From the Directors Desk

One of the top priorities of the Native American Rights Fund has always been the protection of tribal natural resources - a priority that is closely linked to the preservation of tribal existence. Without a sufficient natural resource base to sustain it, tribal existence is difficult to maintain. In this area NARF has helped tribes continue their ancient traditions by protecting their rights to hunt, fish, and use the water on their lands, as guaranteed by treaties that still carry the force of law.

Water rights are of critical importance to the future of many tribal economies located in the Western states. For subsistence, ceremonial and commercial reasons, the treaty right to hunt and fish in traditional areas also remains a vital issue in Indian country. The United States Supreme Court has twice ruled unequivocally that Indian tribes are entitled under federal law to sufficient water for present and future use to make their reservation the permanent homelands promised when their reservations were created. The federal government reserved these unquantified water rights when the reservations were established and are senior to all state-law water rights obtained after the tribal priority dates.

Due to a lack of financial resources and expertise in this arena, most tribes asserted their reserved water rights much later then the junior non-Indian water users surrounding the reservations. Challenging established non-Indian users is always difficult, but despite the late start, several tribes, including the Pyramid Lake Paiute Tribe of Nevada, Muckleshoot Tribe of Washington, Northern Cheyenne Tribe of Montana, Klamath Tribe of Oregon, and Yavapai Indians of Fort McDowell Indian Community in Arizona have successfully asserted their legal claims to water with the help of the Native American Rights Fund.

NARF is currently representing the Nez Perce Tribe of Idaho in its efforts to secure its reserved water rights in what is the largest general stream adjudication ever filed in the United States. In particular, the Tribe is claiming sufficient water from the Snake River Basin to restore and protect its treaty salmon fishery as well as water for limited irrigation and domestic use. As you will read in this issue's lead article, this will require restoring the Snake and Columbia Rivers to a more natural, free flowing state. There are a multitude of scientific, economic, cultural, and political implications surrounding the use of water for salmon rather then development in the Snake and Columbia River Basins. If Nez Perce culture and Snake River salmon are to survive, there will have to be major changes in river management that will have major implications for a wide range of water users.

John E. Echohawk (Pawnee)
Executive Director

1. Adjudication is the legal process of determining the water rights among the various users on a stream or in a watershed.


Nez Perce Water Rights

Within living memory, the salmon runs of the Columbia River basin and the commercial fishery they supported were once the world's largest. Many people alive today in the Pacific Northwest remember a time when salmon and steelhead were plentiful in the Columbia and Snake Rivers. Among those who remember are the Nez Perce, Umatilla, Warm Springs and Yakima Tribes. These Columbia River Treaty tribes, together with other aboriginal inhabitants of the region, harvested the fish for thousands of years. Their economies, cultures, religions and existence were and continue to be tied directly to the salmon.

Today, the Nez Perce Tribe located in northern Idaho near the confluence of the Snake and Clearwater Rivers resides on a 700,000-acre reservation (about one-tenth of the original seven-million acre reservation) that was reserved in the Treaty of 1855. The treaty permitted the peaceful settlement of the region by whites and provided that in return for the relinquishment of vast amounts of territory, the federal government would recognize and protect in perpetuity the Indians' rights to harvest fish both within the reservation lands (exclusive use) as well as in their "usual and accustomed" sites off the reservation. Subsequent treaties and agreements reduced the size of the reservation, but expressly left intact the off-reservation fishing rights. However, for the past 20 years the Nez Perce have been unable to fish.

Beginning in the 1930s with the construction of the Grand Coulee and Bonneville dams and ending in the mid-1970s, the federal government and private utilities embarked upon a dam-building spree that earned the Columbia-Snake River Basin the distinction of being the most dammed river system in the world. As a result, the Pacific Northwest now enjoys the lowest electric power rate in the world (40% below the rest of the nation). The price for this cheap power has been the destruction of great natural rivers, and the near extermination of salmon and steelhead. The Snake and the Columbia Rivers have been transformed into a series of warm, slackwater lakes by the large hydroelectric dams. These lakes, as well as the dams that created them, are lethal to fish like salmon and steelhead that must migrate from freshwater mountain streams when they are born, to the ocean where they live their adult lives, and back to the place of their birth to spawn and die.

Salmon populations in the Snake-Columbia River Basin have declined from an estimated 10-20 million fish to between 1/2 - 2 million, of which only 10-20% are wild (the majority being hatchery fish). There are only 4 stocks in the Columbia Basin that are classified as healthy. Chinook and sockeye salmon and steelhead must cross eight federal dams to and from spawning grounds in Idaho and Eastern Oregon. As a result, virtually all runs of salmon on the Snake-Columbia River system are on the brink of extinction. Snake River coho are extinct together with an estimated 60 other stocks in the Columbia basin.

