**Tribal Circumstances and Impacts of the Lower Snake River Project on**

**the Nez Perce, Yakama, Umatilla, Warm Springs and Shoshone Bannock
Tribes**

Developed for the:

**Columbia River Intertribal Fish Commission**

Developed by:

**Meyer Resources, Inc.**

October, 1999

TABLE OF CONTENTS

[Page]{.underline}

> 1.0 Executive Summary of Tribal Circumstances and Impacts from the
> Lower i
>
> Snake River Project
>
> 2.0 Procedural Overview for Assessment of Tribal Impacts and
> Circumstances 1
>
> 2.1 Study Methodology 1
>
> 2.1.1 Federal Guidelines 1
>
> 2.1.1.1 Economic and Environmental Principles and Guidelines for Water
> and 1
>
> Related Land Resources Implementation Studies - 1983
>
> 2.1.1.2 Presidential and Executive Department Direction, Guidance and
> Policy 3
>
> 2.1.1.3 US Army Corps of Engineers Guidance Respecting Tribes 4
>
> 2.1.1.4 The Responsibility of the US Department of Commerce 5
>
> 2.1.1.5 EPA Guidelines with Respect to Environmental Justice 6
>
> 2.1.1.6 Court Findings with Respect to "Perspective" in Assessing
> Impacts 7
>
> on Treaty Trust Resources
>
> 2.1.2 Understanding Tribal Treaties 8
>
> 2.1.2.1 Treaties Related to this Analysis 8
>
> 2.1.2.2 Treaties as Negotiated Settlements 8
>
> 2.1.2.3 Relevance of Treaties for the Present Analysis 13
>
> 2.1.2.4 Tribal Trust Resources 15
>
> 2.1.2.5 A Summary of Other Selected Laws Relevant to Tribal Protection
> 17
>
> 2.1.3 Analytical Issues Affecting Assessment of Impacts on Tribes 17
>
> 2.1.3.1 Crediting What Tribes Say 19
>
> 2.1.3.2 Tribal Culture is Modern and Evolutionary 19
>
> TABLE OF CONTENTS -- 2
>
> [Page]{.underline}
>
> 2.1.3.3 Tribes View Themselves and Their Resources Holistically 20
>
> 2.1.4 Selecting Indicators of Tribal Circumstances and Potential
> Effects 21
>
> 2.1.4.1 Salmon and Access to Salmon Fishing 21
>
> 2.1.4.2 Hunting and Gathering Activities 23
>
> 2.1.4.3 Historic Villages, Grave Sites and Usual and Accustomed
> Fishing, 23
>
> Hunting and Gathering Areas
>
> 2.1.4.4 Speaking Tribal Languages 23
>
> 2.1.5 Integration of Tribal Assessment with Non-Tribal Models for
> Assessing 25
>
> Circumstances and Potential Impacts on Tribes
>
> 2.1.5.1 A "Hierarchy of Needs" Model for Integration of Tribal and 25
>
> Non-Tribal Assessment Measures
>
> 2.1.5.2 Non-Tribal Indicators of Tribal Circumstances and Potential
> Impacts 28
>
> 2.1.5.2.1 Tribal Poverty 28
>
> 2.1.5.2.2 Tribal Unemployment 29
>
> 2.1.5.2.3 Tribal Per Capita Income 29
>
> 2.1.5.3 Tribal Health 29
>
> 2.1.5.4 Tribal Assets and the Associated Values They Produce 32
>
> 2.1.6 Differing Concepts of Value -- A Cautionary Note 35
>
> 2.1.7 Assessing Tribal Circumstances and Benefits - A Summary of
> Method 37
>
> 3.0 Assessing Historic and Existing Tribal Circumstances Potentially
> 38
>
> Affected by the Lower Snake River Project
>
> 3.1 Linkages Between Lower Snake River Project Alternatives and 38
>
> Referent Tribes
>
> 3.1.1 Securing Tribal Assets 38
>
> TABLE OF CONTENTS -- 3
>
> [Page]{.underline}
>
> 3.1.2 Linkages between Tribal Fishing and the Lower Snake River
> Project 40
>
> 3.1.3 Linkages between Usual and Accustomed Tribal Areas and Project
> 41
>
> Reservoirs
>
> 4.0 Circumstances and Impacts on Nee-Me-Poo (Nez Perce) 46
>
> 4.1 Accustomed Tribal Areas and Seasonal Harvest Rounds of Nee-Me-Poo
> 46
>
> 4.2 Natural Capital and Annual Productive Yield of Original Nee-Me-Poo
> 50
>
> Lands
>
> 4.3 Broader Perspective of Nez Perce Living Circumstances in
> Pre-Contact 52
>
> Times
>
> 4.4 Changes in Nee-Me-Poo Circumstances Due to the Treaties of 1855 55
>
> and 1863
>
> 4.5 Further Allotment of Nez Perce Lands - To Tribal Members and to 60
>
> Whites
>
> 4.6 Nez Perce Access to Usual and Accustomed Fishing, Hunting and 63
>
> Gathering Areas
>
> 4.7 Changing the Production Function for Nez Perce Lands and Waters 64
>
> 4.8 Lower Granite, Little Goose, Lower Monumental and Ice Harbor Dams
> 65
>
> 4.9 Post-Contact Nez Perce Tribal Health 70
>
> 4.10 Present Circumstances of the Nee-Me-Poo 72
>
> 4.10.1 Remaining Nez Perce Lands 72
>
> 4.10.2 What Remains of the Salmon 73
>
> 4.10.3 A General Assessment of Present Nez Perce Material Circumstance
> 74
>
> 4.10.4 Nez Perce Tribal Health 76
>
