January 01, 2018

The Back Page: A (Belated) Win for Tribes and Fish

Jonathan P. Scoll

From time immemorial, salmon and salmon fishing have been at the heart of the economic, cultural and spiritual life of the Indians of the Pacific Northwest and of their tribal identity. Recognizing this, the treaties Washington territorial governor Isaac Stevens negotiated with tribes in the 1850s secured Indians the right to take fish at “usual and accustomed places, in common with the citizens of the Territory,” outside reservation boundaries.

But vindicating this treaty right has embroiled the tribes in protracted litigation, mostly with Washington State, down to the present. Ironically, as the tribes have made slow but steady progress—including multiple trips to the U.S. Supreme Court—the resource itself has drastically declined, a result of commercialization of the salmon fishery and severe environmental degradation of stream habitat.

In 1974, U.S. District Judge George Boldt ruled the treaties’ “in common” clause entitled Indians to one-half of all fish in the “case area” covered by the treaties. United States v. Washington, 384 F. Supp. 312 (W.D. Wash 1974), aff’d. and remanded, United States v. Washington, 520 F.2d 676 (9th Cir. 1975). The tribes further asserted a state duty of habitat protection, to secure Indians a harvest sufficient for a “moderate living” under the “reserved rights” doctrine of Winters v. United States, 207 U.S. 564 (1908). Judge Boldt specifically reserved ruling on environmental claims (the “Phase II” of the case).

Subsequent proceedings under Phase II produced a plethora of differing and not always consistent rulings as the District Court and the Ninth Circuit struggled to define specific habitat obligations under the treaties. The parties deadlocked and the case remained in legal limbo until, in 2000, the treaty tribes went back to the federal court yet again in what was, procedurally, a subproceeding of the original 1974 case.

This time, they literally had concrete facts in their favor: state-maintained roadway culverts were blocking migrating salmon as they made their way upstream to spawn. In 2013, the court entered an injunction requiring the State to correct its most damaging culverts by 2030; to use specified design standards in all repairs and new construction on salmon streams; to monitor its culverts and correct newly discovered barriers in a reasonable time; and to provide the tribes notice of proposed culvert correction efforts. United States v. Washington, 20 F. Supp. 3d 986, 1000 (W.D. Wash. 2013) (Memorandum and Decision).

In 2016, the Ninth Circuit affirmed, United States v. Washington, 827 F.3rd 836 (9th Cir. 2016), as amended 853 F.3d 946 (9th Cir. 2017). The Indians’ treaty right to fish “would be worthless without harvestable fish,” it said, so the court “would infer a promise that the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes.” Id., 827 F.3d at 852–53. The State of Washington has applied for certiorari to the U.S. Supreme Court.

Aside from the uncertainty engendered by the state’s appeal, difficulties remain. The “moderate living” standard may be unworkable, as the salmon fishery today is so far degraded—from many causes—that a “living” of any kind from stream fishing is impossible. It may be equally impossible to draw a line between permissible development and impermissible treaty infringement. See John Sledd, “This Paper Secures Your Fish—Using Treaty Promises to Protect Off-Reservation Habitat,” FBA 26th Annual Indian Law Section CLE (April 2017). As Sledd, counsel to the tribes in the treaty litigation, remarked to me, nobody is about to insist on the removal of the City of Seattle.

But, as he notes, largely in response to this case, the state has approved hundreds of millions of dollars of barrier correction funding, and the tribes have a judicial precedent as a negotiating tool for habitat protection—all positive steps in the ongoing process of finding a balance where Indians and non-Indians alike can, in the words of the Stevens treaties, enjoy resources “in common.”

Jonathan P. Scoll

Mr. Scoll is a member of the Natural Resources & Environment editorial board. He may be reached at jonscoll@gmail.com.