For many years, the Columbia and Snake Rivers have been managed under the assumption that hydropower operations, irrigation, timber harvest, over-fishing, grazing, mining, and urbanization could proceed while salmon and other species were "sustained" with technology. Since the early 1980s, over $3 billion has been spent on ineffective "techno" fixes. Despite this expenditure, the 1990s have witnessed dramatically worsening salmon declines. With the extinction of some salmon runs and the precipitous decline of others, the notion that man's technology - fish hatcheries, barges to transport fish past dams to the ocean, mechanical devices to avoid the dams' turbines, etc. - can make up for the loss of free flowing rivers and extensive habitat degradation is finally being put to rest. There is a rapidly developing consensus among scientists - documented most recently by the Northwest Power Planning Council's independent scientific report Return to the River - that wild salmon need a functioning ecosystem. To survive, salmon require the cool, free-flowing waters of natural rivers with a diverse habitat. Salmon recovery thus requires us not to manage the river system, but to unmanage it, at least in part, to allow the river system to move toward a natural condition.

Working Toward a "Regional Fix"

The Snake River Basin Adjudication (SRBA) is the Idaho state court's general stream adjudication of all water rights on the Snake River and its tributaries in Idaho, covering roughly 87% of Idaho's land area. It is perhaps the biggest general stream adjudication ever undertaken in this country with over 160,000 claims filed to date. When Idaho commenced the Snake River Basin Adjudication in 1987, the Nez Perce Tribe became involved in order to ensure that water is made available to restore and protect salmon and resident fish populations in the Columbia-Snake River system, and to ensure that their treaty fishing rights are honored throughout their aboriginal territory. Currently, the Tribe has unquantified rights for fishery, agricultural, industrial and other purposes.

The Native American Rights Fund represents the Nez Perce Tribe in the SRBA and is assisting the Tribe in protecting its reserved rights to water for fish in the Snake River Basin. The Nez Perce Tribe has determined that its overall objectives can best be achieved through negotiation and settlement rather than litigation. Therefore, NARF has been assisting the Tribe to attempt to form a regional coalition with the State of Idaho, Idaho Power Company, private water users, other Columbia River Treaty tribes, regional environmental groups, the Columbia River Inter-Tribal Fisheries Commission, the Northwest Power Planning Council, and numerous other interested parties. Under direction by the Tribe, NARF attorneys are taking a lead in initiating settlement discussions that center on the following:

  • Rather than through litigation, address the salmon problem by removing four Lower Snake River dams (Ice Harbor, Lower Monumental, Little Goose and Lower Granite), drawing down1 the John Day Reservoir and making structural changes in the remaining dams. These dams currently represent only about 4% of the power produced and used in the state of Idaho. (Currently the entire western United States and Canada is experiencing about a 30% surplus in generating capacity.)

    Removing the 4 dams, and mitigating for lost hydropower and loss of navigation on the Lower Snake would restore the salmon at a cost that's about the same as what the government and region are currently spending or planning to spend on studies, technological fixes, and dam maintenance and improvement.

    Dam removal and drawdown will allow salmon to migrate to and from still-plentiful, near-pristine Idaho habitat of the Salmon and Clearwater basins (tributaries of the Snake).

  • Resolve the fish passage issues raised by the enforcement of the Endangered Species Act issues on the mainstem Snake & Columbia Rivers
  • Solve some of Idaho Power Company re-licensing problems with the Federal Energy Regulatory Commission in return for fish-friendly operation of power company dams.

The Nez Perce Tribe believes that a regional, basinwide, ecosystem-wide solution holds the only practical hope for survival of the salmon. A successful settlement in the SRBA could provide the nucleus around which a resolution of the entire Pacific Northwest salmon crisis might take structure.

1. Drawn down is the act of reducing the level of water held in reservoirs behind dams. This increases the speed (velocity) of the water, which helps juvenile salmon reach the sea more quickly and safely.


On the Case

Don B. Miller is a staff attorney in the Boulder office and has been with the Native American Rights Fund since 1975. Don works on a variety of issues including water rights, land claims and tribal restoration. Prior to joining NARF and working as Directing Attorney of NARF's Washington, D.C. office for nearly three years, he was Attorney-Advisor in the Office of the Solicitor, Division of Indian Affairs, Department of the Interior, and the first director of the Organization of the Forgotten American. Don graduated from the University of Colorado with both Bachelor of Science and law degrees.

Steven C. Moore joined NARF as a staff attorney and Director of the Indian Law Support Center in 1983. In addition to working closely with legal service programs around the U.S. in litigation assistance, training and research projects, Steve's work ranges from religious freedom and repatriation issues to water rights and oil and gas issues. He is the former managing attorney of the Indian Law Unit of Idaho Legal Aid Services and a contract attorney for the Confederated Salish and Kootenai Tribes of Montana. Steve has a Bachelor of Science degree and Juris Doctor from the University of Colorado.


