Friends of the BB,

Treaty fishing rights is a scary topic here, inasmuch as the opinions expressed are often more visceral than rational. But understanding the world around us, and how it works, is worth the effort.

This is a bit lengthy, but there have been numerous opinions, informed and uninformed, about treaty Indian fishing and treaty rights on this BB. I thought many of you might enjoy this piece that was in the Times recently. I hope you find it as informative as I did.


by Paul VanDevelder
Special to The Times

If the storm brewing in the Northwest over the fate of the Snake River dams
is a crash course in federalism (what else could it be?), then governors
Marc Racicot (Montana), Dirk Kempthorne (Idaho) and Gary Locke (Washington)
are all well on their way toward flunking the mid-terms.
In his dramatic endorsement of breaching the dams, Oregon's Gov. John
Kitzhaber stands alone in acknowledging that what he might or might not
think about the dams is ultimately irrelevant. The multibillion-dollar
question is not "to breach or not to breach?" but rather: How many salmon
will be left when the dams come down?

Despite howling protests to the contrary, the breaching solution to
restoring anadromous fish stocks to the Pacific Northwest may be a lot
closer to a reality than people are willing to think. Factors such as simple
economics are compelling, but they pale when measured against the weight of
another: the power of the treaty.

No elected representatives in the northwest wield more political power than
the region's four governors. They make a lot of things happen just by saying
so. That said, no one wields more legal power than the five Columbia River
Indian tribes. This is a critical distinction, and when push comes to shove,
as push inevitably will, the difference between political power and legal
power will be the difference between a sling shot and a tank.

When a delegation representing the five tribes met with White House
officials of the Department of Environmental Quality two weeks ago, everyone
sitting around that table understood who holds the aces and face cards,
otherwise known as treaties. The tribes have vowed to take any action
necessary to save the salmon, and they intend to make it stick.

The tribes did not create this crisis. It is the mismanaged consequence of a
political-economy pursued with blind zeal by the non-native society that
colonized this region a century and a half ago. The endless equivocating,
the $3.5 billion spent to watch native runs dwindle from 500,000 spring
chinook to fewer than 50,000 in just 10 years, has been an exercise in
futility. The tribes are saying: "No more!"

For good reasons, the states seldom prevail when they challenge Indian
treaty rights. Last year, the citizens of Minnesota spent $6 million in
legal fees to get a jarring wake-up call when the U.S. Supreme Court upheld
Chippewa "usufructuary rights" on 10,000 square miles of their ancestral
ground. Two weeks later, the same court upheld the treaty rights of 17 Puget
Sound tribes that had sued for access to their treaty-protected shellfish
beds. Private landowners were furious. They had themselves to blame. They
put their faith in politicians who issued promises they had no power to
keep.

In fact, these cases enforced the same class of rights that protect salmon
in the Columbia River watershed, rights stipulated in the 1855 treaties
negotiated by then-Gov. Stevens. Ah, therein lies the rub, those 1855
treaties. The 1855 treaties have been giving state governments fits for more
than a century. The viability of those treaties has been upheld by the U.S.
Supreme Court at least six times. They are a legal bulwark written on
parchment that will prove far more enduring than the concrete buttresses
supporting the Snake River dams.

Yet, the beat goes on. Having argued the losing side in the famous Boldt
Decision (a 1974 case that awarded West Coast tribes one half of the salmon
in coastal rivers), and having failed for 20 years to "terminate" tribes in
the Northwest, Washington Sen. Slade Gorton has vowed that the Snake River
dams will come out over his dead body. This notion has widespread support in
Indian Country, from the Penobscot River in Maine to the Anza Valley in
Southern California.

Gov. Kitzhaber's endorsement, in effect, stated: 1) The viability of salmon
is more important to the long-term health of the region than wheat, and, 2)
The dams cannot remain without profoundly undermining the U.S. Constitution.
The 1855 treaties guarantee the tribes salmon. The Constitution protects
those guarantees (Article VI, Clause 2) as "the supreme law of the land."

