Highway Culverts, Salmon Runs, and the Stevens Treaties: A Century of Litigating Pacific Northwest Tribal Fishing Rights

Isaac Stevens, then Superintendent of Indian Affairs and Governor of Washington Territory, negotiated a series of treaties with Indian tribes in the Pacific Northwest during 1854 and 1855. A century and a half later in 2001, the United States joined 21 Indian tribes in filing a Request for Determination in the United States District Court for the District of Washington. Plaintiffs alleged the State of Washington had violated those 150-year-old treaties, which remained in effect, by building and maintaining culverts under roads that prevented salmon passage. This litigation eventually reached the Ninth Circuit Court of Appeals, which held in favor of the Tribes.

Washington would have to replace all barrier culverts across the state with salmon-friendly alternatives, a multi-billion-dollar undertaking. Considering the scope of this decision and its potential impacts on Indian law, treaty interpretation, and environmental law, the United States Supreme Court granted Washington’s petition for certiorari at the beginning of 2018 to have its own say in those matters. The Court, sans a recused Justice Anthony Kennedy, heard arguments on the case in April 2018 and issued its decision in June.