In lieu and Treaty Fishing Access Sites

HISTORY OF COLUMBIA RIVER TREATY FISHING ACCESS SITES

Before non-Indians came to the Pacific Northwest, the native American Indians of the region had a thriving fishery on the Columbia River. In return for the peaceful cession of the Indian title to most all of the territory within which this fishery was located, the United States assured these Indians by treaty that it would protect their rights to continue this fishery to provide them with the opportunity to keep their self-reliance and cultural dignity. After these treaties were signed in the 1850's, the Indians living in the Columbia Basin continued to fish at numerous places along the Columbia River and its tributaries.

By the late 1880's, many of the treaty tribes' usual and accustomed fishing grounds had been encroached upon and access to the fishing grounds had been blocked. During 1888-89, George Gordon, Special Indian Agent, investigated the Indian fisheries along the Columbia River and several tributaries and found that Indian fishers were being excluded from many of their traditional fishing grounds. Agent Gordon submitted his findings (in a document now known as the Gordon Report) and recommended that the U.S. government purchase or withdraw from entry approximately 2300 acres along the Columbia for use by tribal fishers. Although the government never acted on Agent Gordon's recommendations to acquire lands for tribal fishers, the U.S. did file several lawsuits seeking to protect the tribes' right to take fish at usual and accustomed fishing grounds. As a result of these lawsuits, the tribes' treaty-protected right of access to usual and accustomed fishing grounds was firmly established as a matter of law.

During the 1930's, the U.S. Army Corps of Engineers, in response to congressionally mandated studies, proposed that a series of dams be built along the Columbia River. The Bonneville Dam was the first dam to be built in accordance with the Corps of Engineers proposals. Construction of the Bonneville Dam inundated the tribes' ancient fishing grounds from the dam site to above The Dalles, Oregon. In 1939, a settlement agreement was reached between the tribes and the United States. This agreement, approved by the Secretary of War in 1940, provided that the Corps of Engineers would acquire approximately four hundred acres of lands along the Columbia River and install ancillary fishing facilities to be used by the treaty tribes.

After Congress approved the agreement in 1945 (P.L. 79-14), there were numerous disagreements among and between the Corps, the BIA, state and local governments, and the tribes regarding the acquisition and development of the sites. It took the Corps nearly twenty years to acquire five sites, totaling slightly more than 40 acres, for use as fishing support sites. These sites are currently referred to as "in-lieu" sites.

Over the past seventy years, other dams were built, destroying access to other treaty fishing grounds, and other development occurred, leading to other fishing conflicts and restrictions. In 1973, as a result of litigation initiated after the Corps proposed to alter the water levels of the pools behind the dams, a settlement order was entered by the U.S. District Court for Oregon. The judgment and order in that case, CTUIR v. Calloway, noted that the Secretary of the Army and the Secretary of the Interior agreed to propose legislation providing for the acquisition and improvement of additional sites and the upgrading of all sites to National Park Service standards. Legislation was forwarded to Congress in 1974, but no action was taken by Congress at that time.

During the late 1970's and 1980's several things occurred that influenced treaty fishing site issues. Greater participation in the fishery increased the pressure on the existing in-lieu sites and the highlighted need for improvements and additional access to fishing sites. Increased pressure on the existing in-lieu sites and other public camping/boat launching sites also resulted from the increase in recreational activities along the Columbia River. In addition, between 1982-86 numerous bills seeking to establish a Columbia Gorge National Scenic Area were considered by Congress. During consideration of the Gorge legislation, the tribes once again brought attention to the in-lieu site issue, specifically the fact that the tribes were still owed significant acreage for fishing support sites from the 1939 agreement. Although the congressional delegation believed that the Gorge legislation was not an appropriate mechanism to address the in-lieu site issue, several offices indicated that they would consider providing additional fishing access and support sites during the next sessions of Congress.

In 1987 and 1988, at the request of the Senate Select Committee on Indian Affairs, the tribes identified a number of locations which could be suitable for additional access and support sites. Nearly all of the identified sites were already being used by tribal fishers. During hearings held before the Senate Select Committee in April 1988, representatives from the Corps of Engineers testified that the Corps required additional legislation before the Corps could provide the tribes additional sites along the Columbia. The 1988 legislation (P.L. 100-581) provides the Corps with the authority the agency suggested to the Select Committee at the hearing, and is the latest effort in over a century of federal involvement in issues regarding Columbia River Indian fishing sites and facilities.

SUMMARY OF P.L. 100-581

Public Law 10- 581, Title IV Columbia River Treaty Fishing Access Sites was enacted in November 1988. The primary purpose of the legislation is to provide an equitable satisfaction of the United States' commitment to provide lands for Indian treaty fishing activities in lieu of those inundated by construction of Bonneville Dam. The legislation has six major elements:

1. § 401(a) designates certain federal lands along the Columbia River between Bonneville and McNary dams to be administered by the Corps of Engineers to provide access to usual and accustomed treaty fishing places and other ancillary fishing activities for member of the four tribes.
2. § 401(b) requires the Corps of Engineers to (1) identify and acquire at least six additional sites adjacent to Bonneville Pool from willing sellers; (2) improve the federal lands and acquired lands to provide facilities for treaty fishing and ancillary activities and then transfer those lands and facilities to the Department of Interior; and (3) make improvements at the five existing (original) in lieu sites.
3. § 401(c) specifies that the Corps shall treat the costs of implementing the §§ 401(b)(2) (b)(3) as project costs of the Columbia River projects and allocate such costs in accordance with existing principles of allocating Columbia River project costs.
4. § 401(d) authorizes appropriation of $ 2 million to acquire the Bonneville Pool sites from willing sellers.
5. § 401(e) provides the Secretary of Interior with the right of first refusal to accept any excess federal lands adjacent the Columbia between Bonneville and McNary dams.
6. § 401(f) contains a savings provision to protect existing treaty and other rights.

Several post authorization amendments have been enacted that modify the legislation. These amendments provide the Corps with flexibility on technical boundary adjustments at the § 401(a) sites, increase the authorization for appropriations to acquire sites in Bonneville Pool to $4 million, authorize the Corps to transfer capitalized funding for operations and maintenance to the BIA, and authorize the Corps to make improvements at Celilo Village.