> 5.0 Circumstances and Impacts on the Shoshone and Bannock Bands 81
>
> TABLE OF CONTENTS -- 4
>
> [Page]{.underline}
>
> 5.1 Traditional Tribal Areas and Seasonal Harvest Rounds of the
> Shoshone 81
>
> and Bannock Bands
>
> 5.2 Natural Capital and Annual Productive Yield of Original Areas of
> the 86
>
> Shoshone and Bannock Bands
>
> 5.3 A Broader Perspective of Shoshone-Bannock Living Circumstances in
> 88
>
> Pre-Contact Times
>
> 5.4 Changes in Shoshone and Bannock Circumstances - and the Fort
> Bridger 91
>
> Treaty of 1868
>
> 5.5 Further Allotment of Lands Reserved to the Shoshone and Bannock 96
>
> Peoples
>
> 5.6 Shoshone-Bannock Access to Traditional Fishing, Hunting and 98
>
> Gathering Areas
>
> 5.7 Post-Contact Shoshone-Bannock Health 101
>
> 5.8 Present Circumstances of the Shoshone and Bannock Peoples 103
>
> 5.8.1 Remaining Shoshone-Bannock Lands and Resources 103
>
> 5.8.2 A General Assessment of Present Shoshone-Bannock Material 104
>
> Circumstance
>
> 5.8.3 Shoshone-Bannock Tribal Health 106
>
> 6.0 Circumstances and Impacts on the People of the Yakama Indian
> Nation 110
>
> 6.1 Accustomed Tribal Areas and Seasonal Harvest Rounds of the Peoples
> 110
>
> of the Yakama Indian Nation
>
> 6.2 Natural Capital and Annual Productive Yield of Original Yakama
> Lands 114
>
> and Resources
>
> 6.3 A Broader Perspective of the Living Circumstances of Yakama
> Peoples 115
>
> in Pre-Contact Times
>
> 6.4 Changes in Yakama Circumstances Following the Treaty of 1855 118
>
> 6.5 Allotment of Yakama Lands - To Tribal Members and to Whites 120
>
> TABLE OF CONTENTS -- 5
>
> [Page]{.underline}
>
> 6.6 Yakama Access to Usual and Accustomed Fishing, Hunting and
> Gathering 122
>
> 6.7 Changing the Production Function for Yakama Natural Assets 124
>
> 6.7.1 Tribal Perspective Concerning Yakama Lands, Waters and Salmon
> 124
>
> 6.7.2 Economic Perspective Concerning Yakama Production Functions 128
>
> 6.8 Lower Granite, Little Goose, Lower Monumental and Ice Harbor Dams
> 130
>
> 6.9 Post-Contact Yakama Tribal Health 131
>
> 6.10 Present Circumstances of the Yakama Indian Nation 136
>
> 6.10.1 Remaining Yakama Lands 136
>
> 6.10.2 What Remains of the Yakama Salmon? 137
>
> 6.10.3 A General Assessment of Present Yakama Material Circumstance
> 138
>
> 6.10.4 Yakama Tribal Health 139
>
> 6.10.5 Present Incidence of "Own Language" Speakers Among the Yakama
> 142
>
> 6.10.6 A Diagrammatic Profile of Yakama Present Circumstances 142
>
> 7.0 Circumstances and Impacts on the Confederated Tribes of the
> Umatilla 144
>
> Indian Reservation
>
> 7.1 Accustomed Tribal Areas and Seasonal Rounds of the CTUIR 144
>
> 7.2 Natural Assets and Annual Productive Yield of Original CTUIR
> Lands, 147
>
> Waters and Salmon
>
> 7.3 A Broader Perspective of CTUIR Living Circumstances in Pre-Contact
> 149
>
> Times
>
> 7.4 Umatilla, Walla Walla and Cayuse Circumstances, and the Treaty of
> 1855 152
>
> 7.5 Further Allotment of CTUIR Lands - To Tribal Members and to Whites
> 153
>
> TABLE OF CONTENTS -- 6
>
> [Page]{.underline}
>
> 7.6 CTUIR Access to Usual and Accustomed Fishing, Hunting and
> Gathering 156
>
> Areas
>
> 7.7 Changing the Production Function for CTUIR Lands, Waters and
> Salmon 158
>
> Producing Capability
>
> 7.8 Lower Granite, Little Goose, Lower Monumental and Ice Harbor Dams
> 161
>
> 7.9 Post-Contact CTUIR Tribal Health 163
>
> 7.10 Present Circumstances of the CTUIR 165
>
> 7.10.1 Remaining CTUIR Lands 165
>
> 7.10.2 What Remains of the Salmon? 165
>
> 7.10.3 A General Assessment of Present CTUIR Material Circumstance 166
>
> 7.10.4 CTUIR Tribal Health 168
>
> 7.10.5 Languages of the CTUIR and Other Columbia/Snake River Tribes
> 170
>
> 8.0 Circumstances and Impacts on the Confederated Tribes of the Warm
> Springs 173
>
> Indian Reservation
>
> 8.1 Accustomed Tribal Areas and Seasonal Rounds of the Warm Springs
> Peoples 173
>
> 8.2 Natural Assets and Annual Productive Yield of the Original Lands
> of the 174
>
> Peoples of the Warm Springs Reservation
>
> 8.3 A Broader Perspective of Wasco, Warm Springs and Paiute Living 176
>
> Circumstances in Pre-Contact Times
>
> 8.4 Changes in Circumstances of the Confederated Tribes of the Warm
> Springs 178
>
> Due to the Treaty of 1855
>
