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Law Professor: Will tribes save salmon? by Tara King Lewiston Tribune - November 5, 1999

Law professor, writer says treaty rights are important,
but are only part of solution

Salmon won't return to the rivers because of any one legislative act or legal case, because of one ethic or effort, or because of one person or people, Charles Wilkinson said Thursday night.

"Various people will see various causes" as the savior of salmon, he said. "No matter. The chain of events should finally convince us how native people remind us, teach us commitment, constancy and the long view."

Wilkinson, a law professor at the University of Colorado at Boulder and a writer on land, water and Indian issues, spoke at the Frank Church Memorial Lecture at Lewis-Clark State College.

His talk, which is part of LCSC's 19th Annual International Exchange Conference, posed the question of whether Indian treaty rights are the best hope for saving salmon.

"Tribes offer hope for the salmon in their enforcement of strong laws, their managing natural resource programs expertly and building hatcheries that can revive, not defeat, the runs."

But, he said at the beginning and end of his talk, there probably won't be any one hero in the fight to save salmon.

"Nonetheless, it strikes me as fair to list the tribes on any short list of organizations, offices, and individuals that can together give us hope."

Just two generations ago, Wilkinson said, tribes didn't have a strategy to save salmon.

In the 1960s, a decade after the federal government called for termination of tribal sovereignty, population stresses began to show on rivers. In turn, states began cracking down on Indian fishermen, calling them renegades and poachers.

Tribes began to fight back in the 1970s. Four tribes, including the Nez Perce, went to court over their taking up to 50 percent of the salmon passing their off-reservation fishing grounds on the Columbia River and in Puget Sound. The historic Boldt decision of 1973 affirmed that right.

"From there, tribal leaders took the long view," Wilkinson said.

"The rights to fish under their own laws and to be guaranteed a substantial portion of fish were just the beginning. The transcendent objective was to preserve and restore the runs."

To do this, the tribes took two parallel courses of action. First, they asserted through litigation that treaties guaranteed both the right to fish and also habitat protection, so that runs would be plentiful.

The results have been favorable to the tribes, Wilkinson said.

"One dam project was blocked. Another had its operating regime altered to protect the fish. An oil pipeline was enjoined to be built under a marina," Wilkinson said, ticking off a list of examples.

A current example is the Nez Perce Tribe's sprawling lawsuit that may decide the majority of all water rights in Idaho, called the Snake River Basin Adjudication.

The tribe is claiming that all water flowing into the Snake River is included in its treaty right to fish because the flows determine the conditions for salmon.

Since the 1855 treaty precedes all other water users, recognition of the claim would mean that irrigators and other users would have to reduce their taking of water to allow greater flows for the fish.

"Suffice it to say, the Nez Perce water claims ... are legally formidable and must be taken, as they are, with deadly seriousness by the Idaho water establishment."

The tribes also began to participate in salmon management.

In 1977, the Nez Perce, Warm Springs, Umatilla and Yakima tribes, the same tribes who fought for the Boldt decision, created the Columbia River Inter-Tribal Fish Commission.

"Today it has a budget of more than $7 million and 70 full-time employees in Portland, as well as 20 enforcement officers," he said.

The movement to professional resource management is remarkable when considering the recent state of Indian country, he said.

"They began with nothing and tortuously, over the course of just two generations, built an extensive, sophisticated and multi-faceted capability for approaching salmon restoration."

The Nez Perce Tribe itself is a "leading example of tribal commitment to protect natural resources," he said.

The tribe's Natural Resources Department boasts more than 150 employees, 100 of whom work in fisheries. About a half of those are professionals -- biologists, archaeologists, soil conservationists and foresters.