This article transcribes a presentation delivered by Professor O’Neill at the EPA-Tribal Leaders Summit, hosted by the Confederated Tribes of the Umatilla Indian Reservation, August 21-25, 2006. This article maintains that the call to protect tribal harvests—to ensure healthy and robust fisheries—is at the core of the sovereign compact between the United States and the various Native nations. The United States is, in fact, legally obligated to uphold this compact, manifested prominently in the treaties. The United States and the states are also legally bound to remedy a long history of attempts to assimilate and discriminate against Native peoples and their land- and resource-based cultures. These legal obligations mean that federal and state agencies' work must be different when Native peoples—rather than just the general population—are among those affected by environmental contamination. Part I of the article discusses background issues including contamination and exposure, the impacts and regulatory responses by government regulators, and the example of Oregon’s water quality standards. Part II explains treaty guarantees, the treaty language and logic, and treaty obligations Oregon’s water quality standards. Part III examines the protections against discrimination, such as equal protection, civil rights statutes, and civil rights obligations using Oregon’s water quality standards as an example. This article concludes that agencies labor under not only legal commitments, but moral commitments as well, to fulfill their calling as trustee and steward, and to honor the treaty promises.
Protecting the Tribal Harvest: The Right to Catch and Consume Fish, 22 J. ENVTL. L. & LITIG. 131