Federal-State Friction Building Over Indian Fishing Rights in Washington

Within the last year, the Supreme Court of the State of Washington has handed down opinions in three cases which have refueled a long-standing but recently dormant controversy over Indian fishing rights. The dispute centers around the proper allocation of the state's anadromous¹ fish resource, composed largely of steel-head trout and several species of salmon. The Indian tribes take the position that pursuant to several treaties signed prior to the admission of the State of Washington into the Union, they possess a right to take fish at all traditional "grounds and stations" that may not be modified by state regulation. The commercial fishing industry, and at times the state, on the other hand, assert that the tribes are entitled to no greater rights than those shared by all other state citizens.

Over the years, this imbroglio hs swirled around a myriad of parties, including the tribes, the fishing industry, private sports fishermen, the state departments of game and fisheries, the United States Department of Justice, and Congress. Recent developments indicate that the issue may be coming to a head and that the principal combatants are now the Washington Supreme Court and the United States District Court for the Western District of Washington.²

Background: The Boldt Decision

In 1970, on its own behalf and on behalf of 14 Indian tribes, the United States sued the State of Washington, alleging that it was denying the tribes the fishing rights guaranteed them under federal treaties executed in the mid-19th century. Plaintiffs sought a judicial determination of the extent of those rights and declaratory and injunctive relief to enforce them.

In a landmark 97-page opinion, federal District Judge George Boldt exhaustively traced the prior history of the treaties as well as the subsequent interpretations and modifications of the rights guaranteed by the treaties.⁴ According to Judge Boldt, the cux of the bargain struck by the Indian and federal negotiators was that the tribes would relinquish all claims to territorial lands not specifically reserved and in return would exercise exclusive jurisdiction and sovereignty over the reserved lands.⁵ In addition, the tribes retained the ritht to hunt and fish outside the reservations at all traditional and customary locations. All parties before the court agreed that the right to fish within the reservation belonged solely to the tribes. The central issue before the court, then, was the extent of their off-reservation rights, derived from the following treaty language:

The right of taking fish, at all usual and accustomed stations, is further secured to said Indians, in common with all other citizens of the territory, … [Emphasis added.]⁶

Relying on the well-established principle that Indian treaties are to be interpreted in accordance with the original understanding of the Indians,⁷ the tribes argued that this language does not reflect an intent to permit subsequent restriction of the right to pursue their livelihood but instead embodies an agreement to permit non-treaty fishermen to share in the use of the resource. The petitioners would thus have had the court lift any and all encroachments upon their exercise of such rights.

In opposition, the state relied upon Geer v. Connecticut⁸ for the proposition that the regulation of ferae naturae (wildlife) is within the inherent sovereign power of the states. The defendants also argued that since the treaty tribes share their off-reservation fishing rights "in common with" all other citizens, those rights should be subject to the same restrictions as non-treaty rights. But as the district court was to point out in its opinion,⁹ this reasoning is flawed by the failure to recognize the crucial distinction between rights and privileges. Because the state possesses under Geer the power of a sovereign over the wildlife within its borders, the license granted to its citizens to use that resource is in the nature of a privilege, and is subject to reasonable and non-discriminatory limitations within the discretion of the state. Hunting and fishing rights emanating from federal treaties, however, particularly where, as here, the treaty was in existence prior to the creation of the state, are in the nature of vested federal rights. Although such rights may be expanded or contracted pursuant to an act of Congress,¹⁰ they are not subject to the general reach of the state police power other than to the extent necessary to prevent the destruction of the resource.¹¹

Thus, the parties were urging constructions of the term [8 ELR 10029] "in common with" which were diametrically opposed. Finding no judicial precedent adequately delineating a basis for interpreting this term to justify any state regulation of treaty rights, the court expressed its dismay at the United States Supreme Court's consistent assumption of the existence of this power,¹² stating that in so doing the Court appeared to have "exercised a prerogative specifically reserved by and to the Congress in the treaties."¹³ Though clearly persuaded by the tribes' arguments, Judge Boldt went on to state:

In the opinion of this court, judicial integrity also requires this court to hold that the tribes' contention that the state does not have legal authority to regulate the exercise of their off reservation treaty right fishing must be and hereby is denied by this court. The basis of this ruling is the indisputable and unqualified duty of every federal circuit or trial judge, despite personal or academic misgivings, to enforce and apply every principle of law as it is directly stated in a decision of the United States Supreme Court. [Emphasis added.]¹⁴

