Washington v. Fishing Vessel Association (1979)

Reading:

Background Information

Understanding the facts and constitutional questions

Connecting to Our Guiding Question

When, if ever, should the government be allowed to limit a person's constitutional rights in order to protect the community?

This case asks whether the State of Washington may give treaty tribes only the same chance to fish that every other citizen has, so it can manage a scarce resource that thousands of other families also depend on. The tribes and the United States say the treaties promised the tribes more than an equal chance. As you read, weigh a promise made by treaty against the State’s claim that it must manage the salmon for everyone.

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Key People in This Case

IS
Isaac Stevens Context
Treaty Negotiator, 1854–1855

The first governor of Washington Territory and its first Superintendent of Indian Affairs. He and a small group of advisers negotiated the treaties in which the tribes gave up most of their land and kept the right to fish at their usual places.

BF
Billy Frank Jr. Context
Nisqually Fisherman

A member of the Nisqually Tribe. He was first arrested for fishing on the Nisqually River in December 1945, when he was 14. In the 1960s he helped lead fish-ins, and over the years he was arrested more than 50 times.

WA
State of Washington Petitioner
State Government

The State’s Departments of Fisheries and Game managed salmon and steelhead for commercial and sport fishers. Associations of non-Indian commercial fishers joined the State in challenging how the treaties had been read.

TT
Treaty Tribes and the United States Respondent
Tribal Nations and Their Trustee

Twenty tribes, including the Nisqually, Puyallup, Muckleshoot, Makah, Lummi, Quinault, Tulalip, and the Yakama Nation. The United States joined them as trustee, meaning it has a legal duty to protect their treaty rights.

What Happened?

In 1854 and 1855, Isaac Stevens, the governor of Washington Territory, negotiated a series of treaties with the tribes of western Washington. The tribes gave up most of their land to the United States. In return they kept small reservations, received payments, and kept the right to fish at their usual places. At that time, about three-fourths of the roughly 10,000 people in the region were Indians, and salmon were at the center of their food, trade, and religion.

Over the next century, non-Indian fishers came to dominate the fisheries. Court findings later described state rules in the early 1900s as often unfair to tribal fishers, and most tribal members were pushed out. In the 1960s, tribal fishers answered with fish-ins, public protests in which they fished in defiance of state rules. Billy Frank Jr., a Nisqually fisherman, was arrested more than 50 times. In September 1970, police arrested about 60 people at a fish-in on the Puyallup River in Tacoma. Nine days later, the United States sued the State of Washington on behalf of seven tribes, and more tribes joined later.

On February 12, 1974, Judge George Boldt ruled for the tribes. He wrote that “in common with” means “sharing equally the opportunity to take fish,” so treaty tribes could take up to 50 percent of the harvestable fish passing through their usual fishing places. A federal appeals court agreed in 1975, and the Supreme Court declined to review that ruling in 1976.

The State and many non-Indian fishers resisted. In 1977 the Washington Supreme Court ruled that the State’s fisheries agency could not follow the federal order, and it said that special fishing rights for tribes would violate the Equal Protection Clause. The federal district court then began supervising parts of the State’s fishery itself, with help from federal officers. The State asked the U.S. Supreme Court to settle the conflict, and the Court heard arguments on February 28, 1979.

The Big Question

Do the words “in common with all citizens” give treaty tribes only the same chance to fish as everyone else, or a real share of the fish? And may a state refuse to follow a federal court’s reading of a treaty?

What You Need to Know

Each treaty contains a promise like this one:

“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…”

Treaty of Medicine Creek, Article 3, signed December 26, 1854

The Constitution says treaties outrank state law:

“…all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…”

U.S. Constitution, Article VI

A treaty is a binding agreement between nations. Tribes are sovereign nations, which means they governed themselves before the United States existed, and the treaties were agreements between governments. The fight is over what the treaty words mean. The State says “in common with” means everyone shares the same chance to fish. The tribes and the United States say the words promised the tribes a real share of the fish.

