CONTEMPORARY ISSUES FACING THE TRIBES IN WESTERN WASHINGTON

CONTEMPORARY ISSUES FACING THE TRIBES IN WESTERN WASHINGTON

MEMBER TRIBES OF THE NORTHWEST INDIAN FISHERIES COMMISSION

TRIBAL SOVEREIGNTY Tribal sovereignty refers to tribes’ right to: • Self-governance; • Define membership; • Duty to protect the public health, safety, and general welfare of its citizens, lands, and natural resources • Manage tribal property; • Regulate business and domestic relations; • Have a government-to-government relationship with the federal government.

WHAT’S A TREATY?

WHAT’S A TREATY? • A formally concluded and ratified AGREEMENT between sovereign nations • Its’ a CONTRACT-a legally binding or valid agreement between two or more parties

Federal Laws United States Code Statutes at Large 33 U. S. C. §§ 1251 -1387 86 Stat. 816 16 U. S. C. §§ 1531 -1544 87 Stat. 884 42 U. S. C. § 4321 83 Stat. 852 12 Stat. 939 10 Stat. 1132 12 Stat. 971 12 Stat. 927 12 Stat. 933 Common Name

Federal Laws United States Code Statutes at Large Common Name 33 U. S. C. §§ 1251 -1387 86 Stat. 816 Clean Water Act 16 U. S. C. §§ 1531 -1544 87 Stat. 884 42 U. S. C. § 4321 83 Stat. 852 12 Stat. 939 10 Stat. 1132 12 Stat. 971 12 Stat. 927 12 Stat. 933

Federal Laws United States Code Statutes at Large Common Name 33 U. S. C. §§ 1251 -1387 86 Stat. 816 Clean Water Act 16 U. S. C. §§ 1531 -1544 87 Stat. 884 Endangered Species Act 42 U. S. C. § 4321 83 Stat. 852 12 Stat. 939 10 Stat. 1132 12 Stat. 971 12 Stat. 927 12 Stat. 933

Federal Laws United States Code Statutes at Large Common Name 33 U. S. C. §§ 1251 -1387 86 Stat. 816 Clean Water Act 16 U. S. C. §§ 1531 -1544 87 Stat. 884 Endangered Species Act 42 U. S. C. § 4321 83 Stat. 852 12 Stat. 939 10 Stat. 1132 12 Stat. 971 12 Stat. 927 12 Stat. 933 National Environmental Policy Act

Treaties are also Federal Laws United States Code Statutes at Large Common Name 33 U. S. C. §§ 1251 -1387 86 Stat. 816 Clean Water Act 16 U. S. C. §§ 1531 -1544 87 Stat. 884 Endangered Species Act 42 U. S. C. § 4321 83 Stat. 852 National Environmental Policy Act 12 Stat. 939 Treaty of Makah 10 Stat. 1132 Treaty of Medicine Creek 12 Stat. 971 Treaty of Olympia 12 Stat. 927 Treaty of Point Elliott 12 Stat. 933 Treaty of Point No Point

TREATIES ARE THE SUPREME LAW OF THE LAND “The Constitution. . . of the United States and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; And the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding. ” U. S. Constitution Article VI, Cl. 2

WHAT WAS PROMISED IN THE TREATIES? • U. S. recognizes tribal existence as sovereign nations and rightful owners of the land resources. • U. S. gets millions of acres of land resources for peaceful settlement of non-Indians

WHAT WAS PROMISED IN THE TREATIES? • In exchange for land, tribes received certain promises from the U. S. , including: – Blacksmith (Commerce), Teacher (Education), and Doctor (Medicine and Health) – Reservation homelands for tribal exclusive use and occupancy; – Protection of their reserved right to take fish, hunt and gather. • “ …the right of taking fish at all usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the territory. . . ”

IT DIDN’T TAKE LONG FOR CONFLICT • • US v. Taylor (1887) US v. Winans (1905) Winters v. US (1908) US v. Seufert (1919) Tulee v. Washington (1942) Sohappy v. Smith (1969) US v. Oregon (1968) Puyallup I (1968), II (1973), and III (1977)

THE "FISH WARS"

THE "FISH WARS" • State refuses to recognize treatyreserved rights and arrests tribal members fishing off-reservation. • Decades of strife lead to “Fish Wars” of the 1960 s and ’ 70 s. • Only recourse for tribes was to seek legal remedy.

