APPENDIX III APPENDIX III 
A basic issue in United States v. Washington involved 
the degree to which the State could regulate and restrict 
the off-reservation fishing rights of the treaty Indians and 
whether existing State laws and regulations were discrimin- 
atory against the Indians. The question of onreservation 
fishing was not an issue in the lawsuit, all parties conced- 
ing that Indians have an exclusive right to fish within their 
reservations. 
Judge Boldt held that the treaty right extended to "all 
usual and accustomed grounds and stations," which he defined 
as "* * * every fishing location where members of a tribe 
customarily fished from time to time at and before treaty 
times, however distant from the then usual habitat of the 
tribe, and whether or not other tribes then fished in the 
same waters." He said, however, that the term did not in- 
clude places "used infrequently or at long intervals and 
extraordinary occasions." 
The treaties secured to the Indians the right to fish 
"in common" with non-Indians. This means that neither group 
of fishermen is the same. The State and many non-Indians have 
argued that this provision of the treaty means that each 
Indian is to have access to the fishing grounds on the same 
footing as each settler--that the State can impose on each 
individual Indian the same restrictions it imposes on each 
individual non-Indian. But the Ninth Circuit Court of Appeals 
said "The Supreme Court long ago considered this construction 
iran eregieccediae..- 
Judge Boldt held that "in common with" means sharing 
equally the opportunity to take fish that would normally 
reach the off-reservation usual Indian fishing places. Thus 
each party--the Indians on the one hand and the non-Indians 
on the other--is entitled to the opportunity to harvest up to 
50 percent of the harvestable numbers of such fish. 
The allocation formula has been one of the most widely 
discussed provisions of the Court's decision. Several features 
of at should be noted. F2rsit® Ehe Coure Stricely, Jam tedmiene 
fishing right to those fish not needed for maintaining the 
runs. "Harvestable fish" are only those above the numbers 
needed to assure adequate spawning. Second, the fish to be 
shared include fish that would reach the Indian usual fishing 
grounds if they had not been caught previously by fishermen 
who are subject to State control. This includes some of the 
fish taken in the ocean fisheries by Washington-based fisher- 
men as well as those taken in the State's inland marine waters 
located ahead of the Indian fishing areas. Third, because of 
the "Special treaty significance" to Indians of fish for 
225 
