Aug 23, 2017 - Attorney General Who Battled Trump, Attacks Tribal Treaty Rights

“We’ve never seen this assault on Treaty rights since Slade Gordon. I put him [Attorney General Bob Ferguson] right next to Slade. Slade lost, so will Ferguson.” Brian Cladoosby, Chairman Swinomish Tribe and President of the National Congress of American Indians

Last January, Washington State Attorney General Bob Ferguson, a Democrat, rose to national prominence when he filed a lawsuit against the Trump Administration’s Executive Order to temporarily ban refugees and immigrants from seven majority Muslim countries. A U.S. District Court would later agree with Ferguson and issued a Temporary Restraining Order halting the implementation nationwide.

Ferguson, who was hailed a hero and Trump fighter, is now turning his attacks on Northwest Tribes and their treaty rights.

In 2001, twenty-one Tribes sued Washington State over culverts and their impact on Salmon. Tribe’s argued that the culverts, steel pipes or concrete tunnels that carry streams beneath roadways, “are too narrow or too steep for salmon to swim through.” The culverts, they argued, posed a significant barrier for salmon populations.

Culverts beneath state roads keep salmon from hundreds of miles of habitat in Washington.
Credit WSDOT

The Tribe’s treaty rights affirm their right to continue to hunt and fish in the usual and accustomed grounds.

“Failing culverts deny our treaty-reserved fishing rights that include the right for salmon to be available for harvest,” Northwest Indian Fisheries Commission chair Lorraine Loomis said in a press release Friday. “The right to harvest salmon was one of the few things we kept when we gave up nearly all the land in western Washington.”

In 2013, Federal Court Judge Ricardo Martinez ruled that tribal treaty-reserved rights to harvest salmon include the right to have those salmon protected so they are available for harvest. He ordered the State to fix and reopen 450 of the 800 most significant salmon-blocking culverts by 2017.

He argued that, “tribal treaty-reserved rights to harvest salmon include the right to have those salmon protected so they are available for harvest.”

Since the ruling, State agencies have made steady progress in meeting the Court mandate, despite the State twice filing appeals to overturn the ruling.

Now, AG Ferguson has filed an appeal to the culvert case to the U.S. Supreme Court.

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

He further argues that, “some culverts do not harm salmon and that the tribes’ treaty rights to fish do not mean they are entitled to enough fish to provide a “moderate living” from fishing.”

Lorraine Loomis counters, “Failing culverts deny our treaty-reserved fishing rights that include the right for salmon to be available for harvest. The right to harvest salmon was one of the few things we kept when we gave up nearly all the land in western Washington.”

The appeal to the U.S. Supreme Court comes on the heels of a May 19th decision by the 9th Circuit Court of Appeals to not hear Ferguson’s appeal.

When the case was first filed, some 1,500 culverts blocked over 1,600-miles of salmon habitat.

The Supreme Court will rule in the Fall whether they will hear the Ferguson appeal.

by Wakíƞyaƞ Waánataƞ (Matt Remle- Lakota)