Supreme Court to states: Live up to your treaty obligations

Will future courts order states to take down fish-blocking dams?

 

Paul VanDevelder is a contributor to Writers on the Range, the opinion service of High Country News. He is the author of “Coyote Warrior: One Man, Three Tribes, and the Trial that Forged a Nation.”

A landmark decision this June from the U.S. Supreme Court upheld the rights of several tribes to hunt, gather and fish on the Northwest coast of Washington state, thereby ending a 50-year battle over Native American sovereignty and states’ rights.  

A narrow reading of this decision would focus primarily on fish counts and what the state of Washington will have to pay to remove close to 2,000 road culverts, impediments to fish migration. But a broader reading shows its real importance: Very few cases have come down the pike with more far-reaching implications for state governments.

Workers lower a segment of a new, fish-friendly culvert into place in Bellevue, Washington, in 2012.

Thanks to promises made to Northwest tribes in the mid-1850s by Isaac Stevens, Washington’s first territorial governor, no state has a more impressive record of losing legal battles with Indian tribes than Washington does. President Franklin Pierce sent Stevens to the region to negotiate with Native tribes and open the Oregon Territory to white settlement. The legal trickery Stevens used to accomplish those ends has come back to haunt lawmakers for generations.  

Stevens promised lower Puget Sound tribes the perpetual right to “hunt, gather, and fish in all of the usual and accustomed places.” But he also told a cheering audience of white settlers in Olympia that his real objective was to promise the tribes anything in order to “extinguish, as quickly as possible, their claims to traditional lands so that settlers could be given legal title.” 

Stevens’ approach to ethnic cleansing eventually led to war with the Nez Perce, the Umatilla and the Yakama tribes, while some of his other treaties led to century-long battles in federal courts. To their credit, our nation’s founders anticipated these conflicts and designated treaties “the supreme law of the land” under Article VI, Clause 2, of the U.S. Constitution. This solemn trustee-guarantor partnership between tribes and the federal government has been the backbone of federal Indian law ever since 1832, when Chief Justice John Marshall’s “trust doctrine” made it the federal government’s fiduciary responsibility to safeguard the rights and resources of treaty tribes, trumping all other obligations. 

Washington’s legal battles began with United States v. Winans in 1905, over the Yakama Nations treaty right to hunt, gather and fish in their “usual and accustomed place,” which happened to be owned by white people. Fast-forward to today, and the just-decided culverts case resolves litigation that began almost 50 years ago, when Washington state Attorney General and future Republican Sen. Slade Gorton challenged the scope of the tribes’ fishing rights, hoping to extinguish them forever.

As in the Winans case, Washington state’s 1970 lawsuit relied on states’ rights to carry the day. Attorney General Gorton raised three questions about the Stevens treaties. Did they guarantee the tribes a percentage of the annual commercial catch? Are hatchery-bred fish included in that percentage? Finally, did Native rights implicitly include protections from environmental degradation that would render the tribes’ fishing rights useless?

The now-famous 1974 Boldt Decision answered the first question by guaranteeing tribes half of the commercial salmon catch. The second answer was easy: The allocation could not be limited to hatchery-raised fish. The third question was bandied back and forth in courts for decades. In the end, it proved to be the state’s undoing. 

Washington was counting on the reluctance of lower courts to place the burden of “environmental servitude” on the state. But in 2007, the 9th Circuit Court of Appeals clarified that burden by ruling that the Stevens treaties impose “a duty upon the state to refrain from building and operating culverts (thousands of them) … that hinder fish passage and thereby diminish the number of fish that would otherwise be available for tribal harvest.” 

The cost for removing those culverts and other impediments to fish migration could run into the billions. Headlines in newspapers will doubtless focus on the dollars and the fish counts, but the beating heart of this case lies in its willingness to ask if states could be held responsible for safeguarding Native-owned natural resources protected by treaties.  

The 9th Circuit Court of Appeals answered in the affirmative, and the Supremes let that ruling stand, saying to Washington state, in effect: You should have taken the Boldt Decision seriously and prepared remedies for all these treaty violations before the salmon became a protected species. Don’t blame the tribes for your failure to live up to your obligations.  

Now, the question no state wants to ask is how will future courts divine the difference between the culverts that stop fish from reaching their breeding beds, and all the dams that do the same thing?

