SCOTUS could give Native American tribes new legal traction to fight for environmental protections

Klamath Basin Tribes and allies from the commercial fishing and conservation organizations stage a rally at the bi-annual meeting of the international hydropower industry- Hydrovision 2006.Klamath Basin Tribes and allies from the commercial fishing and conservation organizations stage a rally at the bi-annual meeting of the international hydropower industry in 2006.

In a Supreme Court term as loaded as this one, it’s not surprising that some cases get lost. One of the court’s lower profile cases is nonetheless among the most significant it will decide this term. In Washington v. United States, concerning the scope of Northwest Indian tribes’ treaty-guaranteed salmon fishing rights, the justices have to resolve a legal battle 30 years—or, arguably, more than 150 years—in the making.

The parties are fighting over the meaning of treaties dating to the 1850s as applied to a very modern problem: culverts. The 21 tribes involved filed the Request for Determination from which the case springs in 2001; that request revived litigation that began in 1970. They assert that state-constructed culverts that block the salmon run violate the treaty they signed in the 19th century trading land for the “right of taking fish, at all usual and accustomed grounds and stations … in common with all citizens.”

The tribes prevailed at the district and appellate levels. The Ninth Circuit Court of Appeals—which hears federal appeals from Alaska, Arizona, California, Guam, Hawaii, Idaho, the Mariana Islands, Montana, Nevada, Oregon and Washington—affirmed the district court’s order compelling Washington to fix most of the most detrimental culverts within 17 years and fix the rest as they required replacement or were involved in other construction.

At oral arguments on Wednesday, the court focused on standards for finding a treaty violation.

The state of Washington, represented at the podium by the state’s solicitor general, Noah Purcell, argued that the state would violate the treaties if “a state barrier is causing a large decline in a particular river and … it’s not justified by substantial compelling interests.” In contrast, the federal government and the tribes, represented by Allon Kedem and William Jay, respectively, argued that the treaties are violated by a “substantial degradation” of the salmon population. For much of the argument, the justices pressed each of the litigants to provide more clarity about their respective tests.

The Supreme Court upheld tribes’ salmon rights in 1905 and again in the 1970s, that’s why the tribes are basing their claim on the 1979 ruling in which the court affirmed tribes’ right to the salmon harvest. Hope is, they’ll come through again this time. The thing is, for the court to side with the tribes in this case could be a really big deal.

Framed in an abstract way, the decision may turn on whether the treaty conferred a negative or a positive right: Do tribes only have the right to be free of direct interference with their pursuit of salmon—or did the treaty give tribes a positive right to salmon, meaning the state has to protect salmon and the tribes’ access to salmon? To find that treaties like this one guarantee positive rights to the tribes would be enormous; such a finding could give tribes grounds to challenge a broad array of state actions, particularly when it comes to the environment.

As law professor Monte Mills, of the University of Montana, notes for the San Francisco Chronicle:

While the “right to take fish” language of the Stevens treaties is unique to the tribes of the Northwest, tribes across the country continue to exercise treaty rights to hunt and fish in their historical homelands.

For example, the decision could provide more legal ammunition for those supporting recent tribal movements in support of Bears Ears or to stop the Dakota Access pipeline. Even if the court sides with Washington, the case is already prompting broader discussion of tribal rights nationally and could lead to more state-tribal cooperation to avoid similar challenges in the future.

What happens next? The court could affirm the Ninth Circuit. That’d be ideal. But it could also drag this dispute out even longer by setting a new standard—as Amy Howe suggests at SCOTUSblog—and sending the case back to the lower courts for them to apply the standard.

NB: If the court splits—a possibility given that Justice Anthony Kennedy, who was involved in the original litigation, has recused himself—the Ninth Circuit will be automatically affirmed.

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