United States v. State of Washington

Under the Stevens Treaties, executed in 1854 and 1855, Indian tribes in the area that would become Washington State (Washington) (defendant) ceded land to the United States (plaintiff) in exchange for the creation of permanent Indian reservations and the treaty-reserved right to continue off-reservation fishing and hunting consistent with historical patterns and usages. Salmon fishing was fundamentally important to the tribes both economically and culturally, and the tribes agreed to execute the Stevens Treaties in large part because the United States promised to protect the tribes’ salmon fishing rights in perpetuity. Salmon are anadromous fish, meaning that salmon hatch in fresh water, migrate to the ocean to mature, and then return to their freshwater hatching grounds to spawn. Washington, in the process of building road bridges over waterways, installed barrier culverts that blocked the free passage of salmon. The barrier culverts impacted 1,000 linear miles of waterways and caused a substantial decrease in the annual salmon yield. In 2001, the United States and 21 Indian tribes (collectively, the tribes) (plaintiffs) sued Washington, arguing that Washington’s barrier culverts violated the fishing clause of the Stevens Treaties because the culverts drastically reduced salmon yields. Washington challenged, arguing that (1) the fishing clause functioned to permit the tribe to engage in off-reservation fishing but (2) did not impose an affirmative duty on Washington to ensure the availability of salmon in the tribes’ traditional off-reservation salmon fisheries. The district court held that the barrier culverts violated the Stevens Treaties and issued an injunction ordering Washington to amend the culverts to allow the salmon free passage. Washington appealed to the Ninth Circuit.