Constrained to find that the state does play a role in the regulation of Indian fishing, the next step for the court was to determine the equilibrium point between the conflicting interests. Judge Boldt interpreted the language "in common with" to mean "sharing equally," relying on the dictionary definition of those words and their implied meaning as used in the treaties.¹⁵ Treaty and non-treaty fishermen were given a 50-50 split, not by way of a guarantee of a certain catch, but in the form of an order to defendants to issue regulations ensuring that each group gets an opportunity to take half of the harvestable catch.¹⁶

On appeal, the Ninth Circuit affirmed. The Court identified the central issue "not as the federal government's power in executing treaties to preempt all state regulation of Indian fishing, but whether it has in fact done so,"¹⁷ and concluded that it had. The court of appeals approached the problem from a perspective wholly different from that through which the public commonly views Indian relations. "The treaties were 'not a grant of rights to the Indians, but a grant of rights from them — a reservation of rights not granted.'"¹⁸ Unlike the "peace treaties" imposed upon the vanquished tribes of the southwest, the treaties entered into by Northwest Indians more closely resembled agreements between sovereigns of equal bargaining power. When cast in these terms there is little ground for the state's claim of a major role in this arrangement.

Pursuant to the trial court's final order the Washington Department of Fisheries issued amended regulations designed to allot treaty fishermen a higher percentage of harvestable salmon than non-treaty fishermen. The Department was promptly sued by several groups from within the commercial fishing industry, who in separate actions sought injunctive relief from those parts of the regulations inhibiting their particular mode of fishing. To date, three such cases have been decided by the Washington Supreme Court and several others are in preliminary stages.

Contra: The State Cases

In 1977, the Washington Supreme Court issued opinions in three cases, Puget Sound Gillnetters Ass'n v. Moos (Gillnetters),¹⁹ Purse Seine Vessel Owners Ass'n v. Moos (Purse Seiners),²⁰ and Washington State Commercial Passenger Fishing Vessel Ass'n v. Tollefson (Passenger Vessel Owners),²¹ in which plaintiffs had successfully requested the state courts to avert the imminent economic hardship facing them as a result of implementation of the orders in United States v. Washington. Candidly expressing its concern over these and other impacts of the federal court's opinion,²² the state supreme court squarely disagreed with Judge Boldt's substantive conclusions and decreed that the subsequent efforts of the state to comply by amending its regulations were illegal and therefore void.

Each of the three opinions is based upon two recurrent themes. The first is that by allocating half or more of its anadromous fish resource to a minority constituting less than half of the state population, the state had denied to the remainder of its citizens the equal protection of the laws.²³ Although the court indicated it would uphold classifications which are reasonably related to the promotion [8 ELR 10030] of the state's economic welfare, such as those distinguishing between commercial and non-commercial fishermen, it stated that:

It is unreasonable in a free society for courts to grant special rights in perpetuity to a class of citizens based solely on ancestral circumstances.²⁴

The second common holding is that amendment of the regulations in accordance with Judge Boldt's order is beyond the Department's statutory authority. Under the laws of the state, the departments of game and fisheries are authorized to issue rules designed to conserve the state's natural resources. According to the court, rules which have the concurrent objective of equalizing social imbalances are excessive and therefore void.²⁵ The power to determine the authority of state agencies lies solely within the jurisdiction of the state courts, and it follows that the federal district court lacked the judicial power to order the adoption of amended regulations.²⁶

The Dissents

Three cogent dissents to the state decisions effectively undermined the legal foundations of the majority opinions. In Fishing Vessel Ass'n, Justices Utter and Horowitz pointed out the fallacy in interpreting the term "in common with" to mean that the Indians shall receive no rights other than those to which they would in any case be entitled as citizens of the state:

This is certainly an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the nation for more.²⁷

The dissent traced a long line of federal and state case law documenting the unique and preferred position of Indian treaty rights among rights held by other citizens under the federal system, concluding that there is no denial of equal protection where distinctions are based upon rights which are fundamentally different in source and nature.²⁸

The dissenters also disputed the majority's holding that the orders of the federal district court were invalid because they required state officials to exceed their statutory authority. Aside from a basic disagreement in the interpretation of that statutory authority, it is evident that the greater concern was a practical one. The minority foresaw that if the state asserted a lack of authority to act, then federal authorities would assume control of the situation.²⁹

