Washington Law Review


Pacific Northwest Indian tribes signed treaties with the United States in the mid-1850's which guaranteed them the permanent right to fish at their usual and accustomed fishing sites off the reservations. The Indians believe these treaties mean that those states which did not exist in 1855 have no power to regulate Indian off-reservation fishing under any circumstances. State officials, on the other hand, have consistently argued that Indian off-reservation fishing is subject to the same state regulation as non-Indian fishing. The United States Supreme Court has basically accepted the states' position, holding that states can regulate off-reservation fishing when "necessary for conservation." In 1896, 1905 and again in 1942 the Court, in dictum, adopted that proposition. The error was compounded in 1968 in Puyallup Tribe v. Department of Game. The question of whether the states have power to regulate off-reservation fishing was relevant in Puyallup, but the Court, as in previous cases, simply reiterated its earlier assumption without analysis of why the states have such power.

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