Washington fights tribal treaty rights decision before 9th Circuit

These salmon died because they were blocked by a barrier culvert. Photo from Washington Department of Fish and Wildlife

A landmark tribal treaty rights case in Washington is pending before the 9th Circuit Court of Appeals.

In April 2013, Judge Ricardo Martinez ordered the state to fix hundreds of culverts that prevent salmon from returning to usual and accustomed tribal fishing places. He determined the 1855 Treaty of Point Elliott obligates the state to protect salmon habitat.

The state has completed 26 culvert projects since that ruling and plans to finish 13 more this year. But with more than 800 culverts remaining, it will take decades and an estimated $2.4 billion to fix them all.

"It is a treaty right. Tribes ceded the entire state of Washington to the federal government. In return, we asked that we have salmon forever,” Brian Cladoosby, the chairman of the Swinomish Tribe and the president of the National Congress of American Indians, told the Associated Press.

Lawmakers have included about $300 million for the Fish Passage Program, to be spent over 16 years, the AP said. In the meantime,

Washington Attorney General Bob Ferguson is asking the 9th Circuit to relieve the state of any responsibility.

"Although the federal government provided designs and funding for many of these culverts, and issued permits for their construction, it now claims that their existence breaches an implicit obligation in the treaties," Ferguson wrote in an opening brief back in October 2013.

Briefing has continued since then, with numerous tribes filing responses in defense of their treaty rights. A date for oral arguments hasn't been set.

The dispute is an extension of the long-running U.S. v Washington case. In 1974, the late Judge George Hugo Boldt held that tribes in the state were entitled to half of the entire catch under their treaties.

Turtle Talk has posted documents from the case, US v. Washington.

Get the Story:
State must fix hundreds of fish-blocking culverts (AP 7/5)

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