This legal landscape was illuminated by U.S. Circuit Judge Noel P. Fox in a
landmark 1979 case that pitted the Chippewa against the state of Michigan:
". . . the mere passage of time . . . cannot erode the rights guaranteed by
solemn treaties that both sides pledged on their honor to uphold. . . . The
Indians' [treaty] rights are preserved and protected under the supreme law
of the land, do not depend on State law, and are distinct from the rights
and privileges held by non-Indians and may not be qualified by an action of
the state . . ."

For non-Indians in Montana, Idaho, Minnesota, Washington state and Oregon,
this may be a bitter pill, but it is a pill shaped from the foundational law
that established the American republic. If non-Indian citizens are poorly
educated about the special status of government-to-government relationships
between whites and tribal governments, the tribes can hardly be held liable
for failing to discharge a burden that was never theirs to begin with. In
the life of a nation, politics and economics are merely weather, the
tempests in the foreground. Thankfully, the Greeks taught our founding
fathers that we survive our own worst (and best) intentions because we are
not a nation of political economies uttered by politicians, but a nation of
laws.

The controversy over the dams is a highly charged thunderhead, but the storm
lurking behind it will set the tone for the 21st century. Huge battles loom
over treaty-protected water, timber, salmon, land, gold, copper, zinc, oil
and gas, uranium, coal and management of the Columbia, Colorado and Missouri
rivers. That's just for openers.

"We slaughtered millions of these people, who were supposed to be protected
by the `supreme law of the land,' " says constitutional law scholar Ron
Manuto, "and then we stole the whole continent and declared the frontier
conquered. You don't pay those kinds of debts with capital. You pay with
karma."

Regardless of the currency of exchange, the bills are coming due. Recent
legal opinions have signaled a dramatic return to the principles established
180 years ago by the great Chief Justice John Marshall, principles known in
the federal judiciary as the "foundational principles of Indian law." Those
principles establish the legal power of Indian treaties a solid notch above
the power of statehood. The growing body of case law is impressive.

Dec. 1997: The Supreme Court enforced Isleta Pueblo water-quality standards
on the Rio Grande River, standards that cost the city of Albuquerque $400
million in capital improvements. The Isleta combined their First Amendment
freedom of religion with treaty rights in an argument that had never before
been heard in a court of law.

Oct. 1998: The 9th Circuit Court of Appeals did the same thing for the
Salish and Kootenai tribe of Western Montana. Montana Gov. Racicot promised
to fight it out at the Supreme Court. He did. He lost.

Sept.1998: Federal court Judge Lawrence Piersol "dismissed with prejudice"
the claims of South Dakota Gov. William Jankow and restored to the Yankton
Sioux tribe 360,000 acres of South Dakota prairie, ending a century-long
battle over a treaty signed in 1858.

In May 1999, a federal court in Milwaukee threw out Gov. Tommy Thompson's
case against the Chippewa water-quality standards on summary judgment, a
decision that ended a 20-year stalemate with Exxon over the opening of a
copper mine at Crandon Lake, Wis.

The visible battles may be over dams, clams or salmon, but the underlying
war is about power. Who controls the legal high ground? Who decides? In a
battle between political expedience and foundational law, the battle is no
contest.

In Puget Sound, on the boundary waters of Minnesota, and on the Snake River,
the future is in the hands of the tribes and the courts, not, thankfully, in
the hands of politicians. If the region's governors choose to ignore the
lessons of the past century and press on with their agendas at the expense
of the tribes (and the salmon) while hocking conscience for economic
expedience, they do so at their peril.

Because like it or not, if this republic is to stand through the storms of
the 21st century, then the dams will fall because "the supreme law of the
land" will be history's last word.

salmo g
i only read your intro, body of artical too wordy, not unlike politicians. but i have two armpits and an opinion about the declining runs.
i think the best federal money spent would be to see if any tribes would be willing to sell their fishing rights on their river. 2nd, how do tribes becomes sovereign nations during a tready agreement, and a nation dependent on federal aid at other times?

salmo g
Thanks for passing this thoughtful commentary along.

