Law, policy, and conservation genetics in a changing climate to protect Treaty Rights and Native Sovereignty

Abstract

In the 1850’s, a series of treaties were signed by representatives of some of Washington’s Native communities and the United States. Millions of acres were ceded in exchange for tools of colonialization and reserving the right to fish in the usual and accustomed places Native peoples of what is now Washington have lived and fished on since time immemorial. Treaty promises made by the US were violated immediately after signing and land, water, and fishing rights have been litigated ever since. Decades of anti-Indian sentiment backed by discriminatory laws and regulations in Washington led to the infamous “Fish Wars”, culminating in the first U.S. v. WA and the Boldt Decision. This seminal case quantified the reserved fishing right to mean 50% of the catch and was met with contempt and more litigation. Phase II of the Boldt Decision addressed the Treaty Tribes’ inquiry into environmental protection; treaty fishing is moot if there are no fish to catch. Federal courts clarified a specific and discrete action with measurable and negative effects on fish habitat must be brought forward to address the implied environmental protection of the treaties. The Culverts Case, spanning 2001-2018, did just that; thousands of state-owned barrier culverts were found to be violating the environmental protection imperative implied in reserved treaty fishing rights and the U.S. Supreme Court upheld the injunction that Washington must repair or replace them by 2030.This research examines the legal impact of the Culverts Case, Washington’s status potentially not meeting the injunction deadline at its current rate of financial allocation and repair, and implications for other necessary measures of environmental protection, e.g., instream flow, that must be instigated to protect the already imperiled salmonids of western Washington. It then examines the effectiveness of minimally invasive genetic techniques, i.e., eDNA analysis, to aid in barrier culvert prioritization. Through freshwater eDNA analysis of 50 culverts in Skagit County, WA over four seasons, nearly 46% showed discrepancies between the state’s fish passability rating of each culvert and the presence fish eDNA, calling for more frequent biomonitoring of barrier culverts to supplement repair and replacement prioritization. Following the results from the Skagit study, this work reviews the place of conservation genetics in the courts and addresses the validity of eDNA analysis of freshwater fishes through the Daubert standard and future implications for sovereignty and treaty rights protection.