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U.S. Supreme Court

Washington v. Fishing Vessel Assn., 443 U.S. 658 (1979)

Washington v. Washington State Commercial

Passenger Fishing Vessel Association

No. 77-983

Argued February 28, 1979

Decided July 2, 1979*

443 U.S. 658


In 1854 and 1855, the United States entered into a series of treaties with certain Indian tribes whereby the Indians relinquished their interest in certain lands in what is now the State of Washington in exchange for monetary payments, certain relatively small parcels of land reserved for their exclusive use, and other guarantees, including protection of their "right of taking fish at usual and accustomed grounds and stations . . . in common with all citizens of the Territory." The principal question in this extensive litigation concerns the character of the treaty right to take fish. In 1970, the United States, on its own behalf and as trustee for seven Indian tribes, brought suit against the State of Washington in Federal District Court, seeking an interpretation of the treaties and an injunction requiring the State to protect the Indians' share of runs of anadromous fish. At various stages of the proceedings, additional tribes, the State Departments of Fisheries and Game, and a commercial fishing group were joined as parties. The District Court held that, under the treaties, the Indians are currently entitled to a 45% to 50% share of the harvestable fish passing through their recognized tribal fishing grounds in the case area, to be calculated on a river-by-river, run-by-run basis, subject to certain adjustments. With a slight modification of one of the adjustments, the Court of Appeals affirmed, and this Court denied certiorari. Pursuant to the District Court's injunction, the Department of Fisheries promulgated regulations protecting the Indians' treaty rights, but the State Supreme Court, in two cases (consolidated here in No. 77-983), ruled that the Fisheries Department could not comply with the federal injunction, holding, inter alia, that, as a matter of federal law, the treaties did not give the Indians a right to a share of the fish runs.

Page 443 U. S. 659

The District Court then entered a series of orders enabling it directly to supervise those aspects of the State's fisheries necessary to the preservation of treaty fishing rights. The District Court's power to take such direct action and, in doing so, to enjoin persons who were not parties to the proceedings was affirmed by the Court of Appeals. That court, in a separate opinion, also held that regulations of the International Pacific Salmon Fisheries Commission (IPSFC) posed no impediment to the District Court's interpretation of the treaty language and to its enforcement of that interpretation.


1. The language of the treaties securing a "right of taking fish . . . in common with all citizens of the Territory" was not intended merely to guarantee the Indians access to usual and accustomed fishing sites and an "equal opportunity" for individual Indians, along with non-Indians, to try to catch fish, but instead secures to the Indian tribes a right to harvest a share of each run of anadromous fish that passes through tribal fishing areas. This conclusion is mandated by a fair appraisal of the purpose of the treaty negotiations, the language of the treaties, and, particularly, this Court's prior decisions construing the treaties. United State v. Winans, 198 U. S. 371; Puyallup Tribe v. Washington Game Dept., 391 U. S. 392 (Puyallup I); Washington Game Dept. v. Puyallup Tribe, 414 U. S. 44 (Puyallup II); Puyallup Tribe v. Washington Game Dept., 433 U. S. 165 (Puyallup III). Pp. 443 U. S. 674-685.

2. An equitable measure of the common right to take fish should initially divide the harvestable portion of each run that passes through a "usual and accustomed" place into approximately equal treaty and nontreaty shares, and should then reduce the treaty share if tribal needs may be satisfied by a lesser amount. Cf. Puyallup III, supra. Although the District Court's exercise of its discretion, as slightly modified by the Court of Appeals, is in most respects unobjectionable, the District Court erred in excluding fish taken by the Indians on their reservations from their share of the runs, and in excluding fish caught for the Indians' ceremonial and subsistence needs. Pp. 443 U. S. 685-689.

3. The Convention of May 26, 1930, whereby Canada and the United States agreed that the catch of Fraser River salmon should be equally divided between Canadian and American fishermen, subject to regulations proposed by the IPSFC for approval by both countries, does not preempt the Indians' fishing rights under the treaties with respect to Fraser River salmon runs passing through certain "usual and accustomed" places of treaty tribes. Pp. 443 U. S. 689-692.

4. Any state law prohibition against compliance with the District Court's decree cannot survive the command of the Supremacy Clause,

Page 443 U. S. 660

and the State Game and Fisheries Departments, as parties to this litigation, may be ordered to prepare a set of rules that will implement the court's interpretation of the parties' rights even if state law withholds from them the power to do so. Cf. Puyallup II, supra. Whether or not the Game and Fisheries Departments may be ordered actually to promulgate regulations having effect as a matter of state law, the District Court may assume direct supervision of the fisheries if state recalcitrance or state law barriers should be continued. If the spirit of cooperation motivating the State Attorney General's representation to this Court that definitive resolution of the basic federal question of construction of the treaties will allow state compliance with federal court orders is not confirmed by the conduct of state officials, the District Court has the power to undertake the necessary remedial steps and to enlist the aid of appropriate federal law enforcement agents in carrying out those steps. Pp. 443 U. S. 692-696.

No. 7119, 573 F.2d 1118, affirmed, and 573 F.2d 1123, vacated and remanded; No. 77-983, 88 Wash.2d 677, 565 P.2d 1151 (first case), and 89 Wash.2d 276, 571 P.2d 1373 (second case), vacated and remanded; No. 78-139, 573 F.2d 1123, vacated and remanded.

STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J.,and BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined and in Parts I, II, and III of which STEWART, POWELL, and REHNQUIST, JJ., joined. POWELL, J., filed an opinion dissenting in part, in which STEWART and REHNQUIST, JJ., joined, post, p. 443 U. S. 696.

Page 443 U. S. 661

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