A Human Face to Instream Flow: Indigenous Rights to Water for Salmon and Fisheries

• Publication year: 2021

A Human Face to Instream Flow: Indigenous Rights to Water for Salmon and Fisheries

Paul Stanton Kibel

A HUMAN FACE TO INSTREAM FLOW: INDIGENOUS RIGHTS TO WATER FOR SALMON AND FISHERIES

Paul Stanton Kibel^*

Abstract

In the United States and throughout the world, there are many indigenous peoples whose culture and identity are closely connected to salmon and fisheries. Such salmon and fisheries are often dependent on maintaining adequate instream flows of water in rivers. Indigenous groups in the United States and in other countries have increasingly relied on indigenous human rights laws as a basis to keep water instream to maintain salmon and fisheries. This includes reliance on sources of international law such as the International Convention on Civil and Political Rights, the United Nations Declaration on the Rights of Indigenous Peoples, the International Labor Organization's Convention on Indigenous and Tribal Peoples, the Declaration of Principles for the Defense of Indigenous Nations and Peoples in the Western Hemisphere and the Indigenous Peoples Water Declaration. This Article examines five case studies of how indigenous communities have attempted to use domestic and international law to ensure that there is adequate flowing water to sustain the fisheries upon which their tribal cultures depend. Three of these case studies come from the United States—the Columbia River Basin in the Pacific Northwest, the Nooksack River in Washington, and Stanshaw Creek in California—and the other two case studies come from the Saru River in Japan and the Whanganui River in New Zealand. Collectively, these case studies reveal that efforts to maintain instream flow are not only about preserving fish stocks and riverine ecosystems but can also be about preserving cultures.

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Introduction: Sacred Salmon

There are multiple sources of state, federal, and international law that establish legal obligations to keep sufficient water instream for salmon and other fisheries.

For example, at the state level in California, public trust law recognizes navigable surface waters and fisheries (including salmon) as public trust resources, and provides that state and local governments have an obligation to fully protect such public trust resources whenever feasible.¹ With fisheries located in rivers, streams and creeks, ensuring adequate instream flow is often needed to provide such full protection.² At the federal level, the Endangered Species Act in the United States provides for the designation and protection of critical habitats for all listed species.³ For many listed fish species, maintaining such critical habitats often requires maintaining adequate instream flows.⁴ Finally, under international law, Article 20 of the U.N. Convention on the Law of Non-Navigable Uses of International Watercourses provides "[w]atercourse States shall, individually and, where appropriate, jointly, protect and preserve the ecosystems of international watercourses."⁵ Adequate instream flows are often essential to protecting and preserving the ecosystems of watercourses upon which fisheries rely.⁶

These sources of state, federal, and international law, however, have generally not framed the obligation to provide adequate instream flows as a fundamental human right. When viewed through the lens of indigenous rights, however, we can start to discern the basis for a human right to keep water instream for fish. This may be particularly true when it comes to instream flows needed to sustain salmon. Throughout the world, there are many indigenous cultures in which salmon are central and essential to tribal identity and health, and in which salmon restoration and instream flows are being sought as indigenous rights.⁷

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For instance, in Siberia and the Russian Far East, the Itelmen ethnic group on the Kamchatka Peninsula petitioned the Government of Kamchatka and the federal fishing agency to protect indigenous salmon fishing rights.⁸

As another example, in British Columbia in Canada, First Nations on the west coast of Vancouver Island have banded together to form the Nuu-chah-nulth Salmon Alliance to press the provincial and federal Canadian governments to strengthen protection of salmon stocks from logging operations that degrade spawning waters.⁹

As a final illustration of the connection between indigenous rights to water and fisheries (although not salmon-specific), in northern Mexico, the Cucapá indigenous people have been reduced from several thousand to a few hundred persons, as the Colorado River Delta (where the Colorado River flows into the Sea of Cortez) upon which they rely, has dried up due to upstream diversions.¹⁰ In 2002, a complaint was filed with the Mexican National Human Rights Commission alleging that the failure to preserve flows and fisheries in the Colorado River Delta violated the rights of the Cucapá under International Labor Organization Convention No. 169 on Indigenous and Tribal Peoples of 1989 ("I.L.O. No. 169").¹¹ In its decision on this complaint, the Mexican National Human Rights Commission ordered Mexico's federal natural resource agency to update the biosphere reserve management plan for the Colorado River Delta to help ensure that the cultural, ecological, and economic needs of the Cucapá people were better protected.¹²

