In 1855, Territorial Governor Isaac Ingalls Stevens signed peace treaties with the Yakama, Walla Walla, Cayuse, Nez Perce, Spokane and other tribes. The tribes relinquished claim to over 60,000 acres of land and moved to reservations, although the government did not, as in so many other horrific cases, force immediate relocations.27
The express promise in the Treaties concerning salmon was that the Native Americans would be guaranteed the right “to fish at their usual and accustomed grounds and stations . . . in common with the citizens of the Territory”. The U.S. Indian Commissioner wrote in 1882 that this phrase was inserted “to give to the settlers there an equal privilege in that which heretofore had been exclusively enjoyed by the Indians”.28 The modern, politically-correct interpretation is that the tribes’ right to go fishing means a right to catch fish, and even imposes an obligation on the federal government to supply fish to catch. (And maybe even to supply those fish by the restoration of historic environmental conditions.) Governor Stevens did make some extravagant promises to the tribes, telling one group of Indians gathered at Point-No-Point that “[t]his paper secures your fish. Does not a father give food to his children?”.29
The States of Oregon and Washington for many years attempted to restrict tribal fishing rights under the Treaties. In a series of historic cases, the federal government finally stepped in to stop the state fishery managers from discriminating against the tribal fishermen. One Judge, Judge Boldt, actually spent three years hearing arguments and collecting live testimony—unlike salmon judges since. The state fishery managers argued that tribal harvests had to be curtailed to “conserve” fish, even as the non-tribal harvests expanded. Put to the test of actually presenting evidence, the state fishery managers failed. Judge Boldt observed that “the near total absence of substantive evidence to support these apparent falsehoods was a considerable surprise to this court”.30
Judge Boldt interpreted the Treaties giving the tribes the right to fish “in common with” the white settlers as allowing the tribes half the available catch. While his decision was on appeal, the State of Washington and the commercial fishermen largely ignored the orders. The United States Court of Appeals for the Ninth Circuit noted that Judge Boldt “faced the most concerted effort to frustrate a decree of a federal court witnessed in this century”—with the exception of some desegregation cases.31 The Washington State Supreme Court went so far as to declare that the State Department of Fisheries and Game could not enforce any aspect of Judge Boldt’s ruling. Eventually, the United States Supreme Court affirmed Judge Boldt’s ruling, and opposition died down. (To me, this lawlessness of fisheries agencies was the precedent for how they would apply the Endangered Species Act to the question of harvesting endangered salmon.)
Although media shills for the tribes report that “federal courts have ruled that longstanding treaties with the United States guarantee the availability of salmon for tribal harvest”,32 courts have not yet adopted this politically-correct view. In fact, the most recent case addressing that question, brought by the Nez Perce Tribe against Idaho Power Company, produced an opinion to the contrary:
“. . . the 1855 treaty does not provide a guarantee that there will be no decline in the number of fish available to take. The only method that would guarantee such protection would be to prevent all types of development, whether or not discriminatory of Indian treaty rights. The Stevens treaties simply do not provide the Tribe with such assurance or protection.”33
Notwithstanding their failure in this and other cases, the tribes continue to threaten to sue the United States for breach of the Treaties on account of decreased salmon runs, which they attribute to dam construction and operation.
It is reasonable to conclude that the United States breached the Treaties as the dams were built. The resulting reservoirs flooded many “usual and accustomed fishing places”. The substitute shoreland conveyed to the tribes didn’t measure up: nothing could replace Celilo Falls as a place to catch salmon with dipnets, although the tribes' switch to gillnets could in theory yield catches just as large. Most importantly, until recently, most mitigation hatcheries were generally built downriver, where they wouldn’t do the tribes much good.
The federal government did pay the tribes damages for its breach of the Treaties. In the case of the historic fishery at Celilo Falls, the Oregon Fish Commission and U.S. Fish and Wildlife Service biologists concluded that the tribes had taken approximately 2,500,000 pounds of salmon annually, worth about $700,000. Accordingly, the federal government compensated the four tribes controlling the fishery with $23 million in government bonds bearing 3 percent interest (thus providing $690,000 annual interest).34 The Corps of Engineers also agreed to construct 400 acres of fishing access sites to replace the ones innundated by the Dam.35
The Warm Springs Tribe, now one of the richest tribes, invested the money.36 The Umatilla Tribe got $4,198,000, which was distributed in $3,494.61 per capita payments.37 Bill Yallup, of the Yakama Tribe, says: “They gave people five thousand dollars apiece and I remember when I was growing up I could see a lot of those five-thousand-dollar cars in our yards. We played on them after they broke down and quit running.”38
In the case of the Colville Tribe, whose much smaller fishery was destroyed by Grand Coulee Dam, the Tribe finally collected a lump sum settlement of $53 million in the 1990s, along with an annual payment of about $15 million.39 In 1997, BPA spent $2.5 million to buy the Nez Perce Tribe a 10,300 acre cattle ranch in Northeastern Oregon.40 There have been many, many other payments over the years.
