Across the West, tribal nations have needed to fight for water rights.
In Wyoming, courts ruled that tribes within the Bighorn River system only had water rights for agriculture, striking down their interests in fishing, hunting and other economic activity – and even access to groundwater. In Arizona, the Navajo Nation continues to battle for its treaty water rights, with the state using the scarce resource as a bargaining chip. In Eastern Washington, the Yakama Nation ended a 40-year legal battle by successfully challenging the state’s authority to limit irrigation acres.
In the Nooksack Basin, the formal process is just beginning.
Increasing pressure from development, agriculture, industry and climate change threatens Indigenous communities’ ways of life and the salmon populations they depend on. After decades of failed negotiations, the tribes have emerged as a driving force in the water rights lawsuit filed by the Department of Ecology in Whatcom County on May 1.
“People will move to places where there is water,” Lummi Nation Chairman Anthony Hillaire said, noting that already, water rights in the basin have been over-allocated. “We need this secured now so that our next generations live in a world where they have what they need to survive.”
He sees the negative impacts of prolonged droughts in places such as Arizona and California, and hopes that adjudication can buffer the Lummi Nation against a similar fate.
The complex litigation process will establish priority for each individual water right, including those held by farmers, local governments, private well owners and tribes, as well as federal and state agencies. This will include groundwater, surface water and instream flow rights, essentially water in rivers and creeks themselves, which is essential for salmon habitat.
The process is expected to take more than a decade.
“This legal process is a necessary step to resolve water management issues so that we can plan for future water supply needs of this growing region,” said Robin McPherson, Ecology’s adjudication manager.
The adjudication lawsuit of Water Resource Inventory Area 1 — which covers the entire Nooksack Basin, as well as Lake Whatcom, TenMile Creek, Sumas, Point Roberts, Lummi Island and other watersheds — will determine whether each water right is legal, how much water can be used and what its priority will be during shortages.
This includes the usual and accustomed fishing grounds of the Nooksack, Lummi and other tribes. These treaty tribes are expected to be the most senior water right holders within the Nooksack Basin — having secured specific rights when their ancestors signed the Point Elliot Treaty of 1855 with Washington territorial Gov. Isaac Stevens.
“When we signed that treaty with Isaac Stevens, we were reassured that we would always have fish for our frying pans,” said Lisa Wilson, secretary of the Lummi Indian Business Council.
Right to salmon
The 1855 Treaty of Point Elliott was signed by tribal leaders from today’s Puget Sound region, forcing the tribes to surrender millions of acres of land and natural resources and move to reservations. In return, tribes retained their rights to fish, hunt, and gather roots and berries in their usual and accustomed places.
At the time the treaty was signed, salmon weren’t particularly important to non-tribal members, Wilson said.
But when canneries arrived in the Pacific Northwest — including one of the largest in the world, on Bellingham Bay — it was a “gold rush” with salmon becoming a marketable commodity.
Tribal fishermen were pushed out of the industry and marginalized. The state initially sided with non-Native residents in how it interpreted the treaty, preventing tribal members from fishing in their traditional ways off reservations.
The 1974 Boldt Decision changed that. The decision affirmed the rights of Native Americans to fish in their “usual and accustomed places,” allocating them 50% of the annual catch of salmon.
“Our culture, our way of life includes salmon at the very center of our being,” Hillaire explained.
Subsequent court rulings have gone a step beyond securing the tribe’s access to a portion of the annual catch to requiring the protection of salmon habitat.
There have been a number of federal cases that have recognized the U.S. government’s duty to ensure sufficient water in the river to protect treaty fisheries as a basis for their decisions to prevent water from being diverted for irrigation purposes, explained Monte Mills, the director of the Native American Law Center at the University of Washington.
As Wilson pointed out: “To dip one’s net and come up empty makes that treaty meaningless.”
Determining instream flow
South Fork Nooksack River flow was sluggish and the water temperatures hit lethal highs in September 2020 as chinook salmon attempted to migrate upstream to their spawning grounds.
Lummi Natural Resource staff found about 2,300 dead adult chinook in the waterway that fall, according to the Northwest Indian Fisheries Commission. The tribes and Washington State Department of Natural Resources investigated.
“The salmon were killed by high water temperatures and low flows that greatly stressed the fish and increased the prevalence of naturally occurring pathogens that can cause disease in fish,” Lummi hatchery program manager Tom Chance said in 2021.
The Nooksack Indian Tribe and Lummi Nation have stated they will claim instream flow water rights to protect salmon and their culture as part of their adjudication filing.
“The Lummi Nation retains a federal Indian reserved water right to instream flows in the Nooksack basin and adjacent coastal watersheds sufficient to support these treaty fishing rights,” Lummi Nation wrote in a letter to the Department of Ecology in 2020 calling for the adjudication process.
“State-permitted water diversions have reduced flows in the Nooksack River and threaten the fish species that make up the Lummi Nation’s treaty fishery.”
One of the biggest questions facing the court is the extent of any off-reservation water rights or instream flow water rights associated with Treaty Tribes’ rights to harvest fish, explained Bill Clarke, a water rights attorney, who spoke at an adjudication event earlier this year in Lynden.
How that water right is quantified for instream flow purposes is a complex issue and one of the largest unknown questions within water law that the Whatcom County Superior Court will be facing in the case, he said.
In 1985, the state adopted an instream flow rule specific for the Nooksack system stating that water rights after that date could be interrupted to prevent the impairment of instream flow. However, there are fewer than 100 such interruptible rights.
The minimum flow requirement for the waterways depends on the time of year and the location, but doesn’t generally impact legal water rights established prior to 1985, McPherson explained.
However, that may change after the adjudication process.
“The Lummi Nation and the Nooksack Tribe claim the right to water for fish dating at or before the time of their treaty date,” McPherson said. “We do not know what quantities, locations or seasons of water right tribes may claim, and how these compare to the 1985 instream flows, except that tribal claims would be earlier.”
Tribe claims for instream water will need to include the location, season, quantity and priority date. Other interested parties will be able to object to these claims if they so choose. The court will then review and decide on the legal stream flow.
McPherson explained that tribal water claims involve complex questions of state and federal law. When raised in court, Ecology will respond to these questions under the direction of the governor and attorney general.
Hillaire said that through the adjudication process, he believes there will be productive conversations between community members to better understand needs and perspectives.
“But at the very end of the day, we’re the first ones that were here and we believe we’re first in right,” he said. “The world is changing, we want to make sure that we secure water for our people, for our salmon especially.”
Department of Ecology resources for those impacted by the adjudication process can be found here.
Isaac Stone Simonelli is CDN’s enterprise/investigations reporter; reach him at isaacsimonelli@cascadiadaily.com; 360-922-3090 ext. 127.
