This article discusses the implications of tribes' treaty-secured rights to take fish for current efforts to set water quality standards in Washington and elsewhere in the Pacific Northwest. Among other things, this article considers the impact of ongoing treaty rights litigation, including the landmark ruling in the "culverts" case handed down by the Western District of Washington in March, 2013. Although this article focuses on agency decision making in the tribal context, it recounts a debate that has often been framed by arguments that are familiar from more general discussions of risk-based regulation. In fact, these generic arguments are often inapt in the tribal context. Among other things, tribes are entitled to undertake fish consumption practices consonant with the treaty guarantees. Historical, original, or “heritage” fish consumption rates thus have ongoing relevance for the fishing tribes. Contemporary tribal fish consumption rates, by contrast, are artificially “suppressed” and reflect practices marred by inundation of tribes’ fishing places; depletion and contamination of the fish resource; and a legacy of prosecution, intimidation, and gear confiscation. Given the forward-looking nature of environmental standards, this article argues that we ask the wrong question when we gauge future exposure by practices in a contaminated present. Yet the future condition of Washington waters is today determined by reference to the amount of fish people across the nation ate in 1973-74 – when the lakes were dead, the rivers on fire, the fish resource depleted and contaminated, and tribal harvest still under open attack. This article closes by observing that we are all successors to the treaties and by exploring ways in which the relevant state and federal agencies might work with their tribal counterparts to uphold the treaty promises.
Catherine A. O'Neill,
Fishable Waters, 1 AM.INDIAN L.J. 181