Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration

38 Pages Posted: 25 Jul 2016 Last revised: 5 Apr 2017

Date Written: July 24, 2016

Abstract

In 1970, twenty-one tribes in the Pacific Northwest, along with their federal trustee, sued the state of Washington, claiming that numerous state actions violated their treaty rights, which assured them “the right of taking fish in common with” white settlers. The tribes and their federal trustee maintained that the treaties of the 1850s guaranteed the tribes 1) a share of fish harvests for both cultural and commercial purposes, 2) inclusion of hatchery fish in that harvest share, and 3) protection of the habitat necessary to provide the fish that were the basis of the bargain which led to peaceful white settlement of the Pacific Northwest. By 1985, the tribes and the trustee convinced the courts of the merits of the first two propositions, but the Ninth Circuit deferred on the third, requiring a specific factual dispute.

Some two decades later, in 2007, the tribes and the federal government convinced district judge Ricardo Martinez that the state’s construction and maintenance of road culverts blocking salmon access to their spawning grounds violated the 1850s treaties. In 2013, after settlement talks failed, the district court issued an injunction that required most of the offending barrier culverts to be remedied within seventeen years, or by 2030. Claiming exaggerated costs of compliance, the state appealed, and in 2016 a unanimous panel of the Ninth Circuit affirmed, rejecting wholesale the state’s allegations. This article discusses the reasoning of both the district court and the Ninth Circuit and makes some assessment of the road ahead, which may implicate road culverts owned by other governments and other habitat-damaging activities like dams, water diversions, and land management actions affecting water quality and quantity.

Keywords: Indian Treaties, Environmental Law, Natural Resources Law, Water Law, Wildlife Law, Federal Trustee

JEL Classification: H77, H82, K11, K23, K32, L78, L88, O13, Q15, Q22, Q23, Q24, Q25, Q28, Q38, Q48

Suggested Citation

Blumm, Michael C., Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration (July 24, 2016). 92 Washington Law Review 1 (2017). Available at SSRN: https://ssrn.com/abstract=2813894 or http://dx.doi.org/10.2139/ssrn.2813894

Michael C. Blumm (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)

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