To Breach or Not to Breachby Paul vanDevelder
San Francisco Examiner, May 22, 2000
IF THE STORM BREWING in the Northwest over the fate of the Snake River dams is a crash course in federalism (what else could it be?), then Oregon's John Kitzhaber is the only governor west of Grand Island, Neb., with a passing grade.
Kitzhaber's endorsement of breaching the dams (to give native fish a fighting chance against extinction) demonstrates that this maverick physician-turned-politico stands alone in understanding that his political opinion is ultimately irrelevant.
The unanswered, billion-dollar question is this: How many fish will be left when the dams come down?
Despite howling protests, the breaching solution is closer to a reality than politicians are willing to concede. The simple economics have been shown to argue forcefully for breaching, yet these arguments pale when measured against the power of the Indian treaty.
No one in the Northwest wields more political clout than the region's four governors. No one wields more legal power than the four Columbia River Indian tribes. When push comes to shove, as push inevitably will, the difference between politics and the law will be the difference between a slingshot and a tank.
The 550 federally recognized tribes (largely ignored for the past 100 years) have become a powerful legal force in the past decade. These are independent governing entities with jurisdictional clout equal to (and in many cases, superior to) the states. Their authority is vested in the ``supremacy clause'' in Article VI of the U.S. Constitution, a clause that protects treaty provisions as the ``supreme law of the land.''
When representatives of the four Columbia River tribes met in March to discuss the salmon crisis with White House officials of the Department of Environmental Quality, everyone sitting around that table understood who was holding the aces. Treaties have the power to trump all other law. The tribes, backed by data of fisheries science and scientists of federal agencies, have vowed to take any action necessary to save native salmon from extinction.
The tribes did not create this crisis. The 100,000-square-mile blanket of protection thrown across the Pacific Northwest by the Endangered Species Act. The tribes did not create this crisis. It's the result of political and economic policies pursued with blind zeal by the non-native society that colonized this region a century and a half ago. The endless equivocating, the senseless drone of talking heads and mind-numbing committees, the $3.5 billion spent to watch native runs dwindle from 500,000 spring chinook to fewer than 5,000 in just 10 years has been an exercise in futility. The tribes have spoken: ``No more!''
For good reasons, the states seldom prevail when they challenge Indian treaties. The tribes have James Madison and Ben Franklin to thank for that. On the sweltering afternoon of June 1, 1787, in Philadelphia, Madison, James Wilson and Ben Franklin locked arms and refused to allow adjournment of the Constitutional convention until the delegates ratified the ``supremacy clause'' regarding treaties. The approval was unanimous.
Last year, the citizens of Minnesota spent $6 million to learn that lesson yet again! The U.S. Supreme Court upheld Chippewa ``usufructuary rights' on 10,000 square miles of their ancestral ground, lakes and rivers. Two weeks later, the same court upheld the rights of 17 Puget Sound tribes, rights that give them perpetual access to their ancestral shellfish beds across private property. Private land owners were furious, but they had themselves to blame. They put their faith in politicians who made promises they had no power to keep.
These cases enforce the same ``usufructuary rights'' guaranteed to the Columbia River tribes in their 1855 treaties. The words on that parchment will prove to be far more enduring than the concrete and steel of the Snake River dams.
Yet the beat goes on. Having argued the losing side of the famous Boldt decision (a 1974 case that awarded tribes half of the salmon in coastal rivers), and having failed for 20 years to emasculate tribes in the Northwest, Washington Sen. Slade Gorton has vowed that the Snake River dams will come out over his dead body, an idea with widespread support in Indian country.
Gov. Kitzhaber's endorsement, in effect, stated that the viability of salmon to the long-term health of the ecosystem is more important than the agricultural mono-culture created by wheat and that the dams cannot remain without profoundly undermining the U.S. Constitution.
U.S. Circuit Judge Noel P. Fox bookmarked this profound legal irony in a landmark 1979 case pitting the Chippewa against the state of Michigan: ``. . . the mere passage of time . . . cannot erode the rights guaranteed by solemn treaties that both sides pledged on their honor to uphold. . . . The Indians (treaty) rights are preserved and protected under the supreme law of the land, do not depend on state law, and are distinct from the rights and privileges held by non-Indians and may not be qualified by an action of the state. . . .''
This may be a bitter pill for governors and state legislators who have to yield ground to tribes, but it is a pill shaped from the foundational law that established the American republic. In the life of a nation, politics and economics are nothing more than weather, always coming and going, the transitory tempests in the foreground. Thankfully, our founding fathers learned from the Greeks that we survive our own worst (and best) intentions because we are not a barnyard of squabbling politicians, but a nation erected on the bedrock of law.
This is deep water. Judges must make a separate peace with the notion that the crossing is worth the storm. The crisis of federalism over the dams will establish the ground rules for remediation of looming 21st century conflicts that will test the bedrock beneath this republic unlike anything since the Civil War. As momentous as it is, the challenge presented by the dams is a mere prelude to coming events.
Unprecedented battles loom over water, timber, land, gold, copper, zinc, oil and gas, uranium, coal, hydro, carbon dioxide and management of the Columbia, Colorado and Missouri rivers. The Colorado River delta is a dead zone. The California valleys that feed the nation during the winter are receding by thousands of acres a year to salt poisoning. Glen Canyon is gone. Nine out of 10 acres of California wetlands have vanished. The Missouri River bottomlands are gone, and thousands of dams are silting up.
That's just for openers, yet we keep on keeping on, like the first-class passenger on the Titanic who insists that the captain has only stopped to take on a little ice.
The visible battles may be over dams, clams, or salmon, rivers and trees, but the underlying war, as it was at Gettysburg and Wounded Knee and in the streets of Little Rock, Ark., is, who controls the legal high ground? Who gets the last word?
In a battle between political expedience and foundational law, the outcome is no contest. In Puget Sound, on the boundary waters of Minnesota, and on the Snake River, the future is in the hands of the tribes and the courts, not in the polling strategies of politicians. If Western governors choose to ignore the lessons of the past and press on with their agendas at the expense of the tribes (and the salmon) while hocking conscience for political expedience, they do so at their peril.
Because like it or not, if this republic is to stand through the storms of the 21st century, then the dams will fall because ``the supreme law of the land'` will be history's last word.
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