The most impassionedof the dissenters' objections, however, was grounded in the Supremacy Clause of the federal Constitution. Both the interpretation of federal treaty language and the orders contained within United States v. Washington had been affirmed on appeal and denied review by the United States Supreme Court.³⁰ Nevertheless, the majority in Gillnetters adamantly adhered "to our own interpretation of the treaty."³¹ The majority had apparently downplayed the significance of this conflict according to its view that the district court was simply in error. The minority felt strongly that this was unjustifiable and unwise:

Continued adherence to this discredited doctrine should be embarrassing to this court and is particularly unproductive in this case. I am convinced that, whatever may be the personal inclinations of the members of this court, continued refusal to accept the legal principles enunciated in [Puyallup II, Puyallup III, and United States v. Washington] will place upon us significant responsibility for whatever unfortunate events hereafter transpire.³²

The impasse³³ at which the courts thus found themselves is characteristic of the subsequent struggles of the parties in attempting to conform their actions to the conflicting mandates. One's view of the final state of the "law" on this matter depends on where one looks, a significant point considering the apparently pro-industry orientation of the state resource agencies. The district court, however, soon demonstrated that it intended to support its judgment with more than repetitious pro-nouncements.

[8 ELR 10031]

been amended to comply with United States v. Washington. Two weeks later Judge Boldt ordered the state court to refrain from enforcing that order and from conducting any further proceedings on the matter. These rulings are typical of the numerous and intricate exchanges which have continued into the latter half of 1977.

On August 10, Judge Boldt, with the assistance of a special master, formulated revised allocation quotas for all major fishing grounds and commercial species, and enjoined the Department of Fisheries from enforcing any inconsistent regulations. The usual cross injunctions were exchanged between Judge Boldt and Judge Baker of the superior court.³⁴ An order issued the same day directed the United States, through the National Marine Fisheries Service, to patrol the waters of the state and report on a daily basis all discovered violations of the revised management plan.

On September 27, invoking the full extent of its injunctive powers over non-parties under limited and unusual circumstances, the district court ordered all individuals and organizations engaged in commercial fishing within the state to comply with the court's management plan, and directed that copies of that order be served personally upon all fishermen licensed by the state. The Department of Fisheries was directed to maintain a toll-free 24-hour "hotline" for the purposes of disseminating the details of those regulations and receiving reports of violations. The Department of Fisheries was also ordered to furnish Judge Boldt with daily transcripts of the calls received, and both the state and the United States were ordered to cite anyone found violating the order with a summons to appear and show cause why he should not be held in contempt.

Through these and other extraordinary measures an entire segment of the state's natural resources has now been placed under the supervision of the federal government. The state currently has no regulations in effect and all fishing within the state is being managed by Judge Boldt and federal enforcement officials through the hotline. Yet as recently as November 23, the state supreme court persisted in engaging in scholarly ruminations over the extent of the Department's authority to apportion fish.³⁵ This seeming passivity may simply be the inevitable result of a no-holds-barred contest between state and federal judicial systems.

Indian Fishing Rights Litigation: Phase II

Because of the lack of coherent controlling principles of law, the consequent disruption of the state's salmon fishing management plans, and the ensuing wave of illegal and highly destructive fishing practices by the unregulated commercial and treaty fishermen,³⁶ the resource has suffered considerably. As of late 1977, fish populations in many once-prime locations were far below those needed to produce an optimum sustainable yield, and may take several seasons to recover. As a result, tribal fishermen allege that they have been unable to take sufficient numbers of fish to meet their subsistence, economic, and religious needs. Their 1977 total catch was certainly less than would be expected had the state instituted sound management practices in 1975 consistent with United States v. Washington. A new round of litigation before Judge Boldt seeking to remedy this inequity is expected early this year, prior to the commencement of the 1978 fishing season.

This litigation may be viewed as a second phase of the controversy because it proceeds along a new legal theory which is a variant of the "public trust doctrine." In essence, that doctrine provides that a state holds title to its lands and natural resources solely as a trustee for the citizenry and may not alienate nor utilize those resources in a manner which deprives the public of its beneficial rights therein.³⁷ In states where the doctrine prevails such transactions or activities are voidable or enjoinable by any concerned citizen. The application of this doctrine may have to be refined somewhat where the rights to the res held by the trustee are claimed under federal treaty. Nevertheless, the claim that through mismanagement the state has illegally deprived the tribes as well as non-treaty fishermen of beneficial rights in fishery resources seems substantial.

