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Yakama Nation calls for removal of Columbia River dams

News from the Yakama Nation.

YAKAMA NATION AGENCY, YAKAMA RESERVATION – On Indigenous Peoples’ Day, October 14, 2019, the Yakama Nation and Lummi Nation hosted a press conference urging the removal of the lower Columbia River dams as part of a broader call for federal repudiation of the offensive doctrine of Christian discovery, which the United States uses to justify federal actions that impair the rights of Native Nations. The press conference took place this morning at Celilo Park near Celilo Village, Oregon.

“The false religious doctrine of Christian discovery was used by the United States to perpetuate crimes of genocide and forced displacement against Native Peoples. The Columbia River dams were built on this false legal foundation, and decimated the Yakama Nation’s fisheries, traditional foods, and cultural sites,” said Yakama Nation Tribal Council Chairman JoDe Goudy. “On behalf of the Yakama Nation and those things that cannot speak for themselves, I call on the United States to reject the doctrine of Christian discovery and immediately remove the Bonneville Dam, Dalles Dam, and John Day Dam.”

The doctrine of Christian discovery is the fiction that when Christian European monarchs obtained what was for them new knowledge of the Western Hemisphere, those monarchs had a religious right of domination over all non-Christian lands. This doctrine was propagated by the Roman Catholic Church through a series of papal bulls in the 15th century, including a papal bull authorizing Portugal to “invade, search out, capture, vanquish, and subdue all Saracens and pagans” and to place them into perpetual slavery and take their property. The Roman Catholic Church then implemented a framework where the right to subjugate the Americas was split between Spain and Portugal, although they were later joined by other European states. The doctrine was therefore one of domination and dehumanization of Native Peoples, and was used to perpetuate the most widespread genocide in human history.

In 1823, the United States Supreme Court used the doctrine of Christian discovery as the legal basis for the United States’ exercise of authority over Native lands and Peoples. See Johnson v. M’Intosh, 21 U.S. 543 (1823). The Court found that the United States holds clear title to all Native lands subject only to the Native Nation’s right of occupancy, which the United States can terminate through purchase or conquest. In relying on the doctrine of Christian discovery, the Court described it as “the principle that discovery gave title to the government . . . against all other European governments, which title might be consummated by possession.” Id. at 573. The Court used this religious doctrine of domination and dehumanization to unilaterally deprive Native Nations of their sovereign rights, racially juxtaposing the rights of “Christian peoples” against those “heathens” and “fierce savages.” Id. at 577, 590.

Tribes fished at Celilo Falls along the Columbia River for thousands of years until it was was destroyed by the construction of The Dalles Dam in the 1950s. Photo: U.S. Army Corps of Engineers

In the years that followed, this false religious doctrine became the bedrock for what are now considered to be foundational principles of federal Indian law. In United States v. Kagama, 188 U.S. 375 (1886), and Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), the Court announced Congress’ extra-constitutional plenary power over all Indian affairs—the plenary power doctrine—which it justified by pointing to Native Nations’ loss of sovereign, diplomatic, economic, and property rights upon first ‘discovery’ by Europeans. In The Cherokee Tobacco, 78 U.S. 616 (1870), the Court applied the doctrine and held that Congress can unilaterally abrogate Treaty rights with subsequent legislation unless there is an express exemption provided in the Treaty—the last-in- time doctrine. In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), the Court deprived Native Nations of criminal jurisdiction over non-members based on the statement in M’Intosh that Native Nations’ rights “to complete sovereignty, as independent nations, were necessarily diminished” by European ‘discovery’—the diminished tribal sovereignty doctrine. These legal doctrines have been weaponized against Native Nations ever since, including by Congress in authorizing construction of the Bonneville Dam, Dalles Dam, and John Day Dam without the Yakama Nation’s free, prior, and informed consent.