U. S. V. WASHINGTON BOLDT DECISION, FEB. 12, 1974 • Tribes have right to fish in all usual and accustomed places. • Tribes are co-managers of the resource and are entitled to 50% of the harvestable fish. • State can regulate Indian fishing only if it proves a conservation need; non -Indians must be regulated first.

UPHELD BY SUPREME COURT The state refused to implement Boldt’s ruling until 1979 when the Supreme Court largely upheld the decision. “…other than some desegregation cases in the South, the civil disobedience by Washington State officials is the single greatest act of defiance of federal law witnessed in this century. ”

U. S. V. WASHINGTON PHASE II ORRICK DECISION 1980 • Treaty tribes’ share includes hatchery fish; • Tribes have implicit right to have fish protected from environmental degradation.

HOH V. BALDRIGE, 1981 • Salmon must be managed river system by river system, run by run to protect the treaty right. • State and tribes must mutually develop long-term plans with practical rules for management and allocation of salmon.

SHELLFISH CASE RAFEEDIE DECISION, 1994 • Shellfish harvesting rights at “usual & accustomed” places are the same as those for salmon. • Shellfish are “fish” under the treaties. • Includes the right to harvest shellfish on state/private tidelands.

TREATY INTERPRETATION • Under canons of treaty construction, treaties must be interpreted the way tribes would have understood. • Ambiguities in construction must be resolved in favor of the tribes. • Rules are rooted in the unique trust relationship between the U. S. and tribes.

WHAT IS TRUST RESPONSIBILITY? “The trust responsibility consists of the highest moral obligations that the United States must meet to ensure the protection of tribal and individual Indian lands, assets, resources, and treaty and similarly recognized rights. ” — Cohen’s Handbook of Federal Indian Law

What is a Trust? A right of property, held by one party for the benefit of another. Black’s Law Dictionary, 4 th Ed. P. 1680

What is a Fiduciary? A person having a duty to act primarily for the benefit of another in certain matters. Black’s Law Dictionary, 4 th Ed. , p. 753

ARE YOU MY TRUSTEE? • United States of America and all federal agencies: • Executive Branch implements the trust obligation. • Legislative Branch can further define the trust obligation. • Judicial Branch enforces the trust obligation.

FEDERAL TRUST RESPONSIBILITY • Fiduciary obligation to “protect” and “restore” rights, authorities and assets of tribes. • “Meaningful” government-to-government consultation: • Early and continual notice • Responsive to tribal input • Decisions made in context of treaty rights and trust responsibility • Accountability

What are the standards for a common law trust? a. Duty to Administer the Trust b. Duty of Loyalty (e. g. NRCS) c. Duty Not to Delegate d. Duty to Keep and Render Accounts e. Duty to Furnish Information f. Duty to Exercise Reasonable Care and Skill g. Duty to Take and Keep Control h. Duty to Preserve the Trust Property (e. g. Manchester) i. Duty to Enforce Claims and to Defend Actions (e. g. Cushman Dam) j. Duty To Keep Trust Property Separate k. Duty with Respect to Bank Deposits l. Duty to Make the Trust Property Productive m. Duty to Pay Income to Beneficiaries n. Duty to Deal Impartially With Beneficiaries o. Duty with Respect to Co-Trustees p. Duty with Respect to Person Holding Power of Control

TREATY RIGHTS AT RISK

TREATY RIGHTS AT RISK • Salmon populations declining steadily since Boldt decision, mainly because of lost and damaged spawning and rearing habitat. • Trend shows no signs of improvement despite ESA listings, decades of effort and huge financial investment. • Tribal harvest reduced to pre-Boldt levels. Some tribes have lost their fundamental ceremonial and subsistence fisheries.

