Senate Committee on Indian Affairs schedules hearing on subsistence

Monday, June 18, 2018  

The Senate Committee on Indian Affairs is taking a look a subsistence, just a week after tribes scored an unusual victory in a treaty rights case.

The hearing, titled "Keep What You Catch: Promoting Traditional Subsistence Activities in Native Communities," takes place on Wednesday. It comes after the nation's highest court affirmed a ruling that helps 21 tribes in Washington state protect their salmon catch.

The outcome was unusual because the Supreme Court didn't actually reach a decision in the case, known as Washington v. U.S. With one member recused due to prior participation in the long-running battle, the justices deadlocked by a tie of 4 to 4, resulting in the affirmation of a lower court ruling in favor of the tribes.

"The Supreme Court has affirmed a common-sense ruling that treaty rights require there to be fish available for harvest," Lorraine Loomis, the chair of the Northwest Indian Fisheries Commission, said in a statement following the June 11 development. "It affirms that the state can’t needlessly block streams and destroy salmon runs."

Had Justice Anthony Kennedy taken part, the case could have gone another way. But the court, as its custom, didn't reveal who was for the tribes and who was against, so Indian Country doesn't know who would have stood up for the treaties.

"At least until one of the current sitting Justices retires and releases his or her papers," attorney Kevin Russell of the Goldstein & Russell law firm wrote on the influential SCOTUSBlog, referring to the possibility that some answers might come in the future.

But with the favorable ruling from the 9th Circuit Court of Appeals affirmed, tribes will continue to push the state of Washington to fix the culverts that have prevented salmon from returning to their usual and accustomed fishing spots. Though the effort is costly, Gov. Jay Inslee (D) said he will support it.

"We launched an effort in 2013 to fix about 425 barriers by 2030, and I look forward to working with tribes and the Legislature to ensure the necessary support to continue this fight," Inslee wrote in a post on Twitter after the Supreme Court's action.

The subsistence hearing takes place on Wednesday at 2:30pm Eastern in Room 628 of the Senate Dirksen Office Building. A witness list hasn't been posted online but an official from the U.S. Fish and Wildlife Service is expected to testify, according to the Department of the Interior's Office of Congressional and Legislative Affairs.

Senate Committee on Indian Affairs Notice:
Oversight Hearing on “Keep What You Catch: Promoting Traditional Subsistence Activities in Native Communities.” (June 20, 2018)

Tribes and treaty rights

U.S. Supreme Court Decision:
Washington v. U.S. (June 11, 2018)

U.S. Supreme Court Documents:
Oral Argument Transcript | Questions Presented | Docket Sheet: No. 17-269

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

Rosalyn LaPier: Supreme Court case reminds us about tribal connections to food (June 18, 2018)
'A fantastic day for Indian Country': Treaty tribes celebrate Supreme Court victory (June 12, 2018)
Treaty tribes score unusual victory in closely-watched Supreme Court case (June 11, 2018)
Gyasi Ross: Washington attorney general attacks tribal treaty rights (June 6, 2018)
Monte Mills: Supreme Court weighs old tribal treaties in modern case (May 14, 2018)
Tribes hail historic Supreme Court hire as justices hear treaty rights case (April 18, 2018)
Supreme Court schedules April 18 argument in tribal treaty rights case (February 26, 2018)
Tribes see continued challenges as more cases head to highest court (February 21, 2018)
Supreme Court schedules March 21 argument in tribal property case (January 24, 2018)
Treaty tribes stunned as Supreme Court agrees to hear salmon passage case (January 15, 2018)
Supreme Court shakes up docket by accepting sovereignty case at request of tribe (December 11, 2017)
Treaty tribes upset with appeal in major case amid salmon disaster in Washington (August 29, 2017)
Treaty tribes celebrate after court refuses to rehear salmon dispute (May 22, 2017)
White House task force to address treaty issues in Washington (October 19, 2016)
Washington tribes win major fishing rights decision at appeals court (June 27, 2016)
Washington fights tribal treaty rights decision before 9th Circuit (July 6, 2015)
Washington wants 9th Circuit to take up treaty fishing case (May 29, 2013)
Treaty tribes in Washington win major decision in fishing case (April 1, 2013)