Washington v. United States

LII note: The U.S. Supreme Court has now decided Washington v. United States.


Do treaties between the State of Washington and Native American Tribes require Washington to protect the salmon population from land development; and, if so, must Washington pay to undo the development when the development was ordered by the United States and undoing it may not increase the salmon population?

Oral argument: 
April 18, 2018

In this case, the Supreme Court will decide whether treaties between the State of Washington (“Washington” or “the state”) and Native American tribes (“the Tribes”) guaranteeing the Tribes the right to fish in certain areas of the state require Washington to protect salmon against despoliation from land development. The present case arises out of a series of barrier culverts—tunnels that allow water to pass underneath roads but prevent fish from passing—that Washington constructed, some pursuant to federal specifications. The culverts prevent salmon from returning, thus inhibiting the Tribes’ ability to fish. Washington argues that the treaties were not created to address such environmental concerns. Moreover, Washington argues that it is not fair for it to be forced to replace the culverts, because the culverts were part of a federally-initiated roadbuilding program, and their design was suggested by the United States. Further, Washington argues that replacing the barrier culverts would not increase the salmon population. The United States and the Tribes disagree, asserting that the parties to the treaties intended to protect the salmon population against man-made despoliation. The United States and the Tribes also assert that no one forced Washington to create the culverts using the design that blocks salmon re-entry and that replacing those culverts would benefit the salmon population. At stake are the future of the salmon populations near the Tribes and potential limitations on state powers to make regulatory decisions.

Questions as Framed for the Court by the Parties 

(1) Whether a treaty “right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens” guaranteed “that the number of fish would always be sufficient to provide a ‘moderate living’ to the tribes”; (2) whether the district court erred in dismissing the state's equitable defenses against the federal government where the federal government signed these treaties in the 1850s, for decades told the state to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violates the treaties it signed; and (3) whether the district court’s injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon, and plaintiffs showed no clear connection between culvert replacement and tribal fisheries.


In the mid-eighteenth century, Native American Tribes of the Pacific Northwest entered into a series of treaties whereby they relinquished territory but were guaranteed a right to off-reservation fishing. Every treaty contained a “fishing clause,” which guaranteed “the right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory.”

Washington and the Tribes had numerous conflicts over the treaties. At the turn of the century, the U.S. Department of Interior found that residents of Washington and numerous cannery companies had appropriated the best fishing grounds and denied the Tribes access. By 1905, the Department of Interior complained that Washington fisheries significantly depleted natural resources and endangered the Tribes’ source of subsistence.

The Supreme Court addressed the treaties in 1905, in United States v. Winans. In Winans, the Supreme Court held that landowners could not deny the Tribes access to the fishing sites on their land, because any deed that the landowners possessed was subject to the treaties. The Supreme Court also held that Washington could not grant anyone a right to exclusive possession of the fishing sites, because such a license would violate the treaties. Nonetheless, Washington continued to impose onerous burdens on the Tribes through various regulations limiting the Tribes’ ability to fish. The heavy regulation led to protests and “fish wars,” where some Tribes staged unlicensed “fish-ins” that sometimes led to violence. Then, in 1970, the United States sued Washington on behalf of the Tribes to end the fishing dispute; the present case is a part of this lawsuit.

The litigation proceeded in two phases. In the first phase during the 1970s, a district court and the Supreme Court determined that the Tribes have a right to fifty percent of the harvestable fish in the area. In the second phase during the 1980s, the district court and the U.S. Court of Appeals for the Ninth Circuit determined that the Tribes had a right to hatchery fish, which are created as part of a program designed to mitigate the effects of habitat degradation. Although the district court also held that Washington had a duty to protect the fishing sites from man-made despoliation, the Court of Appeals disagreed. The Court of Appeals held that Washington had certain environmental duties under the treaties, but declined to elaborate on what those duties were.

The present dispute arose because Washington built a series of barrier culverts, some per federal government instructions for the federal highways. Culverts are built to allow water to flow underneath roads and “barrier culverts” are culverts that prevent fish from passing through. Barrier culverts affect the availability of fish at the fishing sites because certain anadromous fish—namely salmon—upon which the Tribes rely, spawn in fresh waters, migrate to the ocean to mature, and return afterwards to procreate. As a result of the culverts, the salmon are unable to return to their original waters. Thus, in 2001, the Tribes and the United States demanded that Washington refrain from constructing such culverts and open culverts that obstruct fish passage. Washington responded that the culverts did not implicate the treaties and, moreover, that the barrier culverts pass under federal highways and were built based on instructions from the United States. The district court found in favor of the Tribes and the Court of Appeals affirmed. Washington petitioned for certiorari.



