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[92WashLRev001] Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration

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dc.contributor.author Blumm, Michael C.
dc.date.accessioned 2017-04-06T14:48:57Z
dc.date.available 2017-04-06T14:48:57Z
dc.date.issued 2017-03
dc.identifier.citation 92 Wash. L. Rev. 1 (2017) en_US
dc.identifier.issn 0043-0617
dc.identifier.uri http://hdl.handle.net/1773.1/1666
dc.description Volume 92, Number 1, March 2017 en_US
dc.description.abstract Michael C. Blumm, Jeffrey Bain Faculty Scholar & Professor of Law, Lewis and Clark Law School. Abstract: In 1970, several tribes in the Pacific Northwest, along with their federal trustee, sued the state of Washington claiming that numerous state actions violated their treaty rights, which assured them “the right of taking fish in common with” white settlers. The tribes and their federal trustee maintained that the treaties of the 1850s guaranteed the tribes: (1) a share of fish harvests for subsistence, cultural, and commercial purposes; (2) inclusion of hatchery fish in that harvest share; and (3) protection of the habitat necessary for the salmon that were the basis of the treaty bargain and the peaceful white settlement of the Pacific Northwest. By 1985, the tribes and the trustee persuaded the courts of the merits of the first two propositions, but the Ninth Circuit deferred on the third issue, declining to declare that the treaties supplied habitat protection in the absence of a specific factual dispute. Some two decades later, in 2007, the tribes and the federal government convinced United States District Court Judge Ricardo Martinez that the state’s construction and maintenance of road culverts blocking salmon access to their spawning grounds violated the 1850s treaties. In 2013, after settlement talks failed, the district court issued an injunction that required most of the offending barrier culverts to be remedied within seventeen years, or by 2030. Claiming exaggerated costs of compliance, the state appealed, and in 2016 a unanimous panel of the Ninth Circuit affirmed, rejecting the state’s allegations wholesale. This Article examines the reasoning of both the district court and the Ninth Circuit and the path ahead, which may implicate road culverts owned by other governments and other habitat-damaging activities like dams, water diversions, and land management actions affecting water quality and quantity. Moreover, the Ninth Circuit’s reliance on foundational rules of treaty construction to interpret the scope of the treaty right of taking fish could influence other Indian treaty cases beyond the issue of off-reservation fishing rights. Even if confined to treaties with off-reservation rights, the case represents the most significant interpretation of treaty fishing rights in nearly four decades. en_US
dc.language.iso en_US en_US
dc.publisher Seattle: Washington Law Review, University of Washington School of Law en_US
dc.subject Article en_US
dc.title [92WashLRev001] Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration en_US
dc.title.alternative Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration en_US
dc.type Article en_US
dc.rights.holder Copyright 2017 by Washington Law Review Association. en_US

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