## Facts

- Several Columbia River tribes entered 1855 treaties reserving “the right of taking fish at all usual and accustomed places, in common with” non-Indians.
- By the mid-20th century, non-Indian commercial and sport fishing increased and fish runs declined.
- Oregon implemented extensive fishery regulations governing seasons, gear, locations, and harvest levels, and allocated harvestable fish among non-Indian fisheries.
- The regulatory scheme, including location-based restrictions, effectively allowed non-Indian fisheries to take most harvestable fish before runs reached upstream tribal fishing sites.
- Tribal members who fished in reliance on treaty rights were frequently arrested for violating state regulations.
- Fourteen Yakama tribal members sued state fish and game officials for a judicial declaration of treaty fishing rights and limits on state authority; the United States filed a parallel action against Oregon on behalf of multiple treaty tribes.
- The cases were consolidated and tried to the court.

## Issues

1. What is the scope and character of the treaty-reserved right to take fish at usual and accustomed places “in common with” non-Indians?
2. To what extent may Oregon regulate treaty fishing in the name of conservation?
3. Whether treaty rights include an enforceable entitlement to a “fair share” of harvestable fish runs reaching tribal usual and accustomed places.

## Decision

- The court held the treaties reserved a continuing tribal right to fish at usual and accustomed places, on and off reservation, with priority over non-treaty fishing interests.
- The court held Oregon may regulate treaty fishing only under strict conditions tied to conservation and non-discrimination.
- The court held the treaties require management that provides treaty tribes an opportunity to take a fair share of fish runs destined to pass their usual and accustomed sites.
- The court granted declaratory and injunctive relief limiting enforcement of state regulations inconsistent with these standards and requiring fishery management consistent with treaty rights.

## Legal Principles

- Indian treaties are construed as the tribes would have understood them; ambiguities are resolved in favor of the tribes.
- Treaty fishing clauses reserve pre-existing rights; state law cannot diminish those federally protected rights.
- State regulation of treaty fishing is valid only if it is reasonable and necessary for conservation, biologically grounded, and non-discriminatory.
- The state must show conservation cannot be achieved by regulating non-Indian fishing alone before restricting treaty fishing.
- Any restriction on treaty fishing must be the least restrictive means reasonably available and must account for tribal self-regulation when adequate.
- “In common with” does not permit allocation methods that allow non-Indians to intercept virtually all harvestable fish before runs reach tribal fishing sites; tribes must have a meaningful opportunity to take a fair share of harvestable runs.

## Conclusion

The court enforced treaty-reserved Columbia River fishing rights by restricting Oregon’s regulatory power to necessary, non-discriminatory conservation measures and requiring fishery management that preserves tribes’ opportunity to take a fair share of harvestable fish reaching their usual and accustomed fishing places.


Sohappy v. Smith, 302 F. Supp. 899 (D. Or. 1969)