State v. Moses

(concurring in dissent) — Justice Finley has referred to the majority’s failure to come to grips with the fundamental problem of delineating the point at which federally protected Indian fishing rights end and the power of the state to regulate those rights begins under article 5 of the Treaty of Point Elliott.12 That shortcoming is not limited to this case, however. It is to be found in most cases that have dealt with this extremely vexing question.

Unfortunately, we have been too prone to interpret article 5 in terms of the practicalities of today’s depleted fishery. As a result, we have…