Appeals Court Ruling Upholds Treaty’s Intent, Not Just Its Literal Meaning

A Ninth Circuit Court of Appeals ruling gave a powerful win to 21 Native nations who are suing the state of Washington in a long-standing dispute over salmon fishing rights.

The decision upholds a treaty’s intent, not just a literal and narrow interpretation. One question that quickly comes to mind is the broader impact and precedent of this ruling.

The dispute goes back to 2001, according to the Native American Legal Update. The Native nations sued the state of Washington to force it to modify or replace hundreds of road culverts that were blocking salmon from swimming upstream to thousands of miles of streams in western Washington.

The Court of Appeals ruled that Washington State and its maladapted culverts were violating fishing rights guaranteed by the Stevens Treaties of 1854-55. (They were named for Isaac I. Stevens, Superintendent of Indian Affairs and Governor of Washington Territory at the time.)

Those treaties cost tribes dearly. They “relinquished large swaths of land west of the Cascade Mountains and north of the Columbia River drainage area.” The opinion continued:

In exchange for their land, the tribes were guaranteed a right to off-reservation fishing, in a clause that used essentially identical language in each treaty. The “fishing clause” guaranteed “the right of taking fish at all usual and accustomed grounds and stations … in common with all citizens of the Territory.

A narrow reading of this treaty could say that members of the various Native nations still have the right to fish at these “usual and accustomed” places. In upholding the lower court ruling, the Appeals Court said:

The Indians did not understand the Treaties to promise that they would have access to their usual and accustomed fishing places but with a qualification that would allow the government to diminish or destroy the fish runs. Governor Stevens did not make, and the Indians did not understand him to make, such a cynical and disingenuous promise. The Indians reasonably understood Governor Stevens to promise not only that they would have access to their usual and accustomed fishing places but also that there would be fish sufficient to sustain them.
The court estimated that if the state made proper modifications to the culverts, several hundred thousand additional mature salmon would be produced each year.
The State of Washington could chose to appeal to the U.S. Supreme Court. According to a Reuters story, “A spokesman for Washington state’s Attorney General said: ‘We are reviewing the decision with our clients, the state agencies affected by the ruling, to determine next steps.'”
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