> 8.5 Further Changes in Circumstances of the Peoples of the Warm
> Springs 180
>
> Reservation
>
> 8.6 Warm Springs Access to Usual and Accustomed Fishing, Hunting and
> 181
>
> Gathering Areas
>
> TABLE OF CONTENTS -- 7
>
> [Page]{.underline}
>
> 8.7 Changing the Production Function for Warm Springs Waters and
> Salmon 182
>
> Production Capabilities
>
> 8.8 Lower Granite, Little Goose, Lower Monumental and Ice Harbor Dams
> 184
>
> 8.9 Post-Contact Warm Springs Tribal Health 184
>
> 8.10 Present Circumstances of the Confederated Tribes of the Warm
> Springs 186
>
> Reservation
>
> 8.10.1 Remaining Lands of the Warm Springs Reservation 186
>
> 8.10.2 What Remains of the Salmon 187
>
> 8.10.3 A General Assessment of Present Warm Springs Material
> Circumstance 188
>
> 8.10.4 Warm Springs Tribal Health 191
>
> 9.0 A Summary of Historic and Present Circumstances for the Nez Perce
> Tribe, 195
>
> Shoshone-Bannock Tribes, Yakama Indian Nation, Confederated Tribes of
> the
>
> Umatilla Indian Reservation and Confederated Tribes of the Warm
> Springs
>
> Reservation of Oregon
>
> 9.1 Treaties Between the Five Study Tribes and the United States 195
>
> 9.2 Changes in Treaty-Protected Resource Assets and Activities of the
> Five Study 197
>
> Tribes from Treaty Times to the Present
>
> 9.2.1 Transfer of Tribal Assets in Treaty-Protected Lands to
> Non-Indians 197
>
> 9.2.2 Transfer of Treaty-Protected Tribal Assets of the Rivers to
> Non-Indians 199
>
> 9.2.3 Cumulative Effects from the Taking of Wealth from Study Tribes
> 202
>
> 9.3 Present Circumstances of the Study Tribes 203
>
> 9.4 The Effect of the Lower Snake Dams on Study Tribes 206
>
> 9.4.1 Impacts of the Lower Snake Dams on Salmon 207
>
> 9.4.2 Inundation Effects on the Tribes from the Four Lower Snake Dams
> 208
>
> TABLE OF CONTENTS -- 8
>
> [Page]{.underline}
>
> 10.0 Assessment of Tribal Impacts on the Nez Perce, Shoshone-Bannock,
> 210
>
> Yakama, Umatilla and Warm Springs Tribes from Lower Snake Dams
>
> 10.1 Project Alternatives Considered in this Analysis 210
>
> 10.2 Criteria for Assessment of Impacts from Project Alternatives on
> Study Tribes 211
>
> 10.2.1 General Assessment Criteria 211
>
> 10.2.2 Benchmark Criteria for Assessing Impacts on Salmon and
> Steelhead 211
>
> 10.2.2.1 Contribution to Reestablishment of Tribal Treaty Fisheries
> 211
>
> 10.2.2.2 Contribution to Diminishing Risk of Treaty Fisheries
> Extinction 213
>
> 10.2.3 Criteria for Assessing Impacts on Usual and Accustomed Tribal
> Living 213
>
> Areas and Sites Within the Boundaries of the Four Reservoirs
>
> 10.2.4 Reduction of the Pain and Suffering of Tribal Peoples 213
>
> 10.3 Estimates of Salmon Run Sizes and Tribal Harvests Under Each
> Alternative 214
>
> 10.4 Assessment of Tribal Impacts Associated with Tribally Important
> Riverside 219
>
> Areas from Lower Snake River Project Alternatives
>
> 10.4.1 Alternative A1: Present Operations with 1995 Biological Opinion
> 219
>
> 10.4.2 Alternative A2: Maintenance of the Four Lower Snake Dams at A1
> 220
>
> Standard, with Added Facilities to Transport Salmon by the Dams
>
> 10.4.3 Alternative A3: Permanent Drawdown (Breaching) of the Four
> Lower 221
>
> Snake River Dams
>
> 10.5 Cumulative Impacts from Lower Snake River Project Alternatives
> 223
>
> 10.5.1 Cumulative Effects of Distribution of Wealth 223
>
> 10.5.2 Cumulative Effects on Tribal Health and Material Wellbeing 225
>
> 10.5.3 Cumulative Effects on Tribal Culture and Spiritual Wellbeing
> 227
>
> TABLE OF CONTENTS -- 9
>
> [Page]{.underline}
>
> 10.5.4 Cumulative Effects on Tribal Self-Sufficiency, Self-Control and
> 228
>
> Self-Empowerment
>
> 10.5.5 A Summary of Cumulative Impacts of Lower Snake Dams on the 228
>
> Study Tribes
>
> 10.6 Overall Summary Assessment of Lower Snake River Project
> Alternatives 230
>
> 10.6.1 Tribal Treaty and Trust Obligations 230
>
> 10.6.2 Environmental Justice for the Tribes 232
>
> 10.6.3 Final Conclusions Concerning Treaty/Trust Obligations and
> Environmental 235
>
> Justice
>
> 10.7 Mitigation Associated with the Four Lower Snake Dams 235
>
> 10.7.1 Mitigation Under Alternatives A1 and A2 235
>
> 10.7.2 Mitigation Under Alternative A3 - Breach of Lower Snake River
> Dams 236
>
> 11.0 References 238

