Tribal Right to Fish

By Ted Strong, Executive Director, Columbia River Inter-Tribal Fish Commission, Portland, Oregon.

The Forest Ecosystem Management Assessment Team (FEMAT) is one of three task forces formed by president Clinton following the Forest Conference on April 2, 1993. FEMAT examined the terrestrial ecology, aquatic conservation, harvest levels, and the social and economic concerns of forestry in the Pacific Northwest. The team issued its conclusions in its report, "Forest Ecosystem Management: An Ecological, Economic, and Social Assessment." It was from this report that "Option 9," the current management policy for forestry in the Pacific Northwest, was selected. In this short statement, Ted Strong assesses the importance of FEMAT for native fishing rights.

The FEMAT report uniquely reflects many of the virtues and the flaws in our current resource management. On the one hand, it attempts to assess and describe the function of the incredibly complex old-growth ecosystem encompassed by 13 national forests in three states. Never before, at least in the Pacific Northwest, have resource managers attempted to examine so large an ecosystem from an integrated, interagency, and interdisciplinary viewpoint.

On the other hand, the boundaries of the scientific analysis and even the range of options were determined by politics and litigation, not science and ecosystems. As a result, vital resources such as anadromous fish could only be partially addressed. Although the FEMAT was an interagency group, state and tribal fish and wildlife managers for the ecosystem in question were not included. Also, the FEMAT failed to meet its charge to ensure compliance with all applicable laws, particularly Indian treaty rights.

The FEMAT's failure to consider and address what must be done to comply with the federal government's treaties with Indian tribes may have significant ecological and human consequences--not just to Indian tribes, but to all residents of the Pacific Northwest. The FEMAT dealt with the issue of anadromous fish protection entirely in the context of the likelihood of a given option providing viable populations over the next 100 years. The FEMAT admitted that it did not design an option to achieve the most biologically sound viability levels. At no point did the FEMAT address how much harvest of fish, if any, would be possible under any of the options. At no point did the FEMAT report describe how or whether any of the options would be consistent with the rebuilding strategies developed by states and Indian tribes.

The tribes' right to take fish requires that there be fish available for harvest. The tribes did not reserve the right merely to watch the remains of the runs of a few decades ago swim by. Moreover, the tribes' right to take fish is a right shared with non-Indians. To the extent that the tribes benefit from the presence of healthy rebuilt runs, so do non-Indian fishers. Tribal economics have relied on abundant fish runs since time immemorial. Since non-Indians emigrated to the Pacific Northwest, many have successfully made a living from Columbia Basin fisheries.

Although the FEMAT report extensively discussed the effects of reduced logging levels on timber jobs and dependent communities, it utterly failed to assess the draconian effects suffered by Indian and non-Indian individuals and communities dependent on the salmon. These defects in the FEMAT report cannot be ascribed to ignorance. The FEMAT report acknowledged that the options could affect treaty rights to take fish, that this was not assessed, and that treaty rights take precedence over subsequent resource uses.