United States v. Washington (No. 99-35104): Chehalis

In United States v. Washington, the Court held that because the Chehalis Tribe's fishing rights did not arise out of a treaty, the Tribe's catch allocation should come out of the State of Washington's share of the fish. In the Boldt decision, Judge Boldt determined that there should be an equitable (50/50) allocation of fish between tribes with treaty rights to fish and the State of Washington. The Chehalis Tribe's reservation was created by Executive Order rather than by treaty, and thus the Tribe has no off-reservation fishing rights—only on-reservation fishing rights. Because it is not a "treaty tribe," Chehalis is not a party to the Boldt litigation. Nevertheless, the State of Washington argues that the fish caught on-reservation by the Chehalis Tribe should come out of the treaty tribes' share.

The Ninth Circuit found that Judge Boldt's decision, though it does not specifically address on-reservation fishing by non-treaty tribes, "does establish the principle that no catch by non-treaty Indians should be attributed to the treaty tribes." The Court found that the Boldt decision does not seek to divide the allocation of fish by tribal versus non-tribal or tribal versus state, but instead only distinguishes between treaty and non-treaty shares. The Court also reasoned that allocating a non-treaty tribe's share of fish out of the treaty tribe's share would diminish the treaty right, which is impermissible. Therefore, the Chehalis Tribe's catch cannot be attributed to the treaty tribes' share, but must be taken out of the State's share instead.