Important Facts

  • When the treaties were signed, about three-fourths of the roughly 10,000 people in the region were Indians.
  • The interpreter explained the treaties in Chinook Jargon, a trade language of about 300 words that had no words for many treaty terms.
  • By the early 1970s, over 6,600 non-Indian commercial fishers and about 800 Indian commercial fishers made their living from fishing, and about 280,000 people held sport fishing licenses.
  • In 1974, before Judge Boldt’s order took effect, treaty tribes caught about 2 percent of the salmon and trout in the treaty area.
  • During the trial, the State Department of Fisheries proposed giving the tribes one-third of the harvestable salmon. The State Department of Game argued that the treaties promised the tribes no share at all.

Vocabulary

Treaty: A binding agreement between nations. Under the Constitution, treaties made by the United States outrank state laws.
Sovereignty: The power of a nation to govern itself. Tribes are sovereign nations.
Usual and accustomed places: The places where a tribe traditionally fished, both on and off its reservation.
Trust responsibility: The legal duty of the United States to protect tribal lands, resources, and treaty rights.
Harvestable fish: The fish that can be caught after enough have swum upstream to spawn and keep the run alive.

Argument Sorting Activity

Work with your group to sort these arguments

Instructions: For each argument, choose which side you would use it for, or “Both.” There is no score. The same fact can help opposite sides. Then rank and steelman in Weigh below.

The Two Sides

Argument Answer
The treaties say tribes fish “in common with all citizens,” which means everyone shares the same chance to fish, not a set share. Evidence: At trial, the State Department of Game argued that the treaties gave tribes access to their fishing places but no guaranteed share of the fish.
When the treaties were signed, about three-fourths of the roughly 10,000 people in the region were Indians, and they depended on salmon. Evidence: The 1974 trial court found that the tribes shared a deep dependence on salmon for food, trade, and religion (United States v. Washington, 384 F. Supp. 312).
Giving one group special fishing rights breaks the Fourteenth Amendment’s promise of equal protection. Evidence: In 1977 the Washington Supreme Court said that recognizing special fishing rights for tribes would violate the Equal Protection Clause.
Treaties are “the supreme Law of the Land,” so a state cannot cut back a treaty promise. Evidence: Article VI of the Constitution says treaties made under the authority of the United States are the supreme law of the land.
Thousands of non-Indian families make their living from fishing, and a large tribal share could cost them their jobs. Evidence: By the early 1970s, over 6,600 non-Indian commercial fishers and about 800 Indian commercial fishers made their living from fishing (384 F. Supp. 312).
Under the “equal chance” rule, treaty tribes caught only about 2 percent of the salmon and trout. Evidence: A federal court found that in 1974, before Judge Boldt’s order took effect, treaty tribes caught about 2 percent of the salmon and trout in the treaty area (459 F. Supp. 1020, 1978).
The State must be able to limit fishing so salmon runs survive for future years. Evidence: In 1968 the Supreme Court said a state may regulate treaty fishing when the rules are reasonable, necessary for conservation, and do not discriminate (Puyallup Tribe v. Department of Game).
The treaties were explained in Chinook Jargon, a trade language of about 300 words, so they should be read the way the tribes understood them. Evidence: The 1974 trial court found that Chinook Jargon had no words for many treaty terms and was often not understood.
The tribes knew settlers would fish at the same places, so the treaties did not reserve the fish for tribes alone. Evidence: The 1974 trial court found the tribes understood that non-Indians would also have the right to fish at their off-reservation places.
In 1905 the Supreme Court said a treaty was “not a grant of rights to the Indians, but a grant of right from them.” Evidence: United States v. Winans (1905) involved Yakama fishing places on the Columbia River.
A federal judge should not take over how a state runs its own fisheries. Evidence: After state courts blocked the State’s fish agency from following the 1974 order, the federal district court began supervising parts of the State’s fishery itself.
Governor Stevens promised the tribes they could keep fishing as they always had. Evidence: At the Treaty of Point Elliott council on January 22, 1855, Stevens said the tribes would be able to “pass in canoes over the waters of the Sound and catch fish.”
During the trial, one State agency offered the tribes one-third of the salmon, so a fair share does not have to mean half. Evidence: The State Department of Fisheries proposed a tribal share of “one-third” of the harvestable salmon.

