Supreme Court Affirms Native American Treaty Rights to Harvest Salmon

By Terri Hansen

The Supreme Court affirmed the treaty rights of tribal nations in Washington state Monday in a case that also confirms the treaty rights of tribes throughout the West. By ruling to leave in place a lower court decision mandating that the state of Washington replace salmon blocking culverts with passable ones, the court upheld the treaty rights of tribes to have sustained access to their First Foods: salmon.

The tribes in Washington state are rejoicing.

"It's a fantastic day for Indian country," Willie Frank, the son of Billy Frank Jr., said this morning. Billy Frank Jr. was the Nisqually activist whose activism helped bring about the landmark Boldt Decision which, in 1974, reaffirmed the rights of tribes in Washington state to harvest salmon and co-manage them alongside state managers. More than 50 years later, his son Frank said the recent court decision helped build on the legacy of that original ruling.

"It's a great day for our salmon, our tribes, and our treaty rights," he said. "In 2018 the Supreme Court still recognizes that our treaties are the supreme law of the land. It's not just a piece of paper that was signed in 1855. We never gave up these rights. We reserved these rights in exchange for most of the land in western Washington."

The justices tied 4-4 in affirming a Ninth Circuit Court ruling in favor of the tribes in a case that has been brewing since 2001, with treaty tribes in western Washington and the Yakama Nation in eastern Washington challenging the state to remove or repair impassable road culverts that block salmon from returning to their historic spawning habitat.

The main question, however, was whether treaties signed in 1854 and 1855 guaranteed there would always be enough fish to provide 21 western Washington tribes with a "moderate living." The Ninth Circuit Court gave a qualified "yes" to the question, and now, the Supreme Court has affirmed that decision.

"Today's ruling shows that our treaties are living documents," Lorraine Loomis, chair of the Northwest Indian Fisheries Commission said in a statement. "They are just as valid today as the day they were signed."

The 21 tribal governments had based their culverts case on a 1997 report prepared by the state's Department of Fish and Wildlife and the state Department of Transportation that said: "Fish passage at human made barriers such as road culverts is one of the most recurrent and correctable obstacles to healthy salmonid stocks in Washington."

But Washington's attorney general Bob Ferguson had argued to the Supreme Court that the tribal governments failed to make "any specific showing that those culverts have significantly diminished fish runs or tribal fisheries, or that replacing them will meaningfully improve runs."

He also argued the Ninth Circuit decision would force state taxpayers to pay for problems largely created by the federal government and would not benefit salmon. He said the state had no "treaty-based duty to avoid blocking salmon-bearing streams." The Ninth Circuit disagreed, stating: "The Indians did not understand the Treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs."

Today is a great day for salmon, tribes, treaty rights and everyone who lives in western Washington, Loomis said. "We honor the wisdom of our ancestors who signed the treaties and those like Billy Frank Jr., who fought so hard for the survival of the salmon and for our treaty-reserved rights to be upheld."

Loomis said the ruling means more salmon for everyone. "It will open hundreds of miles of high quality salmon habitat that will produce hundreds of thousands more salmon annually for harvest by Indians and non-Indians."

Frank said that the tribe's stewardship of the salmon and the waters and natural resources—stewardship that includes fighting this court case—benefits everyone, both humans and nonhumans, in western Washington. This includes the orcas who rely on salmon and whose numbers are dwindling because of the loss of some populations of salmon in the state, he said.

"Today's decision marks seven generations of conflict in our struggle to fully exercise and protect the Pacific Northwest salmon resource the way our ancestors envisioned when they signed the treaties and ceded millions of acres of land across Washington," Fawn Sharp, president of the Quinault Indian Nation said.

"It is my prayer and sincere hope we can now rise above a century and a half of conflict, litigation, bloodshed, and heartbreak toward a new chapter of political, cultural, and environmental justice and reconciliation for the benefit of all of Washington," she said.

Reposted with permission from our media associate YES! Magazine.