Cultural Protection Appendices 250

> **2.0 Procedural Overview for Assessment of Tribal Impacts and
> Circumstances**
>
> **2.1 Study Methodology**
>
> **2.1.1 Federal Guidelines**

This report is developed so as to be generally compatible with the
following federal guidelines.

> **2.1.1.1 Economic and Environmental Principles and Guidelines** **for
> Water and**
>
> **Related** **Land Resources Implementation Studies - 1983.**

The 1983 US Water Resources Council (WRC) Guidelines are the last in a
guideline series developed to assist evaluation of federal water-related
projects in the United States[^1]. While the Department of the
Interior-based WRC no longer exists, evaluation manuals developed
subsequently by individual federal agencies still treat this document as
a basic source for guidance - as has the Drawdown Regional Economic
Workgroup (DREW) responsible for the current overall Lower Snake
Drawdown evaluation task[^2].

The WRC Guidelines recommend evaluation of water-related projects by
organizing assessment data in a series of accounts[^3]. These are:

> **The National Economic Development (NED) Account**; which "displays
> changes in the economic value of the national output of goods and
> services".
>
> Assessment under this account has been a significant focus for DREW,
> and to the extent Tribal circumstances and information indicate it to
> be appropriate, Tribal NED information is included in this report.
>
> **The Environmental Quality (EQ) Account**; which "displays
> nonmonetary effects on significant natural and cultural resources".

(1) The EQ account is a means of displaying and integrating into water
    resources planning that information on the effects of alternative
    plans on significant EQ resources and attributes of the NEPA human
    environment, as defined in 40 CFR 1507.14, that is essential to a
    reasoned choice among alternative plans. *Significant* means likely
    to have a material bearing on the decision making process.

