Midwater Trawlers Co-operative v. Department of Commerce

We consider in this appeal a challenge by fishing industry groups and the States of Oregon and Washington to a federal regulation that increased the amount of Pacific whiting fish allocated to four Indian tribes. We affirm in part and reverse in part, with instructions to the district court to remand to the agency for more specific findings.

I

Isaac I. Stevens, Washington’s first Territorial Governor and the first Superintendent of Indian Affairs of the Washington Territory, negotiated a series of treaties in the mid-1850s involving a number of Indian tribes located in the Northwest.

These treaties, commonly referred to as the “Stevens Treaties,” reserved to the signing Tribes certain fishing rights. The treaties at issue in this action are the Treaty of Neah Bay, a treaty with the Makah Tribe; and the Treaty of Olympia, a treaty with the Quinault, Quileute and Hoh Tribes. As to the right of the Makah Tribe, the Treaty of Neah Bay provided that:

Treaty of Neah Bay, 12 Stat. 939 , art. 4 (1855).

We have construed similar treaty language 2 as entitling “the Tribes to take fifty percent of the salmon and other free-swimming fish in the waters controlled by Washington…