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Tribal Rights a Major Factor in Fish Recovery by Stephen M. Pauley Idaho Statesman, July 10, 1999

The failure of the U.S. government to prevent salmon extinction in the Columbia-Snake River system could ultimately cost U.S. taxpayers tens of billions of dollars in reparations paid to Northwest Indian tribes. The potential taxpayer liability for allowing salmon extinction to proceed makes all other economic arguments in the salmon debates pale in comparison.

The threat of a multi-billion dollar salmon treaty lawsuit hanging over our country should re-arrange political thinking and should incite taxpayers to ask their congressional leaders more probing questions on fish recovery. I don't speak for the tribes, nor do I know if they will sue the government over salmon extinction. But after reading a tribal report called the Lower Snake River Juvenile Salmon Migration Feasibility Study, I'm convinced treaty lawsuits are a real possibility.

The report reads more like a legal brief in a lawsuit against the U.S. government than a salmon recovery plan. Prepared by the tribes for the U.S. Army Corps of Engineers, the report officially serves as the tribe's position on federal government salmon recovery proposals. The corps is compiling information for its draft environmental impact statement on salmon recovery.

The 226 pages outline in detail the damages suffered by the Nez Perce, Yakama, Umatilla, Warm Springs and Shoshone-Bannock tribes from the loss of salmon in the river system. Each tribe has a section that lists specific damages inflicted on its members because of the loss of salmon since treaties were signed. Together, the five tribes ceded 40 million acres of land to the U.S. government.

The first four tribes signed an 1855 treaty which in Article 3 allows "The exclusive right of taking fish in all the streams . . . also the right to taking fish at usual and accustomed places, in common with the citizens of the Territory . . . together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land." The Shoshone-Bannock signed the Fort Bridger Treaty of 1868. They were granted hunting rights, but to them hunting was assumed to also mean fishing. There is no distinction in their language between the verbs "to hunt" and "to fish."

The Northwest Indians have never sued for damages under their treaty rights, saying the treaty assets are "not for sale." But today, salmon are almost extinct, and the harvest of tribal salmon has fallen to less than 10 percent of 1855 levels. That fact, combined with the issuance of the tribal report to the corps, should compel the government to swiftly address the loss to the tribes of this culturally and financially important asset. The tribes make it clear in the report that bypassing the lower Snake River dams is the only one of the three government salmon recovery proposals they would accept.

What is the risk to U.S. taxpayers if the Northwest salmon treaties are upheld in the courts? Well, how much is the 40 million acres of ceded land worth today? How about the 34,000 acres of flooded tribal burial grounds and the 338,000 acres of flooded hunting and gathering grounds, submerged when the dams went in? How about the loss of between 243 million pounds and 410 million pounds of salmon after lower Snake River dam construction?

The tribes list other damages, such as the deterioration in tribal members' health from the lack of salmon-based diet and interruption of tribal spiritual and religious practices.

Do our regional politicians, who represent narrow special interest groups, have the right to put all American taxpayers at risk for potential multi-billion dollar tribal treaty settlements? I think not. By insisting that the U.S. government honor its tribal treaties, and by demanding salmon recovery begin with bypassing the four lower Snake River dams, America's taxpayers will best protect their own wallets while protecting what the tribes value most, and to which they are legally entitled -- healthy salmon runs.