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Breaching the Dams: Slingshots vs. Tanks

by Paul VanDevelder
The Seattle Times, March 3, 2000

If the storm brewing in the Northwest over the fate of the Snake River dams is a crash course in federalism (what else could it be?), then governors Marc Racicot (Montana), Dirk Kempthorne (Idaho) and Gary Locke (Washington) are all well on their way toward flunking the mid-terms.

In his dramatic endorsement of breaching the dams, Oregon's Gov. John Kitzhaber stands alone in acknowledging that what he might or might not think about the dams is ultimately irrelevant. The multibillion-dollar question is not "to breach or not to breach?" but rather: How many salmon will be left when the dams come down?

Despite howling protests to the contrary, the breaching solution to restoring anadromous fish stocks to the Pacific Northwest may be a lot closer to a reality than people are willing to think. Factors such as simple economics are compelling, but they pale when measured against the weight of another: the power of the treaty.

No elected representatives in the northwest wield more political power than the region's four governors. They make a lot of things happen just by saying so. That said, no one wields more legal power than the five Columbia River Indian tribes. This is a critical distinction, and when push comes to shove, as push inevitably will, the difference between political power and legal power will be the difference between a sling shot and a tank.

When a delegation representing the five tribes met with White House officials of the Department of Environmental Quality two weeks ago, everyone sitting around that table understood who holds the aces and face cards, otherwise known as treaties. The tribes have vowed to take any action necessary to save the salmon, and they intend to make it stick.

The tribes did not create this crisis. It is the mismanaged consequence of a political-economy pursued with blind zeal by the non-native society that colonized this region a century and a half ago. The endless equivocating, the $3.5 billion spent to watch native runs dwindle from 500,000 spring chinook to fewer than 50,000 in just 10 years, has been an exercise in futility. The tribes are saying: "No more!"

For good reasons, the states seldom prevail when they challenge Indian treaty rights. Last year, the citizens of Minnesota spent $6 million in legal fees to get a jarring wake-up call when the U.S. Supreme Court upheld Chippewa "usufructuary rights" on 10,000 square miles of their ancestral ground. Two weeks later, the same court upheld the treaty rights of 17 Puget Sound tribes that had sued for access to their treaty-protected shellfish beds. Private landowners were furious. They had themselves to blame. They put their faith in politicians who issued promises they had no power to keep.

In fact, these cases enforced the same class of rights that protect salmon in the Columbia River watershed, rights stipulated in the 1855 treaties negotiated by then-Gov. Stevens. Ah, therein lies the rub, those 1855 treaties. The 1855 treaties have been giving state governments fits for more than a century. The viability of those treaties has been upheld by the U.S. Supreme Court at least six times. They are a legal bulwark written on parchment that will prove far more enduring than the concrete buttresses supporting the Snake River dams.

Yet, the beat goes on. Having argued the losing side in the famous Boldt Decision (a 1974 case that awarded West Coast tribes one half of the salmon in coastal rivers), and having failed for 20 years to "terminate" tribes in the Northwest, Washington Sen. Slade Gorton has vowed that the Snake River dams will come out over his dead body. This notion has widespread support in Indian Country, from the Penobscot River in Maine to the Anza Valley in Southern California.

Gov. Kitzhaber's endorsement, in effect, stated: 1) The viability of salmon is more important to the long-term health of the region than wheat, and, 2) The dams cannot remain without profoundly undermining the U.S. Constitution. The 1855 treaties guarantee the tribes salmon. The Constitution protects those guarantees (Article VI, Clause 2) as "the supreme law of the land."

This legal landscape was illuminated by U.S. Circuit Judge Noel P. Fox in a landmark 1979 case that pitted the Chippewa against the state of Michigan: ". . . the mere passage of time . . . cannot erode the rights guaranteed by solemn treaties that both sides pledged on their honor to uphold. . . . The Indians' [treaty] rights are preserved and protected under the supreme law of the land, do not depend on State law, and are distinct from the rights and privileges held by non-Indians and may not be qualified by an action of the state . . ."

For non-Indians in Montana, Idaho, Minnesota, Washington state and Oregon, this may be a bitter pill, but it is a pill shaped from the foundational law that established the American republic. If non-Indian citizens are poorly educated about the special status of government-to-government relationships between whites and tribal governments, the tribes can hardly be held liable for failing to discharge a burden that was never theirs to begin with. In the life of a nation, politics and economics are merely weather, the tempests in the foreground. Thankfully, the Greeks taught our founding fathers that we survive our own worst (and best) intentions because we are not a nation of political economies uttered by politicians, but a nation of laws.

The controversy over the dams is a highly charged thunderhead, but the storm lurking behind it will set the tone for the 21st century. Huge battles loom over treaty-protected water, timber, salmon, land, gold, copper, zinc, oil and gas, uranium, coal and management of the Columbia, Colorado and Missouri rivers. That's just for openers.

"We slaughtered millions of these people, who were supposed to be protected by the `supreme law of the land,' " says constitutional law scholar Ron Manuto, "and then we stole the whole continent and declared the frontier conquered. You don't pay those kinds of debts with capital. You pay with karma."

Regardless of the currency of exchange, the bills are coming due. Recent legal opinions have signaled a dramatic return to the principles established 180 years ago by the great Chief Justice John Marshall, principles known in the federal judiciary as the "foundational principles of Indian law." Those principles establish the legal power of Indian treaties a solid notch above the power of statehood. The growing body of case law is impressive.

Dec. 1997: The Supreme Court enforced Isleta Pueblo water-quality standards on the Rio Grande River, standards that cost the city of Albuquerque $400 million in capital improvements. The Isleta combined their First Amendment freedom of religion with treaty rights in an argument that had never before been heard in a court of law.

Oct. 1998: The 9th Circuit Court of Appeals did the same thing for the Salish and Kootenai tribe of Western Montana. Montana Gov. Racicot promised to fight it out at the Supreme Court. He did. He lost.

Sept.1998: Federal court Judge Lawrence Piersol "dismissed with prejudice" the claims of South Dakota Gov. William Jankow and restored to the Yankton Sioux tribe 360,000 acres of South Dakota prairie, ending a century-long battle over a treaty signed in 1858.

In May 1999, a federal court in Milwaukee threw out Gov. Tommy Thompson's case against the Chippewa water-quality standards on summary judgment, a decision that ended a 20-year stalemate with Exxon over the opening of a copper mine at Crandon Lake, Wis.

The visible battles may be over dams, clams or salmon, but the underlying war is about power. Who controls the legal high ground? Who decides? In a battle between political expedience and foundational law, the battle is no contest.

In Puget Sound, on the boundary waters of Minnesota, and on the Snake River, the future is in the hands of the tribes and the courts, not, thankfully, in the hands of politicians. If the region's governors choose to ignore the lessons of the past century and press on with their agendas at the expense of the tribes (and the salmon) while hocking conscience for economic expedience, they do so at their peril.

Because like it or not, if this republic is to stand through the storms of the 21st century, then the dams will fall because "the supreme law of the land" will be history's last word.

Paul VanDevelder, is a journalist who reports on environmental and natural-resource issues for numerous periodicals and newspapers, including Harper's, Smithsonian, News Watch and The Seattle Times.
Breaching the Dams: Slingshots vs. Tanks
Seattle Times, March 3, 2000

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