Indigenous Rights in the U.S. Marine Environment: The Stevens Treaties and Their Effects on Harvests and Habitat
Indigenous Rights in the Marine Environment (Nigel Bankes, ed., Hart Pub. Co., 2019, Forthcoming)
37 Pages Posted: 23 May 2018 Last revised: 7 Oct 2018
Date Written: May 9, 2018
There are few recognized indigenous rights in the U.S. marine environment. Indigenous rights in the U.S. are the product of treaties, since there are little, if any, aboriginal rights remaining. And treaty rights recognizing indigenous rights are unusual. Most concern what are known as the Stevens Treaties of the 1850s, in which the native tribes conveyed most of today’s U.S. Pacific Northwest for incidental benefits like agricultural tools and, more importantly, “the right of taking fish in common with” the incoming settlers. Several Stevens Treaty tribes have rights to harvest fish in the marine environment, including the Lummi and Makah tribes, which have been involved in quite a bit of litigation concerning the nature and scope of their rights. We examine these conflicts in this chapter.
Lummi rights in the off-shore, which have been the subject of frequent court decisions over where they may be exercised, were adversely affected by a breached salmon farm net in 2017, the ramifications of which have not entirely played out as of this writing. However, they might occasion a reevaluation of salmon farming in Washington and perhaps in British Columbia as well. The Makah’s harvest rights, alone among Stevens Treaty tribes, include whaling rights. That tribe’s decades-long effort to resume whaling is part of this story as well, and we explain in some detail.
Looming over all Stevens Treaty rights is the question of whether “the right of taking fish,” which includes a right to harvest half the salmon runs, including hatchery fish, also includes the right to protect the environment on which their habitat depends. That right was upheld by a federal appeals court in decades-long litigation in 2017. In 2018, the U.S. Supreme Court divided on the state's appeal, 4-4, affirming the lower court's decision without issuing an opinion. Whether other habitat-damaging activities violate the treaty right is not yet clear.
Off-shore treaty rights to harvest salmon were quite influential in the signing of the Pacific Salmon Treaty between Canada and the U.S. in 1985, which reallocated international harvest rights. Tribes have also successfully convinced the U.S. government to argue for a change to the Columbia River Treaty, which affects the operation of Columbia Basin dams in both the U.S. and Canada, to include ecological function to benefit salmon migration. Such a change could have significant effects on marine harvests. That treaty is currently under renegotiation, and Canada has yet not indicated its support for an amendment that would embrace restoration of ecological function as a treaty purpose.
One focus for the future could be the use by non-tribal governments to protect treaty rights in their regulatory decisions. There are several surprising recent examples of the federal, state, and local governments doing just that. The chapter discusses these developments and concludes with a discussion of what they may portend for the future in the wake of the Supreme Court's affirmation in the culverts case.
Keywords: Indian treaties, marine environment, U.S.-Canada relations, salmon law, tribal participation in regulatory proceedings
JEL Classification: K11, K32, N52, N72, N92, O44, O51, Q01, Q22, Q25, Q27, Q28, Q42, Q48
Suggested Citation: Suggested Citation