Treaty tribes upset with appeal in major case amid salmon disaster in Washington

Tuesday, August 29, 2017  

President Brian Cladoosby of the National Congress of American Indians calls them "zombie fish." Another tribal leader thinks they emerged from a Frankenstein-like experiment, meaning something's definitely gone wrong.

But the release of thousands of farmed salmon into treaty fishing grounds isn't the only crisis facing tribes in Washington. Just two days before the spill at a commercial operation prompted declarations of a disaster, the state asked the nation's highest court to overturn a ruling in a key case.

"We haven’t seen an attack on tribal treaty rights like this by the state of Washington in a very long time," Cladoosby, who also serves as chairman of the Swinomish Tribe, wrote on Facebook.

Cladoosby's tribe was among the many that celebrated when the 9th Circuit Court of Appeals ruled that the state has been violating treaties that were signed in 1854 and 1855 by failing to fix hundreds of culverts that prevent salmon from returning to "usual and accustomed" fishing sites. The June 2016 decision from a three-judge panel was unanimous.

The battle looked like it was over in May, when the court refused to put the case to a larger panel of judges. Although that move wasn't unanimous -- some members of the 9th Circuit desperately wanted to rehear the matter -- tribes were prepared to help the state meet its obligation under the treaties.

“Instead of continuing to appeal the culvert case, tribes think the state should use the momentum gained by those efforts to finish the job and focus on our shared goal of salmon recovery,” Lorraine Loomis, the chair of the Northwest Indian Fisheries Commission, which represents more than 20 treaty tribes, said in a press release.

But Attorney General Bob Ferguson (D) believes the state can still pursue the effort, whose costs have been pegged at more than $2 billion. As some culverts are being fixed, he defended his decision to appeal to the U.S. Supreme Court, citing the unprecedented nature of the dispute.

"The state should not need a court order to restore salmon habitat," Ferguson said on August 17, which was the deadline to appeal.

"Tribal treaty rights are vitally important,” he added. “I appreciate and share the goal of restoring salmon habitat, but the state has strong legal arguments that the Ninth Circuit decision is overbroad."

Barely two days after Ferguson filed the petition, the tribes were hit with another shock. Holding pens at a commercial fish farm broke open, unleashing thousands and thousands of modified Atlantic salmon -- which are not native to Washington -- into their usual and accustomed treaty waters.

The Lummi Nation quickly declared an emergency and the state joined in calls to catch as many as the interlopers as possible. According to the tribe, its fishermen removed 200,000 pounds of the farmed salmon in just a matter of days.

"These fish don't belong in these waters, and I'll do what I can to get rid of them," Lummi fisherman Dana Wilson said in a tribal press release on Monday.

The tribe estimates its catch amounted to about 20,000 salmon -- far higher than the initial estimate put forward by Cooke Aquaculture after the spill on August 19. The company even tried to blame the incident on high tides associated with the solar eclipse that had the entire nation in awe two days later.

Conservation groups, though, quickly dispelled those claims as alternative news because trouble had been detected at the operation in the Deepwater Bay off of Cypress Island a month earlier.

"This dangerous and reckless industry not only threatens the recovery of our native salmon and orca populations, it threatens the health of Puget Sound and the Northwest's cultural identity. This disaster needs to be a wake-up call for the public to get involved, and to demand a halt to the expansion of the Atlantic salmon net pen industry," Kurt Beardslee, the director of the Wild Fish Conservancy Northwest, said in a press release announcing the intent to file a lawsuit against Cooke Aquaculture.

Fawn Sharp, the president of the Quinault Nation, agreed with the assessment. She refers to the farmed salmon as "Frankenfish" because they have been modified in ways that are not typically seen in nature.

Photos shared online show fish that appear to have been engineered to grow larger, which would result in more yield for commercial sales. Some fish even look disfigured when compared to native Pacific species.

“We live on the Pacific Ocean, not the Atlantic," said Sharp, whose tribe is also a part of the culverts case. "We have our own species, and we’re working very hard to preserve and protect them to benefit this generation and the generations to come."

The culverts case is Washington v. U.S.. Responses from the treaty tribes -- and the new Trump administration -- are due September 20, according to Docket No. 17-269, although extensions are possible. The state will be able to file one more reply after that.

The Supreme Court grants only a small percentage of the petitions presented to the justices so there is no guarantee they will agree to hear the culverts case. But when they do accept Indian law cases, tribes become alarmed because favorable rulings are often overturned.

Between 2006 and 2016, tribal interests lost 9 out of 11 cases, according to the Native American Rights Fund. The record improved slightly in 2016 and 2017, with 4 out of 5 cases going in favor of Indian Country.

The court's next session begins in October. So far, one Indian law case is on the docket -- Patchak v. Zinke, a separation of powers case that arose out of a land-into-trust dispute.

9th Circuit Court of Appeals Decisions:
US v. Washington (May 19, 2017)
US v. Washington (June 27, 2016)

Treaty tribes celebrate after court refuses to rehear salmon dispute (May 22, 2017)
White House task force to address treaty issues in Washington (October 19, 2016)
Washington tribes win major fishing rights decision at appeals court (June 27, 2016)
Washington fights tribal treaty rights decision before 9th Circuit (July 6, 2015)
Washington wants 9th Circuit to take up treaty fishing case (May 29, 2013)
Treaty tribes in Washington win major decision in fishing case (April 1, 2013)