High Country News Classifieds
  • OLIVERBRANCH CONSULTING
    Non-Profit Management Professional specializing in Transitional Leadership, Strategic Collaborations, Communications and Grant Management/Writing.
  • SAGE GROUSE CCAA COORDINATOR
    The Powder Basin Watershed Council, headquartered in Baker City, Oregon, seeks a full-time Sage Grouse CCAA Coordinator. This position is part of a collaborative effort...
  • MARKETING COMMUNICATIONS MANAGER
    High Country News, an award-winning media organization covering the communities and environment of the Western United States, seeks a Marketing Communications Manager to join our...
  • EXECUTIVE DIRECTOR - OKANOGAN LAND TRUST
    Executive Director, Okanogan Land Trust Position Announcement Do you enjoy rural living, wild places, family farms, challenging politics, and big conservation opportunities? Do you have...
  • GREAT VIEWS, SMALL FOOTPRINT
    Close to town but with a secluded feel, this eco-friendly home includes solar panels, a graywater reuse system, tankless hot water, solar tubes, and rainwater...
  • EXECUTIVE DIRECTOR
    Powder River Basin Resource Council, a progressive non-profit conservation organization based in Sheridan, Wyoming, seeks an Executive Director, preferably with grassroots organizing experience, excellent communication...
  • COMMUNITY ORGANIZER- NORTHERN PLAINS RESOURCE COUNCIL
    Organize with Northern Plains Resource Council to protect Montana's water quality, family farms and ranches, & unique quality of life. Starts $35.5k. Apply now- northernplains.org/careers
  • BEAUTIFUL, AUTHENTIC LIVE YULE LOG CENTERPIECE
    - beautiful 12" yule log made from holly wood, live fragrant firs, rich green and white holly, pinecones and red berries. $78 includes shipping. Our...
  • CRAZY HORSE MEMORIAL DIRECTOR OF PROGRAMS FOR THE INDIAN UNIVERSITY OF NORTH AMERICA
    Crazy Horse Memorial, in the Black Hills of South Dakota, is currently accepting applications and nominations for the Director of Programs for The Indian University...
  • CRAZY HORSE MEMORIAL® MANAGER OF RESIDENCE LIFE FOR THE INDIAN UNIVERSITY OF NORTH AMERICA®
    Crazy Horse Memorial is currently accepting applications for the Manager of Residence Life for The Indian University of North America. This position is responsible for...
  • EXECUTIVE DIRECTOR
    Are you an art lover who dreams of living in the mountains? Is fundraising second nature to you? Do you have experience managing creative people?...
  • EXECUTIVE DIRECTOR
    The Public Lands Foundation, a non-profit organization supporting the multiple-use management of public lands managed by the Bureau of Land Management, seeks an experienced leader...
  • COLD WEATHER CRAFTS
    Unique handmade gifts from the Gunnison Valley. Soy lotion candles, jewelry, art, custom photo mandalas and more. Check out the website and buy Christmas locally...
  • EXECUTIVE DIRECTOR
    North Cascades Institute seeks their next Executive Director to lead the organization, manage $4 million operating budget, and oversee 60 staff. Send resume/cover letter to...
  • EDITOR-IN-CHIEF
    High Country News, an award-winning media organization covering the communities and environment of the Western United States, seeks an Editor-In-Chief to join our senior team...
  • LENDER OWNED FIX & FLIP
    2 houses on 37+ acres. Gated subdivision, Penrose Colorado. $400k. Possible lender financing. Bob Kunkler Brokers Welcome.
  • HISTORIC LODGE AND RESTAURANT - FULLY EQUIPPED
    Built in 1901, The Crazy Mountain Inn has 11 guest rooms in a town-center building on 7 city lots (.58 acres). The inn and restaurant...
  • POLLINATOR OASIS
    Seeking an experienced, hardworking partner to help restore a desert watershed/wetland while also creating a pollinator oasis at the mouth of an upland canyon. Compensation:...
  • ELLIE SAYS IT'S SAFE! A GUIDE DOG'S JOURNEY THROUGH LIFE
    by Don Hagedorn. A story of how lives of the visually impaired are improved through the love and courage of guide dogs. Available on Amazon.
  • COMING TO TUCSON?
    Popular vacation house, furnished, 2 bed/1 bath, yard, dog-friendly. Lee at [email protected] or 520-791-9246.