19TH CENTURY INDIAN TREATIES AND 21ST CENTURY ENVIRONMENTAL AND NATURAL RESOURCES ISSUES: IS THERE A CONNECTION?

• Author: O'Scannlain, Dlarmuid F.

I.

Knowing the focus of past Huffman Lectures, I thought I would talk to you about environmental and natural resource law, but not in the ordinary sense. Just like other areas of the law, they traditionally operate from a confluence of the three branches of government: the legislature passes a statute, the executive implements it, and the judiciary sits ready to ensure that the other branches have acted within legal bounds.

Today, however, a shortcut approach to environmental and natural resource regulation is becoming increasingly prevalent. (1) Rather than advocating for legislative action, many instead favor dusting off 19th-century treaties with Indian tribes and putting those treaties to work in resolving modern-day problems. (2) I'm here to discuss such practice. Specifically, I wish to explore the recent efforts to utilize the Stevens Treaties of the mid-1800s to deal with the current problem of salmon population decline in the Northwest.

A.

Let me start by providing some background. The Stevens Treaties were negotiated with Northwest tribes between 1854 and 1855 by the first Governor and first Superintendent of Indian Affairs of the Washington Territory, Isaac Stevens. (3) Working on behalf of the United States, Governor Stevens began his diplomatic efforts in December of 1854 by signing the Treaty of Medicine Creek--now known as McAllister Creek--with several tribes in South Puget Sound. (4) He then negotiated his way through the Northwest Territories over the next ten months, at each stop reading from a pre-drafted document with proposed terms to persuade the Indians to cede large portions of their land interests to the United States. (5) He finally ended his tour in October of 1855 in central Montana, signing the Treaty with the Blackfeet. (6)

The result of the Stevens Treaties was that the Northwestern tribal parties relinquished their interests in the land west of the Cascade Mountains and north of the Columbia River, and in exchange they received monetary payments along with a guarantee of certain rights to continue enjoying the land. (7) Specifically, each treaty negotiated by Governor Stevens contained a nearly-identical reservation of hunting and fishing rights. (8) An example of such reservation can be found in the Treaty with the Yakamas, signed in June of 1855, which guaranteed to the Yakama Nation "the right of taking fish at all usual and accustomed places, in common with the citizens of the Territory, and of erecting temporary buildings for curing them; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land." (9)

The reservation of fishing rights was of particular importance to the tribal signatories in light of the centrality of salmon to Pacific Northwest Indian culture. (10) Beyond serving as a means of subsistence and trade, salmon played a fundamental role in the religious systems of the Northwestern tribes, and even served as the basis for several Indian calendar systems." The Quileute Tribe, for example, divided the year into four periods linked to the four great runs of salmon that spawned each year on the Quileute River. (12) The tribes often structured property rights around salmon; indeed, the right to fish at the best spots on neighboring rivers might have passed from individual fisherman to fisherman within each tribe. (13)

More importantly, the Northwest Indian tribes viewed the precious salmon as a practically infinite resource; no amount of fishing could deplete their endless supply of fish. (14) The American settlers held the same view, since it was widely observed at the time that the oceans had left man an inexhaustible supply of living resources. (15) Contemporary writers, for example, characterized the Atlantic Ocean as "the great ovarium of fish;--the inexhaustible repository of this species of food, not only for the supply of the American, but of the European continent." (16) No party to the Stevens Treaties, therefore, held any concern that it would be forced to compete for a scarce supply of salmon in the years to come. (17)

B.

