The Legal Challenge of Food

Food, and more specifically salmon, has long been the bedrock for legal cases against Washington State by Indigenous people. The treaties that form the legal basis for Washington’s tribes and Washington’s government, signed in the mid and late 19th century, nearly all had food as a centerpiece. Indigenous people were well aware of the rapacious appetite of the coming colonists, who would begin to severely degrade fish stocks after only a half century of fishing in the Salish Sea. Thus many leaders came to the bargaining table with food on their mind; not only was it the way they survived, but according to Valerie Segrest, head of the Muckleshoot Food Sovereignty Project, it was
physical, mental, and spiritual medicine “(Native Knowledge 360) for the Muckleshoot.

By the 1970’s, legal questions about the status of fisheries and indigenous access was being fought in the courts and on the water. During Washington’s “Fish Wars”, native American Civil rights activists fought for their legal right to take fish from their traditional grounds. In 1974, a federal judge named George Boldt settled the question in the so-called “Boldt decision”. Boldt decided that in order to comply with the treaty language, tribes were entitled to half of the total catch. This landmark case marked an important turning point in Washington State, as fisheries were suddenly required to scale back their harvests and allow ingenious operators access to their legally-accorded fishing grounds. By 2018, the debate has changed, as dwindling fish stocks due to climate change and disruption of salmon habitats makes the important cultural and economic bedrock fish in danger of being wiped out. In the 1970’s, debate raged around the meaning of “usual and accustomed” fishing grounds, but since then it has changed. Now, the tribes suing the state are arguing that they should have more legal control of culverts on state lands because of the “substantial degradation of the food supply” that has occurred in the past half-century. They are arguing, in effect, to “establish that their treaty rights to fish give them a role and a right to any decision that affects the fish population .” One specific case revolving around these issues was that brought by 21 federally-recognized tribes in Washington State against the state government in order to force the removal of dams that were impeding Salmon migration.

Some lawyers for Washington state see the ramifications of the case as enormous. Former Washington State Attorney General Rob Mckenna, for example, argued that it “could place the tribes in a position to co-govern much of the state. “(MyNorthwest) The dispute revolved around who would “foot the bill” for a series of culverts originally paid for by the federal government. Tribes argued that their poor design would kill Salmon and that it was the state’s responsibility to remove them while Attorney general Bob Ferguson argued that the state shouldn’t be required to pay.The case eventually wound up in the Supreme Court in July 2018, where the Court upheld a 9th circuit ruling declaring it was the state’s responsibility to pay. Jay Julius, Chairman of the Lummi Nation, said that the decision would “be great for the rivers, for the salmon and for the citizens of Washington state.” (Seattle Times)

The 21 tribes eventually won, but more legal cases will surely be fought. As resources are squeezed tighter and tighter by climate change all over the world, it can be assumed that access to traditional foods will continue to be even more pressing as time goes on. However, legal rulings have proved to be a sometimes-effective mechanism by which indigenous people can assure their ability to access traditional foods far into the future.

Sources

“The most important Washington lawsuit you have never heard of.” MyNorthwest, April 26th, 2018. MyNorthwest.com

Hal Bernton, “Tied US Supreme Court decision means Washington must remove barriers to salmon migration,” Seattle Times, July 11 2018

“Foods Still Matter: The Muckleshoot Food Sovereignty Project,” Native Knowledge 360, https://americanindian.si.edu/nk360/pnw-history-culture/muckleshoot.cshtml

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