## Facts

- Between 1854 and 1859, the United States entered a series of treaties with multiple Indian tribes in western Washington.
- Although treaty language varied slightly, each treaty guaranteed the tribes the right to take fish at their “usual and accustomed” grounds and stations “in common with” territorial citizens.
- The United States sued the State of Washington and state officials, seeking declaratory and injunctive relief concerning off-reservation treaty fishing in western Washington waters.
- Washington sought to apply state fishing statutes and regulations to limit when tribal members could fish and how many fish they could take.
- Several tribes intervened, and the district court conducted extensive proceedings and made historical and factual findings about treaty meaning and the locations of tribes’ usual and accustomed fishing areas.
- The district court entered a decree defining treaty fishing rights, limiting state regulatory power, setting allocation rules for harvestable fish, and providing for continuing federal-court supervision to resolve implementation disputes.
- Washington and non-Indian fishing interests appealed; the Ninth Circuit affirmed the central holdings and remanded for limited further proceedings. The Supreme Court denied certiorari.

## Issues

1. Whether Washington may regulate tribes’ off-reservation treaty fishing at usual and accustomed grounds and stations, and if so, under what conditions.
2. What “in common with” means in the treaty fishing clauses, including whether it requires an allocation of harvestable fish between treaty and non-treaty fishers.
3. Whether tribes may regulate the treaty fishing of their own members without state regulation if tribal regulation meets specified conservation-related conditions.

## Decision

- The court held that the treaty fishing clauses reserved preexisting tribal fishing rights and must be read as the tribes would have understood them at treaty time.
- The court ruled that the treaties guarantee more than physical access; they secure a fair opportunity to take fish at the tribes’ usual and accustomed grounds and stations.
- Interpreting “in common with,” the court concluded that treaty tribes are entitled to take up to 50% of the harvestable number of fish passing through their usual and accustomed fishing areas, with the balance available to non-treaty fishers.
- The court held Washington may regulate treaty fishing only to the extent necessary for conservation of the fishery resource, and only under strict limits, including non-discrimination and reasonableness.
- The court concluded that certain state statutes and regulations did not meet the standards required to restrict treaty fishing and therefore could not lawfully be applied to tribal members exercising treaty rights.
- The court recognized that a treaty tribe may regulate the treaty fishing of its members without state regulation if the tribe maintains required regulatory and enforcement conditions consistent with conservation needs.
- The Ninth Circuit affirmed the district court’s core interpretation of the treaties, including the allocation rule and limits on state regulation, and the Supreme Court denied certiorari.

## Legal Principles

- Indian treaties are federal law and preempt conflicting state law under the Supremacy Clause.
- Treaties with Indian tribes are construed as the tribes would have understood the terms, and ambiguities are resolved in favor of the tribes.
- Treaty fishing rights are reserved rights held by the tribes and their descendants unless Congress clearly provides otherwise.
- A state may regulate treaty fishing only when regulation is necessary for conservation, is reasonable, and does not discriminate against treaty fishers.
- “In common with” in the Stevens Treaties supports a fair apportionment of harvestable fish, implemented as an allocation that allows treaty tribes to take up to one-half of the harvestable run through their usual and accustomed grounds and stations.
- A state may not use allocation methods or enforcement practices that, in operation, deny tribes their treaty share or make the treaty right ineffective.
- Tribes may exercise governmental authority to regulate their members’ treaty fishing when tribal rules and enforcement meet specified conservation-related requirements.

## Conclusion

United States v. Washington construed the Stevens Treaties’ fishing clauses to protect a meaningful off-reservation treaty fishing right at usual and accustomed places, including an allocation of up to 50% of harvestable fish to treaty tribes, and limited Washington’s regulatory authority to non-discriminatory conservation measures; these central rulings were affirmed on appeal and left in place after certiorari was denied.


United States v. Washington, 384 F.Supp. 312, affirmed 520 F.2d 676 (1975), cert. denied 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976)