Disputes over tribal access to salmon fishing spots nonetheless quickly arose. (18) Within the first few decades following the signing of the Stevens Treaties, newly-arrived white settlers to the Northwest began fencing off the traditional fishing grounds of the Northwestern tribes. (19) Construing the Stevens Treaties as guaranteeing the Indian signatories no greater rights than those enjoyed by other residents of the area, the white settlers asserted their property rights trumped any rights of the Indians to access the rivers to fish. (20) But the Supreme Court of the United States decisively disagreed in the 1905 decision United States v. Winans. (21) Recognizing the prime importance of salmon to the Indian signatories, Supreme Court Justice Joseph McKenna wrote that the Stevens Treaties reserved to the Indians "a servitude upon every piece of land" and thereby overrode any property interests enjoyed by the region's settlers. (22)

Yet the Winans case was far from sufficient in resolving disputes between the Indian tribes and Northwestern settlers, particularly once the salmon runs began to decline in the 20th century. A large variety of factors--both natural and manmade--have brought the once-thought "inexhaustible" source of salmon in Northwestern waters to dangerously low levels. (23) Salmon are indeed heavily vulnerable to the impacts of climate change, as melting snow packs in the North Cascade Mountains yield increasing temperatures in mountain streams critical to salmon spawning. (24) Other factors likewise compete to diminish local salmon populations: drought, disease, predation, and manmade factors like hydroelectric dams, forestry practices, and ocean overfishing. (25) And once salmon runs dropped to a level insufficient for all in the Northwest to make use of them, disputes between Indians and non-Indians in the region naturally intensified.

The Supreme Court ultimately was forced to wade into such disputes once again in 1979 in Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, (26) commonly referred to as the Fishing Vessel case. This was the opinion which essentially affirmed Judge George Boldt's landmark salmon fishing rights decision of 1974. (27) As it had in Winans, the Court emphasized the central importance of fish to the Indian signatories of the Stevens Treaties. (28) But the Court also held that the treaties, by promising the "right of taking fish in common with" other citizens, reserved to the Indians not only a right to access such fish but a fair share of the available fish. (29)

In determining what constituted a "fair share," the Court embraced as a starting point a fifty-fifty division of fish between Indians and non-Indians. (30) The Court then explained that the fifty-percent figure was a maximum, not a minimum, allocation. (31) Thus, the Court ruled that the Stevens Treaties secured "so much as, but no more than, [what] is necessary to provide the Indians with a livelihood--that is to say, a moderate living." (32)

C.

The Supreme Court's approach to interpreting the right to take fish in the Stevens Treaties demonstrates the difficulties inherent in interpreting Indian Treaty rights. As the Court often has instructed, a technical understanding of the treaty text is not particularly important. (33) Rather, we construe treaties between the United States and Indian tribes broadly, and always in the tribes' favor. (34) We depart from our bedrock principles of interpretation here in acknowledgement of the significant disparities between the footing of the United States and that of the Indian tribes in negotiations. As the Supreme Court put it in Fishing Vessel: "[T]he United States, as the party with the presumptively superior negotiating skills and superior knowledge of the language in which the treaty is recorded, has a responsibility to avoid taking advantage of the other side." (35)

The Stevens Treaties indeed highlight such concerns. To start, the applicable treaty language is quite short; the section in each of the Stevens Treaties describing the right to take fish does not comprise even a whole sentence. (36) And English, the treaty language, is of particularly low interpretive value because the treaty was negotiated in a Chinook trading jargon. (37) Such jargon included only a vocabulary of roughly 300 words, most of which related to commerce. (38) The negotiating language thus lacked words corresponding to many of the treaty's terms. If that wasn't enough to render the meaning of the treaty murky, there is evidence that many of the Indians at the negotiation table had an imperfect command of the jargon itself, and an even lesser understanding of the language of the settlers. (39)

To give substance to the right to take fish, the Supreme Court thus has been forced to rely extensively on several pronouncements made by Governor Stevens when negotiating the treaties. (40) While assurances contemporary with the negotiations might give some insight into how the Indian tribes understood their treaty rights, the statements of Governor Stevens were frequently as broad as they were vague. For example, Governor Stevens famously declared to Indians when negotiating the Treaty of Point No Point: "This paper gives you a home. Does not a father give his children a home?... This paper secures your fish? Does not a father give food to his children? (41) Needless to say, such statements provide little insight into the precise contours of the right to take fish.

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