> \(2\) Beneficial effects in the EQ account are favorable changes in
> the ecological, aesthetic, and cultural attributes of natural and
> cultural resources.
>
> \(3\) Adverse effects in the EQ account are unfavorable changes in the
> ecological, aesthetic, and cultural attributes of natural and cultural
> resources. \...
>
> Cultural attributes are evidence of past and present habitation that
> can be used to reconstruct or preserve human lifeways\... .[^4]
>
> WRC (1983) goes on to identify that:
>
> Cultural attributes are found in the archaeological remains of
> prehistoric and historic aboriginal occupations; historic European and
> American areas of occupation and activities; and objects and places
> related to the beliefs, practices and products of existing folk or
> traditional communities and native American groups. Examples are
> campsites of prehistoric mammoth hunters, a 19th century farmstead,
> and a stream crossing in long- standing use by an Appalachian
> community for baptizing church members.[^5]
>
> Initial Tribal assessment processes conducted by federal agencies
> since WRC (1983) usually focused on that element of WRC (1983)'s EQ
> Guidelines concerning **"prehistoric and historic\...objects and
> places"**, primarily through historic and archaeological analysis, and
> has often described such "objects and places" as **cultural
> resources**. Such assessment is important, but in confining itself to
> "historic objects and places", it too often failed to fully assess
> impacts on **existing Tribal communities and groups**, also identified
> under the WRC guidance. This issue was recognized in the 1995 Columbia
> River System Operation Review (SOR) Final EIS.
>
> There is\...more than one view of what constitutes cultural resources.
> The academic and legal definitions tend to focus on tangible evidence
> such as sites and artifacts. Native Americans find these definitions
> too narrow. They view their entire heritage, including beliefs,
> traditions, customs, and spiritual relationship to the earth and
> natural resources, as sacred cultural resources. The SOR agencies have
> attempted to incorporate the tribes' views in the impact analysis and
> will continue to consider them while developing mitigation plans.[^6]
>
> This present report section, written under Tribal supervision,
> continues the effort by SOR agencies to understand and properly
> incorporate Tribal circumstances and effects into the Lower Snake
> Drawdown assessment process.
>
> The **Regional Economic Development (RED) Account**; "registers
> changes in the distribution of regional economic activity that result
> from each alternative plan. Two measures of the effects of the plan on
> regional economies are used in the account: Regional income and
> regional employment."[^7]
>
> The boundaries of Tribal Reservations and Tribal Ceded Areas do not
> conform to those county-based or state-based analyses that are usually
> utilized in the RED account. This analysis will develop information
> with respect to Tribal income and unemployment. Some of this may prove
> useful to RED assessors. However, the basic referent groups for this
> Tribal Effects assessment will be bounded by the Reservations and
> Ceded Areas of the Nez Perce Tribe, the Confederated Tribes of the
> Umatilla Reservation, The Yakama Indian Nation, The Confederated
> Tribes of the Warm Springs Reservation, and The Shoshone-Bannock
> Tribes.
>
> The **Other Social Effects (OSE) Account**; "is a means of displaying
> and integrating into water resource planning information on
> alternative plan effects from perspectives that are not reflected in
> the other three accounts. The categories of effects in the OSE account
> include the following: Urban and community impacts; life, health and
> safety factors; displacement (of people, businesses and farms);
> long-term productivity; and energy requirements and energy
> conservation."[^8]
>
> This Tribal Effects section will contain some information identified
> in WRC (1983)'s OSE Account framework - particularly with respect to
> **Tribal health**, and the **displacement of Tribal peoples**.
>
> **2.1.1.2 Presidential and Executive Department Direction, Guidance
> and Policy**

In 1994 the following Presidential directive was issued.

Each executive department and agency shall assess the impact of federal
government plans,

projects, programs and activities on tribal trust resources and assure
that tribal government

rights and concerns are considered during the development of such plans,
projects, programs

and activities.[^9]

In 1993, a directive from The Secretary of the Interior stated:

> The heads of bureaus and offices are responsible for being aware of
> the impact of their plans, projects, programs or activities on Indian
> trust resources. Bureaus and offices when engaged in the planning of
> any proposed project or action will ensure that any anticipated
> effects on Indian trust resources are explicitly addressed in the
> planning, decision and operational documents. These documents should
> clearly state the rationale for the recommended decision and explain
> how the decision will be consistent with the Department's trust
> responsibilities.[^10]
>
> **2.1.1.3 US Army Corps of Engineers Guidance Respecting Tribes**

US Army Corps of Engineers guidance respecting Tribes is contained in
Lieutenant General Ballard's memorandum of February 18, 1998.

