Alec F. Mouser1Alec F. Mouser is a Comments Editor for The University of Chicago Law Review and is a J.D. Candidate in the University of Chicago Law School Class of 2022. He received his B.A. in 2019 from William & Mary, where he studied History and Government. He is grateful to Jim Westwood and Brad Grenham for their helpful comments and support, and to Tamara Skinner, Alex Meade, and Candice Yandam Riviere for their edits.

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The Supreme Court’s recent decision in McGirt v. Oklahoma (2020) sent a shockwave across the country as commentators began to consider what consequences could result from effectively declaring half of Oklahoma to be within an Indian reservation. Aside from practical questions about the enforcement of the criminal law in Oklahoma, these commentators have generally focused on the effect McGirt may have on other tribes’ attempts to fight alleged encroachments upon their treaty-promised lands.

But what about instances where a state did not encroach on a tribe’s promised lands (reservations) but instead on a tribe’s other treaty-based interests? A recent Supreme Court case that predated McGirt, Washington v. United States (2018) (“Washington III”), was supposed to address this question, specifically regarding alleged violations of various Indian tribes’ treaty-based fishing rights by Washington state. However, because of Justice Anthony Kennedy’s recusal from the case, the Court divided evenly, thus automatically affirming the decision below without additional guidance.

Justice Kennedy has since retired. Meanwhile, McGirt’s forceful reaffirmation of Indian treaty rights, as well as its exploration of principles for interpreting those treaties, may shed light on how future treaty-based fishing rights litigation in the Northwest might proceed—litigation that could have massive consequences for the expenditure of state resources and the potential for development in the region.

I.  Indian Treaty-Based Fishing Rights in the Northwest: The Stevens Treaties and Related Litigation

Washington III was merely the latest episode in a long saga of litigation about Indian treaty-based fishing rights in the Pacific Northwest.

The story begins with the Stevens Treaties, a set of treaties negotiated in 1854 and 1855 between various Indian tribes and the United States by Isaac Stevens, the first governor of what was then the Washington Territory. The earliest of these treaties was the Treaty of Medicine Creek. Like all of the subsequent Stevens Treaties,2These treaties also include the Treaty of Point Elliot, the Treaty of Point No Point, the Treaty of Neah Bay, the Treaty of Walla Walla, the Treaty with the Yakama, the Treaty with the Nez Perces, the Treaty of Hell Gate, and the Treaty with the Blackfeet (among others). See also Kent Richards, The Stevens Treaties of 1854–1855: An Introduction, 106 Or. Hist. Q. 342, 347 (2005); Diarmuid F. O’Scannlain, 19th Century Indian Treaties and 21st Century Environmental and Natural Resources Issues: Is There a Connection?, 49 Env’t L.837, 838 n.6 (2019). this treaty transferred tribal land to the United States in exchange for money and a promise that the federal government would protect certain tribal rights.

Among the rights that the federal government vowed to protect were the tribes’ fishing rights. The Treaty of Medicine Creek, in language mimicked by every one of the Stevens Treaties,3See O’Scannlain, supra note 1, at 839 (noting that the Treaty with the Yakama protects “the right of taking fish at all usual and accustomed places, in common with the citizens of the Territory”). provided that “[t]he 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.” With this language began a legal war between the tribes and Washington that lasted for the next century and a half—a war that included battles reaching the Supreme Court long before Washington III.

The first such battle culminated in United States v. Winans (1905) in which the Supreme Court held that white settlers could not prevent the Indians from accessing their traditional fishing grounds, even if the Indians’ access caused them to travel across the white settlers’ private property. In 1979, the Court once again weighed in on the fishing rights provision of the Stevens Treaties when they decided Washington v. Washington State Commercial Passenger Fishing Vessel Association (1979) (“Fishing Vessel”). In Fishing Vessel, the Court held that this provision guaranteed the tribes not only a right to access their fishing grounds but also a right to a certain share of the fish that passed through those grounds.

