Protecting our Natural Resources and Treaty Rights, Muckleshoot Monthly, September 14, 2007

"This year a landmark federal court ruling related to salmon habitat and the settlement of a long-standing shellfish harvesting dispute stand as important milestones in our ongoing efforts to protect our natural resources and safeguard our treaty-reserved fishing rights. The Muckleshoot Tribe has worked closely with other Washington Tribes to achieve these important victories and through them help preserve our culture, economy and way of life.

Culvert Decision
An August 22, 2007 federal court ruling in a suit filed by tribes in 2001 said that the state cannot build or maintain road culverts that impede salmon migration to or from the spawning grounds. This is a very important decision because of the impact it will have on the health of salmon and the Muckleshoot Tribe's ability to exercise its Treaty fishing right and preserve the fishery resource for generations of Muckleshoot fishers to come. The state admitted that road culverts are currently blocing more than 2,300 miles of streams where salmon could spawn and that repairing the culverts could result in an additional 200,000 salmon available for harvest each year. While this is undoubtedly a low estimate of the harm caused by the state culverts, it was sufficient to persuade the Court that the State needed to respect the Treaty and to act to correct the impact.
In his decision the judge said "the right of taking fish secured to the tribes in the Stevens Treaties imposes a duty on the State to refrain from building or operating culverts under state-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for Tribal harvest." Or, in the words of Northwest Indian Fisheries Commission Chairman Billy Frank, "if the fish aren't there, what is the treaty all about?"
This decision will result in the replacement or repair of fish-blocking culverts faster, the establishment of proper standards to better assure that culverts do not harm fish in the future and thereby better assure that salmon are available for harvest by everyone. It will also encourage others who impact the fish habitat to treat fish habitat with respect and care thus reducing the impact on the fishery resource and the Treaty right.
The decision in the culvert case is vindication of the commitment of the Muckleshoot Tribe to protect its Treaty right to fish. Muckleshoot was one of the original tribes to join United States v. the State of Washington in 1970, and was one of hte original tribes to raise the issue of the need to protect the fish habitat as a necessary way to protect the fish and the Treaty right.

Shellfish Settlement
Earlier this year Tribes signed a settlement agreement with commercial shellfish growers that ended a long-standing legal dispute over shellfish harvesting from private land. An earlier court ruling prohibited tribes from harvesting shellfish from commercially enhanced private beds, but upheld tribal rights to half of all naturally occurring shellfish on those tidelands. Left unanswered were two important questions; how to distinguish between naturally occurring shellfish and those privately produced, and how tribes could access those naturally occurring shellfish on private lands.
The agreement settled those issues while also preserving the health of the shellfish industry and affirming tribal shellfish rights. Under terms of the settlement tribes agreed to forgo shellfish on tidelands sold to commercial users and a $33 million fund was established to acquire and enhance tidelands to which tribes will enjoy exclusive access. The Muckleshoot Tribe will receive a share of these funds to be used for fishery purposes. Private growers will provide $500,000 of shellfish enhancement on public tidelands for everyone to enjoy.
This agreement, like the culvert decision, is a win for our natural resources and a win for the fish. The Treaties reserving our fishing rights were intended to insure that tribal culture and society continued even as non-Indians entered our lands. The culvert decision and the Shellfish settlement better insure that those promises made long ago will be kept for us and our children."