The history of the lower Columbia River dams can be traced back to 1792, when United States Merchant Robert Gray sailed up our N’chi’Wana (Columbia River) and claimed the territory for the United States. Mr. Gray entered our lands and performed a religious doctrine of discovery ceremony by raising an American flag and burying coins beneath the soil, thereby proclaiming dominion over our lands and our families without our knowledge or consent. Following the War of 1812, the United States and England falsely claimed joint authority over what became known as the Oregon Territory until 1846, when England relinquished its claim south of the 49th parallel. Having eliminated British opposition, Congress passed the Oregon Territorial Act of 1848 and the Washington Territorial Act of 1853. Both Territorial Acts reserve the United States’ claim to the sole right to treat with Native Nations, thereby maintaining the federal government’s doctrine of Christian discovery-based claims.

At the Walla Walla Treaty Council in May and June of 1855, the Yakama Nation’s ancestors met with United States representatives to negotiate the Treaty with the Yakamas of June 9, 1855. Article III, paragraph 2 of the Treaty reserves the Yakama Nation’s “right of taking fish at all usual and accustomed places . . .” including many places throughout the Columbia River basin. At no point during these negotiations did the United States express a claimed right of dominion over the Yakama Nation’s traditional lands that would allow the United States to unilaterally ignore the Treaty. Territorial Governor Isaac I. Stevens did not explain that the United States would dam the rivers and violate the Yakama Nation’s Treaty-reserved fishing rights without the Yakama Nation’s free, prior, and informed consent.

What followed was a 100-year conquest of the Columbia River by the United States. First, the United States Supreme Court paved the way by affirming federal regulatory authority over navigable waterways like the Columbia River in Gilman v. Philadelphia, 70 U.S. 713 (1866), and Congress’ extra-constitutional plenary authority over Indian affairs in United States v. Kagama, 188 U.S. 375 (1886). Congress then exercised this supposed authority by passing a series of legislative acts without the Yakama Nation’s consent, including Rivers and Harbors Acts, Right of Way Acts, the General Dams Act, the Federal Water Power Act, and the Bonneville Project Act, all of which facilitated construction of the lower Columbia River dams without regard for the Yakama Nation’s Treaty-reserved rights.

Chairman JoDe Goudy of the Yakama Nation speaks at the Native Nations Rise rally in Washington, D.C., on March 10, 2017. Photo by Indianz.Com (CC BY-NC-SA 4.0) | More on Flickr

During the Depression, Congress passed the National Industrial Recovery Act authorizing President Franklin D. Roosevelt to approve public works projects like the Bonneville Dam. Construction started in 1933, but President Roosevelt’s approval of the project was quickly deemed unconstitutional in Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). The authorization was an unconstitutional delegation of legislative authority from Congress to the President. It should have been deemed unconstitutional under the United States Constitution’s Supremacy Clause—which says the Treaty of 1855 is the “supreme law of the land”—because it was inconsistent with the rights reserved to the Yakama Nation by Treaty. Any argument to the contrary is an argument that Congress has plenary power over Indian affairs rooted in the false religious doctrine of Christian discovery.

Congress quickly re-approved the Bonneville Dam’s construction, which was completed in 1938. The Dalles Dam was built from 1952 to 1957, and the John Day Dam was built from 1968 to 1972. The Yakama Nation, as co-equal sovereign and signatory to the Treaty of 1855, never approved the construction of these dams. They inundated the villages, burial grounds, fishing places, and ceremonial sites that we used since time immemorial. Celilo Falls was the trading hub for Native Peoples throughout the northwest. The United States detonated it with explosives and drowned it with the Dalles Dam. After the Dalles Dam’s construction had already started, the United States negotiated an insignificant settlement with the Yakama Nation for the damage caused by the Dam. This was domination and coercion, not consent.

Today, the lower Columbia River dams stand as physical monuments to the domination and dehumanization that the United States continues to impose on Native Nations under the false religious doctrine of Christian discovery. “Columbus Day is a federal holiday celebrating the Christian-European invasion of our lands under the colonial doctrine of Christian discovery. Today, the Yakama Nation rejects that narrative by celebrating Indigenous Peoples’ Day and calling on the United States to remove the lower Columbia River dams that were built without our consent using the same false religious doctrine,” said Chairman Goudy.

