The U.S. Supreme Court will hear oral arguments April 18 on whether six treaties signed in 1854 and 1855 guaranteed 21 Western Washington tribes enough fish to earn a “moderate living.”
The case, Washington v. United States, stems from the state’s appeal of an order by the 9th U.S. Circuit Court of Appeals to replace 817 salmon-blocking culverts by 2030. The state attorney general’s office said in written arguments filed last week that the reasoning behind the culvert order could render federal dams illegal.
“This court should decline to recognize this new right 160 years after the treaties were signed,” the state argues.
Farm groups in the West are watching the case closely. The six treaties at issue are among 11 the federal government signed with tribes in what is now Washington, Oregon, Idaho and Montana. Farm Bureau chapters in those states last year filed briefs asking the high court to take up the appeal.
The U.S. Justice Department and tribes have yet to file written arguments. In previous filings, they argued the circuit court’s ruling was confined to culverts under state roads in Washington and didn’t raise broader issues for the Supreme Court to resolve.
The hearing will be the latest in litigation initiated in 1970 by the Justice Department on behalf of the tribes.
The tribes gave up land and were promised a share of a seemingly inexhaustible supply of fish. With salmon abundance declining, the tribes and Justice Department sued Washington in 1970. The litigation has never stopped. The federal government and tribes specifically targeted Washington culverts beginning in 2001.
The state acknowledges that in previous rulings dating back more than a century the Supreme Court has upheld the rights of tribes to fish in traditional places, to be exempted from certain state fishing regulations and to have a fair share of the available fish. The state claims the 9th Circuit Court invented a new and “amorphous” right for tribes to make a moderate living.
“That untenable standard makes it impossible to measure compliance, would likely render illegal many past actions that impacted salmon (such as federal dams), and would make virtually any significant future land use decision in the Pacific Northwest subject to court oversight to determine treaty compliance,” the state argues.
The tribes have approximately 43,000 enrolled members and harvest about 2.5 million salmon annually, according to court records. The tribes argue that their treaty rights would be meaningless without healthy fish runs.
The Supreme Court also will consider whether the federal government is being heavy-handed. The federal government signed the treaties, designed the culverts and then sued the state to remove them. The state argues that in many places replacing culverts won’t help salmon because fish barriers not owned by the state will remain.
The tribes participating in the suit are the Confederated Tribes and Bands of the Yakama Nation, Hoh Indian Tribe, Jamestown S’Klallam Tribe, Lower Elwha Klallam Tribe, Lummi Nation, Makah Tribe, Muckleshoot Indian Tribe, Nisqually Indian Tribe, Nooksack Tribe, Port Gamble S’Klallam Tribe, Puyallup Tribe, Quileute Indian Tribe, Quinault Indian Nation, Sauk-Suiattle Tribe, Skokomish Indian Tribe, Squaxin Island Tribe, Stillaguamish Tribe of Indians, Suquamish Indian Tribe, Swinomish Indian Tribal Community, Tulalip Tribes and Upper Skagit Indian Tribe.
Seven states, led by Idaho, also asked the Supreme Court to hear the appeal.