Borrowing Instead Of Taking: How The Seemingly Opposite Threads Of Indian Treaty Rights And Property Rights Activism Could Intertwine To Restore Salmon To The Rivers

This Article examines the nature of the right to fish that Indian tribes re-served in treaties with the United States Government, concluding that the exercise of the treaty right to fish is a compensable Fifth Amendment property right. The Author discusses how hydroelectric dams have greatly contributed to the dwindling salmon runs, demonstrates the federal government’s nexus to hydroelectric development and operation, and argues that the federal government owes Indian tribes just compensation for unconstitutionally preventing the tribes from fully exercising their property right to fish.

The Author concludes this Article with a discussion of the difficulties in obtaining compensation and recommends possible remedies.


In 1805, two white explorers on their way down the Columbia River passed by nearly 200,000 sockeye headed back to their spawning beds at Red- fish Lake. By 1990, [those explorers] would multiply a million times over and the sockeye would become two. Today the tribes mourn the loss of our companions in nature who helped nurture our bodies, our minds and our spirit.1

Indian people rely on salmon for both subsistence and ceremonial use.2 Over one hundred years ago, tribes in the Columbia River Basin signed what are now known as the Stevens Treaties.3 In these treaties, tribes exchanged vast areas of land for express provisions guaranteeing their tribal fishing:4 “[T]he right of taking fish at all usual and accustomed places in common with citizens of the Territory.”5 The United States Supreme Court found that “the Indians were vitally interested in protecting their traditional fisheries and ‘were invited by the white negotiators to rely and in fact did rely heavily on the good faith of the United States to protect that right.'” As one court recognized,

“[r]eligious rites were intended to insure the continual return of the salmon…[S]easonal and geographic variations in the runs of the different species determined the movements of the largely nomadic tribes … [who]developed food preservation techniques that enabled them to store fish … and to transport it over great distances.”7

Tribes needed the fish not only for ceremonial and subsistence purposes, but also for trade with white settlers and for employment.8 Non-Indians relied on Indian fishing because Indians caught most of the fish needed for food consumption and for export.9 Now, however, Indians are no longer able to support even themselves through fishing. Instead, they must rely on their tribal enterprises and the federal government for the support of various economic and social programs.10