19th Century Indian Treaties and 21st Century Environmental and Natural Resources Issues: Is There a Connection?

By O'Scannlain, Dlarmuid F. | Environmental Law, Fall 2019 | Go to article overview

19th Century Indian Treaties and 21st Century Environmental and Natural Resources Issues: Is There a Connection?


O'Scannlain, Dlarmuid F., Environmental Law


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. …

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