Michael C. Blumm and Jane G. Steadman
Indian law, environmental law, Indian treaties, Indian fishing, land use, salmon, habitat protection
In the mid-nineteenth century, as the pace of American westward expansion accelerated and tension between white settlers and indigenous tribes mounted, the federal government convinced many Pacific Northwest tribes to enter into treaties that would facilitate white settlement. In exchange for cession of millions of acres of their homeland, the tribes retained the right of taking fish at all usual and accustomed places in common with white settlers. In the 1905 case United States v. Winans, the United States Supreme Court explained that the treaty fishing right constitutes a “servitude upon every piece of land.” We have described this servitude as a “piscary profit,” a familiar property right at common law that must be exercised free from unreasonable interference. While the universally shared assumption at the time the treaties were signed was that the salmon resource was inexhaustible, in fact the salmon have been in precipitous decline since the late-1800s. This scarcity bred conflicts, which have forced the tribes to enforce their treaty fishing right in the courts for over a century.
This article explores the history and contours of the treaty fishing right from 1905 to present, tracing the evolution of the federal courts’ understanding that implied within the fishing right is a right of access, a right to a fair share of the salmon harvest, and a right of habitat protection. In particular, the article examines the 2007 Culverts Case, in which Judge Ricardo S. Martinez resoundingly affirmed that the treaty fishing right prohibits habitat-damaging activities that preclude tribes from earning a moderate living through fishing-in this case, the state of Washington’s construction and maintenance of fish passage-blocking culverts. The article concludes that not only is Judge Martinez’s decision the logical progeny of over a century’s worth of precedent, the result is consistent with common law principles of profits. In the end, the Martinez Decision represents the most important treaty fishing rights decision in decades, with the potential to rectify a fundamental unfairness in treaty fishing rights law, which previously provided access to fisheries, allocated harvest shares, and yet allowed destruction of the salmon resource, the central consideration of one of the largest real estate transactions in history.
(2009) 49 Natural Resources Journal 653