Washington agrees that the treaties guarantee the Tribes the right to fish, but asserts that the treaties do not require Washington to guarantee a specific number of fish sufficient to guarantee a “moderate standard of living.” Washington notes that neither party to the treaties, at the time of drafting, intended the treaties to prohibit land development that affects the salmon population, because the original parties to the agreement could not imagine the salmon population declining. Moreover, Washington asserts that, in the treaties, the Tribes fully relinquished the right to develop the land. As Washington observes, the treaties provide that the Tribes “cede, relinquish, and convey to the United States, all their right, title, and interest in and to the land and country occupied by them.” Washington claims that this broad grant of title to the land is inconsistent with a limitation on the development of land, such as a negative easement. Washington then asserts that the treaties impose a single limitation on the title to the land: The Tribes retain the right to access the fishing sites, which is a positive easement. Furthermore, Washington argues that the treaties have never been interpreted as guaranteeing a standard of living, because no party or court has previously adopted such an interpretation. Specifically, Washington argues that if the treaty requires the salmon population to be protected, then the United States has been breaching the treaty for decades with policies that destroy salmon. Finally, Washington observes that the Supreme Court has never before interpreted the treaties to require Washington to provide the Tribes a moderate standard of living from fishing.

The United States and the Tribes argue that the language of the treaties requires Washington to replace the barrier culverts. The United States also contends that treaties should be interpreted like contracts to give meaning to the intent of the parties, interpreting words in the way they were understood by the Tribes. The United States and the Tribes assert that, historically, the Tribes acted as stewards of the salmon population and adopted fishing methods that would not discourage salmon from returning to their waters of origin. The United States and the Tribes further contend that Washington, in negotiating with the Tribes, was cognizant of the Tribes’ approach to salmon and negotiated with the intent to preserve the Tribes’ relationship with salmon. The Tribes also cite to local mythology in which evil people blocked streams and prevented salmon re-entry as evidence that the Tribes were always concerned about loss of salmon. Moreover, the United States and the Tribes contend that the treaties could not be read to guarantee the Tribes’ the right to fish but also permit the complete destruction of the fish, because such despoliation would render the guarantee meaningless. The United States also points to other laws passed at the time which protected the fisheries from man-made obstruction as evidence that the parties were cognizant of the effects of land development. Finally, the United States and the Tribes contend that prior Supreme Court cases involving the treaties recognized that the treaties were intended to protect against man-made depletion of the salmon and thus prohibited fishing practices that would monopolize the salmon.


Washington also seeks to raise an equitable defense—that it should not be forced to replace the culverts because the federal government is at fault for their creation and design. Washington observes that only the United States could sue Washington because Washington has sovereign immunity against suits by the Tribes. The United States, however is suing Washington for implementing a roadbuilding program the United States created pursuant to standards the United States prescribed. In fact, Washington points out that the United States designed the very culverts it is now suing Washington over. Thus, Washington complains that the United States is suing Washington for obeying the United States’ instructions. Washington then asserts that the Court of Appeals erred in rejecting this equitable defense on the grounds that it limits treaty rights that only Congress can limit. Washington claims that allowing it to assert this equitable defense does not limit the rights under the treaties, but only prohibits the United States and the Tribes from obtaining relief pursuant to the treaty. Finally, Washington contends that the Supreme Court has already allowed equitable defenses to be raised in cases involving treaties with Native Americans. Specifically, Washington points to City of Sherrill v. Oneida Indian Nation of New York. Washington explains that in Sherrill a tribe purchased land New York had previously taxed and attempted to argue that New York could no longer tax the land. Washington points to the fact that the Supreme Court in Sherrill allowed New York to prevail on an equitable defense and continue to tax the land now owned by a tribe. For these reasons, Washington contends that it should be allowed to assert an equitable defense.

In response, the United States observes that Washington never specified what equitable defenses it wishes to assert. The United States contends that if Washington asserts waiver—that the parties gave up their legal rights—the defense is not an equitable defense as a matter of law and no federal agent could waive the Tribes’ rights under the treaty. Furthermore, the United States claims that the defense of estoppel would not succeed because Washington had already abandoned this defense and such a defense would be meritless. Specifically, the United States and the Tribes point to Supreme Court precedent holding that the United States is not estopped by any act of federal agents—i.e., a party cannot claim authorization by officer or agent as a defense. Moreover, according to the United States, the Supreme Court has applied the same principle in cases interpreting Native American treaties, finding that a person violated a treaty even when directed to act by an agent of the U.S. government. Furthermore, the United States contends that to the extent that Washington seeks to assert laches—that it did nothing wrong because the United States has not objected to the culverts for numerous decades—laches cannot be used against the U.S. government. The United States also argues that Washington erroneously relies on Sherrill because the case did not involve asserting an equitable defense against the U.S. Government. Finally, the United States and the Tribes claim that any equitable defense is meritless, because the federal government did not design the culverts at issue. According to the United States and the Tribes, although the culvert design comes from a nationwide manual, the manual illustrated an industry standard, and Washington could have revised the design to accommodate local conditions including the salmon population.


