Taking the bitter with the sweet: Wenatchi fishing rights.

• Author: Shutler, Nolan

1. INTRODUCTION II. LEGAL BACKGROUND A. Discovery, Tribes as "Domestic Dependent Nations, "and the Trust Doctrine B. Treaty Interpretation C. Reserved Fishing Rights 1. Importance of Salmon 2. Winans--Not a Grant to the Indians, but from the Indians 3. Fishing Rights in the Northwest III. HISTORICAL BACKGROUND A. The Wenatchi and Other Tribes of the Columbia Plateau Prior to Whir Settlement (?-1800) B. Contact with Non-Indian Traders C. The Yakama Treaty of 1855 D. End of the Treaty Era, Allotments, and the 1894 Agreement IV. THE COLVILLE DECISION A. A Disagreeable Decision in District Court B. Summary of the Colville Decision V. CRITICISM OF THE PRIMARY RIGHTS ANALYSIS IN COLVILLE A. Problems with the Colville Analysis 1. Abrogation or Ignorance of Lower Elwha and Skokomish Indian Tribe 2. What about Winans? B. Jurisprudential Concerns with Primary Rights VI. CONCLUSION "Does our Great Father at Washington think a salmon is an eagle that lives on top of a mountain, or does he think a salmon is a deer that lives In the woods and hills, or does he think a salmon is a mountain goat that lives among the rocks of the snow-covered mountains? Tell our Great Father the Indian does not care for the little trout in the lake, but wants the salmon that lives in the rocky places in the river where the Indian can find him.... We want our fishery in the river where Governor Stephens gave it to us a long time ago." (1)

1. INTRODUCTION

   American Indian tribes in the United States understand better than most that "justice delayed is justice denied." (2) Successive policy eras of allotment and termination left many tribes bereft of ancestral lands and cultural practices which they have since fought hard to regain in both the legislature and the courts. Often, where justice is achieved, it is overdue. Generally, tribes fight for sovereignty--the ability to regulate their own land and citizens--and must contend with both the states in whose borders they exist and the federal government whose trust-responsibility dictates a degree of paternalistic control over tribes. Many of the greatest victories for Indian tribes and advocates are had in the legislature, not in the courts. (3) One area of Indian law, however, where tribes have found success is in the assertion of explicit and even implied rights under treaties, specifically, fishing rights. (4)

   Treaties evidence the unique "domestic, dependent nation" status that tribes hold vis-a-vis the United States government. (5) Aside from the obvious features that make up what we think of as a nation--political structures, ethnic identity, cultural traditions, and historical conscience--the relationship that sovereigns have with one another tells the international community and history, just by its very existence, that these two entities are separate and distinct but also share a nation-to-nation relationship. While not without its own wrinkles, (6) this separate nation status, qualified by the domestic and dependent relationship, yielded the trust doctrine. (7) Under the doctrine and various treaties, the federal government assumes responsibility for the health and welfare of the indigenous nations. Policy on how it should be applied (and whether it even should be applied) has undergone several iterations in the past two centuries. (8) Whether the United States has lived up to its trust responsibility is a matter of ongoing debate, but may be fairly rebutted by a glance at the dismal poverty, rates of high school dropout, and alcoholism and drug abuse on reservations. (9)

   The losses sustained by tribes are often irretrievable. However, the recent Ninth Circuit decision in United States v. Confederated Tribes of the Colville Indian Reservation (Colville), (10) appears on its face to oppose this trend. It decided that the Wenatchi Tribe, a sub-group of the Colville Indian Tribe with citizens living on both the Colville Indian Reservation and the Yakama Indian Reservation, holds treaty fishing rights in common with the Yakama Nation and the citizens of Washington state at their traditional fishing grounds--the Wenatshapam fishery at the confluence of Icicle Creek and the Wenatchee River, near present day Leavenworth, Washington. (11)

