A salmon culvert in Washington. Photo: Northwest Indian Fisheries Commission
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Supreme Court schedules April 18 argument in tribal treaty rights case

The U.S. Supreme Court will hear oral arguments in Washington v. U.S., a tribal treaty rights case, on April 18.

At issue is whether the state of Washington is obligated to fix hundreds of culverts at a cost that runs into the billions of dollars. The clogged passageways prevent salmon from returning to their "usual and accustomed" sites, the 9th Circuit Court of Appeals said in a unanimous decision.

That victory, secured on behalf of 21 tribes whose ancestors signed treaties in 1854 and 1855, is now in doubt. The Supreme Court agreed to hear the dispute to determine the extent of the state's role in upholding those historic agreements.

"The federal government specified how the state should build culverts, granted permits for their construction, and then decades later sued the state, saying that those same culverts violated treaties the federal government entered 150 years earlier," Washington's opening brief, which was filed on Saturday, read.

The treaty tribes, as well as the federal government, will be able to file responses to the brief. The state will also get an opportunity to submit a reply as the Supreme Court takes up the matter.

Of the 1,000-plus culverts that were blocked when the proceeding began in 2011, the vast majority have been cleared, according to the Northwest Indian Fisheries Commission. That leaves fewer than 400 to be repaired.

The state has complained about shouldering the costs of the effort -- estimated to cost more than $2 billion -- but it has received federal funds for its work, according to the 9th Circuit's earlier decision in the case.

Washington Attorney General Bob Ferguson (D) has said he is open to a settlement but tribes were upset that he pursued an appeal in the first place.

The case is one of three Indian law disputes on the Supreme Court's current docket. Two of the three originated from Washington state.

9th Circuit Court of Appeals Decisions:
US v. Washington (May 19, 2017)
US v. Washington (June 27, 2016)

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