169. United States v. State of Washington, March 22, 1974
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268 (h) No provision of this section shall abrogate in any way the trust responsibilities of the Federal Government to Indian bands or tribes. . . . [U.S. Statutes at Large 87:839, 858–59.] 169. United States v. State of Washington March 22, 1974 The vital question of Indian fishing rights in the Pacific Northwest was decided in the landmark decision by Judge George Boldt of the Federal District Court for the Western District of Washington. After a long analysis of treaties, fish migratory patterns, Indian fishing customs, and state regulations, this “Boldt Decision” set forth a series of principles to govern Indian fishing rights. The most controversial was the decision that Indians were entitled to one-half the harvestable fish. On July 2, 1979, the Supreme Court upheld with minor changes Judge Boldt’s decision (Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. Reports, 658–708). . . . . Since tribal on reservation treaty right fishing is exclusive, fish taken on reservation shall not be included in any allocation of fish between treaty and non-treaty fishermen. Therefore, the amount or quantity of any species of fish that may be taken off reservation by treaty right fishing during a particular fishing period can only be limited by either: (a) The number of fish required for spawning escapement and any other requirements established to be reasonable and necessary for conservation, and (b) The number of harvestable fish nontreaty fishermen may take at the tribes’ “usual and accustomed grounds and stations” while fishing “in common with” treaty right fishermen. As used above, “harvestable” means the number of fish remaining to be taken by any and all fishermen, at usual and accustomed grounds and stations, after deducting the number of fish required for spawning escapement and tribal needs. . . . By dictionary definition and as intended and used in the Indian treaties and in this decision “in common with” means sharing equally the opportunity to take fish at “usual and accustomed grounds and stations”; therefore, non-treaty fishermen shall have the opportunity to take up to 50% of the harvestable number of fish that may be taken by all fishermen at usual and accustomed grounds and stations and treaty right fishermen shall have the opportunity to take up to the same percentage of harvestable fish, as stated above. . . . 11. The right of a Treaty Tribe to harvest anadromous fish outside reservation boundaries arises from a provision which appears in each of the Stevens’ treaties and which, with immaterial variations, states: The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory. . . . 12. It is the responsibility of all citizens to see that the terms of the Stevens’ treaties are carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the councils, and in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people. 13. From the earliest known times, up to and beyond the time of the Stevens’ treaties, the Indians comprising each of the treating tribes and bands were primarily a fishing, hunting and gathering people dependent almost entirely upon the natural animal and vegetative resources of the region for their subsistence and culture. They were heavily dependent upon anadromous fish for their subsistence and for trade with other tribes and later with the settlers. Anadromous fish was the great staple of their diet and livelihood . They cured and dried large quantities for year around use, both for themselves and for others through sale, trade, barter and employment. With the advent of canning 269 technology in the latter half of the 19th Century the commercial exploitation of the anadromous fish resources by non-Indians increased tremendously. Indians, fishing under their treaty-secured rights, also participated in this expanded commercial fishery and sold many fish to non-Indian packers and dealers. 14. The taking of anadromous fish from usual and accustomed places, the right to which was secured to the Treaty Tribes in the Stevens’ treaties, constituted both the means of economic livelihood and the foundation of native culture. Reservation of the right to gather food in this fashion protected the Indians’ right to maintain essential elements of their way of life, as a complement to the life defined by the permanent homes, allotted farm lands, compulsory education, technical assistance and pecuniary rewards offered in...