US treaty with Native Americans put to test in Supreme Court salmon case

A salmon leaps from the water in its holding pen in Bainbridge Island, Washington on January 13, 2004
AFP

Washington (AFP) – A nearly two-decades-long legal battle over road culverts which impede salmon migration reaches the Supreme Court on Wednesday, in a case which tests historic treaties signed between the United States and Native American tribes.

Its origins date back to the expansion of the American West in the mid-19th century at the expense of its indigenous peoples. 

Isaac Stevens, the controversial first governor of Washington Territory (now a state), negotiated a set of treaties with the tribes of the Pacific Northwest, pushing them to cede vast swathes of land in return for retaining fishing rights.

The precise language guaranteed the “right of taking fish, at all usual and accustomed grounds and stations… in common with all citizens of the Territory.”

But declining salmon populations, greatly accelerated by the construction beginning in the 20th century of hundreds of culverts which carry rivers under roads but blocked the fishes’ upstream migration, resulted in what the tribes termed a violation of their treaty rights.

A 1997 study concluded that if only half of the then 363 fish-blocking culverts under state roads were repaired, 200,000 more adult wild salmon could be produced annually.

The current case was launched in 2001 by 21 tribes backed by the United States government as guarantor of federal treaties. Their common opponent: the state of Washington.

The complainants assert that the original text intends for fish stocks to remain sufficient to sustain them, and won their case at a federal court in 2007 and an appeal court in 2016.

Washington, however, contends that the historic treaty clashes with the needs of development and modernity as well as create a financial burden of up to $2 billion to implement the courts’ decision.

It rests on eight judges of the Supreme Court to adjudicate over the affair, after Justice Anthony Kennedy recused himself because he previously worked on the issue during the 1980s.

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