   This decision represents a hard-fought victory in a struggle that has lasted more than a century, but it is a qualified victory. At the time of the decision, the Wenatchi had waited more than 150 years for the protection of fishing rights at their ancestral fishery. While the District Court of Oregon found an agency's decision to stay research on the Kenniwick Man for several months as "hasty," (in a case in which the Wenatchi tribe joined several other Washington and Oregon tribes in support of the agency's decision to enjoin scientific testing on an ancient skeleton), (12) it took more than twenty years and two separate cases to decide that the Wenatchi have rights to fish at their ancestral fishery, which the court noted "was the hub around which the Wenatchi's cycle of life rotated." (13) Moreover, while the Yakama appealed this decision in an effort to overturn the district court's finding that the two tribes held the non-exclusive fishing rights in common (presumably because they wished to hold onto rights to the full fifty percent of the take), the Wenatchi cross-appealed on the grounds that they sought either the only Indian rights at their ancestral fishing grounds, or the primary fishing rights thereon. (14) The Ninth Circuit determined that the Wenatchi have rights but not primary fishing rights. The court cited the fact that the two tribes' fishing rights stemmed from separate agreements and not a "common 'treaty time:'" a novel criteria in the determination of primary rights. (15)

   The Colville decision is a careful recitation of the treaty negotiations and history of the fishery. Yet just as interesting as the Ninth Circuit's detailed discussion, is what the court declined to discuss about the current fishery. Certain features in the recent historical landscape must have played a role in the parties' motivations and, while legally irrelevant, are relevant to the fishery's regulatory scheme. In 2003, the Yakama Nation pledged over $32 million of federal monies to a hatchery less than haft a mile upstream from the Wenatshapam Fishery. (16) And since 2008, the river has seen a steady increase in returning salmon, setting records for the amount of fish at the fishery since the 1938 creation of the dam. (17) This investment and development in the fishery may not bear a direct relation to the litigation, but in the highly controversial debate over anadromous fish rights in the Northwest, the court must have been aware of the effect its decision would have on the regulatory scheme.

   This Chapter is divided into five parts. Part II discusses the legal background of Indians within the United States' justice system, including Indians' nation-to-nation status, treaty rights, and reserved fishing rights. Part III addresses the specific history of the Wenatchi Tribe prior to and after the negotiation of the 1855 Treaty and 1894 Agreements that make up its relationship with the federal government. Part IV summarizes the Colville decision. Part V analyzes the decision, and the final part offers the conclusion that while the decision appears to veer from or ignore the course of precedent, it may be a warranted diversion.

2. LEGAL BACKGROUND

   Native American Tribes share a special relationship with the United States. Tribes exercise certain sovereign powers over the lands reserved in the various treaties, agreements, executive orders, and legislative documents that make up the field of federal Indian law. This field is variously described as "a maze," (18) "patchwork," (19) and "crazy quilt." (20) Depending on the state in which the reservation is located, the agreement between the tribe and the United States, the enrollment status of the tribal citizen, or other factors, court decisions may differ widely made on similar fact patterns. (21) Practitioners in Indian law, therefore, can only hope that a court will choose one line of precedent over another.

   Certain basic principles govern the political status of tribes, their relation to the United States, treaty Interpretation, and its application to fishing rights.

   1. Discovery, Tribes as "Domestic Dependent Nations," and the Trust Doctrine

      European settlers began arriving in America in the sixteenth century and found that the lands they had come to develop were already occupied by between 50 and 100 million people. (22) Over 600 distinct ethnic and social groups had subsisted "since time immemorial" on the land which now makes up the United States. (23) Settlers found the normal application of property law inconvenient as applied to "aboriginal title," (24) preferring instead to apply the Doctrine of Discovery. (25)

      Aside from the obvious impediment to development that recognition of indigenous title in these lands would have posed, the colonizing Europeans believed that Indians were inferior and lacked a concept of property ownership. (26) By violence, disease, fraud, and treaties promising "reserved lands," the British removed Indians from their ancestral homes and displaced them to the west in order to create the first thirteen colonies. (27) By the early nineteenth century though, population growth and the rise of Thomas Jefferson's agrarian society militated further expansion. (28) Land speculators who had purchased lands in the West prior to the American Revolution, sought to capitalize on this growth by selling territorial lands to settlers. (29) But these lands posed a problem: How does one measure the title of land purchased from Indians?

      In a series of three decisions, the fourth Chief Justice of the Supreme Court, John Marshall, sought to resolve this legal question and in so doing, created the trust doctrine. (30) The "Marshall trilogy," or "Cherokee Cases," forms the basis of the trust...