Food for His Children: A Podcast About U.S. v. Washington By CU Law Student Eric Dude

The Getches-Wilkinson Center is proud to announce the launch of a student-produced podcast. The first series, Food for His Children, will tell the story of how a salmon fishing rights case reflects Pacific Northwest Tribes’ struggle—over the course nearly forty years—to reassert their tribal sovereignty by insisting the states uphold U.S. treaty promises.

On June 11, 2018, the Supreme Court decided Washington v. United States; colloquially known as “the Culverts Case.” The opinion is one sentence long: “The judgment is affirmed by an equally divided court.” An anticlimactic decision in a case that has been percolating through the federal court system since just before President Nixon’s resignation in 1974.

Colorado Law Professor Charles Wilkinson describes the Culverts Case as, “… a dream case! . . . You can’t pass up an opportunity like this for an extraordinary doctrine that’s so good for the Tribes, so good for the rivers, so good for the salmon, so good for every person in the northwest that you’ve just got to bring it.”

This hugely important case deserves the kind of attention given to other high-impact cases this term. The idea to create the podcast was born out of the realization that tribal sovereignty victories—and losses—are often buried beneath other headline-grabbing struggles for justice in this country.

We do not intend to address our show to only a legally trained audience. Our hope is to focus public attention on the legal history of Europeans’ colonization of American indigenous people. The sovereignty movement in Indian Country is uniquely entangled with the law. To understand the movement requires an understanding of the legal doctrine. To understand the law requires an understanding of the waves of federal Indian policy which have shaped Indian country over the last two hundred years. This podcast aims to provide that bridge.

Over the course of six episodes we will break down this case into all of its constituent parts. We will trace the legal underpinnings of our nation’s own colonialism back to early European contact and the “doctrine of discovery” that gave rise to the paternalistic plenary power doctrine. We will look at the radical movement to assert tribal sovereignty on the riverbanks of the Pacific Northwest. And we will explain how all of this is captured by a case about salmon fishing.

The June 11 decision involved only a small aspect of this sprawling case: whether the state of Washington had violated a series of treaties between the U.S. and a number of tribes by building and maintaining barrier culverts in critical salmon streams—land that was, for most of human history, rich fishing grounds for a number of tribes. Simply put, a culvert allows water to pass underneath a roadway. But it often makes it impossible for salmon to pass upstream during spawning season.

That is a problem for the Tribes and, consequently, the U.S.  In 1855, Isaac Stevens, governor of the then-territory of Washington, negotiated a number of treaties with the Tribes whose ancestral land was quite rapidly being occupied by white settlers from the east coast. Almost every Tribe bargained for a guarantee that cessation of their land would not mean diminishment of their right to fish where they had always done so: “The right of taking fish at usual and accustomed grounds and stations … in common with all citizens of the United States.” While each treaty may vary, that sentence is ubiquitous.

As one leader of the radical 1960s and 70s fishing rights movement, Nisqually tribal member Billy Frank, Jr., said, “We’ll die for that salmon.”

Despite the relative complexity of other provisions in the Stevens Treaties, that seemingly straightforward promise has made it before the Supreme Court on three separate occasions. First in 1905, the United States v. Winans case confirmed that the fishing rights were not subordinate to private or state interests: the Tribes could not be excluded from their traditional fishing grounds merely because a private party had acquired title to the land. Then in 1979 in Washington v. Washington State Commercial Passenger Fishing Vessel Association, the Court decided that the Treaties guaranteed the Tribes up to half of the annual salmon harvest on off-reservation watersheds. Hinted at, but never directly addressed, was an ancillary issue: did the Treaties impose a duty on the State of Washington to refrain from materially diminishing the annual harvest? The Tribes have always thought so.

The Tribes of the Northwest have been fighting for full recognition of their fishing rights for as long as the Stevens Treaties have existed. Before litigation began, tribal activists asserted their rights on the rivers of the Northwest. Billy Frank, Jr. was arrested by state police more than fifty times in the 1960s and 70s. He and other tribal activists felt the State was violating its Treaty obligation not only by excluding tribal members from their historical fishing grounds, but also by allowing the salmon run to significantly diminish over time. The state—and many of its citizens, including commercial fishermen whose livelihoods depended on being able to take a significant amount of fish from these runs—felt the Tribes were asking too much. It was in that heated and at times violent environment that the Culverts case began.

Beyond hard-bargained rights embedded in the Stevens Treaties, the outcome of this case implicates a broader, more nebulas question: what is the status of tribal sovereignty today? Federal Indian law jurisprudence is convoluted at best, and the relationship between tribal and state sovereignty might very well be the most difficult doctrinal developments to predict. Consequently, this case was closely followed by Tribes across the country, and lawyers who practice in the field.

Something we hope the podcast will convey, is that driving these important legal developments is a strongly felt cultural connection to salmon fishing.

John Sledd, an attorney at Kanji & Katzen P.L.L.C. who represented the Tribes, had this to say about the litigation, “I think the most moving, most powerful evidence in this entire case was testimony in the first day of the remedy trial from four tribal members about what it meant to them to go out on the water in their boats and be in the same place that their ancestors back to the dawn of time were fishing.”

In many ways, this is not our story to tell. So my co-host Rachel Calvert (Law ‘19) and I will share this story through the words of those who have lived it, with the help of our associate producers Marisa Hazell (Law ‘19) and Shelby Krantz (Law ‘19). From the attorneys who argued this case to the tribal members whose rights were at stake, we hope our listeners will be as deeply captivated by their stories as we are.

The first of the series will be released this fall, sponsored by the Getches-Wilkinson Center and through a partnership with the University of Colorado’s Radio 1190.  Radio 1190 Podcasts

Stay tuned.

Eric Dude is a rising 3L at Colorado Law and a GWC Research Fellow.