Rights, Trust Responsibility and Trust Resources
Since time immemorial the Columbia River and its tributaries were viewed by the Columbia River Basin tribes as “a great table where all the Indians came to partake.”1 The tribal peoples’ sustainable culture and the natural resources upon which it depended–including, but not limited to, land, water, natural foods and medicines–were reserved by the tribes when they signed treaties with the United States. The fisheries resources of the Columbia River, including all salmon stocks, are part of the tribes’ treaty protected fisheries. The treaties, though challenged often, have been affirmed repeatedly as legally binding documents by numerous court decisions.
The right of the tribes to govern their members, and manage their territories and resources flows from tribal sovereignty as recognized by treaty. In general, tribal governmental powers are described as “inherent powers of a limited sovereignty which has never been extinguished.”2 The tribes’ status as one of three sovereigns is recognized in the Constitution and has been upheld by the courts since the early years of the Republic. Treaties made with Indian tribes, indeed the fact that treaties were made at all, reflect the federal government’s recognition of tribal sovereignty.3
The fishing right means more than the right of Indians to hang a net in an empty river.4 However, Columbia River runs of sockeye, coho, and spring, summer, and fall chinook have declined drastically since the mid-1800’s. Where once the Columbia produced annual runs of at least 10-16 million salmon, its runs are now diminished to approximately 600,000. In negotiating the treaties, the tribes did not envision nor sanction the U.S. government using or allowing the use of the resource common to each sovereign in a manner that would diminish its availability to the other. The devastation of fish runs is inimical to Indian treaties and the United State’s trust responsibilities to the tribes.
In 1855, representatives of the United States government negotiated separate treaties with the tribes and bands that now compose the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Warm Springs Reservation of Oregon, the Confederated Tribes and Bands of the Yakama Indian Nation, and the Nez Perce Tribe. Retaining the right to continue traditional fishing practices was a primary objective of the Columbia River tribes during treaty negotiations.5 In addition to reserving hunting, pasturing, and gathering rights, each treaty contained a substantially identical provision reserving to the tribes the right to take “fish at all usual and accustomed places in common with citizens of the United States.” The fishing clause is the heart of the Columbia River tribes’ treaties. The Columbia River tribes each reserved the right to take fish: (l) within their respective reservations, (2) at all usual and accustomed fishing sites on lands ceded to the United States government, and (3) at all usual and accustomed fishing sites outside the reservation or ceded areas.
The right to take fish is integral to the Columbia River tribes’ subsistence, culture, religion and economy. The Supreme Court recognized the importance of fish to the tribes early in the development of treaty interpretation:
The right to resort to…fishing places…was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed.6
Winans stands as an explicit recognition that Columbia River tribes retain an aboriginal fishing right that has resided with these tribes since time immemorial. The Winans reserved rights doctrine is the law today.
In the 90 years since the Court’s opinion in United States v. Winans, the treaty fishing clause has been the subject of no fewer than six additional written opinions by the United States Supreme Court. All of the Court’s decisions have upheld the basic rights of the treaty tribes to take fish at all usual and accustomed fishing places. In addition, the fishing clause has been the subject of dozens and dozens of federal district court and court of appeals opinions. The federal court opinions have confirmed that the tribes are entitled to 50% of the harvestable number of fish destined to pass usual and accustomed fishing places. In their interpretations of the treaties, the federal courts have established a large body of case law setting forth certain fundamental principles.
In accordance with these established principles, also known as the conservation standards, for government regulation of fishing rights to be permissible, it must be demonstrated that the regulation is “a reasonable and necessary conservation measure … and that its application to the Indians is necessary in the interests of conservation.”7 The regulation must not discriminate against Indians exercising treaty rights, either on its face or as applied.8 And, all measures must be taken to restrict non-Indian activities before treaty rights may be regulated.9
Conservation in the context of fisheries management often includes “wise use” considerations. However, in the context of regulation of treaty Indian fishing rights, conservation is a term of art whose meaning is limited to maintenance of a reasonable margin of safety against extinction.10
Although the tribes’ rights to take fish and regulate the fishery resource have been clearly upheld in numerous courts, these rights are meaningless if there are no fish to be taken or resources to be managed. As described in Section 3, fish runs passing through usual and accustomed fishing places have been severely diminished by environmental degradation. In the most general terms, this degradation has profoundly impacted the quality and quantity of the waters that sustain the fish.