* * *
History of the Doctrine of Christian Discovery and the Lower Columbia River Dams
1492: Catholic Majesties King Ferdinand and Queen Isabel issue their Privileges and Prerogatives to Christopher Columbus, directing him, by their “command,” “to discover and subdue [dominate] some Islands and Continent in the ocean,” with the hope “that by God’s assistance, some of the said Islands and Continent in the ocean will be discovered and conquered [dominated] by your means and conduct,” while adding the claim that his conduct in discovering and subduing [dominating] was “just and reasonable.”

1493: Pope Alexander VI, on May 3, 1493, issued a papal decree to Queen Isabel and King Ferdinand, confirming to the monarchs “the remote and unknown mainlands and islands lying towards the western parts and ocean sea, that have been discovered or hereafter may be discovered by you or you envoys. . .and with them all their lordships, cities, castles, places, villages, rights, and jurisdictions; provided however these countries have not been in the actual temporal domination of any Christian lords.”

1496: King Henry VII issued Letters Patent to John Cabot and his sons, purporting to authorize to Cabot the “full and free authority, leave and power to sail to all parts, and to seek out, discover, and find whatsoever isles, countreys, regions or provinces of the heathen and infidels whatsoever they be, and in what part of the world so ever they be, which before this time have been unknown to all Christians: we have granted to them, and also to every of them, the heires of them, and ever of them, and their deputies, and have given them license to set up our banners and ensignes in every village, towne, castle, isle, or maine land of them newly found. And that the aforesaid John and his sonnes may subjugate [dominate], occupy and possess all such towns, cities, castles and isles of them found, which they can subjugate [dominate], occupy and possess, as our vassals, and lieutenants, getting unto us the rule, title, and jurisdiction of the same villages, townes, castles, & firme land so found.”

1775: Based on the tradition demonstrated by the Privileges and Prerogatives to Christopher Columbus, and the Vatican papal decrees of domination of the fifteenth century (from 1452 to 1493), Bruno de Heceta, a Spanish explorer, became the first documented Christian European to sight, via ship, the mouth of the Columbia River and the traditional territories of the “barbarous” (from the wording of the papal bulls of 1493) Native nations situated there.

1783: At the end of the American Revolution, the American diplomatic envoys signed the Treaty of Paris; Britain yields to the thirteen united States their claims to the Old Northwest Territory, a region encompassing the geographical area west of Pennsylvania, northwest of the Ohio River, and east of the Mississippi River below the Great Lakes.

1787: The Continental Congress of the united thirteen States passed “An ordinance for the government of the territory of the United States, North-west of the river Ohio,” a framework intended to form the first Colony of the American Empire, and to extend the domination of that empire westward by forming five new states—Ohio, Indiana, Illinois, Michigan, and Wisconsin—by colonizing the lands and rivers located within the territories of the Original Native Nations of that vast geographical area.

1789: The U.S. Constitution, ratified in the previous year, became effective, formally creating the political system of the United States.

1789: In its very first statute, the first session of Congress, convened under the newly adopted Constitution, reaffirmed the 1787 Northwest Ordinance, making that document the means by which the United States would begin the colonize the lands of Native nations in the West. The Northwest Ordinance set the precedent by which the federal government would assert its claim of a right of domination (“sovereignty”) westward: new territories would be formed, and states would be created and admitted into the Union, rather than expanding the existing states. Lands acquired from Native nations would be characterized as “public lands” until allocated to states or private parties. The Act also impliedly proclaimed a right of U.S. domination over navigable waters by noting that such waters would be common highways for all U.S. citizens. Finally, the Northwest Ordinance stated that, “The utmost good faith shall always be observed toward the Indians ; their lands and property shall never be taken from them without their consent ; and in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them.”

