Todd - Neither the Feds nor the State can abrogate the Treaty right to fish.

The courts have recognized that the Stevens Treaties held that the tribal right to fish in their 'usual and accustomed places' is a reserved right. In other words, their fishing rights were NOT granted to the Tribes via the Treaty. Rather, the treaty recognized that the Tribes ALREADY had those rights since the Tribes were living in the area since time immemorial, and fishing was critically important to their culture and survival.

So, abrogating the Treaty itself would have no effect on the right to fish. That would still be there, even if the absence of the Treaties.

The Treaties could be abrogated by an act of Congress. But if Congress abrogated the Treaties, the Tribes would immediately ask for their land back, since that is what they gave up when they signed the Treaties. So virtually all of the land that is now in the State of Washington would revert back to the Tribes. The Tribes would become sizable land barons overnight. And they would still have the right to fish in their usual and accustomed places…….

My sense is that Congress won’t be abrogating the treaties anytime soon.



Also, I read the transcript of the Supreme court hearing. The justices torn the State attorney general limb-from-limb. By the time they were done, he was a mumbling mess. I sorta felt bad for him. But any attorney will tell you that the Justices questions and cross-examinations are not a good predictor of their final verdict. The State could still win this case.

But at this point, the State would likely be happy with a remand to redo the analysis. In fact, the Court was angling towards establishing some level of impact on the reduction of salmon productivity as a treaty violation. Judge Gorsuch suggested 5%. But clearly the Justices are wary of making an overall judgement that says any reduction in salmon productivity becomes a Treaty violation. They may ask the lower court to re-think the analysis and provide some number, past which the impact would be a treaty violation. For example, a reduction of 2% might not be a treaty violation, but 10% would be.

But that's just my guess.