Washington v. Fishing Vessel Association (1979)
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.
Key People in This Case
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.
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.
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.
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
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
State of Washington
The treaties let tribes fish “in common with all citizens.” That means an equal chance to fish at the same places, not a guaranteed share. The State must manage salmon for every Washingtonian, and special rights for one group break the promise of equal protection.
Treaty Tribes and United States
The tribes gave up most of their land and kept the right to fish. An equal chance among thousands of newcomers would leave them almost no fish. Treaties are the supreme law of the land, so the State must honor what the tribes understood they were keeping.
| 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
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.
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.
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
Complete the Argument Sort to Unlock
Finish the Argument Sort above, then open the Evidence Vault for real case sources.
Analyze the Sources
Read each excerpt carefully. Decide which side of the case it supports, or if it could be used by both sides.
The Treaty Promise
The Treaty Promise
The Supreme Law of the Land
The Supreme Law of the Land
What Governor Stevens Said
What Governor Stevens Said
United States v. Winans (1905)
United States v. Winans (1905)
The Boldt Decision (1974)
The Boldt Decision (1974)
Washington Supreme Court (1977)
Washington Supreme Court (1977)
Who Fishes for a Living
Who Fishes for a Living
The 2 Percent
The 2 Percent
Resistance to the Federal Order
Resistance to the Federal Order
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.
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?
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?
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.