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Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n

Citation: 9 ELR 20517
No. Nos. 77-983 et al., 443 U.S. 658/(U.S., 04/24/1979) Vacated

On review of several consolidated cases, the Supreme Court rules that pursuant to treaties entered into between Pacific Northwest Indian tribes and the United States in the 1850s, tribal fishers in the region are entitled to take roughly one-half of the annual fish harvests. Part of the consideration to which the tribes are entitled under the treaties is the right to take fish "in common with the citizens of the Territory." Construing this language in a manner most likely to reflect the understanding of the tribal signatories, and resolving any ambiguity in favor of the Indians, the Court concludes that the intent was not to give tribal fishers an equal opportunity to try to take fish but rather to give them an apportionment of the harvest equal to that of non-tribal fishers, subject to reduction if the tribal needs may be satisfied by a lesser amount. The Court reverses the district court ruling that the shares of the parties are to be calculated without regard to the fish taken by the Indians on reservation grounds and, for similar reasons, upholds the ruling that the non-tribal allocation is to be reduced by the extent to which a portion of the harvest is collected outside the state's waters, e.g., by ocean-going ships. In addition, the Court rejects the claim advanced by the state and the non-tribal fishers that an agreement between the United States and Canada allocating the harvest of certain fish species inhabiting the Fraser River operated to extinguish the Indians' treaty rights. On the contrary, the Indians retain their right to one-half of the American allocation, notwithstanding any conflicting state law. Finally, the Court upholds the rulings and actions of the district court in enforcing its orders to protect the fishing rights of the tribes. The trial court possesses injunctive power sufficient to restrain fishing by non-tribal fishers even though they may not have been parties to the original litigation. That court also has the power to compel the state resource agencies to enforce its orders, despite the fact that such enforcement actions may not be explicitly authorized by state law. Where the state agencies refused to act, it was within the district court's power to assume federal control over the fisheries.

Three dissenters would read the treaties as conferring upon the Indians only the right to attempt to take fish in common with non-treaty fishers and not an apportionment of the annual harvest.

Counsel for the State of Washington
Slade Gorton, Attorney General
Temple of Justice, Olympia WA 98504
(206) 753-2550

Counsel for Commercial Fishermen
John P. World
2844 Bank of California Center, Seattle WA 98154
(206) 624-6993

Charles E. Yates
Moriarty, Long, Mikkelborg & Broz
3300 Seattle First Nat'l Bank Bldg., 1001 Fourth Ave., Seattle WA 98154
(206) 623-5890

Richard W. Pierson
Thom, Navoni, Hoff, Pierson & Ryder
3737 Bank of California Center, Seattle WA 98154
(206) 623-8433

Counsel for the United States
Wade H. McCree, Solicitor General
Department of Justice, Washington DC 20530
(202) 633-2201