Borrowing instead of taking: how the seemingly opposite threads of Indian treaty rights and property rights activism could intertwine to restore salmon to the rivers.

AuthorRoels, Starla Kay

This Article examines the nature of the right to fish that Indian tribes reserved in treaties with the United States Government, concluding that the exercise of the treaty right to fish is a compensable Fifth Amendment property right. The Author discusses how hydroelectric dams have greatly contributed to the dwindling salmon runs, demonstrates the federal government's nexus to hydroelectric development and operation, and argues that the federal government owes Indian tribes just compensation for unconstitutionally preventing the tribes from fully exercising their property right to fish. The Author concludes this Article with a discussion of the difficulties in obtaining compensation and recommends possible remedies. I. INTRODUCTION

In 1805, two white explorers on their way down the Columbia River passed by nearly 200,000 sockeye headed back to their spawning beds at Redfish Lake. By 1990, [those explorers] would multiply a million times over and the sockeye would become two. Today the tribes mourn the loss of our companions in nature who helped nurture our bodies, our minds and our spirit.(1) Indian people rely on salmon for both subsistence and ceremonial use.(2) Over one hundred years ago, tribes in the Columbia River Basin signed what are now known as the Stevens Treaties.(3) In these treaties, tribes exchanged vast areas of land for express provisions guaranteeing their tribal fishing:(4) "[T]he right of taking fish at all usual and accustomed places in common with citizens of the Territory."(5) The United States Supreme Court found that "the Indians were vitally interested in protecting their traditional fisheries and `were invited by the white negotiators to rely and in fact did rely heavily on the good faith of the United States to protect that right.'"(6) As one court recognized,

"[r]eligious rites were intended to insure the continual return of the salmon.... [S]easonal and geographic variations in the runs of the different species determined the movements of the largely nomadic tribes ... [who] developed food-preservation techniques that enabled them to store fish ... and to transport it over great distances."(7) Tribes needed the fish not only for ceremonial and subsistence purposes, but also for trade with white settlers and for employment.(8) Non-Indians relied on Indian fishing because Indians caught most of the fish needed for food consumption and for export.(9) Now, however, Indians are no longer able to support even themselves through fishing. Instead, they must rely on their tribal enterprises and the federal government for the support of various economic and social programs.(10)

Fish losses in the rivers can be attributed mainly to the construction and operation of hydroelectric dams.(11) Fish experts attribute low fish populations and around ninety to ninety-five percent of fish mortalities to these dams.(12) At least twenty-seven dams clog the arteries of the mainstem Columbia River and the Snake River.(13) These dams were put into operation between 1901 and 1983, with most dams being constructed between 1932 and 1969.(14)

The fish, as well as treaty and non-treaty fishermen, often receive less priority than do inexpensive power concerns and the direct service industries who rely on the inexpensive power. As Ted Strong, Executive Director of Columbia River Inter-Tribal Fish Commission, explains, "the whining of turbines and tug boat engines get drowned out by the whining of peoples whose financial interests and motives make them blind and deaf to purposes higher than money."(15) The bottom line is that Indians are no longer able to catch the fish that they secured by treaty. Less than one million salmon now return to the Columbia River Basin, which is a fraction of what returns once were,(16) and in some areas, no fish return.(17) The tribal churches and long houses on the reservations and in territory ceded to the United States "rely on salmon for their religious services,"(18) but spring chinook salmon do not even return in great enough numbers for tribes to use in traditional ceremonies for the First Salmon Feasts.(19) Tribes have lost estimated billions of dollars in revenues from commercial fisheries and they fear the collapse of their cultures.(20) Additionally, "[t]ribal people still maintain a dietary preference for salmon and its role in ceremonial life remains preeminent. Salmon is important and necessary for physical health and for spiritual well-being."(21) Modern society has therefore made many Columbia River tribes much less self-sufficient and has created a terrific threat to the tribes' cultural identities.

