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Washington Law Review

Abstract

In United States v. Washington, Federal District Court Judge Boldt held that treaties negotiated in the 1850's by Territorial Governor Isaac Stevens, on behalf of the federal government, reserved to the Indians of western Washington the right to fish off reservation for salmon and steelhead in their "usual and accustomed places." These treaties stated that the right is to be exercised "in common with" non-Indian fishermen. In a critical examination of precedent which clarified much of the prior uncertainty concerning Indian treaty analysis, Judge Boldt interpreted this treaty language to require that the Indians be given an opportunity to harvest 50 percent of the salmon and steelhead runs. The Court of Appeals for the Ninth Circuit affirmed Judge Boldt's decision. In reaching his conclusions, Judge Boldt emphasized the sociological, historical and political background of the treaty signings and the evolution of the controversy, as well as legal precedent. This comment will examine the district court's decision in Washington by analyzing the factors involved in and the legal history of Indian treaty interpretation in the context of an off-reservation activity, and by focusing upon the mode of analysis employed by Judge Boldt. Initially, a brief review of the historical background of the controversy will be useful in understanding the decision.

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