Winans and Fishing Vessel both elucidated certain principles about interpreting Indian treaties in general and the Stevens Treaties in particular—namely that the treaties should be interpreted in accordance with how the Indians at the time would have understood their terms and that this understanding may be illustrated through contextual evidence about the treaty negotiations.

Specifically, regarding the Stevens Treaties’ “right of taking fish,” the Winans and Fishing Vessel courts placed particular emphasis on the extratextual promises that Governor Stevens made to the tribes during these negotiations. This extratextual emphasis was due to a combination of factors, including: the vagueness (and paucity) of text devoted to describing the tribes’ fishing rights in the Stevens Treaties themselves; the mismatch between the language the Stevens Treaties were negotiated in (a pidgin trading language) and the language they were ultimately written in (English); the tribes’ limited understanding of either English or the pidgin language; and the centrality of fishing to the tribes’ culture and economic wellbeing.

During these negotiations, Governor Stevens continually made promises to the tribes specifically about fishing rights and “repeatedly reassured the Indians that there would always be an adequate supply of fish.” For example, during the negotiations over the Treaty of Point No Point, Stevens declared that “[t]his [treaty] secures your fish.” Likewise, in the process of negotiating the Treaty of Point Elliot, Stevens told the Indians: “I want that you shall not have simply food and drink now but that you may have them forever.”

These promises became the centerpiece of a new wave of litigation regarding the scope of tribal fishing rights protected by the Stevens Treaties, and it was this wave that culminated in the Supreme Court’s rather anticlimactic Washington III decision in 2018. This new litigation asserted that, not only did the Stevens Treaties protect the tribes’ right to access their fishing grounds and to a certain share of fish that passed through former tribal lands, but it also entitled them to a certain amount of fish—that is, the Stevens Treaties guaranteed that at least some fish would be present in those fishing grounds for the Indians to take. Thus, the tribes argued, the Stevens Treaties protected a right against environmental (or habitat) degradation by the states that too severely reduced the available fish runs.

The Ninth Circuit, in the litigation preceding Washington III, was sympathetic to this argument. In United States v. Washington (9th Cir. 2017) (“Washington I”), a three judge panel decided that the Stevens Treaties did indeed protect such an environmental right, reasoning:

The Indians did not understand the [Stevens] Treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs. . . . [Rather, t]he Indians reasonably understood Governor Stevens to promise not only that they would have access to their usual and accustomed fishing places, but also that there would be fish sufficient to sustain them. They reasonably understood that they would have, in Stevens’[s] words, “food and drink . . . forever.” 

Specifically, the Ninth Circuit panel held that Washington had a duty under the Stevens Treaties to ensure that there were salmon runs “sufficient to provide a ‘moderate living’ to the [t]ribes.” Because the state had constructed and maintained hundreds of barrier culverts (passageways that allowed for streams to flow under roads but that blocked the passage of fish) and because those culverts prevented salmon from spawning, the panel determined that the state had violated its duties under the Stevens Treaties and was obligated to replace the culverts.

Several of the judges on the Ninth Circuit requested an en banc review of the panel decision—and when an en banc rehearing was denied, nine judges, led by Judge Diarmuid O’Scannlain, issued an opinion in Washington v. United States (9th Cir. 2017) (“Washington II”) excoriating the decision below. For one, they balked at the burdens being placed on Washington, estimating that the costs of removing the culverts could exceed $1.5 billion.

Another of these judges’ chief concerns was that “the panel’s opinion could open the door to a whole host of future suits,” suggesting that “plaintiffs could . . . demand the removal of dams and attack a host of other practices that can degrade fish habitat (such as logging, grazing, and construction).” These judges asked, “[i]s any surface physical activity, wherever found, that negatively affects fish habitat an automatic [t]reaty violation?” Noting that “almost all urban growth can impact fish populations,” they asked: “[S]hould the [s]tate be required to reverse decades of development in an effort to increase the number of fish? Is the answer that any activity that amounts to a [t]reaty violation must be halted or removed?”

While the Supreme Court was unable to answer these questions in Washington III—leaving the panel decision to govern the Ninth Circuit—the Court’s recent decision in McGirt may confirm these nine judges’ worst fears; or, at least, it appears to tell us that these fears are irrelevant when interpreting an Indian treaty.

