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

By Roels, Starla Kay | Environmental Law, Summer 1998 | Go to article overview

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


Roels, Starla Kay, Environmental Law


   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.

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