1792: U.S. merchant Robert Gray became the first American to sail into the Columbia River. Gray named the river after his ship (“Columbia Rediviva”) and symbolically claimed the north riverbank on behalf of the U.S. by raising an American flag and burying some American coins beneath the soil.

1803: The U.S. and France agreed to the “Louisiana Purchase,” whereby the U.S. obtained by treaty from France its claim to approximately 827,000 acres of land between the Missouri River and the Rocky Mountains. The purpose of the Louisiana Treaty was to improve U.S. profits from the fur trade. The entire area from the Rocky Mountains to the Pacific Ocean was regarded as “Parts Unknown.” The most that France had ceded to the United States was a claim to the lands of Native Nations that the U.S. might locate in the future.

1803: U.S. explorers Merriweather Lewis and William Clark received assignment from President Jefferson and begin preparations for a cross-country expedition. The President’s principal order to the explorers was to locate a direct river route to the Pacific Ocean that could be used for commerce. However, the President also instructed the explorers to learn about the Native Nations along their route, as this reconnaissance would facilitate the U.S.’s claim of a right of domination (“sovereignty”) over and the forced assimilation of these Original Native Nations. 1805: Lewis and Clark reached the mouth of the Columbia River and established Fort Clatsop on its south side.

1811: The Pacific Fur Company, led by John Jacob Astor, established Fort Astoria in modern day Astoria, OR, the first permanent American settlement established on the Pacific coast.

1818: The U.S. and Britain entered into the Treaty of 1818 to resolve the outstanding boundary disputes between the two countries. Art. III of the treaty provides that both countries would jointly control the “Oregon Country” for ten years.

1823: The United States Supreme Court adopted the doctrine of Christian discovery and domination in Johnson v. M’Intosh, 21 U.S. 543 (1823), stating that the first “Christian people” to locate lands inhabited by “natives, who were heathens,” had asserted the “ultimate domination” (a right of domination) over and to the soil to be “in themselves.”

1824: The United States Supreme Court issued a decision in Gibbons v. Ogden, 22 U.S. 1 (1824) which relied on the commerce clause of the United States Constitution to justify the federal government’s regulatory authority over navigable waterways throughout the United States.

1827: The U.S. and Britain’s joint occupancy of Oregon Country under the Treaty of 1818 is renewed on year-to-year basis.

1838: U.S. Senator Lewis Linn Robert, in discussing the U.S.’s claim to Oregon Country before the U.S. Senate, cites Gray’s voyage up the Columbia River and Lewis and Clark’s expedition as “important circumstance in [U.S.] title…that was notice to the world of claim,” and that Lewis and Clark’s “solemn act of possession was followed up by a settlement and occupation made by…John Jacob Astor.”

1843: Settlers in Oregon Country established a provisional government which continued to function until the U.S.’s formal establishment of the Oregon Territory.

1845: The term “manifest destiny” was used for the first time to describe the U.S.’s perceived right to imperial expansion. The term was used by a journalist in reference to the U.S.’s annexation of Texas, but was soon after applied to the U.S.British dispute over the right of domination over the Oregon Country.

1846: The U.S. and Britain entered into the Oregon Treaty, which formally divided the claim of a right of domination over the Oregon Country between the two countries at the 49th parallel line.

1848: The U.S.-claimed portion of Oregon Country is formally organized as a colonial territory of the American empire – the “Oregon Territory” – through the “Act to Establish the Territorial Government of Oregon” of Aug. 14, 1848. The Act states that the rights of Native Nations in the new territory would be unaffected so long as those rights remained “unextinguished” by treaty. Moreover, the U.S. claims the dominating authority to make regulations concerning the Tribes or their lands, property, or rights. The Act, in a provision arguably premised on the 1787 Northwest Ordinance’s pledge of “utmost good faith toward the Indians,” and “protection of their property, rights, and liberty,” also states that rivers and streams where “salmon are found” could not be obstructed by dams or other impediments. Finally, the Act asserted that all territorial laws affecting title to land would be null and void, as the U.S. perceived itself to have absolute power over title in the new territory.

