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Victory For Tribal Treaty Rights And Salmon As U.S. Supreme Court Upholds Culvert Case Ruling

Ted S. Warren/file
AP Photo
In this June 2015 photo, Melissa Erkel, a fish passage biologist with the Washington Dept. of Fish and Wildlife, looks at a culvert, a large pipe that allows streams to pass beneath roads but block migrating salmon, along the north fork of Newaukum Creek.

Tribes and conservationists are celebrating a decision by the U.S. Supreme Court that upholds tribal treaty fishing rights. The U.S. Supreme Court has let stand a ruling from the 9th Circuit Court of Appeals, which had already ruled squarely in favor of the tribes.

“It was a big victory when they won in the 9th Circuit and this affirms that decision,” said Robert Anderson, a law professor at the University of Washington and Director of its Native American Law Center.

“So, it’s a huge victory for the tribes’ treaty rights and the fish.”

The long running case is about fixing culverts. Those are channels built under roads to allow salmon to migrate even when streams are paved over. Some of those channels are too small or too steep for fish to get through. The ruling sets an aggressive time line for rebuilding the worst ones. The work is to be completed over the next 17 years, instead of the 100 years the state of Washington was asking for.

John Sledd was one of the attorneys representing the tribes. He says it’s a great day for tribal treaty rights.

“And it’s a great day for the fish and all of the people in Washington that depend on them, either for income or for recreation. It’s just a fabulous result,” Sledd said.

The treaties date back to the 1850s and gave Native Americans fishing rights in exchange for land.  Twenty one tribes first filed suit about the culverts in 2001. It’s also connected to the famous Boldt decision of 1974 that affirmed tribal rights to 50 percent of the annual catch of salmon in their "usual and accustomed" fishing areas to native fishermen.

In this latest round of the case, Washington state argued the timeline is too aggressive. And it blamed the federal government for culvert designs that now have to be rebuilt.

In a statement, Washington Attorney General Bob Ferguson says it’s unfortunate that state taxpayers will be shouldering all of the responsibility for the federal government’s faulty designs.

But Ferguson was relatively isolated in those arguments, with Washington Governor Jay Inslee and other top state officials standing with tribes and the U.S. government in this case.

The ruling has special resonance for Willy Frank Jr. the 3rd, an elected Council Member with the Nisqually Indian Tribe.  He’s named after his Dad, Billy Frank Jr.  He says he got the news via text message.

“It brought a lot of smiles of smiles to my face. You know, it made me think about my Dad a lot, who spent his whole life advocating for our salmon and protecting our treaty rights here in the state of Washington.”  

Many people attribute the Boldt decision to the courage and tireless activism of Billy Frank Jr. in the 1960s and 70s.

Willie is 36. His Dad died four years ago. He says this ruling reminds him how well his father taught him. He also remembers the special way Billy Frank Jr. would swear at times like these, saying “God-damned Jesus Christ!”

“And I could see him saying that today. And I could see him smiling down on the ruling and the decision for all of our tribes,” Willie said.

“And not just him – but all of our elders who spent their lives fighting for our treaty rights.”   

He says he hopes this ruling affirms tribal rights all over the United States, not just in Washington, the way the Boldt decision did when it came down in 1974.


KNKX also aired an interview about the ruling with Fawn Sharp, President of the Quinault Indian Nation, which is one of the tribes in the case.

Sharp is a lawyer who says she was inspired to get her law degree because she grew up during the height of the fishing rights controversies.  

She spoke with 88-five environment reporter Bellamy Pailthorp about the meaning of this victory for the tribes.


And this story aired nationally on NPR:


Bellamy Pailthorp covers the environment for KNKX with an emphasis on climate justice, human health and food sovereignty. She enjoys reporting about how we will power our future while maintaining healthy cultures and livable cities. Story tips can be sent to