Key Terms for Arguments

Important concepts to understand when debating this case

Equal Opportunity

The State’s reading of “in common with.” Every fisher, Indian or not, gets the same chance to fish at the same places, but no one is promised a share of the catch.

Reserved Rights

The tribes’ reading. A treaty is a grant of rights from the tribes to the United States, so the tribes kept every right they did not give away, including fishing.

Supremacy Clause

The part of Article VI that makes the Constitution, federal laws, and treaties the supreme law of the land. State laws and state court rulings that conflict with a treaty lose.

Evidence Vault

Real sources to build your debate arguments

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Complete the Argument Sort to Unlock

Finish the Argument Sort above, then open the Evidence Vault for real case sources.

Welcome to the Evidence Vault! Start with the Sort Challenge below to practice interpreting facts, then analyze real case sources to build your debate arguments. You'll need at least two sources that support your side.

Analyze the Sources

Read each excerpt carefully. Decide which side of the case it supports, or if it could be used by both sides.

Primary Source Treaty Tribes

The Treaty Promise

“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…” (Treaty of Medicine Creek, Article 3, December 26, 1854)
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Analysis

The Treaty Promise

What does this show & who does it help?
This source helps the Treaty Tribes, though the State reads the same words differently. The tribes point to “further secured”: the right was theirs already and the treaty protected it. The State points to “in common with all citizens”: the right is shared with everyone.
Treaty of Medicine Creek, December 26, 1854, Article 3. Transcript: HistoryLink.org Essay 5253, historylink.org/file/5253.
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Constitution Treaty Tribes

The Supreme Law of the Land

“…all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…”
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Analysis

The Supreme Law of the Land

What does this show & who does it help?
This source helps the Treaty Tribes. If a treaty is the supreme law, a state agency or a state court cannot refuse to follow it. The State can still argue about what the treaty means.
U.S. Constitution, Article VI, clause 2.
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Historical Record Treaty Tribes

What Governor Stevens Said

At the Treaty of Point Elliott council on January 22, 1855, Stevens told the tribes: “We want to place you in homes where you can cultivate the soil, using potatoes and other articles of food, and where you will be able to pass in canoes over the waters of the Sound and catch fish and back to the mountains to get roots and berries.”
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Analysis

What Governor Stevens Said

What does this show & who does it help?
This source helps the Treaty Tribes. The negotiator himself promised that fishing would continue. The tribes argue the treaty should be read the way they heard that promise.
Treaty council record, January 22, 1855, as found by the court in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974).
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Earlier Case Treaty Tribes

United States v. Winans (1905)

In a case about Yakama fishing places on the Columbia River, the Supreme Court said the treaty “was not a grant of rights to the Indians, but a grant of right from them.”
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Analysis

United States v. Winans (1905)

What does this show & who does it help?
This source helps the Treaty Tribes. If the tribes kept every right they did not give away, the fishing right belongs to them and was not a gift the State can shrink.
United States v. Winans, 198 U.S. 371 (1905).
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Lower Court Treaty Tribes

The Boldt Decision (1974)

Judge Boldt wrote: “By dictionary definition and as intended and used in the Indian treaties and in this decision ‘in common with’ means sharing equally the opportunity to take fish at ‘usual and accustomed grounds and stations.’”
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Analysis

The Boldt Decision (1974)

What does this show & who does it help?
This source helps the Treaty Tribes. Boldt used dictionaries from 1828 and 1862 to read “common” as “belonging equally,” which led to a share of up to half. The State says the same words mean only an equal chance.
United States v. Washington, 384 F. Supp. 312 (W.D. Wash. Feb. 12, 1974). Copy: Washington Department of Fish and Wildlife, wdfw.wa.gov.
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State Court State of Washington

Washington Supreme Court (1977)