In the realm of treaty fishing rights, the tribes, states, and federal government share the responsibility to protect and enhance fish habitat as co-tenants.11
To protect fish habitat and tribal fisheries, courts have grounded their decisions on reserved water rights and treaty fishing rights in situations where certain uses of water impact fish habitat.12 In 1985, for instance, the Ninth Circuit affirmed a federal district court order which required that water be released from a dam in the Yakima system to protect 60 spring chinook salmon redds from destruction.13
In addition to the concept of a co-tenancy regarding the fishery resource, the United States stands in a trust or fiduciary relationship to Indian tribes. The trust relationship is a legal doctrine which embodies the many political promises made by the federal government to Indian tribes. The trust doctrine governs all aspects of federal government actions that affects Indian tribes. Because the federal government and its agencies are subject to the United States’ fiduciary responsibilities to tribes, all federal actions and the implementation of federal statutory schemes affecting Indian people, land or resources must be “judged by the most exacting fiduciary standards.”14 Because the trust doctrine permeates every aspect of the federal government’s relations with Indian tribes, the United States’ trust obligations extend to all federal agencies that manage fisheries, water projects, hydroelectric projects, and federal lands. Thus, the federal government and its implementing agencies owe a duty to not only recognize the impacts of their activities on the tribes, but also a duty to safeguard natural resources which are of crucial importance to tribal self-government and prosperity. In addition, the trust responsibility imposes an affirmative duty upon a federal agency to use its particular expertise, in meaningful consultation with the tribes, to protect tribal resources. As discussed later with regard to U.S. v. Oregon and the other major institutional structures affecting Columbia basin anadromous fish, procedures exist that provide such meaningful consultation.
For the last thirty years, treaty fishing rights cases and the federal trust responsibility toward Indian tribes have been major factors in the evolution of institutional structures for the management and protection of Columbia Basin salmon fisheries. From a tribal perspective, the development of management institutions in the basin reflects and must continue to reflect the implementation of treaty promises through the development of joint or co-management strategies by the tribes, the states and the federal government.
1. Seufert Brothers Co. v. United States, 249 U.S. 194, 197 (1919).
2. United States v. Wheeler, 435 U.S. 313, 322-323 (1979).
3. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
4. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 679 (1979).
5. Tulee v. Washington, 315 U.S. 681, 683-85 (1942).
6. United States v. Winans, 198 U.S. 371, 381 (1905).
7. Antoine v. Washington, 420 U.S. 194, 207 (1975); see also, Puyallup Tribe v. Department of Game, 414 U.S. 44, 49 (1973); United States v. Fryberg, 622 F.2d 1010, 1015 (9th Cir. 1980).
8. See, Puyallup Tribe v. Department of Game, supra. Lac Courte Oreilles Band of Indians v. Wisconsin, 668 F. Supp. 1233, 1237 (W.D. Wis. 1987).
9. See e.g., United States v. Washington 520 F. 2d 676, 686 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976); Lac Courte Oreilles Band of Indians v. Wisconsin, supra, at 1235-36.
10. United States v. Oregon, 718 F.2d 299, 305 (9th Cir. 1983); see also, United States v. Washington, 384 F. Supp. 312, 342 (W. D. Wash. 1974); Sohappy v. Smith 302 F. Supp. 899, 908 (D. Or. 1969).
11. United States v. Washington 520 F. 2d 676, 685 (9th Cir. 1975) (finding that the treaty fishery resource is analogous to a cotenancy and thus neither treaty Indians or non-Indians may permit the subject matter of the treaties —the fish—to be destroyed).
12. Accord, Joint Board of Control of Flathead Irrigation District v. United States, 832 F.2d 1127 (9th Cir. 1987) (by allocating water to non-Indian irrigators, district court ignored superior federal obligations to provide in stream flows to protect fishery subject to treaty rights). See also, Colville Confederated Tribes v. Walton (Walton II), 647 F.2d 42 (9th Cir. 1981); United States v. Adair, 723 F.2d 1394 (9th Cir. 1983).
13. Kittitas Reclamation District v. Sunnyside Valley Irrigation District, 763 F.2d 1032 (9th Cir. 1985). See also Winters v. United States, 207 U.S. 564 (1908) .Colville Confederated Tribes v. Walton (Walton II), 647 F.2d 42 (9th Cir. 1981); United States v. Adair, 723 F.2d 1394 (9th Cir. 1983). In Winters, the U.S. Supreme Court held that sufficient water was impliedly reserved at the time of the treaties to fulfill the purposes for which a reservation was created.
14. Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942).