TREATY RIGHTS AT RISK • Tribal treaty rights being rendered meaningless by loss of salmon for harvest. • Federal government has an obligation to exercise trust responsibility to tribes and to recover salmon. • Through the Treaty Rights at Risk initiative, tribes seek coordinated federal leadership, alignment of federal programs, and a halt to disparate application of salmon conservation measures.

IMPACTS OF DECLINING RESOURCE • Without fish to harvest, the treaties would be abrogated. • Tribal cultures, communities and economies are at grave risk.

Contemporary Issues • • Habitat Management Hatchery Management Co-Management Harvest Management

Habitat – Phase II and the Culvert Injunction • If the Tribes have a right to take fish, do they have the right to have the habitat protected for the fish? • Do local governments, as subdivisions of the State, have a duty to protect the habitat? • Does the State in its regulatory capacity have a duty to protect the habitat? – Water Quality Standards and Human Health Criteria • If the Tribes have a right to have the habitat protected for the fish, do they have a right to safely consume the fish? – Water Resources • If the Tribes have a right to have the habitat protected for the fish, do they have a right to the water necessary for the fish?

Culvert Case-What is a Fish Barrier? High Velocity Shallow Water Depth Excessive Water Surface Drop 36

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CULVERT CASE • Phase II of U. S. v. Washington confirmed that for treaty rights to have meaning there must be salmon for tribes to harvest. • Tribes file suit in 2001 to force state to repair failing, fish-blocking culverts. • In 2013 Judge Martinez orders state to repair nearly 600 culverts over the next 17 years.

What do others say • Blumm and Steadman have said: “The Martinez Decision represents the most significant step forward in the progression of treaty fishing rights litigation since the Supreme Court’s affirmation of Judge Boldt thirty years ago. ” (p. 704) • The lawsuit is potentially a more powerful tool than the Endangered Species Act (ESA) for a couple of key reasons. First, it could affect streams and rivers everywhere in Washington with a state highway culvert that affects runs for Western Washington tribes. The ESA only protects streams that are home to fish listed for protection. Second, the ESA only requires fish runs to be restored to the point that they are no longer on the brink of extinction. The lawsuit seeks to restore habitat to the point it supports enough salmon to successfully sustain commercial, cultural and subsistence fishing. (Mapes, Seattle Times, 2001)

Activities Impacting Fish Habitat • Agricultural practices • Bank stabilization • Dam construction/operation • Dredging and dredged spoil disposal • Estuarine alteration • Forest practices • Gravel mining • Grazing • Improperly maintained passage devices (e. g. , culverts) • Irrigation water withdrawal, storage, and management • Mineral mining • Point Source Pollution • Road building and maintenance • Sand gravel mining • Urban or other land use development • Wastewater/pollutant discharge • Water/Instream Flows • Wetland floodplain alteration • Woody debris/structure removal from rivers and estuaries

Hatchery Management • If the Tribes have a right to take the fish, do they have a right to the hatchery fish and does the State have a duty to produce the hatchery fish? – ESA and HGMPs – Budget Reductions

Co-Management • Harvest Management – Confidentiality of Tribal Data • Habitat Management – If the Tribes are co-managers of the fisheries resource, are they co-managers of the habitat? • Hatchery Management – If the Tribes are co-managers of the fisheries resources, are they co-managers of the hatcheries?

Harvest Management • All Citizens/PSC-Yakama v. Baldrige and relevant Subproceedings • Intertribal • Shellfish Implementation

“Great Nations, Like Great Men, Keep Their Word. ” — Justice Hugo Black on Indian Treaties

John Hollowed Northwest Indian Fisheries Commission 360 -438 -1180 360 -951 -4066 Hollowed@nwifc. org This presentation does not reflect the positions or opinions of the NWIFC or its member Tribes.