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Abstract

The fishing right guaranteed by the fishing clause of the Stevens Treaties between the United States and the Indians of Western Washington should be considered a trinity of rights: a right of access, a right of equitable apportionment, and a habitat right. While seven different Supreme Court decisions and scores of lower court decisions examine the contours of the first two elements of the fishing right, the contours of the final element of the right remain unsettled. No appeals court has ruled on whether there, is an implied habitat right. While some trial courts have skirted the issue, only one has addressed it directly, with the opinion vacated on appeal. This Comment examines the proposed implied habitat right and explains why courts should recognize it.

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