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On June 11, 2018, the Supreme Court decided Washington v. United States, a case considering off-reservation fishing rights of multiple Native American Tribes in the State of Washington.
The 1854-1855 Stevens Treaties were a series of treaties between several Native American Tribes and the State of Washington. As part of these treaties, the Tribes relinquished land, watersheds, and offshore waters adjacent to a particular area, “Case Area,” in exchange for guaranteed off-reservation fishing rights. In 2001, twenty-one tribes and the United States complained in federal district court that the State had been building and maintaining culverts that impeded the transit of mature and juvenile salmon between the sea and their spawning grounds. In 2007, the district court issued an injunction requiring the State to correct these culverts, and the U.S. Court of Appeals for the Ninth Circuit affirmed.
The Supreme Court granted certiorari to address (1) whether a treaty “right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens” guaranteed “that the number of fish would always be sufficient to provide a ‘moderate living’ to the tribes”; (2) whether the district court erred in dismissing the state's equitable defenses against the federal government where the federal government signed these treaties in the 1850s, for decades told the state to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violates the treaties it signed; and (3) whether the district court’s injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon, and plaintiffs showed no clear connection between culvert replacement and tribal fisheries.
In a per curiam opinion, an equally divided Supreme Court affirmed the judgment of the Ninth Circuit.
To discuss the case, we have Lance Sorenson, Olin-Darling Fellow in Constitutional Law at Stanford Law School.