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The Salmon are Sovereign! by Paul vanDevelder Earth Island Journal, September(?) 22, 2000

Whether to breach the Snake River dams or not can wait 5 years, but can the fish?

On March 9, the environmental group American Rivers challenged the US government to breach four dams on Washington's Snake River -- Ice Harbor, Little Goose, Lower Monumental and Lower Granite -- to save the river's endangered salmon. "We are here to warn America that delay means extinction," the environmentalists stated. "These wild salmon are a national icon, but they could soon go the way of the buffalo."

In his dramatic endorsement of breaching the dams, Oregon Governor John Kitzhaber stands alone in acknowledging that what anyone might think about the dams is ultimately irrelevant. The multi-billion dollar question is not "To breach or not to breach?" but rather, "How many salmon will be left when the dams come down?"

Despite howls of protests, the breaching solution to restoring anadramous fish stocks to the Pacific Northwest may be a lot closer to a reality than people are willing to think. While economics are compelling, they pale when measured against the power of a treaty.

No elected representatives in the Northwest wield more political power than the region's four governors. That said, no one wields more legal power than the four Columbia River Indian tribes -- Nez Perce, Umatilla, Yakima and Warm Springs. And when push comes to shove, the difference between political power and legal power will be the difference between a slingshot and a tank.

When a delegation representing the five tribes met with White House officials in March, everyone sitting around that table understood who held the aces and face cards. The tribes have the treaties and they have vowed to take any action necessary to save the salmon from extinction. They intend to make it stick.

The tribes did not create this crisis: It is the mismanaged consequence of a political economy pursued with blind zeal by the immigrant society that colonized the Northwest 150 years ago. The $ 3.5 billion spent to watch native runs dwindle from 500,000 spring chin-nook to fewer than 50,000 in just ten years has been an exercise in futility The tribes are saying: "No more!"

States seldom prevail when they challenge Indian treaty rights. In 1999, Minnesota spent $ 6 million on legal fees only to get a jarring wake-up call when the US Supreme Court upheld Chippewa "usufructuary rights" on 10,000 square miles of their ancestral ground. Two weeks later, the same court upheld the treaty rights of 17 Puget Sound tribes that had sued for access to their treaty-protected shellfish beds. Private landowners were furious, but they only had themselves to blame: They had trusted politicians who issued promises they had no power to keep.

These cases enforced the same class of rights protecting salmon in the Columbia River watershed that were first stipulated in the 1855 treaties. Those treaties have been giving state governments fits for more than a century.

The inviolability of those treaties has been upheld by the US Supreme Court at least six times. They are a legal bulwark written on parchment that will prove far more enduring than the concrete buttresses supporting the Snake River dams.

Governor Kitzhaber's dam-busting endorsement recognized that the survival of the salmon is more important to the long-term health of the region than wheat. The 1855 treaties guarantee the tribes salmon and the Constitution (Article VI, Clause 2) protects those guarantees as "the supreme law of the land." Dams cannot remain without profoundly undermining the US Constitution.

This legal landscape was illuminated by US Circuit Judge Noel P. Fox in a landmark 1979 ruling pitting the Mille Lacs band of 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."

For some non-Indians in Montana, Idaho, Minnesota, Washington State, and Oregon, this may be a bitter pill, but it is a pill shaped from the foundational law that established the American republic. If non-Indian citizens are poorly educated about the special status of government-to-government relationships between whites and tribal governments, the tribes can hardly be held liable for failing to discharge a burden that was never theirs to begin with.

The controversy over the dams is a highly charged thunderhead, but the storm lurking behind it will set the tone for the 21st century. Huge battles loom over treaty-protected water, timber, salmon, land, gold, copper, zinc, oil and gas, uranium, coal, and management of the Columbia, Colorado, and Missouri Rivers.

"We slaughtered millions of these people, who were supposed to be protected by the 'supreme law of the land'," says constitutional law scholar Ron Manuto. "We stole the whole continent and declared the frontier conquered. You don't pay those kinds of debts with capital. You pay with karma."

Recent legal opinions have signaled a dramatic return to the principles established 180 years ago by the great Chief Justice John Marshall. These principles, known in the federal judiciary as the "foundational principles of Indian law," establish the legal power of Indian treaties a solid notch above the power of statehood. The growing body of case law is impressive.

• December 1997: The Supreme Court enforced Isleta Pueblo water-quality standards on the Rio Grande River, standards that cost the city of Albuquerque $ 400 million in capital improvements. The Isleta combined,their First Amendment freedom of religion with treaty rights in an argument that had never before been heard in a court of law.

• October 1998: The Ninth Circuit Court of Appeals did the same thing for the Salish and Kootenai tribe of Western Montana. Montana Gov. Marc Racicot promised to fight it out at the Supreme Court. He did. He lost.

• September 1998: Federal Court Judge Lawrence Piersol "dismissed with prejudice" the claims of South Dakota Governor William Janklow and restored 360,000 acres of South Dakota prairie to the Yankton Sioux tribe, ending a century-long battle over a treaty signed in 1858.

• May 1999: A federal court in Milwaukee threw out Governor Tommy Thompson's case against Chippewa (Ojibwa) water quality standards on summary judgement, a decision that ended of a 20-year stalemate with Exxon over the opening of a copper mine at Crandon Lake, Wisconsin.

The visible battles may focus on dams, clams, or salmon, but the underlying war is about power. In a battle between political expedience and foundational law, the battle is no contest. In Puget Sound, on the boundary waters of Minnesota, and along the Snake River, the future is in the hands of the tribes and the courts -- not, thankfully, in the hands of politicians.