Washington v. Washington State Commercial Passenger Fishing Vessel Assn.
99 S. Ct. 3055, 443 U.S. 658, 1979 U.S. LEXIS 43 (1979)
Rule of Law:
Indian treaties reserving to tribes the 'right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens of the Territory' guarantee a right to a fair apportionable share of the harvestable anadromous fish, not merely a right of access, which is presumptively 50% but reducible to meet tribal 'moderate living' needs; federal courts possess broad equitable power to enforce these treaty rights, including direct management of state fisheries, if state agencies fail to comply.
Facts:
- In 1854 and 1855, the United States entered into a series of treaties with Indian tribes in what is now Washington, to extinguish conflicting land claims.
- The Indians relinquished their interest in most of the territory in exchange for monetary payments and certain guarantees, including 'the right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens of the Territory.'
- Anadromous fish (salmon and trout) were critically important to the tribes for subsistence, commerce, and cultural cohesion, and comprised a natural resource of great economic value to the region.
- At the time of treaty negotiations, fish were abundant, and Indians constituted about three-fourths of the area's population; neither party fully anticipated that the resource would later become scarce.
- Treaty negotiators, including Governor Isaac Stevens, recognized the vital importance of fisheries to the Indians and promised protection for their continued exploitation of accustomed fisheries, leading Indians to rely on the United States' good faith to secure these rights.
- Major economic developments in canning and processing in the late 19th century led to a significant non-Indian fishery, which, coupled with discriminatory state regulation, began to exclude Indians from participation.
Procedural Posture:
- In 1970, the United States, on its own behalf and as trustee for several Indian tribes, brought suit against the State of Washington in the U.S. District Court for the Western District of Washington, seeking an interpretation of the treaties and an injunction to protect Indian fishing rights.
- The District Court held that the Indians were entitled to a 45%-50% share of the harvestable fish passing through tribal fishing grounds and entered an injunction requiring the State’s Department of Fisheries to adopt regulations protecting these rights.
- The U.S. Court of Appeals for the Ninth Circuit affirmed the District Court’s decision, with a slight modification regarding fish caught by non-residents of Washington.
- The U.S. Supreme Court initially denied certiorari on the treaty interpretation issue.
- Private citizens challenged the new state regulations in Washington state courts, and the Washington Supreme Court, in Puget Sound Gillnetters Assn. v. Moos and Fishing Vessel Assn. v. Tollefson, rejected the federal interpretation, holding that the treaties did not grant Indians a right to a share of fish runs and that recognizing such rights would violate the Equal Protection Clause.
- When state courts ordered the Department of Fisheries to abandon efforts to comply with the federal court's decree, and the Game Department refused to comply, the District Court entered a series of orders enabling it to directly supervise aspects of the State’s fisheries necessary to preserve treaty fishing rights.
- The U.S. Court of Appeals for the Ninth Circuit affirmed the District Court’s power to take such direct action and to enjoin non-parties, and also held that international fishing regulations did not impede the District Court’s interpretation or enforcement.
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Issue:
Does the treaty right of 'taking fish, at all usual and accustomed grounds and stations ... in common with all citizens of the Territory' guarantee Indian tribes a specified allocation of harvestable fish, and if so, may federal courts directly enforce these rights against a state and its citizens when state agencies fail to comply?