II.  McGirt’s Potential Application to the Stevens Treaties Fishing Rights Litigation

Aside from the fact that it is also, at base, about Indian treaty rights, McGirt does not at first glance appear all that similar to Washington I. First, McGirt is a criminal case. The defendant-appellant, Jimcy McGirt (a member of the Seminole Nation, an Indian tribe), was convicted in Oklahoma state court of sexual offenses. He appealed his conviction, asserting that the state lacked jurisdiction.

McGirt argued that his alleged crimes were committed on an Indian reservation—that, despite Oklahoma’s claims to the contrary (and the common understanding at the time of the case), the territorial boundaries of the Creek Reservation were never reduced from their 1866 extent. Because of this, McGirt claimed, federal law mandated that he be tried in federal, not state, court. Thus, the crux of McGirt hinged not on determining what the original treaty with the Indians meant, as did Washington I, but instead on whether subsequent actions by Congress or the states had altered the meaning of the treaty.

Nevertheless, this case about the jurisdiction of criminal courts and the “disestablishment” of Indian reservations may still be highly relevant to the Stevens Treaties fishing rights litigation because both cases require courts to consider what factors are relevant when interpreting an Indian treaty.4In McGirt, the majority takes care to suggest that its reasoning could be limited to the criminal context, noting that “[t]he only question before [the Court] concerns the statutory definition of ‘Indian country’ as it applies in federal criminal law under the [Major Crimes Act], and often nothing requires other civil statutes or regulations to rely on definitions found in the criminal law.” But the majority does not elaborate on why its reasoning—especially its broad statements about the interpretation of Indian treaties more generally—should not apply with equal force in these other contexts.

Even more to the point, the dissenting judges5In Washington II, Judge O’Scannlain’s opinion (joined by eight other Ninth Circuit judges) is not actually a “dissent” because Judge O’Scannlain had taken senior status by the time of the case and thus could not participate in en banc voting. His opinion therefore is technically an “opinion respecting the denial of rehearing en banc.” Nevertheless, for the sake of simplicity, I refer to the judges joining his opinion as “dissenters,” since they clearly disagreed with the panel opinion. in both cases objected to a broad interpretation of an Indian treaty’s language, at least in part based on practical concerns about the burdens that such a broad interpretation would place on existing state and private interests. In Washington II, the dissenters’ concern was about the large expenditure of state funds that would be required to remove barrier culverts affecting fish runs and about the potential for large future expenditures involved in destroying or changing other major infrastructural works (like dams) or developments (like urban communities). In McGirt, the dissenters focused on the state’s interest in administering criminal justice in vast parts of Oklahoma (an area home to approximately 1.8 million citizens, including much of Tulsa) that now falls within the boundaries of an Indian reservation and on the thousands of convictions that could be overturned as a result of the decision.

Yet Justice Neil Gorsuch’s majority opinion in McGirt tells us that these kinds of practical considerations and reliance interests should not matter for the interpretation of Indian treaties, instead endorsing a purer, more formalist flavor of textualism. He writes that these concerns about the prosecution of crimes and release of criminals are “not a license for us to disregard the law.” Rather, he says:

[M]any of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking . . . [because] [u]nlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right. 

What implications does this have for the Stevens Treaties and related litigation in the Pacific Northwest? It seems to indicate that courts interpreting the meaning of Indian treaties should not consider the kinds of practical concerns that Judge O’Scannlain and those joining his opinion had in mind. And it seems to open the door to exactly the kind of litigation they feared—litigation seeking to force Washington to remove dams, limit logging and grazing, and alter urban communities, regardless of the expense.

