In the mid-1800’s, the United States entered into a series of treaties with tribes in what is now the State of Washington. Those treaties contained language reserving the tribes’ right to fish “in common with the citizens of the Territory.” The federal district and appellate courts substantially upheld this right, but the Supreme Court of the State of Washington ruled, inter alia, that the Indians did not have a right to fish runs in the state.  The federal district court then issued a series of orders enabling it to oversee the Fisheries’ Department’s protection of tribal fishing rights. After the federal appellate court upholding the district courts power to impose such oversight, the Supreme Court accepted a petition for certiorari.

In Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 (1979), the Supreme Court held that, in general, tribal fishing rights under treaties reserving the tribes’ “right of taking fish [off reservation] at all usual and accustomed grounds and stations” entitle tribes to “take a fair share of the available fish.” According to the Court’s interpretation of the applicable treaties protecting tribal fishing rights in western Washington, a “fair share” allows Indians to secure up to 50% of a fishing harvest, “but no more than is necessary to provide the Indians with a livelihood--that is to say, a moderate living.” Passenger Fishing Vessel, therefore, affirmed that the treaty right acknowledged an enforceable right to take fish throughout their fishing areas. 

In 1989, as part of the Court’s continuing jurisdiction in United States v. Washington, the western Washington treaty tribes filed a proceeding (in which the United States joined) to establish that the treaty right to “fish” included all of the various species of shellfish. The Ninth Circuit held that the reserved right to take fish included all types of shellfish, and that a provision in the treaty excluded tribes only from artificial shellfish beds. For beds that are started with a natural bed, the tribes had a right to harvest one-half of the shellfish. After the ruling, the parties reached a settlement in which the tribes would release any treaty right to harvest from commercial beds in exchange for $33 million that would be used to acquire shellfish beds for the tribes.

United States v. Washington, 443 U.S. 658 (1979) decision.