United States v. Washington
384 F. Supp 312, 1974 U.S. Dist. LEXIS 12291 (1974)
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Rule of Law:
Treaties reserving to Indian tribes the 'right of taking fish ... in common with all citizens' secure to the tribes a right to harvest up to 50% of the harvestable fish runs at their usual and accustomed fishing grounds. State regulations that infringe upon this right are permissible only if they are a reasonable and necessary conservation measure that does not discriminate against the tribes.
Facts:
- In the mid-1850s, the United States, through Washington Territorial Governor Isaac Stevens, negotiated several treaties with various Indian tribes in Western Washington.
- The treaties contained a clause securing to the tribes 'The right of taking fish, at all usual and accustomed grounds and stations, ... in common with all citizens of the Territory.'
- At the time of the treaties, anadromous fish were the cornerstone of the tribes' diet, culture, and economy.
- The treaties were written in English and negotiations were primarily conducted using Chinook Jargon, a trade pidgin with a limited vocabulary incapable of conveying complex legal concepts.
- For many years following the treaties, tribes continued to fish without state regulation, but non-Indian commercial and sport fishing industries grew significantly over time.
- The State of Washington, through its Department of Fisheries and Department of Game, began to promulgate and enforce comprehensive fishing regulations.
- These regulations, which included classifying steelhead as a game fish reserved for sport anglers, increasingly restricted the time, place, manner, and volume of off-reservation fishing by tribal members.
- The enforcement of these state regulations led to frequent conflicts, including the arrest of tribal members and the seizure of their fishing boats and gear.
Procedural Posture:
- The United States, on its own behalf and as trustee for several Western Washington Indian Tribes, filed a complaint in the United States District Court for the Western District of Washington against the State of Washington.
- Additional tribes later intervened as plaintiffs.
- The State Department of Fisheries, the State Game Commission, their respective directors, and the Washington Reef Net Owners Association were included as defendants.
- Plaintiffs sought a declaratory judgment concerning the nature and extent of their off-reservation treaty fishing rights and injunctive relief to enforce those rights.
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Issue:
Do treaties guaranteeing certain Indian tribes the 'right of taking fish ... in common with all citizens of the Territory' limit the State of Washington's authority to regulate off-reservation fishing and entitle the tribes to a specific, allocable share of the harvestable fish?
Opinions:
Majority - Boldt, Senior District Judge.
Yes, the treaties limit the state's regulatory power and entitle the tribes to a specific share of the harvest. The phrase 'in common with' must be interpreted as sharing equally, meaning treaty tribes are entitled to the opportunity to take up to 50% of the harvestable fish destined for their traditional fishing grounds. The right to fish was not a grant from the United States, but rather a right reserved by the tribes from the lands they ceded. These treaties must be construed as the Indians would have understood them, recognizing their fundamental dependence on fish for their existence. While the state retains the police power to regulate for conservation, that power is limited; any regulation must be proven reasonable and necessary for the perpetuation of the fish species and must not discriminate against treaty rights. The state cannot prefer other fisheries, such as sport fishing, over the tribes' constitutionally protected treaty rights, and must exhaust less restrictive alternatives, including regulating non-treaty fishers first, before infringing on the treaty right.
Analysis:
This landmark decision, commonly known as the 'Boldt Decision,' fundamentally redefined the scope of Indian treaty fishing rights in the Pacific Northwest. It moved the interpretation of the 'in common with' clause from a right of equal access to a quantifiable right to a share of the resource, establishing the tribes as co-managers rather than mere subjects of state regulation. The ruling placed a high burden of proof on the state to justify any regulation of treaty fishing, requiring it to be essential for conservation. The decision was highly controversial, sparking intense social and political conflict known as the 'Fish Wars,' but it ultimately affirmed tribal sovereignty and became a cornerstone of modern Indian treaty rights law.
