[Congressional Record Volume 140, Number 148 (Wednesday, November 30, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: November 30, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
              SALMON RESTORATION AND TRIBAL TREATY RIGHTS

                                 ______


                          HON. ELIZABETH FURSE

                               of oregon

                    in the house of representatives

                       Tuesday, November 29, 1994

  Mr. FURSE. Mr. Speaker, I would like to bring to my colleagues' 
attention the attached newspaper op-ed piece by Mary Christina Wood, a 
assistant professor at the University of Oregon School of Law, which 
was printed in the Seattle Times, Indian Country Today, Eugene Register 
Guard and the Columbian.
  The article articulately describes some of the factors resulting in 
the demise of the salmon runs of the Pacific Northwest and the 
devastating impacts of this salmon decline on the economic survival and 
cultural traditions of the Northwest Tribes. Ms. Wood also underscores 
the important point that successful recovery of Pacific salmon will be 
dependent on the preservation of the cultures which depend upon these 
legendary fish, as they represent some of the salmon's greatest allies.

                  [The Seattle Times, Sept. 30, 1994]

                Tribal Treaty Victory Helps Save Salmon

                        (By Mary Christina Wood)

       The brief Indian fall chinook fishing season on the 
     Columbia River is historically symbolic. It represents a 
     hard-won effort by the tribes to protect their treaty rights 
     from arbitrary and discriminatory regulation by the National 
     Marine Fisheries Service [NMFS] under its Endangered Species 
     Act [ESA] authority.
       And that effort may have turned a new page in the 
     continuing struggle to save the salmon from extinction.
       The Yakama, Warm Springs, Nez Perce and Umatilla tribes 
     have treaty rights to take fall chinook fish. While the vast 
     majority of the fall chinook that swim through the Indian 
     fishing grounds are healthy stock and hatchery fish, less 
     than 1 percent are wild Snake River fall chinook, a species 
     protected under the ESA. The tribes' fishing results in the 
     unavoidable take of some of these fish.
       Earlier this summer, NMFS said the tribes would have to 
     forgo a harvest of about 40,000 fish to avoid the incidental 
     take of approximately 22 wild Snake River chinook that would 
     otherwise reach spawning grounds. The tribes and several 
     environmental groups justifiably condemned NMFS's action as 
     representing a skewed and misguided approach to salmon 
     conservation. Relative to all human-caused mortalities 
     throughout the fall chinook life cycle, the tribal fishery 
     results in an incidental take of only 2\1/2\ percent of the 
     protected chinook.
       Meanwhile, NMFS has failed to muster the political will to 
     regulate the Columbia/Snake River hydropower system, which is 
     responsible for killing 90 percent of the wild adult and 
     juvenile population. NMFS has also failed to regulate habitat 
     destruction, irrigation practices, hatchery operations and 
     Alaska commercial fisheries, all of which substantially 
     contribute to salmon mortality.
       Any conservation gain achieved through limiting tribal take 
     of wild spawners is diminished when 81 percent to 93 percent 
     of the offspring smolts are killed in the dams on their 
     migration down the Snake and Columbia Rivers out to the sea. 
     Experts agree that if all tribal fishing were to end, the 
     salmon would nevertheless go extinct unless the overriding 
     causes of salmon deaths are abated.
       Beyond representing a backwards regulatory approach to 
     conservation, NMFS's proposed restrictions of the tribal 
     fishery amounted to a shocking disregard of settled 
     principles of Indian law.
       Court decisions require agencies to regulate other non-
     Indian sources of mortality before restricting treaty rights, 
     and they forbid action that discriminates against the tribes. 
     NMFS's action was so discriminatory on its face that it 
     raised the specter of an agency bent on eliminating tribal 
     use of salmon altogether.
       As the tribes have often stated, their existence as a 
     people depends on the salmon, just as it has over the past 
     10,000 years. The fall chinook fishery is the last remaining 
     commercial fishery for the four Columbia River tribes. For 
     the past 30 years, the tribes have steadily cut back on their 
     fishing to compensate for the spiraling decline of the 
     species entirely attributable to non-Indian activities.
       Though called a ``commercial'' fishery because tribal 
     members are allowed to sell their catch, much of the harvest 
     will provide subsistence for members of the four tribes. The 
     salmon also play a vital part in tribal ceremonies, and 
     without an adequate supply the tribal traditions cannot be 
     passed along to the next generation. NMFS's threatened 
     cutback of this only remaining significant fishery presented 
     a last stand for the Columbia River tribes and their way of 
     life.
       The tribe had no choice but to seek relief in federal 
     district court after negotiations with high-level federal 
     officials broke down. In a hearing held Sept. 2, the judge 
     noted the ``tragic'' circumstances that brought the parties 
     to court and urged the tribes and the government to arrive at 
     a settlement. The parties agreed to a tribal fishing season 
     shortened by about a day and half.
       It is shameful that the tribes suffered the brunt of NMFS's 
     failed conservation record and its outright disregard of 
     Indian law principles. Relinquishing any portion of their 
     last significant fishery is an immense sacrifice for the 
     tribes. But the settlement holds the promise of long-term 
     reform in NMFS's approach to salmon recovery because it 
     requires NMFS to engage in a ``good faith'' effort to address 
     the overriding sources of salmon mortality. This may provide 
     the legal impetus needed to overcome NMFS's political 
     reluctance to regulate the hydrosystem.
       By relinquishing part of their treaty harvest this year for 
     the promise of change in NMFS's regulatory approach, the 
     tribes may have sacrificed for the long-term benefit of the 
     species and, ultimately, the region as a whole. But the 
     sacrifice is only worth it if NMFS truly does change its 
     ways. If NMFS fails to impose drastic changes on the 
     hydrosystem, it is inevitable that the wild salmon will go 
     extinct. Eliminating the last tribal commercial fishery will 
     do nothing to prevent that.
       The episode provides a lesson for the future. It is 
     important to realize that the tribal dependence on salmon 
     fuels the efforts of a dedicated and effective tribal 
     coalition pushing for salmon restoration. As one legal 
     scholar recently put it, ``The solution to the salmon crisis 
     does not lie in the extinction of the one culture that best 
     understands the salmon's importance.'' Ultimately, the last 
     stand for treaty rights is, also, a last stand for the 
     salmon.

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