Supreme Court case tests weight of old Native American treaties in 21st century

On April 18, the United States Supreme Court will hear oral arguments in Washington v. United States, which pits the state of Washington against the United States and 21 Indian tribes. The main question in the case is narrow – whether the state must quickly replace hundreds of culverts that allow the flow of water under roads but also block salmon migration. Yet the underlying issue is far broader.

At stake in the case is the Supreme Court’s ongoing role as the nation’s highest arbiter of justice. Despite immense changes, that role remains grounded in a 229-year-old Constitution premised on the supremacy of federal treaties and individual rights.

In previous cases, the Supreme Court upheld the tribes’ rights to fish salmon, spelled out by various treaties entered in the 1850s. But, having insulated those rights from destruction previously, the court must now decide their meaning for the 21st century and beyond. That decision may say more about what justice means in our modern legal system than it does about tribes, salmon or culverts.

‘As justice and reason demand’

In the mid-1800s, the United States’ zeal for expansion and growth resulted in the removal of Indian people and the acquisition of their territory, often through the use of treaties.

Isaac Stevens, the first governor of the territory of Washington, negotiated treaties on behalf of the United States with tribes across the Pacific Northwest and did so using similar treaty forms and language. In the heart of salmon country, Stevens recognized the importance of fishing to the tribes and, to persuade them to cede vast swaths of land, he emphasized language in the treaties that would preserve the tribal “right of taking fish, at all usual and accustomed grounds and stations…in common with all citizens of the Territory.” In fact, while negotiating one treaty, Stevens promised the tribes that the “paper secures your fish.”

Northwest Indians pictured fishing for salmon in the middle of the 20th century, competing with a fishing wheel in the background. Boston Public Library Tichnor Brothers collection
There was an abundance of salmon at the time. However, the explosion of settlers in the late 1800s and the proliferation of canneries and commercial fishing operations quickly created competition with tribal rights. Within decades, tribes’ rights to salmon were threatened by non-Indian interference and declining fish populations. The United States, acting on the tribes’ behalf, went before before the Supreme Court seeking to protect the terms of the treaties.

In 1905, the court was asked to resolve the question of whether non-Indians who erected fish wheels to capture salmon could fence off an area, thereby excluding tribal fishermen who sought to fish at their usual and accustomed ground. The court, saying it interpreted the treaties “as justice and reason demand,” upheld the treaty claims.

Recognizing their federal supremacy, the court rejected arguments that the admission of Washington to the Union on equal footing with other states destroyed the rights tribes previously secured in agreements with the United States. According to the court, the treaties “seemed to promise more, and give the word of the nation for more” than just fishing like all other citizens.

Modern challenges to old rights

Despite that early victory, both tribal treaty rights and salmon populations continued to be threatened. In the 1960s and 1970s, the state of Washington engaged in a concerted effort to denigrate tribal rights, leading to “fish-in” protests by natives, multiple arrests, and violence.

Once again, the courts were called upon to render justice. The central case, brought by tribes and the United States on their behalf against Washington, was filed in 1970. And as in 1905, courts honored tribal rights, deciding that tribes were entitled to half of the salmon harvest. In 1979, the Supreme Court affirmed this. Later decisions even included fish raised in hatcheries.