Mike Pease* and Christina White**
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Introduction
Popularly referred to by the general public in Washington State as “the culvert case,” Washington v. United States[1] (“Washington V”) has ramifications beyond the removal of barrier culverts[2] precluding safe fish passage. This case brought together several lingering and hotly contested legal issues in the Pacific Northwest: the conflicts between federally mandated construction designs and Washington State’s infrastructure and the scope of tribal rights under the Stevens Treaties. Affirming the Ninth Circuit decision, the Supreme Court correctly protected tribal Treaty rights by requiring Washington to replace state-owned, high-priority barrier culverts. Though this decision can also be seen as a victory for salmon populations and tribal rights, arguably this decision could have broader impacts for the legality of dams precluding safe fish passage.
I. Background
A. Stevens Treaties
In 1854, Washington Territorial Governor Isaac I. Stevens entered into a series of treaties, now known as the Stevens Treaties.[3] Though a full analysis of the Stevens Treaties is beyond the scope of this article,[4] a contentious clause across the Treaties’ is the one reserving the Tribes’ right to off-reservation fishing.[5] This clause, which is essentially the same language used in each treaty,[6] reads:
The right of taking fish and of whaling or sealing at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the United States, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands: Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens.[7]
B. Origins of Washington V
Following the signing of the Stevens Treaties, the Dawes Act[8] was passed in 1887, coercing more settlers to accept land grants of appropriated Indian land in the Columbia River Gorge.[9] Concurrently, the invention of canneries as a method of preservation quickly developed the salmon exportation business into a profitable endeavor.[10] This increased the demand for salmon fisheries, and competition for prime fishing sites ensued.[11] One Indian agent for the Yakamas stated: “‘[I]nch by inch, [the Indians] have been forced back until all the best grounds have been taken up by white men, who now refuse to allow them to fish in common, as the Treaty provides.’”[12] Inevitably, tribal members were blocked from their “usual and accustomed” fishing sites.[13]
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