Chapter 13. Tribal Treaty Rights: A “Unique Obligation”
The Indians understood, and were led by Governor Stevens to believe, that the treaties entitled them to continue fishing in perpetuity and that settlers would not qualify, restrict, or interfere with their right to take fish. The most fundamental prerequisite to exercising the right to take fish is the existence of the fish to be taken. [United States v. Washington 1980:203]
In the next 5 to 10 years, federal courts will begin to determine whether Puget Sound Indian tribes have a treaty right to the protection of habitat necessary to produce harvestable salmon runs and, if so, what legal powers this grants them. For more than 20 years, the tribes have asserted this right. Initially, they sought to have it recognized as an abstract principle they could apply to future land-use actions. After giving their arguments some degree of support, the courts ultimately declined to rule in the abstract, deciding in 1985 that the principle was best established in light of specific circumstances. Nearly 16 years passed before the tribes filed a lawsuit for that purpose. In January 2001, 20 tribes sought a court order requiring the state of Washington to accelerate its repair of road culverts that block salmon from hundreds of miles of spawning and rearing habitat. No decision in that case has yet been reached; whatever decision is made will most likely be appealed, potentially delaying a legal resolution for years. If the courts ultimately recognize a treaty right to habitat protection, it could become one of the strongest legal tools available to protect habitat, for a number of reasons:
• It would apply to all salmon and shellfish, not just listed species;
• It would require that populations of these fish be raised enough to allow at least some harvest, not just avoid extinction;
• It could provide a legal basis for mandating at least some of the actions in the recovery plan for Puget Sound salmon developed under the Endangered Species Act (ESA); and
• It could prove easier to enforce against state and local development regulations than the ESA.
Tribal treaties could thus become a critical tool for protecting important parts of the Puget Sound ecoregion in ways the parties who signed them more than 150 years ago never could have imagined.