Granted, there are still other reasons why such litigation may not proceed. The dissenters in Washington II had their doubts about whether the Stevens Treaties contained an environmental right in the first place.6This route—holding that the Stevens Treaties do not contain an environmental right to begin with—may be the easiest way for Justice Gorsuch to distinguish McGirt. Key to his reasoning in McGirt was that the treaties clearly established a reservation for the Creek, and that Congress never clearly disestablished it afterwards. As he writes in McGirt: “There is no need to consult extratextual sources when the meaning of a statute’s terms is clear. Nor may extratextual sources overcome those terms. The only role such materials can properly play is to help ‘clear up . . . not create’ ambiguity about a statute’s original meaning. [O]nce a reservation is established, it retains that status ‘until Congress explicitly indicates otherwise’” (emphasis added). Because the Stevens Treaties are arguably less explicit about the extent of the tribal fishing rights they protect (and whether they extend to a right against habitat degradation), Justice Gorsuch could argue that this reasoning from McGirt doesn’t apply. However, this option does not seem available to the Ninth Circuit—at least, not if the Ninth Circuit seeks to preserve Washington I. Additionally, in McGirt, Justice Gorsuch leaves open the possibility that the doctrine of laches, an equitable doctrine barring recovery for plaintiffs who do not file their claims in a timely manner, may help solve some of the reliance concerns that the dissenting justices in that case voiced—a doctrine also explored by the dissenters in Washington II.

To be clear, recent personnel changes at the Supreme Court since McGirt and Washington III cast doubt on whether it would extend the Ninth Circuit’s ruling in Washington I to new facts, or whether the Court would even find an environmental right in the Stevens Treaties at all.7Since Washington III, Justices Brett Kavanaugh and Amy Coney Barrett have replaced Justices Kennedy (who recused himself in the case) and Ruth Bader Ginsburg (who presumably was one of the four votes to affirm the panel decision) respectively. Indeed, Justice Ginsburg also voted with the majority in McGirt—and while Justice Barrett’s views are not yet known on the issue of Indian treaty interpretation, there are indications that the new Court may be looking to narrow (or perhaps even overrule) McGirt. Oklahoma recently requested that the Supreme Court revisit McGirt in a related criminal case. The Supreme Court—over the objections of Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan—agreed to stay the Oklahoma Criminal Court of Appeals’s application of McGirt pending a decision on certiorari. However, the Ninth Circuit is currently bound by the panel decision in Washington I, which, according to circuit rules, a subsequent panel cannot overrule.8The Ninth Circuit held in Miller v. Gammie (9th Cir. 2003) (en banc) that a panel’s decision may not be overruled by a subsequent panel unless “the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority,” such as a Supreme Court decision. In this case, there is clearly no “intervening higher authority” that could remotely be described as being “clearly irreconcilable” with the Ninth Circuit panel’s decision in Washington I. Rather, as I assert, the Supreme Court’s decision in McGirt actually reinforces the holding in Washington I. Thus, within the Ninth Circuit, the interpretation that the Stevens Treaties protects an environmental right is binding. McGirt seems to imply that, if such a right exists, its extension cannot be limited by the kinds of practical concerns discussed by the Washington II dissenters, opening up a Pandora’s box of potential suits.

McGirt tells us that the modern practical consequences of an Indian treaty shouldn’t matter when interpreting it. But this raises the stakes of getting the interpretation right to begin with and underscores the importance of determining whether Washington I was correct on the merits. Do the Stevens Treaties actually contain an environmental right? If modern practical consequences cannot serve as a limiting principle on that right, it becomes all the more important for courts to revisit the existence of the right itself.

For now, it appears that one major hurdle to additional litigation of the Stevens Treaties’ tribal fishing rights implicitly has been removed. The past seems to indicate that this litigation is far from over—and McGirt has laid fertile ground for its renewal. The Ninth Circuit made its bed in Washington I. Now it must lie in it.

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Alec F. Mouser is a Comments Editor for The University of Chicago Law Review and is a J.D. Candidate in the University of Chicago Law School Class of 2022. He received his B.A. in 2019 from William & Mary, where he studied History and Government. He is grateful to Jim Westwood and Brad Grenham for their helpful comments and support, and to Tamara Skinner, Alex Meade, and Candice Yandam Riviere for their edits.

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Featured Photo: Gallant’s Photography, Day 283 of 366.

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