American Indian Law Journal, Vol. 1, Issue 2, Spring 2013
105 Pages Posted: 12 May 2013 Last revised: 20 Nov 2013
Date Written: 2013
Fish and all of the lifeways associated with the fish are essential to the health and well-being of American Indian tribes in the Pacific Northwest, today as in the past. Fish are vital to tribal people for the nutrients they provide, of course. But every facet of managing, harvesting, distributing, and honoring the fish is woven into the fabric of tribal life. The importance of fish is reflected, among other things, in tribes’ reservation of the right “to take fish” in the treaties that they made in the 1850s with the nascent United States. Yet, as the tribes have recognized, their treaty-secured and other fishing rights can be undermined when the environments that support the salmon and other fish become degraded, leading to depletion and contamination of the fish resource. This article discusses the implications of tribes' treaty-secured rights to take fish for current efforts to set water quality standards in Washington and elsewhere in the Pacific Northwest. Among other things, this article considers the impact of ongoing treaty rights litigation, including the landmark ruling in the "culverts" case handed down by the Western District of Washington in March, 2013. Although this article focuses on agency decision making in the tribal context, it recounts a debate that has often been framed by arguments that are familiar from more general discussions of risk-based regulation. In fact, these generic arguments are often inapt in the tribal context. Among other things, tribes are entitled to undertake fish consumption practices consonant with the treaty guarantees. Historical, original, or “heritage” fish consumption rates thus have ongoing relevance for the fishing tribes. Contemporary tribal fish consumption rates, by contrast, are artificially “suppressed” and reflect practices marred by inundation of tribes’ fishing places; depletion and contamination of the fish resource; and a legacy of prosecution, intimidation, and gear confiscation. Given the forward-looking nature of environmental standards, this article argues that we ask the wrong question when we gauge future exposure by practices in a contaminated present. Yet the future condition of Washington waters is today determined by reference to the amount of fish people across the nation ate in 1973-74 – when the lakes were dead, the rivers on fire, the fish resource depleted and contaminated, and tribal harvest still under open attack. This article closes by observing that we are all successors to the treaties and by exploring ways in which the relevant state and federal agencies might work with their tribal counterparts to uphold the treaty promises.
Keywords: federal Indian law, treaty rights, Stevens treaties, culverts case, Clean Water Act, water quality standards, fish consumption, exposure assessment, quantitative risk assessment, risk regulation, clean science, cleanup standards, U.S. v. Washington, environmental standards, suppression effects
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