Document:
U.S. v. Washington, Phase II

"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, * * *." n1

"The 50% figure imposes a maximum but not a minimum allocation * * *. The central principle here must be that Indian treaty rights to a natural resource that once was thoroughly and exclusively exploited by the Indians  [**16]  secures so much as, but no more than, is necessary to provide the Indians with a livelihood that is to say, a moderate living." Id. at 686, 99 S. Ct. at 3075.

"The United States, as the party with the presumptively superior negotiating skills and superior knowledge of the language in which the treaty is recorded, has a responsibility to avoid taking advantage of the other side. "(T)he treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.' " Washington Phase I, supra, 443 U.S. at 675-676, 99 S. Ct. at 3069-3070, quoting in part from Jones v. Meehan, 175 U.S. 1, 11, 20 S. Ct. 1, 5, 44 L. Ed. 49 (1899).

"Governor Stevens and his associates were well aware of the "sense' in  [**30]  which the Indians were likely to view assurances of their fishing rights. During the negotiations, the vital importance of the fish to the Indians was repeatedly emphasized by both sides, and the Governor's promises that the treaties would protect the source of food and commerce were crucial in obtaining the Indians' assent. It is absolutely clear, as Governor Stevens himself said, that neither he nor the Indians intended that the latter "should be excluded from their ancient fisheries,' and it is accordingly inconceivable that either party deliberately agreed to authorize future settlers to crowd the Indians  [*198]  out of any meaningful use of their accustomed places to fish." Washington Phase I, supra, 443 U.S. at 676, 99 S. Ct. at 3070 (citations omitted).

"Salmon hatcheries * * * are a means of combating losses of fish life caused by environmental changes. They are an aid to crippled streams in producing fish, occasionally a substitute for them. Because of competitive water, land, and forest exploitation, it has been necessary to develop controlled methods of sustaining or rehabilitating the stocks of fish which inhabit fresh water streams." n41

"The present purpose of the salmon hatchery is not to replace nature, nor to eliminate it, but to supplement the work of nature in places where the works of man have caused an unnatural situation which reduces the effectiveness of natural propagation. Hatcheries are intended to replace the production of streams destroyed by dams, diversions, pollution, or obstructions, and to build up the runs and streams that are not producing to full capacity." n42

"Hatchery-reared winter-run steelhead make up a high percentage of the catch of steelhead in the state with some of the heavily planted rivers showing hatchery returns contributing up to 90% of the catch * * *. Overall it appears likely that hatchery steelhead will continue to contribute significantly to the harvests, while the numbers of wild fish will most likely decline." n44

"The right of taking fish * * * is further secured to said Indians, * * * Provided, however, That they shall not take shell fish from any beds staked or cultivated by citizens."

"New conditions came into existence, to which those (fishing) rights had to be accommodated. Only a limitation of them, however, was necessary and intended, not a taking away. * * *

* * * In the actual taking of fish white men may not be confined to a spear or crude net, but it does not follow that they may construct and use a device which gives them exclusive possession of the fishing places." Winans, supra, 198 U.S. at 381-382, 25 S. Ct. at 664.

" "To put the claim of the State upon title is,' in Mr. Justice Holmes' words, "to lean upon a slender reed.' A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of "owning' wild fish, birds, or animals. Neither the State nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture." Douglas v. Seacoast Products, Inc.,  [**43]  431 U.S. 265, 284, 97 S. Ct. 1740, 1751, 52 L. Ed. 2d 304 (1977) (citations omitted).

"Over the years, there has been a gradual deterioration and loss of natural fish production habitat in Washington State streams. Although there are many individual factors contributing to this, the general trend toward reduced production habitat is more the result of a combination of activities performed by man activities which alter and destroy one or more habitat conditions required for successful fish production. Generally, these factors can be categorized under the broad headings of watershed alterations, water storage dams, industrial developments, stream channel alterations, and residential developments.

A century ago, salmon abounded in the Pacific Northwest. Almost every accessible area, even in the deep interior, nurtured crops of salmon which renewed themselves as they had for millennia. However, in the Twentieth Century the urbanization and intensive settlement of the area, the rapid development of water power, lumbering and irrigation and the pollution of the watersheds reduced the quality and amount of accessible spawning grounds. These activities also reduced the rearing capacity of the streams." n60  [**51] 

"These people (Governor Stevens and his advisers) recognized the vital importance of the fisheries to the Indians and wanted to protect them from the risk that non-Indian settlers might seek to monopolize their fisheries." Washington Phase I, supra, 443 U.S. at 666, 99 S. Ct. at 3064.

"Admission of the State of Washington into the Union upon an equal footing with the original states had no effect upon the treaty rights of the Plaintiff tribes. Such admission imposed upon the State, equally with other states, the obligation to observe and carry out the provisions of treaties of the United States." Final Decision I, supra, 384 F. Supp. at 401.

"It (the state) may not force treaty Indians to yield their own protected interests in order to promote the welfare of the state's other citizens." United States v. State of Washington, supra, 520 F.2d at 686.

"The duty here is the duty to refrain from taking or approving actions which have a significant adverse impact on the treaty right fishery. Plaintiff is not seeking any new legislation or expenditure of resources by the State. It is merely asking that the State, in carrying out its regulatory authority over public or private actions with environmental impact, not authorize actions that will significantly damage or destroy the treaty guaranteed fishery." n68

"The (Washington Fisheries) Department's habitat protection functions include evaluating potential effects of public or private projects or activities that may affect salmon production. Reports and recommendations concerning these activities are made to the appropriate agencies. * * *

Departmental functions that relate directly to habitat protection include setting restrictions for hydraulic permits, inspecting hydraulic projects, developing recommendations regarding water right applications, and establishing fish use flows for salmon production streams. * * *

In  [**64]  concert with the Department of Fisheries, the Department of Game inspects and issues joint permits for hydraulic permits. * * * Activities affecting stream beds are directed to be conducted at a time and in a manner that minimize adverse effects on the stream environment for fish. The two departments review all plans for major projects affecting stream habitat and develop appropriate recommendations. All water right applications are similarly reviewed for their possible impact on fishery resources and commented upon where needed. Recently, annual logging plans of several major timber owners have come under detailed review and comment by personnel of both departments." n70