The United States should find it in everyone's best interests to stop the salmon's decline so that overall economic impacts of decimated fisheries can be alleviated and so that Indians can work toward self-sufficiency. Scientists generally agree that saving salmon is "economically important and ecologically critical,"(22) yet the controversies surrounding the salmon's survival(23) may prevent salmon from ever being fully restored or from being restored to a sustainable extent where the tribes can fully enjoy their treaty rights.(24)

Because the federal government has contributed to and caused fish declines by operating and constructing federal hydroelectric projects and by licensing non-federal projects, and because the government guaranteed--by treaty--the Indians' rights to fish, the government may be liable to Indians through the Fifth Amendment property clause. Though the federal government has not expressly abrogated the right to fish, which it should not do, the federal government's actions to eliminate fish and inaction to restore fish have contributed to the destruction of the social and economic foundation of the treaty fishing right. No United States Supreme Court cases are directly on point for this problem, but applicable principles from federal Indian law, due process property cases, and takings law indicate that Indians could be compensated under the Fifth Amendment for the lost ability to exercise their rights to catch fish. The purpose of this Article is not necessarily to advocate that tribes bring Fifth Amendment claims at the risk of extinguishing treaty rights, but is instead to explore the issue in the context of private property rights activism to demonstrate an incentive for protecting tribal rights and natural resources as guaranteed by treaty. Indians sought to always have fish available to them, and made sacrifices in that pursuit. Takings law may persuade the federal government to be more serious about ensuring that Indians are able to fully and meaningfully exercise their treaty rights.

Section II of this Article explains that the treaty right to take fish is a compensable Fifth Amendment property right and questions whether the exercise of that Fifth Amendment property right is included in the right itself. Section III explores the constitutional nature of exercising the treaty right to fish by looking into treaty rights and cases explaining those rights, and the ways to define the property and problems at issue. Section IV applies Fifth Amendment takings analysis to conclude that the government owes tribes compensation for unconstitutionally preventing the tribes from fully exercising their property right to fish, and Section V explores the problems associated with that compensation. Section VI concludes that tribes have a claim against the federal government for taking property without just compensation, which, from a policy standpoint, should induce the government to make stronger efforts to :restore the salmon to the rivers.

  1. THE TRIBES' FIFTH AMENDMENT RIGHT TO TAKE FISH

    Treaty rights to take fish are property rights protected by the Fifth Amendment to the United States Constitution.(25) The Fifth Amendment provides, in part, "nor shall private property be taken for public use, without just compensation."(26) The United States Supreme Court first construed treaty rights as property rights in Menominee Tribe of Indians v. United States.(27) In Menominee, the Tribe sued the United States for damages for lost treaty hunting and fishing rights on reservation.(28) The issue in the case turned on whether Congress, by passing the Menominee Termination Act of 1954,(29) abrogated tribal treaty rights.(30) The Court held that Congress had not abrogated the Tribe's rights.(31) The importance of the Menominee case lies in the Court's analysis of Congress' role in abrogating treaty rights and the consequences of such abrogation.

    Only Congress has the power to abrogate treaty rights,(32) but abrogation requires compensation.(33) In Menominee, the majority explained, "[w]e find it difficult to believe that Congress ... would subject the United States to a claim for compensation by destroying property rights conferred by treaty."(34) The dissent also linked treaty rights to property rights and compensation: "The 1954 Termination Act, by subjecting the Menominees without exception to state law, took away those rights. The Menominees are entitled to compensation."(35) Both the majority and the dissent therefore agreed that paying compensation for lost treaty rights is justified when Congress abrogates those rights.

    The problem that arises in the Columbia River Basin, though, does not involve explicit abrogation of the treaties.(36) Congress has not expressly legislated an outright termination of treaty fishing rights. However, government action through dam licensing, construction, and operation, including turbine mortalities and related in-stream flow problems, interferes with treaty and also non-treaty fishing abilities. "Turbine mortalities" refers to the deaths dams cause when smolts, which are young salmon migrating downstream, unsuccessfully try to negotiate through a dam's turbines in order to continue their downstream migration.(37) Spilling water over the dams, installing fish screens to divert smolts from making their way into...

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