Good info, Salmo. I recieved a copy this morning as well as news that the Great State of Alaska is gonna sue to have the dams removed! Tony Knowles doing something for the environment? The Alaska congressional deligation is very senior and very powerful, so may have the juice to get past "over my dead body" Slade Gorton.

Thanks for your thoughtful review of prospects for dam removal. Although long for a BB post, I found your argument concise. The issues are complicated and serpentine; traditional economics versus "new" economics. I am not sure I am ready to agree that we may be closer to dam removal than popular opinion would indicate. I think the understanding will need to more fully integrate economic externalities. How do we quantify the value of cultural heritage, sense of place or the recreational value of a healthy resource? I think making that shift in economic understanding may be necessary to propel the ultimate decision to free the river. Until then I fear we will continue to grow watermelons in the desert and air condition the tropics with our rivers.

Thanks Salmo
So when are the indians going to sue to have the dams removed. I would agree the indians do hold the power to make changes. But from their current actions its seems they are motivated by greed instead of environment.

REMOVE BOTH ELWHA DAMS NOW!!!

------------------
Marty
www.steelheader.net
marty@steelheader.net

I have been a regular reader of this BB for over 2 years and have cringed every time "tribal issues" has come up. I am a non-indian forester (and rabid flyfisher) who has worked on the Colville, Quinault, Chehalis, Quillayute, Makah, Skokomish and currently, the Yakama reservation. I have frequently wanted to write replys to some of the most insensitive and degrading posts that have appeared on this board, but prudence has held my pen (keyboard?) in check. However, after reading the informative article and thoughts of Salmo g., I now find myself ready to express my thoughts. After working for over 12 years in "Indian Country", growing to love and respect the people and lands of the various tribes, I find myself agreeing with their positions on 99% of the tribal issues. (My agreement on these issues is not related to my own economic position, rather on the "informal education" I have received that goes with the privilege of working with these people. I can always find another job, if/when I feel that management is not doing its job.) I wish to thank Salmo g. for sharing the article containing the thoughts and ideas of which I previously found impossible to so eloquently express. I hope people read these posts with an open mind and open heart. Tight lines...Piscator.

Salmo-
I can't help but agree with the article you posted. The indians do hold all the cards when it comes right down to it. However, as history has proven, the US and state governments are not interested in really saving fish runs. History has also proven that neither side is willing to work cooperatively together to solve the problem. Our government spends most of their time fighting with, and then conceding to the indians, wasting time and resources(our money) with no benefit to the fish. At the same time, tribes continue to go after more and more "treaty rights", in essence to thumb their noses at the government because they know they are basically unstoppable. So, both sides continue to inflict greater and greater damage to all the species and stocks they both claim to want to protect. Is it fair that the tribes get a 50% split of the different creatures they harvest? Maybe, but who monitors that they stop at 50%? NO ONE. On the same note, why does the government allow such things as by catch, and gill netting when we have all these runs still declining? Hell, why do we allow commercial ocean fishing at all? All these fish are born in the river, and they all come back to the river. If we are going to continue to allow commercial fishing for salmon, why don't we do it in the rivers only, where we can REALLY monitor how many fish are caught? Patrol the high seas to keep Snake River chinook out of Taiwanese and Japanese fish markets. The Columbia River tribes agreed last year to go a 9" mesh on their nets instead of the 6" they use now,to allow more steelhead through. They were supposed to do this last year and they still haven't done it. Why? Because even if they agree to it, no one can make them do it. Thumbing their noses at us again! The salmon problem is much larger than just indian nets. But the indians are by no means "one with nature", or the protectors of natural resources that some on this BB continue to claim.

P.S. That article came out of a Seattle newspaper, imagine that! Newspapers and the articals they print are completely unbiased, well informed pieces of science. Right!!