> 1\. Our Nation has long recognized the sovereign status of Indian
> tribes. The United States Constitution specifically addresses Indian
> sovereignty by classing Indian treaties among the "supreme Law of the
> land," and established Indian affairs as a unique focus of federal
> concern. Principles outlined in the treaties, as well as those
> established by Federal laws, regulations and Executive Orders,
> continue to guide our national policy towards Indian Nations.
>
> 2\. On 29 April 1994, President Clinton reaffirmed the United States'
> "unique legal relationship with Native American tribal governments."
> In recognition of the special considerations due to tribal interests,
> the President directed Federal agencies to operate within a
> government-to-government relationship with federally recognized Indian
> tribes; consult, to the greatest extent practicable and permitted by
> law, with Indian tribal governments; assess the impact of agency
> activities on tribal trust resources and assure that tribal interests
> are considered before the activities are undertaken; and remove
> procedural impediments to working directly with tribal governments on
> activities that effect trust property or governmental rights of the
> tribes\....
>
> 3\. \...I want to ensure that all Corps Commands adhere to principles
> of respect for Indian tribal governments and honor our Nation's trust
> responsibility. To this end I have enclosed [US Army Corps of
> Engineers Tribal Policy Principles]{.underline}, for use as interim
> guidance until more detailed statements are developed. These
> Principles have been developed with the Office of the Assistant
> Secretary of the Army (Civil Works) and are consistent with the
> President's goals and objectives.
>
> **TRIBAL SOVEREIGNTY** - The US Army Corps of Engineers recognizes
> that Tribal governments are sovereign entities, with rights to set
> their own priorities, develop and manage Tribal and trust resources,
> and be involved in Federal decisions or activities which have the
> potential to affect these rights.
>
> **TRUST RESPONSIBILITY** - The US Army Corps of Engineers will work to
> meet trust obligations, protect trust resources, and obtain Tribal
> views of trust and treaty responsibilities or actions related to the
> Corps, in accordance with provisions of treaties, laws and Executive
> Orders as well as principles lodged in the Constitution of the United
> States.
>
> **GOVERNMENT-TO-GOVERNMENT RELATIONS** - The US Army Corps of
> Engineers will ensure that Tribal Chairs/Leaders meet with Corps
> Commanders/Leaders and recognize that, as governments, Tribes have the
> right to be treated with appropriate respect and dignity, in
> accordance with principles of self-determination.
>
> **PRE-DECISIONAL AND HONEST CONSULTATION** - The US Army Corps of
> Engineers will reach out...to involve tribes in collaborative
> processes designed to ensure information exchange, consideration of
> disparate viewpoints before and during decision making, and utilize
> fair and impartial dispute resolution mechanisms.
>
> **SELF RELIANCE, CAPACITY BUILDING AND GROWTH** - The US Army Corps of
> Engineers will search for ways to involve Tribes in programs, projects
> and other activities that build economic capacity and foster abilities
> to manage Tribal resources while preserving cultural identities.
>
> **NATURAL AND CULTURAL RESOURCES** - The US Army Corps of Engineers
> will act to fulfill obligations to preserve and protect trust
> resources, comply with the Native American Graves Protection and
> Repatriation Act, and ensure reasonable access to sacred sites in
> accordance with published and easily accessible guidance.[^11]
>
> **2.1.1.4 The Responsibility of the U.S. Department of Commerce**

The U.S. Department of Commerce's Office of the Assistant Secretary for
Oceans and Atmosphere has recently asserted the following responsibility
to Columbia River Treaty Tribes.

> It is our policy that the recovery of salmonid populations must
> achieve two goals; 1) the recovery and delisting of salmonids listed
> under the provisions of ESA; 2) the restoration of salmonid
> populations, over time, to a level to provide a sustainable harvest
> sufficient to allow for the meaningful exercise of fishing rights\....
>
> Our statement of the twin goals for salmonid populations listed under
> the ESA recognizes that the United States, and all federal agencies,
> stand in a trust relationship with all federally recognized Indian
> tribes and of the responsibilities that flow from that relationship.
> The federal trust obligation to Indian tribes is independent of the
> statutory duties of the federal agencies and informs the way such
> statutory duties are to be implemented. The United States Supreme
> Court has described certain characteristics of the trust relationship
> and the lower courts have implemented the trust in specific
> situations. Hence, we understand the importance of the federal
> government's efforts to allocate the conservation burden for salmonids
> listed under the ESA in a way that, among other things, it does not
> discriminate against tribal fishing rights and is implemented in
>
> the least restrictive manner. Accordingly, **the tribes may reasonably
> expect, as a matter of policy, that tribal fishing rights will be
> given priority over the interests of other entities, federal and
> nonfederal, that do not stand in a trust relationship with the United
> States** (our bolding).[^12]
>
> **2.1.1.5 EPA Guidelines With Respect to Environmental Justice**