This Article examines five case studies of how indigenous communities have attempted to use state, federal, and international law to ensure that there is adequate flowing water to sustain the fisheries upon which their tribal cultures depend. Three of these case studies come from the United States—the Columbia River Basin in the Pacific Northwest, the Nooksack River in Washington, and

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Stanshaw Creek in California—and the other two case studies come from the Saru River in Japan and the Whanganui River in New Zealand. In these case studies, we see both the past shortcomings of efforts to ground the right to fish and water in indigenous rights, as well as the potential for such efforts going forward.

I. Case Studies of Indigenous Claims to Instream Flow to Sustain Salmon and Fisheries

A. Yakima Fishing Rights and Celilo Falls on the Columbia River

This first case study considers the ways that national governments may be more willing to protect the indigenous right to fisheries from actions by third parties than actions by the national government itself.

Celilo Falls was located on the Oregon side of the Columbia River near the town The Dalles, east of the city of Portland.¹³ According to author Katrine Barber in her 2005 book Death of Celilo Falls "[r]apid currents and exposed rocks created a navigational nightmare. The rapids, backwaters, and eddies also constituted what many considered the best nine-mile stretch of fishing sites on the continent."¹⁴

Barber further elaborated on how the Indians managed to fish for salmon on this navigational nightmare:

When salmon migrated, fishers waited on scaffolds that hung from cliffs above the roaring water of the falls or on platforms that reached out over the river like pointed fingers. From these cantilevers, Indians lowered mobile and stationary nets deep into the water where millions of salmon forced their way up the river. The rushing current pushed fish backward, stunning them and allowing Indians to skillfully scoop up the fish[.]¹⁵

The Native American (Indian) tribes that traditionally fished at Celilo Falls included the Yakima, Umatilla, Warm Springs, Wasco, and Wishram.¹⁶ For these tribes, salmon represented the essential connection between human

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cultures and the natural world.¹⁷ This connection was evidenced by the First Salmon Ceremony common among the salmon-dependent Columbia River Basin tribes, when the return of spring salmon runs marked the end of winter and meals of dried foods.¹⁸

In 1855, the United States entered into a series of treaties with Pacific Northwest tribes, including the Yakima and the Umatilla, in the Columbia River Basin.¹⁹ These treaties became known as the Stevens Treaties, named after Territorial Governor Isaac Stevens who negotiated them on behalf of the United States.²⁰ The 1855 Stevens Treaties with the Yakima and the Umatilla provided that the tribes retained "the right of taking fish at all usual and accustomed places, in common with all citizens of the Territory."²¹ The term "Territory" referred to the Oregon Territory because in 1855, Oregon, Washington, and Idaho had not yet been admitted as new states to the United States.²²

Over the course of the century that followed the Stevens Treaties, the Yakima were often successful in defending their fishing rights in the courts.²³ Often represented by the United States Bureau of Indian Affairs (BIA), which acted in a trustee capacity in such litigation, the Yakima were able to preserve their treaty fishing rights against claims by non-Indian fishers in two important federal court cases.²⁴

In the first case, Seufert Brothers Company v. United States, an Oregon fishing company attempted to oust the Yakima from access to Celilo Falls on the southern shore of the Columbia River and restrict the tribe's fishing to the northern shore (in Washington state) of the river.²⁵ In its 1919 decision in Seufert, the U.S. Supreme Court upheld the right of the Yakima to fish for salmon at Celilo Falls and other spots on the Oregon side of the Columbia River, relying on the "usual and accustomed places" language in the 1855 treaty.²⁶

In the second case, United States v. Earnest Cramer and E.R. Cramer, the BIA filed suit in federal district court in Portland, Oregon on behalf of the

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Yakima in response to non-Indian fishermen that had constructed fishing scaffolds at Celilo Falls and other traditional Yakima fishing spots along the Columbia River.²⁷ In his 1946 decision in Cramer, again relying on the provisions in the 1855 treaty, federal district court judge James Alger Fee found in favor of the Yakima, granting temporary restraining orders...