The Indian Treaty Piscary Profit and Habitat Protection in the Pacific Northwest: A Property Rights Approach

Abstract:     
Nineteenth century treaties promised Pacific Northwest Indian tribes the right of taking fish in common with the citizens... The meaning of those ten words has produced numerous court decsions in the ensuing century-and-a-half, including a half-dozen from the U.S. Supreme Court. This article explores that case law, and in particular explains how the treaty fishing right evolved from a right to access historic fishing ground (an easement), to a right to be free from state licensing fees and discriminatory regulation (a negative servitude), to a right to an equal harvest share (also a negative servitude, since it restricts non-Indian harvests).

An unresolved issue is whether the treaty fishing right protects the habitat necessary to sustain the fish that were the subject of the treaty promise. A quarter-century ago the tribes filed suit, claiming that the treaties implicitly protected fish habitat necessary to make meaningful their treaty-guaranteed right, which the Supreme Court interpreted to be a livelihood, that is to say a moderate living. Although a district court agreed with the tribes, the Ninth Circuit ducked the issue and vacated the lower court decision, due to the fact that it was issued in the absence of a concrete factual dispute.

This article argues that, despite the Ninth Circuit's evasion, there is a good deal of case law suggesting that such a right to habitat protection exists, surveying cases involving dams, water rights, timber harvests, and other water-related development projects. The article then attempts to sketch how such a right would function in practice, drawing on pertinent case law and an executive order. The article concludes that the treaty fishing right should be interpreted as a profit a prendre, a venerable real property interest, in this case a piscary profit. Profit-holders may enjoin activities unreasonably interfering with the exercise of the profit, and the article maintains that courts should use this standard to protect the treaty fishing right from habitat damage that interferes with tribal fishing livelihoods.

Keywords: Indigenous Peoples, Treaty Rights, Environmental Protection, Natural Resources Law, Water Law

JEL Classifications: H82, K11, K32, N52, O13, Q22

Accepted Paper Series