In 1977 the Washington Supreme Court held that the State’s fisheries agency could not carry out the federal order. It said the treaties did not give tribes a share of the fish, and that recognizing special rights for Indians would violate the Equal Protection Clause of the Fourteenth Amendment.
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Analysis

Washington Supreme Court (1977)

What does this show & who does it help?
This source helps the State of Washington. The State’s own highest court read the treaties as giving an equal chance, not a share, and said a tribal share would treat citizens unequally.
Puget Sound Gillnetters Ass’n v. Moos, 88 Wash. 2d 677 (1977); Fishing Vessel Ass’n v. Tollefson, 89 Wash. 2d 276 (1977).
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Court Finding State of Washington

Who Fishes for a Living

By the early 1970s, over 6,600 non-Indian fishers and about 800 Indian fishers made their living from commercial fishing, and about 280,000 people held sport fishing licenses in Washington.
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Analysis

Who Fishes for a Living

What does this show & who does it help?
This source helps the State of Washington, though the tribes can use it too. The State says a large tribal share would fall on thousands of non-Indian families. The tribes say the numbers show how badly they were outnumbered under an “equal chance” rule.
Findings in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974).
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Court Finding Treaty Tribes

The 2 Percent

In 1974, before the Boldt order took effect and while the “equal opportunity” rule still applied, treaty tribes caught about 2 percent of the salmon and trout harvested in the treaty area.
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Analysis

The 2 Percent

What does this show & who does it help?
This source helps the Treaty Tribes. It shows what an “equal chance” meant in practice when a few hundred tribal fishers competed with thousands of others.
United States v. Washington, 459 F. Supp. 1020, 1032 (W.D. Wash. 1978).
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Lower Court Treaty Tribes

Resistance to the Federal Order

In 1978 a federal appeals court wrote: “The state’s extraordinary machinations in resisting the [1974] decree have forced the district court to take over a large share of the management of the state’s fishery in order to enforce its decrees.”
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Analysis

Resistance to the Federal Order

What does this show & who does it help?
This source helps the Treaty Tribes and the United States on the question of whether a state may refuse a federal court’s reading of a treaty. The State can answer that managing fish is its job and the federal takeover went too far.
Puget Sound Gillnetters Ass’n v. United States District Court, 573 F.2d 1123 (9th Cir. 1978).
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Connecting to Today

How these constitutional questions still matter

The questions in this case did not end in 1979. Here are two dated examples and one big question.

Treaty Rights

The Culverts Case

On June 11, 2018, the Supreme Court split 4–4 in Washington v. United States. The tie left in place a lower-court order that Washington fix road culverts, the large pipes that carry streams under roads, that block salmon from swimming upstream. The tribes argued that a right to take fish means little if there are no fish to catch. Justice Kennedy did not take part because he had worked on the case as an appeals judge.

Sources: Capital Press, June 12, 2018; National Law Review, June 2018

Think about: Does a promise of fishing rights also promise healthy rivers?

Remembering

Billy Frank Jr. in the U.S. Capitol

In 2021 Washington’s legislature voted to replace its statue of Marcus Whitman in National Statuary Hall with a statue of Billy Frank Jr. As of July 24, 2026, the statue was set to be installed in the U.S. Capitol the next day, with a formal unveiling planned later in the year.

Sources: Spokesman-Review, July 24, 2026; ArtsWA

Think about: Why might a state choose a fishing-rights activist to represent it?

Big Question

Who Should Manage the Salmon?

Salmon runs cross tribal waters, state waters, and the border with Canada. Someone has to set the rules.

Think about: Should the State, the tribes, or both together decide how many fish can be caught?

Discussion Questions

  • Is an old promise still binding when the world around it has changed?
  • What is the difference between an equal chance and an equal share?
  • Who should decide how to protect a resource that many groups depend on?

Additional Resources

Some of these tell how the Court decided. Save them for after your debate.

Treaty

Treaty of Medicine Creek, 1854 (full text)

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History

HistoryLink: The Boldt Decision, 1974

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History

HistoryLink: Billy Frank Jr.

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Audio

Oyez Case Summary and Audio (after the debate)

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