U.S. Supreme Court hears tribal fishing rights case

Swinomish Indian Tribal Community staff were at the U.S. Supreme Court April 18 to hear oral arguments that will decide whether the state of Washington’s treaty obligations require removing state-owned barrier culverts to preserve fish runs and habitats.

Swinomish joined with 20 other Washington tribes and the United States against the state of Washington in litigation that started in 2001.

The Court will decide if a district court injunction ordering the state to remove and replace 2,030 state-owned barrier culverts must be followed.

Supreme Court watcher Miriam Seifter writes of the “significant and consequential question in this area: Do tribal fishing rights guarantee some degree of protection of salmon populations – thus precluding actions, like … maintenance of under-road culverts, that may harm salmon runs – or do the treaties merely guarantee a share of otherwise available fish?”

Allan Olson, Tribe general manager, and a lawyer, said, “We were very pleased with how the oral argument went.” He noted that Justice Sonia Sotomayor’s first question early-on challenged state Solicitor General Noah Purcell’s interpretation of the 1854 treaties signed by territorial Gov. Isaac Stevens. Purcell quickly admitted he was mistaken.

The Court’s transcript of the argument reveals that other justices supported the primacy of the treaties. Neil Gorsuch remarked that they “freeze in time certain rights and – and to ensure their existence in perpetuity.” Pursell countered that under this interpretation the “treaties would regulate virtually every significant human activity off-reservation,” an argument that failed to persuade the lower courts. Instead, Purcell offered four criteria for culvert removal, including “that the barrier is causing a large decline in a particular river and that it’s not justified by substantial compelling interests.”

Brian Cladoosby, chairman of the Swinomish Indian Tribal Community, quoted from the Stevens treaties, citing the trade made: “21 tribes ceded millions of acres of land to the U.S. government.

In exchange, part of the treaty said that we would have salmon available to us at our usual and accustomed fishing areas.

[Now] the state said that they had a right to kill every salmon in the state of Washington, which is a sad statement to make since all citizens, and even those that come from outside of the state, benefit.” Noting the five decades of treaty-rights litigation by the tribes, Cladoosby reflected, “We went to the Supreme Court and have had eight victories decided in our favor when it comes to the state litigating our treaty rights.

We are confident that the justices will make it nine for nine.”

Besides Olson, tribal staff making the trip included Emily Haley, tribal attorney, Wendy Otto, paralegal and Larry Wasserman, environmental policy advisor.

A decision is expected in June or July.