Treaty tribes stunned as Supreme Court agrees to hear salmon passage case

Monday, January 15, 2018

The U.S. Supreme Court has delivered a new year surprise to Indian Country.

In a move with significant ramifications, the justices on Friday agreed to hear a closely-watched treaty rights case from Washington. Though the court's order list does not explain why the petition in Washington v. U.S. was granted, the development threatens a major victory secured by 21 tribes in the state.

As part of the case, the 9th Circuit Court of Appeals determined that the state has been violating treaties that were signed in 1854 and 1855 by failing to fix hundreds of culverts. The clogged passageways, many of which are located under state-managed roads, prevent salmon from returning to their "usual and accustomed" fishing sites, the unanimous decision read.

But that win is now in doubt. Though tribes remain confident that their treaty rights will be upheld, tribal interests have a losing record at the Supreme Court -- between 2006 and 2016 alone, they lost nine out of 11 cases.

The prospect of defeat has tribes calling on the state to live up to its obligation to protect salmon and salmon habitat. Of the 1,000-plus culverts that were blocked when the proceeding began in 2011, the vast majority have been cleared, according to the Northwest Indian Fisheries Commission, leaving fewer than 400 to be repaired.

“Instead of continuing to appeal the culvert case, tribes believe the state should use the momentum it has gained over the past four years to finish the job of fixing fish-blocking culverts, and focus on our shared goal of salmon recovery,” Lorraine Loomis, the chair of the commission, said in a statement on Friday.

“The state’s decision to further appeal the case only serves to delay salmon recovery and divert attention from protecting and restoring salmon habitat,” Loomis added.

Indianz.Com on SoundCloud: 9th Circuit Court of Appeals Oral Arguments in US v. Washington October 15, 2015

Though tribes, in the past, have criticized the state for moving slowly to fix the culverts -- a massive undertaking that's estimated to cost more than $2 billion -- Loomis believes the two sides can achieve success without waiting for the Supreme Court to issue a decision.

In his own statement on Friday, Attorney General Bob Ferguson (D) confirmed that he was open to an agreement. But he said that talks, to date, have not produced a "mutually acceptable resolution."

“If we cannot reach a resolution, I have a duty on behalf of the taxpayers of Washington state to present our case to the U.S. Supreme Court," Ferguson said.

A dismissal would not be unprecedented. Back in 2011, the Supreme Court took a case involving the Oneida Nation off the docket after the tribe reached an agreement affecting its sovereign immunity in New York state.

Though Ferguson is more than ready to proceed, he also said prior meetings with the 21 treaty tribes have resulted in "progress" toward an agreement. Funding for fixing the culverts remains a significant sticking point.

Ferguson said the state has been forced to "shoulder the entire financial burden" but the 9th Circuit indicated that isn't entirely true. Between 2011 and 2017, for instance, the state benefited from $22 million in federal funding for "fish passage barrier projects," the court wrote in its landmark decision in the case.

Salmon in Washington. Photo: Northwest Indian Fisheries Commission

The federal government has been supporting the tribes since the start of the dispute and the Trump administration has not changed position. A brief submitted by the Department of Justice last November rejected the notion that inadequate federal funding somehow undermines the treaties.

"Only Congress can abrogate or limit rights reserved under an Indian treaty," government attorneys wrote in the brief, which apparently did not sway the Supreme Court enough to reject the state's petition.

The state, the tribes and the federal government will be able to submit additional briefs now that the case has been officially accepted. Oral arguments are expected to take place before the end of June.

Outsiders are already paying attention. Seven states, as well as a group of landowners and water users, had urged the Supreme Court to hear the case, characterizing the dispute as one of critical importance.

The 9th Circuit decision, according to the states, "subjects Washington’s sovereign management of its culvert system to tribal oversight and federal judicial control for potentially decades."

Washington v. U.S. is the second case from Washington to land on the Supreme Court's docket. Last month, the justices agreed to hear Upper Skagit Indian Tribe v. Lundgren, whose outcome will determine whether a property dispute can proceed without the involvement of the Upper Skagit Indian Tribe.

Upper Skagit Indian Tribe is unusual in that the petition was granted at the request of the tribe, something that doesn't happen very often, according to a study by Indian law professor Matthew Fletcher.

The Supreme Court's term, which began last October, has otherwise been relatively uneventful for tribal interests. Prior to the two Washington cases, the only Indian law case on the docket was Patchak v. Zinke, whose outcome will determine whether Congress can protect tribes from certain kinds of litigation.

The culverts dispute is an extension of the long-running U.S. v Washington case. In a historic decision 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.

9th Circuit Court of Appeals Decisions:
US v. Washington (May 19, 2017)
US v. Washington (June 27, 2016)