Washington asserts that the lower courts erred by entering an injunction, which ordered it to replace the barrier culverts, because an injunction is not allowed in this case. Washington contends that injunctions are extraordinary orders that must be narrow and require consideration of the principles of federalism. Washington asserts that the injunction is not appropriate here because it will have no effect. According to Washington, the injunction forces it to replace barrier culverts even if non-state culverts and other constructions upstream will continue to prevent fish from reaching the fishing sites. Similarly, Washington contends that the Tribes and the United States have failed to show that the culverts affected the Tribes’ salmon harvest. Washington asserts that rather than spending money on replacing the barrier culverts, the state could better spend its money on other salmon-recovery methods.

The United States and the Tribes disagree with Washington, arguing that the record shows that replacing the culverts will significantly affect salmon. Specifically, the United States and the Tribes contend that non-state culverts are highly clustered upstream, such that replacing Washington’s culverts will allow salmon access to a significant portion of the upstream habitat. Moreover, the United States and the Tribes claim that a majority of non-state culverts permit at least some fish to pass through. Thus, the United States and the Tribes assert that there is no evidence that replacing the culverts will be futile. The United States and the Tribes maintain that the injunction recognizes the existence of upstream culverts and thus grants Washington discretion in deciding which culverts to replace first. Finally, the United States and the Tribes claim that upstream culverts will not be problematic because state law already requires them to be replaced and many are currently being replaced.



Idaho and ten other states (collectively “Idaho”), in support of Washington, argue that requiring states to provide enough salmon to a tribe to afford them a “moderate living” regardless of the circumstances or any intent on the part of the state creates an unreasonable “environmental servitude” for the state. Idaho argues that, due to the vast geographical reach of similar treaties in the Pacific Northwest region, reading the fishing clause in this treaty to provide such an environmental servitude would have extreme consequences. Idaho argues that the environmental servitude would extend beyond the fishing clause, preventing those states from taking any action that would negatively affect the hunting, gathering, and pasturing privileges of tribes on open and unclaimed land, and potentially forcing states to remediate past actions that harmed those privileges. Pacific Legal Foundation points out that the Supreme Court has rejected attempts to broadly interpret environmental protections in a manner that would conflict with states’ regulatory authorities. Pacific Legal Foundation adds that the lower court’s decision fails to consider the competing concerns that justify the less sweeping interpretation of the fishing clause. Finally, Modoc Point Irrigation District and other organizations (collectively “Modoc Point”) argue that the Supreme Court has long recognized that treaties with the various Indian tribes should be interpreted to support various purposes of the treaties, without singling out one purpose to the detriment of the other purposes. In that regard, Modoc Point contends that ruling for the Tribes and the United States to interpret the fishing clause expansively would adopt a singular, fisheries-centric approach that takes precedence over other treaty purposes, such as those of removing tribal encumbrances on the ceded lands and encouraging agrarian lifestyles. Thus, Modoc Point maintains that interpreting the fishing clause of this treaty broadly would destroy the balance between multiple co-equal treaty purposes, overburdening state governments as a result.

On the other hand, state and local officials of Washington (collectively “Washington officials”), in support of the United States and the Tribes, argue that replacing the barrier culverts to allow salmon passage would serve the public interest, because Indians and non-Indian settlers in the area have unifying dependence on the precious resource of salmon. Washington officials assert that salmon are an essential part of Washington’s contemporary economy and culture. Washington officials note that, economically, commercial and recreational fisheries provide tens of thousands of jobs and over half a billion dollars in annual personal income, while culturally, the fisheries provide recreations for thousands of Washingtonians.Further, Washington officials assert that Indian tribes in the Pacific Northwest have been heavily dependent for their very livelihood on the salmon that come up the rivers in great numbers to spawn. Washington officials also argue that these salmon are central to the cultural, culinary, and economic identity of local Indian tribes—nearly as necessary to their existence as the air they breathe. Finally, National Congress of American Indians, and various tribes, maintain that, since the beginning of the American republic, the United States has been primarily responsible to act as the trustee of the tribes, asserting and protecting tribal rights and treaties against encroachment by state governments.

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