Opinions:
Majority - Mr. Justice Stevens
Yes, the treaty right of 'taking fish, at all usual and accustomed grounds and stations ... in common with all citizens of the Territory' guarantees Indian tribes a specified allocation of harvestable fish, and federal courts may directly enforce these rights against a state and its citizens when state agencies fail to comply. Treaties with Indian tribes are essentially contracts between sovereign nations and must be interpreted in the sense the Indians would naturally have understood them, especially given the United States' superior negotiating skills and language knowledge, as established in cases like Jones v. Meehan. The historical context clearly shows that fish were vital to the Indians, and the negotiators intended to protect their ability to take fish, not merely offer an 'equal opportunity' that would become meaningless due to non-Indian population and technological superiority. The term 'securing' rights in the treaties indicates reserving pre-existing rights, not granting new, limited ones (United States v. Winans). The phrase 'in common with' implies a division of the resource, not just shared access, consistent with its use in other international fishing treaties. Prior decisions, particularly the Puyallup trilogy (Puyallup Tribe v. Washington Game Dept., Puyallup I, II, III), confirm that these treaties guarantee Indians more than mere 'equal opportunity' and assure them a 'fairly apportioned' share of each relevant run of harvestable anadromous fish, subject only to necessary conservation measures. An equitable measure of this common right initially dictates an approximately equal (50-50) division of the harvestable portion of each run that passes through a 'usual and accustomed' place. This Indian share can be reduced if tribal needs, defined as providing a 'moderate living,' can be satisfied by a lesser amount; the 50% is a ceiling, not a minimum. The Court clarified that all fish caught by either party from identifiable runs destined for traditional tribal fishing grounds (including on-reservation catches and those for ceremonial/subsistence purposes) count against that party's respective share. Furthermore, the Supremacy Clause mandates that state-law prohibitions against compliance with federal decrees are without effect (Cooper v. Aaron). Federal courts possess inherent authority to order state agencies to implement treaty rights, and if state recalcitrance persists, the federal court may assume direct supervision of the fisheries to remedy violations of federal law (Milliken v. Bradley, Swann v. Charlotte-Mecklenburg Board of Education). The conflict with international regulations for Fraser River salmon was deemed moot because the U.S. had subsequently refused approval of IPSFC regulations affecting Indian rights, implementing its own consistent regulations.
Dissenting - Mr. Justice Powell
No, the treaty right of 'taking fish, at all usual and accustomed grounds and stations ... in common with all citizens of the Territory' does not guarantee Indian tribes a specified allocation of harvestable fish; it only secures a right of access to usual and accustomed fishing sites. Justice Powell argues that nothing in the language or history of the treaties indicates an intent to place constraints on the amount of fish anyone could take or guarantee a percentage of the catch. The phrase 'in common with all citizens of the Territory' confers precisely the same right to fish on non-Indians as on Indians, and since non-Indians are not guaranteed a percentage, neither are Indians. The Yakima Treaty's distinction between an 'exclusive right' on reservations and a 'common right' off reservations further supports that the 'common right' is one of access, not allocation. The historical context of the treaties, primarily resolving land disputes and ensuring Indians' 'liberty of motion' to access fishing grounds, reinforces that the reserved right was one of access over settled lands, not a share of the fish itself. Prior decisions, especially United States v. Winans, focused on preventing non-Indians from monopolizing fishing sites and interfering with Indian access, not on allocating a specific share of the catch. While Puyallup II did involve an 'apportionment,' it was in the narrow context of remedying discriminatory state regulations that completely barred Indian net fishing while allowing non-Indian sport fishing to preempt the entire run. This 'apportionment' should not be extended to a general principle of a 50-50 division, which would result in an unfair 'economic windfall' to Indian fishermen and create significant enforcement difficulties. Justice Powell concludes that if the situation of the Indians in the Pacific Northwest requires special provisions for their livelihood, this should be addressed by Congress, not through a reinterpretation of a century-old bargain by the courts.
Analysis:
This landmark decision fundamentally shaped the interpretation of Indian treaty rights regarding natural resources, particularly fishing. It decisively moved the understanding of 'in common with' from mere access to an entitlement to an apportionable share, significantly empowering tribes in resource management. The case also reaffirmed the expansive equitable powers of federal courts to enforce federal law and treaty obligations against resistant state governments, highlighting the Supremacy Clause's role in intergovernmental disputes. Its principles have been applied to other treaty-protected resources and have driven the development of co-management strategies between tribes and states, although ongoing conflicts over resource allocation persist due to its practical implications for non-treaty users.