Events

The National Indian Law Library (NILL) is celebrating its 25th Anniversary this year. The Native American Rights Fund established NILL with start-up funding in 1972 from the Carnegie Corporation. Today, the library continues to uphold its role as the only library in the country that specializes in the collection, classification and dissemination of legal materials essential to the practice of Indian law. Its holdings include books, legal proceedings and opinions, government documents, scholarly reports, journal articles, Indian newspapers, law reviews, etc.

Outside of Indian law practitioners, the National Indian Law Library has developed a nationwide patron base that includes tribal court personnel and governments, Indian organizations, libraries, students, scholars, politicians, and members of the news media. The NILL collection has proven to be a unique and valuable resource for those working in the arena of federal Indian law and for those working in geographically isolated areas throughout Indian Country. Happy Anniversary to the National Indian Law Library!


Local Boulder author, Mary Folsom, recently donated a portrait of NARF Executive Director John Echohawk to the Indian Law Clinic at the University of Colorado-Boulder. She presented the portrait in honor of her late husband, Franklin Folsom. At the dedication ceremony, Mrs. Folsom explained that she wants Native American students at the law school to be inspired by John Echohawk's accomplishments. Among other notable milestones, John was the first graduate of the University of New Mexico's Indian lawyer training program; he is recognized by the National Law Journal as one of the "100 Most Influential Lawyers in America;" and he was awarded the Spirit of Excellence Award by the American Bar Association.

The Folsoms themselves have led inspiring lives. Franklin was a long-time peace activist and prolific writer, and as a team Mr. & Mrs. Folsom co-authored several books about the Southwest. Mary continues her work today as a writer and editor of children books.

The portrait, which was drawn by John's cousin Debbie Echohawk, hangs in one of the Law Clinic's offices, which will eventually become a library and gallery of Native American materials


Updates

NARF represents the National Congress of American Indians (NCAI) in its efforts to coordinate the development of a comprehensive Executive Order on Indian education. The proposal for this Executive Order was formally adopted by NCAI and the National Indian Education Association in fall 1996. NARF is currently assisting both organizations in presenting an Executive Order to the Clinton Administration for its adoption and implementation.


The state of Alaska filed a brief with the U.S. Supreme Court on August 25, 1997 contending that two remote Alaska Indian villages do not occupy Indian Country1. At issue in the case, State of Alaska v. Native Village of Venetie, is whether Venetie and Arctic Village have broad, reservation-like authority to levy taxes; regulate land use; zone and condemn real property; manage fish and game; and enforce civil and misdemeanor criminal laws on the 1.8 million acres they own. The state of Alaska says that the Alaska Native Claims Settlement Act of 1971 extinguished Native sovereignty in Alaska. However, Venetie which is a special case and a handful of other Native villages may have stronger claims to Indian country because their lands were classified as reservations before the settlement act.

NARF, on behalf of Venetie filed its response to the state's brief on October 14th. Oral arguments before the Supreme Court likely will be scheduled this winter.

1. Indian Country is the geographical territory within which an Indian tribe exercises territorial governing powers.


Eyapaha

From time to time I like to feature one of our longtime Peta Uha members. In this edition of Justice I am honored to introduce you to Dr. Dolan Eargle. Dr. Eargle has been a NARF contributor since 1988 when he became a NARF "Advocate" (later renamed the Peta Uha Council).

Dr. Eargle was born in South Carolina in 1932. He attended the University of Alabama in 1949 and later received degrees in Chemistry and Musicology from the University of Texas and a Ph.D. in Organic Chemistry from the University of Minnesota. Dr. Eargle's education has led him to a varied and interesting career enabling him to live in some 13 states and visit all 50, as well as live in two foreign countries and visit 55 more. Among other noteworthy positions, he has worked as a Research Chemist at the U.S. Navel Research Laboratory in Washington, D.C., a Scientific Interviewer for the Indian Embassy in Washington, D.C., and a Professor of Chemistry at the Universidade de Coimbra in Portugal. Dr. Eargle is currently a Research Chemist in Pharmaceutical Chemistry at the University of California, San Francisco School of Pharmacy. Among several researchers, he is a holder of a patent on a drug treatment for AIDS.

Dr. Eargle's interest in and devotion to Native Americans began during his early years spent on his grandparent's farm located on an old Catawba Indian camp and flint-knapping site in South Carolina. That interest continues today as Dr. Eagle enjoys attending California's year round Native American events that take him to all four corners of the state. "Is there anyone who travels over this state who doesn't love all parts of it -- the mountains, forests, deserts, even the crowded cities and plowed fields? When my travels take me to these wondrous places, where Indian people are, I find, a strange phenomenon -- I only meet fine people."

His primary focus on the Native peoples of California has also led him to write several books including, The Earth is Our Mother: A Guide to the Indians of California Their Locales and Historic Sites (1996); California Indian Country: The Land & The People (1992); Conozca Sus Raices: Know Your Roots, a 20th Century Map of the Indigenous people of Mexico & Centroamerica (1995).

The Native American Rights Fund would like to thank Dr. Eargle for his longtime support and friendship.