Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration

n 1970, twenty-one tribes in the Pacific Northwest, along with their federal trustee, sued the state of Washington, claiming that numerous state actions violated their treaty rights, which assured them “the right of taking fish in common with” white settlers. The tribes and their federal trustee maintained that the treaties of the 1850s guaranteed the tribes 1) a share of fish harvests for both cultural and commercial purposes, 2) inclusion of hatchery fish in that harvest share, and 3) protection of the habitat necessary to provide the fish that were the basis of the bargain which led to peaceful white settlement of the Pacific Northwest. By 1985, the tribes and the trustee convinced the courts of the merits of the first two propositions, but the Ninth Circuit deferred on the third, requiring a specific factual dispute.