Outlook

The track record of the Washington Supreme Court in Indian fishing cases in 1977 evinces an unmistakable pattern of pro-industry rulings which is unlikely to waver in the near future. This stance will continue to isolate the court even further from the bitter economic and political conflict which grows daily within the state. As the authority of the state court has receded, other institutions have moved in to fill the void. The principal actor has been the United States district court, which, backed by the enforcement muscle of the National Marine Fisheries Services and the offices of the regional United States attorneys, has effectively supplanted the state's jurisdiction over its fisheries.

Judging from rumblings within Congress, however, the real fireworks have just begun. Representative Cunningham (R.-Wash.) has introduced legislation which would abrogate all treaties currently in effect between the United States and all recognized Indian tribes.³⁸ That bill and others³⁹ are currently before several committees of the House. In January, a federal interagency task force composed of representatives of the Departments of the Interior, Commerce, and Justice issued an interim report [8 ELR 10032] recommending terms of a proposed fisheries allocation settlement to be negotiated with the northwest tribes.⁴⁰ Should such a settlement be reached, implementing legislation will be necessary and will probably be introduced by Senator Jackson (D.-Wash.). It seems inevitable that the current judicial conflict will simply be prologue to a comprehensive political solution to the problem.

1. Anadromous fish spend the bulk of their life cycle in the ocean but return to fresh water rivers to spawn.

2. Although beyond the scope of this Comment, a fascinating case study could be made of the manner in which these entities have attempted, alternately through diplomacy and sheer force, to resolve this dispute, as well as of relations between one segment of society and a diminutive and insular racial minority.

4. United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974).

5. In this context the term "exclusive" does not mean unlimited. The extent of permissible state regulation of onreservation rights has never been squarely addressed. However, the statement of the United States Supreme Court in Puyallup v. Dep't of Game (Puyallup III), 433 U.S. 165, 7 ELR 20558 (June 21, 1977), that "[w]e therefore reject petitioners' claim to an exclusive right to take steelhead while passing through their reservation" must be construed to mean that the Court would uphold minimal and necessary on-reservation regulations.

6. Treaty ofMedicine Creek, 10 Stat. 1132 (1854). Although this treaty concerned only the Puyallup Tribe, the quoted language is identical to that contained in treaties under which the other plaintiff tribes claimed rights.

7. United States v. Winans, 198 U.S. 371 (1905); Jones v. Meehan, 175 U.S. 1 (1899).

8. 161 U.S. 519 (1896).

9. United States v. Washington, 384 F. Supp. at 332.

10. Menominee Tribe v. United States, 391 U.S. 404 (1968).

11. Maison v. Confederated Tribe of Umatilla Indian Reservation, 314 F.2d 169 (9th Cir.), cert. denied, 357 U.S. 828 (1963).

12. See, e.g., Puyallup Tribe v. Dep't of Game, 43 U.S. 165, 7 ELR 20558 (1977); Tulee v. Washington, 315 U.S. 681, 684 (1942).

13. United States v. Washington, 384 F. Supp. at 332.

14. Id. at 339.

15. Id. at 343. This reading of the signatories' intent, however, is somewhat inconsistent with that found earlier in the opinion at 334.

16. In calculating the "harvestable catch" or "harvestable run," i.e., the number of fish subject to allocation among treaty and non-treaty fishermen, the court deducted certain numbers of fish from the total estimated population according to the following criteria:

First, recognition was given to the biological fact that a certain percentage of the total fish run must be preserved for "escapement," so that a significant percentage of each species will reach its spawning grounds and assure the propagation of the next year's run. Next, the court withdrew from its calculation of the harvestable run fish caught within reservation boundaries, pursuant to the stipulation that such fish were exempt. In addition, the court decreed that because of the traditional, albeit currently declining, importance of fish for religious and subsistence purposes, all such catches were to be similarly excluded.

17. United States v. Washington, 520 F.2d 676, 684, 5 ELR 20552 (9th Cir. 1975).

18. Id. at 685, quoting from United States v. Winans, 198 U.S. 371 (1905).

19. 88 Wn. 2d 667, 7 ELR 20535 (1977).

20. 88 Wn. 2d 799, 8 ELR 20091 (1977).

21. 89 Wn. 2d 276, 8 ELR 20111 (1977).