The tribes have also collected enormous sums through BPA contracts designed to implement the Northwest Power Planning Council’s Fish and Wildlife Program:41
BPA Contract Dollars Obligated to Tribes: 1978-1996
Yakama Indian Nation (Washington) |
$20,996,065 |
Colville Confederated Tribes |
18,836,714 |
Nez Perce Tribe (Idaho) |
17,187,496 |
Umatilla Tribes (Oregon) |
13,200,231 |
Shoshone-Bannock Tribes (Idaho) |
10,717,202 |
Spokane Tribe (Washington) |
7,856,919 |
Columbia River Intertribal Fish Comm’n |
3,582,535 |
Kalispel Tribe (Washington) |
3,786,661 |
Kootenai Tribe of Idaho |
3,755,132 |
Warm Springs Tribes (Oregon) |
3,549,801 |
Salish-Kootenai Tribes (Montana) |
3,462,677 |
Coeur D’Alene Tribe of Idaho |
2,245,969 |
Shoshone-Paiute Tribes (Nevada) |
966,392 |
This list includes only contract obligations in BPA’s Fish and Wildlife Division computer. The tribes have also collected monies from other Divisions, monies in legal settlements (e.g., the Colville’s $53 million is not reflected above), and large sums from other federal agencies, particularly the U.S. Army Corps of Engineers.
There is no comprehensive record of all the compensation paid to the tribes over the years. There never will be unless and until some powerful person directs that such a record be prepared. In the Clinton/Gore Administration, no one perceives it useful to their careers to bring up the question. It is possible that the total payments to the tribes have exceeded the capitalized value of all salmon caught by the Native Americans that survived white settlement. In other words, it is entirely possible that although we breached the Treaties, we have already paid more than reasonable damages for the breach of those Treaties.
But as in science, the concept of actually measuring what we do is on the decline in law. Treating Native Americans as legally incompetent—like children—courts assert that federal agencies stand in a fiduciary relationship to the tribes and have a “trust responsibility” to protect natural resources important to the tribes.42 The irony of the tribes’ status as both independent sovereigns (entitled by White House fiat to “nation-to-nation” consultations on salmon decisions), and children who must be taken care of, escapes the courts and commentators.
Many of the tribes have a straightforward and unabashed interest in shaking down federal bureaucracies and others for money, which they have developed to a high art. The Shoshone-Bannock Tribes in Idaho have been trying for years to get water rights so that they can sell the water to the Bonneville Power Administration.43 As of 1997, the Nez Perce Tribe, which has claims pending in Idaho State Court for water rights to the entire flow of the Snake River, is trying to settle the claims in exchange for taking out the Lower Snake Dams. Their formal proposal to do this has circulated at the highest levels in the Clinton/Gore Interior Department and Justice Department. Federal officials refuse to release a copy of the proposal, however, claiming that it is “privileged”.
27 K. Petersen, River of Life, Channel of Death 60.
28 H. Price, Report to the Secretary of the Interior, April 14, 1882, at 24, quoted in C. Smith, Salmon Fishers of the Columbia 102.
29 Quoted in Wasinington v. Washington State Passenger Fishing Vessel Ass’n, 443 U.S. 658, 667 n.11 ((1979)
30 United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974).
31 United States v. Washington, 573 F.2d 1123 (9th Cir. 1978).
32 J. Brinckman, “Babbitt promises to help salmon recovery”, The Oregonian, August 13, 1997, at A18.
33 Nez Perce Tribe v. Idaho Power Co., 847 F. Supp. 791, 810 (D. Idaho 1994). Although the Tribe appealed this case to the Ninth Circuit, settlement efforts are expected to forestall any ruling by the Ninth Circuit.
34 I believe this figure comes from a Tribal publication; another source suggests that the “Army Corps of Engineers evaluated the fishery, assigned a monetary value to the difference between the destroyed sites and alternative sites where Indians could work their fisheries, and paid $27.5 million.” R. White, The Organic Machine 100.
36 J. LaPlante, “Celilo Falls: Flooded 40 Years Ago But Not Forgotten”, Wana Chinook Tymoo, Issue Two, 1997, at 11.
37 Confederated Tribes of the Umatilla Indian Reservation, Comprehensive Plan, May 15, 1996, at 22.
38 Quoted in J. LaPlante, “Celilo Falls: Flooded 40 Years Ago But Not Forgotten”, Wana Chinook Tymoo, Issue Two, 1997, at 11.
39 B. Harden, A River Lost 115.
40 “Nez Perce own Oregon land after 120 years”, Stateman Journal, June 13, 1997.
41 It should be noted that State fish and wildlife agencies have done better than the tribes. Here is the same data for the four Northwest state fishery agencies.
Oregon Department of Fish and Wildlife |
$94,769,625 |
Idaho Department of Fish and Game |
54,734,727 |
Washington Department of Fish and Wildlife |
35,868,927 |
Montana Department of Fish and Wildlife |
27,157,558 |
These higher numbers have prompted Ted Strong, head of the Columbia River InterTribal Fish Commission to tour the Pacific Northwest with bar charts showing spending levels to complain of anti-Tribal discrimination.
42 The DPEIS “Impacts of Artificial Salmon and Steelhead Production Strategies in the Columbia River Basin” summarizes (and stretches) some of the relevant cases at pp. 8-9. (CBFWA Dec. 10, 1996).
43 T. Palmer, The Snake River 47.
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