United States v. State of Washington

INTRODUCTION

This appeal presents one more chapter in the litigation over Indian treaty fishing rights in the Pacific Northwest. The appellant Samish Tribe claims to be a successor to a tribe that entered the Treaty of Point Elliott, 12 Stat. 927 (1855), with the United States. In 1974, the Samish Tribe intervened in the foundational treaty rights case of United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) (“Washington I”), aff’d, 520 F.2d 676 (9th Cir. 1975), in order to establish its entitle- ment to treaty fishing rights. At that time, the Samish Tribe had not been recognized by the federal government. The dis- trict court rejected the Tribe’s claim to treaty rights, finding that the Samish Tribe had not “lived as a continuous separate, distinct and cohesive Indian cultural or political community” and was not “descended from any of the tribal entities that were signatory to the Treaty of Point Elliott.” United States v. Washington, 476 F. Supp. 1101, 1106 (W.D. Wash. 1979) (“Washington II”), aff’d, 641 F.2d 1368 (9th Cir. 1981).

Nearly twenty years later, in connection with separate liti- gation, the Samish Tribe succeeded in obtaining federal recogni- tion.1 See…