In 1997, the US Environmental Protection Agency (EPA) issued its
**Interim Final Guidance for Incorporating Environmental Justice
Concerns in EPA's NEPA Compliance Analysis**.[^13] The Environmental
Justice guidance results from President Clinton's 1994 Executive Order

12989[^14]. The document defines environmental justice as follows.

> The fair treatment and meaningful involvement of all people regardless
> of race, color, national origin, or income with respect to the
> development, implementation, and enforcement of environmental laws,
> regulations and policies. Fair treatment means that no group of
> people, including racial, ethnic, or socioeconomic group should bear a
> disproportionate share of the negative environmental consequences from
> industrial, municipal and commercial operations or the execution of
> federal, state, local, and tribal programs and policies.[^15]

**The EPA Guidance states it applies, as appropriate, to Native
Americans, and directs analysts to identify and evaluate
"disproportionately high and adverse human health or environmental
effects in minority communities and low-income communities".**[^16]

**Cumulative impacts are a critical element in assessing impacts on
tribes**, and are defined as "**the incremental impact(s) of the action
when added to other past, present, and reasonably foreseeable future
actions**".[^17]

US Environmental Protection Agency (1998) provides more specific
guidance on treatment of environmental justice issues where tribal
treaties and tribal trust responsibilities may be at issue.

> Federal duties under the Environmental Justice E.O. ("Executive
> Order"), the Presidential directive on government-to-government
> relations, and the trust responsibility to Indian tribes may merge
> when the action proposed by a federal agency or EPA potentially
> affects the natural or physical environment of a tribe. The natural or
> physical environment of a tribe may include resources reserved by
> treaty or lands held in trust; sites of special cultural, religious or
> archaeological importance, such as sites protected under the National
> Historic Preservation Act or the Native American Graves Protection and
> Repatriation Act; or areas reserved for hunting, fishing, and
> gathering (usual & accustomed), which may include "ceded" lands that
> are not within reservation boundaries. Potential effects of
> concern\...may include ecological, cultural, human health, economic,
> or social impacts when those impacts are interrelated to impacts on
> the natural or physical environment.[^18]

This Tribal Effects report is developed in a manner that is consistent
with this recent Environmental Justice guidance from EPA.

> **2.1.1.6 Court Findings with Respect to "Perspective" in Assessing
> Impacts on**

**Treaty Trust Resources**

Discussion of key understandings with respect to **Tribal Treaties** and
**Treaty Trust Resources** is provided in following Sections 2.1.2.1 and
2.1.2.2. It has already been identified in the prior citation from US
Army Corps of Engineers, Bonneville Power Administration and US Bureau
of Reclamation (1995) on page 2 of this report that Tribes and some
non-tribal experts tend to view cultural impacts differently. It is
therefore important in this initial federal guidance discussion to
identify that US Courts have ruled on which interpretation should be
employed, where Tribal Treaties and Tribal Treaty Trust Resources are at
issue. These rulings were summarized by the US District Court in United
States v. Washington.

> In 1899 the United States Supreme Court in considering a similar
> situation said:
>
> In construing any treaty between the United States and an Indian
> tribe\...the treaty must\...be construed, not according to the
> technical meaning of its words to learned lawyers, but in the sense in
> which they would naturally be understood by the Indians\....
>
> Each of the basic fact and law issues in this case must be considered
> and decided in accordance with the treaty language reserving fishing
> rights to the plaintiff tribes, interpreted in the spirit and manner
> directed in the above quoted language of the United States Supreme
> Court.[^19] [^20]

More broadly;

> In construing Indian treaties, the courts have required that treaties
> be liberally construed to favor Indians, that ambiguous expressions in
> treaties must be resolved in favor of the Indians, and that treaties
> should be construed as the Indians would have understood them.[^21]

The present analysis retains the Tribal perspective directed by the
Courts where analytical perspective concerning Tribal Treaties and
Tribal Treaty Trust Resources might otherwise potentially differ.

> **2.1.2 Understanding Tribal Treaties**

Federal guidelines identified in previous Section 2.1.1 make several
references to **Tribal Treaties**. An understanding of relevant Tribal
Treaties is essential to assessment of Tribal circumstances and impacts,
and to compliance with cited Federal guidance.