22. We cannot ignore the facts that the holding of the district court has severe economic effect on many non-treaty fishermen; that it will result in the enrichment of some individual treaty Indian fisherman, but will not necessarily result in economic benefit to the tribal units; that it has caused discontent among non-treaty Indians; that it has caused hostility between the treaty and other fishermen; and has jeopardized the good relations heretofore existing among the parties; and that it has resulted in violence and violations of the law.

Gillnetters, 7 ELR at 20539; see also Purse Seiners, 8 ELR 20094.

23. Gillnetters, 7 ELR at 20537; Purse Seiners, 8 ELR at 20094; Passenger Vessel Owners, 8 ELR 20112-14.

24. Purse Seiners, 8 ELR at 20094. In this case, however, the courts are not the source of the rights in question, nor is the class claiming them determined solely by reference to their ancestral heritage. The parties to these actions are descendants of the original signatories, and their tribal status has been officially recognized by the United States Bureau of Indian Affairs. The only citizens of Indian ancestry entitled to special fishing rights are those meeting these dual qualifications.

The difficulties in the court's position are highlighted by a comparison with its earlier opinion in Puyallup Tribe v. Dep't of Game (Puyallup II), 80 Wn. 2d 561 (1972).In that case, the court upheld regulations of the Department allocating 45 percent of the harvestable run of steelhead to the plaintiff tribes, impliedly denying the existence of constitutional impediments.

25. Once again, this holding is undercut by comparison with Puyallup II, supra.

26. Gillnetters, 7 ELR at 20536-38. Such barriers to federal injunctive power are generally throught to have been eliminated by the decision in Ex parte Young, 209 U.S. 123 (1908).

27. Passenger Vessel Owners (Utter, J., dissenting), 8 ELR at 20115, quoting from United States v. Winans, 198 U.S. 371 (1905).

28. Notably omitted from the dissent is a reference to Morton v. Mancari, 471 U.S. 535 (1974), which sets Indian rights aside from traditional equal protection analyses. Accord, Moe v. Confederated Salish and Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 479-80 (1976).

29. This forecast was less than perspicacious; when the case was decided the extent of existing federal intervention was already considerable.

30. 423 U.S. 1086 (1976).

31. Gillnetters, 7 ELR at 20539; see also Purse Seiners, 8 ELR at 20092 n. 1.

32. Fishing Vessel Owners, 8 ELR at 20114.

33. The prospects of resolving this federal-state impasse were brightened on January 9, 1978 when a petition for certiorari was filed with the United States Supreme Court in Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n (consolidating Passenger Vessel Owners, supra, and Gillnetters, supra), No. 77-983, 46 U.S.L.W. 3455. In that petition four questions are presented to the Court, including the proper interpretation of the term "in common with" and the question of whether a roughly equal sharing between treaty and non-treaty fishermen conflicts with constitutional guarantees of equal protection.

34. Puget Sound Gillnetters Ass'n v. Sandison, No. 58107 (Wash. Super. Ct. Aug. 24, 1977), United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), preliminary injunction staying court injunction, order implementing preliminary injunction (Aug. 31, 1977).

35. See Passenger Vessel Owners, 89 Wn. 2d 276, 8 ELR 20111 (1977).

36. See Passenger Vessel Owners, supra 8 ELR 20118.

37. See generally, Sax, Defending the Environment 158 (1971); Bean, Law and Wildlife, An Emerging Body of Environmental Law, 7 ELR 50013, 50024-27 (1976).

38. H.R. 9054, 95th Cong., 1st Sess. (1977).

39. H.R. 9175, 95th Cong., 1st Sess. (1977) (would render treaty rights within State of Washington subject to state law); H.R. 9736, 95th Cong., 1st Sess. (1977) (Steelhead Trout Protection Act); H.R. 9950, 95th Cong. 1st Sess. (1977) (omnibus Indian jurisdiction bill. It is noteworthy that this bill was introduced by Rep. Meeds of Washington, who recently announced his retirement from Congress. The narrowness of his victory in the last election is widely ascribed to his failure to take a strong stand in opposition to the Boldt decision. Washington Post, Dec. 30, 1977 at 2, col. 1.)

40. Task force on Washington State Fisheries, Proposed Settlement for Washington State Salmon and Steelhead Fisheries, released January 13, 1977. The final terms of this agreement are still being hammered out by the tribes, the federal government, and the state.