Judge hears Shoshone-Bannock Tribes’ arguments in Columbia River fishing rights case

By LILLY ROBY
Courthouse News
PORTLAND, Ore. (CN) — A federal judge in Oregon heard arguments Tuesday that could reshape a decades-old legal battle over tribal fishing rights in the Columbia River Basin, as the Shoshone-Bannock Tribe pushes to formally assert its treaty claims in the case.

U.S. District Judge Michael H. Simon said he will take under advisement multiple motions to dismiss the tribe’s amended complaint, in which it seeks adjudication of its fishing rights. He expects to issue a written decision within 60 days.

The hearing marks a pivotal moment in United States v. Oregon, a nearly 60-year-old case that governs how salmon and steelhead are shared among states and four Columbia River treaty tribes. If allowed to proceed, the Shoshone-Bannock Tribe’s claims could alter how that limited resource is divided.

“This is not your ordinary lawsuit,” Simon said during the hearing, noting the case involves a finite resource. “The more they get, the less you get,” he told attorneys for the existing treaty tribes.

The case dates back to 1968 and centers on fishing rights reserved in 1855 treaties between the U.S. government and four tribes: the Warm Springs, Umatilla, Nez Perce and Yakama nations. Court rulings in the late 1960s and 1970s affirmed those tribes’ rights to a significant share, eventually interpreted as up to 50% of harvestable fish at their traditional fishing grounds.

The Shoshone-Bannock Tribe, whose treaty stems from the 1868 Fort Bridger agreement, has long been recognized as having fishing rights in the basin, but those rights have never been fully defined in court. In 2025, the tribe moved to amend its complaint to seek that definition.

Oregon, Washington and the four treaty tribes all asked the court to dismiss the amended complaint, arguing the Shoshone-Bannock Tribe has not identified a concrete legal dispute.

Oregon Department of Justice Senior Assistant Attorney General Christina Beatty-Walters, representing Oregon, told the court the tribe failed to point to any specific state action causing harm. Attorneys for Washington echoed those concerns and suggested the tribe utilize existing mediation processes available within the current 2018-2027 Columbia River Fish Management Plan.

“Courts were created to resolve disputes,” Beatty-Walters said. “The tribes cannot identify what that dispute actually is.”

She argued the complaint lacks clear allegations of wrongdoing, saying Oregon needs to know “what it is they have done wrong” in order to respond.

Brent Hall, representing the Confederated Tribes of the Umatilla Indian Reservation, said the complaint leaves them “guessing” about what conduct is being challenged and what relief is being sought.

Throughout the hearing, Barack Obama appointee Simon repeatedly pressed attorneys on their insistence that no real dispute or controversy is clear.

“From the looks of this courtroom, it looks like we have a controversy,” he chuckled at one point.

He also questioned why the Shoshone-Bannock Tribe should not be allowed to seek adjudication of rights that courts have previously acknowledged but never defined.

“They’re saying they have rights under the peace treaty that have not yet been adjudicated,” Simon said. “Why should they not be able to seek adjudication?”

Simon raised concerns about timing, asking what has changed in recent decades to prompt the new claim. He specifically referenced the Supreme Court’s landmark 2020 decision in McGirt v. Oklahoma as a possible factor influencing treaty interpretation.

Rob Smith, Kilpatrick Townsend & Stockton attorney for the Shoshone-Bannock Tribe, argued the absence of a defined treaty right is itself an injury.

Without an adjudicated treaty right, Smith argued, tribe members “cannot fish without fear of prosecution.”

Smith also pushed back on suggestions that conflict resolution processes through the current management plan could resolve the issue, arguing treaty interpretation is a matter for federal courts.

“Everybody knows what this case is about,” he said, acknowledging the inclusion of the Shoshone-Bannock Tribe will reduce fishery shares for the four other tribes but is a necessary move. “The question of the adjudication of a treaty right is for a federal court to decide.”

The case carries significant implications for fishery management in the Columbia River Basin, where salmon populations have declined and remain under pressure. Simon himself noted concern about the “continued jeopardy of salmonids,” underscoring the tension between conservation and allocation.

Attorneys for existing treaty tribes warned that prolonged litigation could distract from efforts to rebuild fish populations.

“Our worry is that it will take the parties’ eyes off the ball,” said Josh Newton of Best Best & Krieger, representing the Confederated Tribes of the Warm Springs Reservation of Oregon. The statement, referring to restoration efforts, earned a huff from the crowd, mostly consisting of Shoshone-Bannock Tribe members.

Simon indicated that, regardless of how he rules on the motions to dismiss, the case is likely headed for appellate review.

“I think it might very well be a good idea for someone to seek interlocutory appellate review,” he said. “Whichever way it goes, we should get the Ninth Circuit to weigh in.”