Native American tribes win big at the Supreme Court

An eight-justice Supreme Court just decided a major Indian law case by, well, not deciding it. The justices split 4-4 and issued a per curiam decision, or a decision on behalf of the court that doesn’t specify how each justice voted. Any time the court splits, the lower court’s decision stands. 

The litigation in question surrounds the salmon rights of 21 Northwest Indian tribes who, along with the federal government, sued the state of Washington to replace nearly 1,000 culverts. The case began under the Ninth Circuit Court of Appeals in the 1970s—that’s why Justice Anthony Kennedy, then on that court, had to recuse himself.

It’s a modern twist on an issue that dates to the 1850s: From tribes’ right to fish salmon, established in the Stevens treaties, we arrive at tribes’ right to keep the state from taking actions that impede the salmon that tribes have a right to fish. Here that means Washington has to replace culverts that have degraded fish habitats and reduced fish populations.

Washington Indian law and water rights attorney J. Nathanael Watson explains the immediate implications: READ MORE