1851: In a Kentucky case focused on the issue of slavery, the U.S. Supreme Court upheld the constitutionality of the Northwest Ordinance of 1787, but concluded that most provisions of the law ceased to apply once the relevant lands became states. The Court did, however mention “provisions of the Ordinance as are yet in force,” which presumably includes the Utmost Good Faith provision of the Ordinance toward “the Indians.” Strader v. Graham, 51 U.S. 82 (1851).

1853: The Oregon Territory is formally divided into two sections – the Oregon Territory and the Washington Territory – through the “Act to Establish the Territorial Government of Washington” of March 2, 1853. The Act stated that the U.S.’s claim of a dominating authority to make regulations concerning the Tribes or their lands, property, or rights, whether by Treaty, law, or otherwise, would be unaffected. The Act also purported to grant concurrent jurisdiction to both the Oregon Territory and Washington Territory over offenses committed on the Columbia River.

1855: Under a coercive threat of bloodshed issued by Governor Isaac Stevens, the Confederated Tribes and Bands of the Yakama Nation enter into a Treaty with the U.S (Treaty with the Yakamas, U.S. – Yakama Nation, June 9, 1855, 12 Stat. 951) in which the Yakama Nation is said to have formally ceded certain rights to approximately ten million acres of land to the U.S. while reserving more than one million acres for its exclusive use and benefit, among other reserved rights.

1859: Oregon formally is admitted into the Union through the “Act for the Admission of Oregon into the Union” of Feb. 14, 1859. The Act stated that the new state would have jurisdiction over civil and criminal matters on the Columbia River concurrent with the Washington Territory. Furthermore, the Columbia River and all other navigable waters would be common highways to Oregon and U.S. citizens. Finally, Oregon’s admission to the U.S. was conditioned on Oregon’s irrevocable acknowledgment that it would never interfere with the “primary disposal of the soil” by the U.S., or with any regulations Congress may pass in relation to title.” 1866: The United States Supreme Court issued a decision in Gilman v. Philadelphia, 70 U.S. 713 (1866), which affirmed the holding in Ogden that Congress has regulatory authority over navigable waterways throughout the United States.

1886: The United States Supreme Court claims in United States v. Kagama, 118 U.S. 375 (1886) that Congress has, on the basis of a U.S. claim of a right of domination consistent with the Doctrine of Christian discovery and domination, a claim of an extra-constitutional plenary power over all Indian affairs—the plenary power doctrine—on the extra-constitutional basis of which Congress claims the right to impose its dominating will on Native Nations through Congressional Acts.

1889: Washington formally became a U.S. state through the “Act to Provide for the Division of Dakota into Two States and to Enable the People of North Dakota, South Dakota, Montana, and Washington to Form Constitutions and State Governments and to be Admitted into the Union on an Equal Footing with the Original States, and to Make Donations of Public Lands to Such States” of Feb. 22, 1889. The Act noted that citizens of the new states disclaimed all right and title to unappropriated public lands and lands owned or held by Indians, and “until title to Indian lands has been extinguished by the United States,” those lands would be “subject to the disposition of the U.S.” and “remain under the absolute jurisdiction and control of, meaning ‘under the domination of,’ the U.S. Congress.”

1896: Congress passes the Right of Way Act of 1896, which authorized the Secretary of the Interior to permit private citizens to acquire rights of way for economic development purposes (including power generation and transmission) across public lands that were not within national parks, Indian reservations, military reservations, or national forests.

1899: Congress passed a Rivers and Harbors Act that assumed federal authority over all navigable waterways, and requires anyone seeking to dam a navigable waterway to first obtain approval from the Army Corps of Engineers.

1901: Congress reaffirmed the Right of Way Act, which authorized the Secretary of the Interior to permit private citizens to acquire rights of way across certain federal lands (including Indian Reservations) for economic development purposes, including electrical power generation and transmission.

1902: Congress passed the Reclamation Act directing the Secretary of the Interior to build irrigation works for the storage, diversion, and development of waters. Under this Act, the Secretary of the Interior created the United States Reclamation Service, which would become the Bureau of Reclamation in 1907.

