In the Pacific Northwest, treaties with Native Americans — signed in bad faith more than 150 years ago — continue to haunt the federal courts and state governments. Most were made to justify land grabs by newly arriving settlers, and what was guaranteed to the tribes must have seemed inconsequential. Washington's first territorial governor, Isaac Stevens, negotiated a bundle of these treaties in the 1850s and 1860s, baldly promising state legislators that he would “extinguish, as quickly as possible, the Indians' claims to their traditional lands so that settlers could be given legal title.”
The governor's duplicitous treaties eventually led to war with the Nez Perce, the Umatilla and the Yakama tribes. Most of his other treaties with tribes on Puget Sound sparked legal battles that have tied up federal courts for more than a century.
Then, this June, the 9th Circuit Court of Appeals added yet another loss to Washington state’s nearly perfect record of defeats, which began in 1905, with a case challenging the Yakama Tribe's treaty right to hunt, gather and fish in “all of their usual and accustomed places.”
As Matthew Love and Carly Summers explained in the July 2016 National Law Review, this new decision grew out of litigation that began in the 1970s. Back then, Washington's attorney general (and future U.S. senator) Slade Gorton challenged the tribes' fishing rights, with hopes of extinguishing them forever.
The lawsuit also sought to clarify three issues stemming from the original treaty with Gov. Stevens: Did the tribes have a guaranteed right to a percentage of the annual commercial catch; should hatchery-bred fish be included in that percentage; and do treaty rights implicitly safeguard the environment so that the tribe's right to fish in “all the usual and accustomed places” is protected?
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