Washington Law Review


From 1787 to 1871, the federal government and various Indian tribes entered into hundreds of treaties. Under well-established U.S. Supreme Court precedent, the U.S. Congress has plenary authority to abrogate or modify any of these treaties. The U.S. Supreme Court is reluctant to find congressional intent to do so, however, and requires that this intent be clear and plain. States have no such power to qualify treaties, but the Court has allowed states to regulate treaty rights when doing so is necessary for species conservation. While the U.S. Supreme Court has kept these two lines of cases distinct, the U.S. Court of Appeals for the Ninth Circuit has merged the two doctrines in recent years. The Ninth Circuit's recent decision in Anderson v. Evans, in which the court held that the Marine Mammal Protection Act (MMPA) applied to the Makah Tribe's treaty whaling rights, dramatically illustrates this practice. This Note argues that the Ninth Circuit's conflation of federal treaty abrogation principles with state conservation necessity principles is analytically indefensible and in direct contravention to established U.S. Supreme Court precedent. Under correctly applied U.S. Supreme Court precedent, the Makah's treaty whaling right is not subject to the MMPA. The Anderson decision is a violation of the United States' treaty obligation to the Makah Tribe and should be overturned.

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