas to the United States in exchange for monetary
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payments; smaller areas of the land as tribal reservations; and guarantees of off-reservation fishing rights
along with other stipulations. These treaties used similar language to guarantee the 21 tribes involved in
current litigation: “the right of taking fish, at all usual and accustomed grounds and stations . . . in
common with all citizens of the Territory. . . .” The meaning of that language has been a continuing source
of contention, bringing to the Supreme Court at least eight cases, including the present one. In the first
such case, 1905’s United States v. Winans (Winans), the Court interpreted the language broadly to give
effect to how the Indians must have understood the language given their historical reliance on fishing for
culture, subsistence, and commerce. In subsequent cases, the Court ruled on specific aspects of
Washington’s authority to regulate tribal fishing.
The current dispute began in 1970 when several tribes and the United States sought a declaratory
judgment and an injunction preventing Washington from interfering with tribal treaty fishing rights, to:
(1) take a fair share of the fish; (2) include fish from state hatcheries in the tribal share; and (3) have the
fish habitats protected. Over the next decades, numerous courts issued opinions on various elements of
the issue. In a 1979 case, Washington v. Washington State Commercial Passenger Fishing Vessel
Association, the Supreme Court stated that “both sides have a right, secured by treaty, to take a fair share
of the available fish.” A 1983 Ninth Circuit appellate court panel interpreted the treaty language as
requiring both “the State and the Tribes [to] take reasonable steps . . . to preserve and enhance the fishery
when their projects threaten then-existing harvest levels.”
Thereafter, in 2001, the tribes and the United States, for itself and as trustee for the tribes, asked the U.S.
District Court for the Western District of Washington (district court) to declare that the treaty fishing
rights require that Washington not diminish the number of fish at the fishing sites by erecting highway
culverts that impede salmon passage at the sites. Washington claimed that there is no treaty-based duty to
maintain the salmon runs at a particular level. The state also asserted that, even if such a duty exists, the
claim is barred by laches or acquiescence because, over a course of years, various federal agencies raised
no objections to the culverts when approving or acquiescing in highway designs that included the
culverts.
District Court Rulings
In August 2007, the district court issued an opinion and order requiring the state to repair or replace the
culverts. This ruling was based on, among other things, the district court’s factual determination that the
culverts “greatly diminished fish runs” and thus violate the treaties. The district court also dismissed
various counterclaims that Washington brought against the United States because the court determined
that the federal government had not waived its sovereign immunity. In 2013, the district court issued
another decision that granted the tribes’ request for an injunction ordering the state to remediate the
culverts. The court characterized removing the culverts as a “narrow and specific treaty-based duty” in
light of the treaty promise to protect the salmon and provide the tribes with a means of continuing
subsistence. The court also held that there were no available equitable defenses against the United States.
Ninth Circuit Proceedings
Washington appealed, claiming that it was under no treaty obligation to ensure the availability of salmon.
A unanimous three-judge panel of the Ninth Circuit, in an opinion issued in 2016 and amended in 2017,
affirmed the district court with respect to the breadth of the injunction and its interpretation of the treaty
clauses. The appellate panel also rejected an argument advanced by Washington based on the Supreme
Court’s decision in City of Sherrill v. Oneida Indian Nation of N.Y. (Sherrill). Washington argued that the
long delay in raising the culvert issue should defeat the tribes’ claims, like, in Sherrill, a long delay had
served to defeat tribal claims to sovereignty over reacquired lands. The Ninth Circuit panel, however,
distinguished the two cases by, among other things, the fact that Sherrill did not involve the United States.
The Ninth Circuit also agreed with the district court that the United States could not waive treaty-based
claims because they belong to the tribes, and that, in bringing the suit on behalf of the tribes, the United

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States did not waive its sovereign immunity against a counterclaim that federally erected culverts
contributed to the degradation of the tribal fishing sites.
Supreme Court Arguments
The Supreme Court agreed to hear three issues: (i) whether the treaties are properly construed to
guarantee the tribes a “moderate living” from the fishing sites; (ii) whether the government is barred from
bringing the suit because U.S. agencies approved or acquiesced in the design and erection of the culverts
over a long course of time; and (iii) whether the injunction violates principles of federalism and comity
because it lacks a judicial finding of a clear connection between culvert replacement and tribal fishing.
Only eight Justices heard argument in the case – the dispute has been in the courts so long that Justice
Kennedy, who joined the Court in 1988, recused himself because of his involvement in the case while he
was a judge on the Ninth Circuit. The Justices who heard argument appeared particularly interested in
identifying a clear test for determining treaty violations and in searching for some quantitative measure of
habitat degradation that could serve as a standard for determining when state, local, or private activity
would interfere with tribal fishing rights. Attorneys for neither side would commit to an absolute
percentage as a test of habitat degradation. Washington’s Solicitor General proposed a standard based on
“a large decline in a particular river . . . not justified by a compelling state interest.” Attorneys for the
United States and the tribes argued that the test should be whether the culverts caused a “substantial
decline” in the salmon population. Considerable discussion also centered on the scope of the district court
injunction, with Washington contesting its factual premises. However, the Supreme Court will likely
focus on the question of the appropriate standard to be applied to treaty violations rather than address
factual issues.
Potential Impact
The implications of the case may well reach far beyond its factual predicates. That a ruling in
favor of the tribes may raise questions about how state activities impact hunting, fishing, and
gathering provisions in many other treaties is essentially the argument set forth in an amicus brief
filed in support of Washington by eleven other states (Idaho, Indiana, Kansas, Louisiana, Maine,
Michigan, Montana, Nebraska, Oklahoma, Wisconsin, and Wyoming). These states argue that the
Ninth Circuit’s decision “commandeer[ed] state decision-making processes over land use
regulation [and] other areas of traditional state responsibility.” The United States disputes this
argument, claiming that the “future reach of this [Ninth Circuit’s] decision and the contours of
the treaty right” will depend on the facts of a particular case. On the other hand, an amicus brief
from law professors argues that the lower court rulings are not breaking new legal ground in
view of what they describe as a long common law tradition of prohibiting obstructions on
waterways, streams, and rivers as nuisances and authorizing upstream property owners and the
general public to bring actions at law to vindicate their rights to harvest fish free from those
obstructions.
Author Information

M. Maureen Murphy

Legislative Attorney

Congressional Research Service
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