United States v. Washington

No. 99-35104 (235 F.3d 438) (9th Cir. December 13, 2000)

ELR Digest

The court affirms a district court decision and holds that the on-reservation catch of fish by a Washington State Indian tribe whose reservation was created by executive order and not by treaty should be attributed toand, thus, should come out of the state's share of the annual fishing catch instead of the share of treaty tribes. A previous district court decision sought to equitably divide salmon fishing rights in the state between the state and several tribes whose fishing rights were secured by treaty. However, the Chehalis Indian Tribe, who refused to sign a treaty, were created by executive order, which ensured them fishing rights on their reservation. The state subsequently sought a determination regarding whether the fish caught by the Chehalis should count against the state's annual allocation.

The court first holds that the fish taken by the Chehalis cannot be attributed to the treaty tribes. The original district court division of fishing rights did not address the issue of on-reservation fishing by nontreaty tribes. However, that court enjoined the state from treating any off-reservation taking of fish as treaty fishing unless the court had determined that such taking was by a treaty tribe. This order established the principle that no catch by nontreaty Native Americans should be attributed to the treaty tribes. Such a result is consistent with equity and federal precedent regarding tribes and treaty interpretation.

The full text of this opinion is available from ELR (10 pp., ELR Order No. L-307).

Counsel for Plaintiffs
Evelyn S. Ying
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Jay D. Geck, Ass't Attorney General
Attorney General's Office
1125 Washington St. SE, Olympia WA 98504
(360) 753-6200

[31 ELR 20308]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]