Salmo g, as usual, I appreciate and generally agree with your posts.

Regarding the "right" vs. "privilege" issue, you're correct that the tribes hold a treaty right to fish, and that individual non-Indian fishers only have a privilege to fish which is granted by the state.

However, is there not an argument to be made that the state, as the modern representative of the "citizens of the Territory", also holds a treaty right in common with the tribes to take a fair share of the fish?

"The purport of our cases is clear. Nontreaty fishermen may not rely on property law concepts, devices such as the fish wheel, license fees, or general regulations to deprive the Indians of a fair share of the relevant runs of anadromous fish in the case area. Nor may treaty fishermen rely on their exclusive right of access to the reservations to destroy the rights of other 'citizens of the Territory.' Both sides have a right, secured by treaty, to take a fair share of the available fish. That, we think, is what the parties to the treaty intended when they secured to the Indians the right of taking fish in common with other citizens."

Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 684-85 (1979).

Forty years later, and a lot of water having flowed under the bridge (new justices, casinos, ESA listings, population growth, continuing habitat degradation, etc.), it will be very interesting (to say the least) to see how the Supreme Court now views the treaties and the respective rights of the parties when it hears the culvert case. Both sides (and all stakeholders) have a lot at risk.

Brian McLachlan