1903: The United States Supreme Court held in Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), that, pursuant to the claim of plenary power, Congress possesses the authority to abrogate Treaties with Native Nations.

1906: Congress passed the General Dams Act, which authorized the federal government to license private dams on navigable waterways, and provided general rules for the construction of hydropower dams.

1907: President Roosevelt created the Inland Waterways Commission to provide recommendations for improving navigability of waterways. The Commission ultimately recommended using hydropower dams to both improve navigability and provide a funding source for maintaining navigable waterways.

1920: Congress passed the Federal Water Power Act to create the Federal Power Commission, which was charged with reviewing private requests to develop waterways. This Act is seen as the final act solidifying the federal government’s seizure of control over hydropower development from the states.

1925: Congress authorized the Army Corps of Engineers and Federal Power Commission to issue a report evaluating the Columbia River Basin for hydropower development.

1926: The Army Corps of Engineers and Federal Power Commission issued a report (308 Report) recommending 8 dams along the Columbia River, including Bonneville Dam. 1929: Construction began on the Rock Island Dam, which was the first dam on the main stem of the Columbia River. Construction was completed in 1933.

1932: The prior recommendation for a dam at Bonneville is reiterated in House Document 103, which includes thousands of pages detailing opportunities for hydropower and navigability development of the Columbia River.

1933: The Army Corps of Engineers began constructing the Bonneville Dam in 1933 at the direction of President Franklin D. Roosevelt under the National Industrial Recovery Act, which authorized President Roosevelt to complete public works projects.

1935: In 1935, the United States Supreme Court found the National Industrial Recovery Act to be an unconstitutional delegation of legislative power to the President. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). Congress then authorized the dam construction to remove any concern about the President’s unconstitutional authorization for the dam.

1937: Congress passed the Bonneville Project Act to authorize completion of construction of the Bonneville Dam. The Act also created the Bonneville Power Administration under the Department of the Interior to sell hydropower-generated energy to local utilities.

1938: Bonneville Dam construction completed.

1945: Congress passed a Rivers and Harbors Act that authorized construction of the McNary Dam, which was being lobbied by the Open River Navigation Association, Umatilla Rapids Association, and Umatilla Watershed Association.

1945: The Army Corps of Engineers sent a Colonel to meet with the Yakama Nation to discuss the future construction of the Dalles Dam. The talks broke down over the Yakama Nation’s interest in protecting its Usual and Accustomed (U&A) sites at Celilo Falls. There was also significant conflict between the Yakama Nation and Umatilla, Warm Springs, and Nez Perce, whom the Yakama Nation asserted did not have U&A fishing rights at Celilo Falls.

1947: Construction started on McNary Dam.

1948: A flood wiped out Vanport, Oregon and with it any public opposition to construction of the Dalles Dam.

1950: Congress passed a Rivers and Harbors Act that authorized construction of the Dalles Dam and John Day Dam.

1951: The Yakama Nation Tribal Council passed a Resolution opposing Umatilla, Warm Springs, and Nez Perce participation in any settlement discussions concerning Celilo Falls. The Army Corps of Engineers did not honor the Yakama Nation’s position.

1952: The Army Corps of Engineers began construction on the Dalles Dam, and also starts negotiating in earnest with the Yakama Nation over the loss of fishing sites upstream of the Dalles Dam.

1953: Congress appropriated funds for the Department of the Army to settle claims with the Yakama Nation related to the loss of fishing sites resulting from the Dalles Dam construction. 67 Stat. 197.

1954: The Yakama Nation and United States entered into the Dalles Dam Settlement providing roughly $15 million dollars to the Yakama Nation for the destruction of the Nation’s usual and accustomed fishing grounds.

1954: Construction of the McNary Dam was completed.

1957: Construction of the Dalles Dam was completed.

1968: Construction of the John Day Dam was started.

1972: Construction of the John Day Dam was completed.

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