> **2.1.2.1 Treaties Related to this Analysis**

Each of the five Tribes considered in this analysis signed treaties with
the United States. Principal among these treaties are:

-   **Treaty with the Yakama Tribe, June 8, 1855;**

-   **Treaty with the Umatilla Tribe (June 9, 1855);**

-   **Treaty with the Nez Perce Tribe, June 11, 1855;**

-   **Treaty with the Tribes of Middle Oregon, June 25, 1855;**

-   **Fort Bridger Treaty, July 3, 1868**.

The United States government representative at negotiations associated
with the first four treaties listed was Washington Territorial Governor
Isaac I. Stevens - and these treaties, together with similar ones of
Washington coastal tribes, have become known colloquially as "the
Stevens Treaties". The particular circumstances and provisions
associated with each Treaty will be related to the Lower Snake River
Drawdown assessment task in individual tribe-by-tribe sections that
follow. Understanding of key features common across these treaties - and
important to our analysis - is discussed here.

> **2.1.2.2 Treaties as Negotiated Settlements**

Webster defines an (Indian) treaty as:

> "\...a formal meeting between representatives of the US government and
> one or more Indian tribes designed to produce a settlement (as of
> issues in dispute).[^22]

In fact, the Treaties under consideration represent just such negotiated
settlement of disputes. Historian Richard White provides a flavor of the
"disputes" to be settled.

> The (early 1800's) architects of removal (of Indians to west of the
> Mississippi) had imagined an Indian country where whites entered only
> with federal permission and under federal supervision and where the
> federal government mediated and kept the peace between Indian nations,
> each of which had its own clearly bounded territory. This Indian
> country fell victim to American expansionism. The assumption of
> federal policy makers that most of the land west of the Missouri
> River, not just Indian Territory proper in what is now Oklahoma, would
> remain Indian country began to collapse when Americans acquired Texas,
> California and Oregon\....
>
> The weakness of the policy of permanent Indian country was everywhere
> apparent in the 1840s and 1850s. Migrants encroached on Indian lands
> along the Missouri and crisscrossed them on their way to Oregon and
> California. The Trade and Intercourse Act proved incapable of
> maintaining the boundaries between Indians and whites or of
> controlling white access into Indian country. Whites crossing the
> plains inevitably caused resentment among the Indians. Travelers
> killed and drove away game, particularly along the Oregon and Mormon
> trails. \... The Indians, for their part, raided the trains for
> livestock and demanded payment for passage across their hunting
> lands\....
>
> In 1853, Congress sought to remedy its hastiness in promising the
> Indians possession of Kansas and Nebraska in perpetuity. Anglo
> American settlers were already encroaching on these Missouri
> borderlands, but the government had a second motive in seeking new
> treaties: it sought a route for a transcontinental railroad. When many
> Indians proved reluctant to cede lands that only a few years before
> the Americans had promised were theirs forever, the United States
> allowed its citizens to persuade the Indians to change their minds. A
> horde of speculators, settlers, and timber thieves flocked onto the
> Indians' lands with little federal interference. When Indians tried to
> protect their property themselves, intruding whites murdered them.
> Most Indians in eastern Kansas and Nebraska reluctantly decided that
> they had no choice but once again to cede their lands. \...
>
> The chaos east of the Rocky Mountains also erupted elsewhere in the
> West. In California, Americans who flocked into the region with the
> Gold Rush ignored Indian land titles. And through the Oregon Donation
> Act of 1850 the United States, in violation of its own laws, allowed
> its citizens to claim lands in Washington and Oregon territories
> before the government had acquired title to them from the Indian
> owners. In Utah, too, the Mormons established residence on Indian
> lands without any federal acquisition of title. By 1850 the idea of a
> permanent Indian country with the separation of Indians and whites
> along an east-west axis was in shambles.[^23]

This was the situation faced by Indians in the Columbia-Snake region in
the 1850s. Opposed by a superior military force; engaged with a nation
which negotiated treaties, permitted its citizens to breach them, then
consolidated such breaches via renegotiation; with little area to the
west to flee, and no inclination to do so - some Tribal members believed
that a final "last treaty" with the United States was the only way to
survive. Others believed that the United States was asking too high a
price in land - and could not agree. White again characterizes this
period.

> These treaties (in Washington and Oregon territories) established an
> extensive system of reservations in both territories, but they
> eliminated the objections of Oregonians by placing the new
> reservations farther away from the areas settled by whites. The Senate
> approved these treaties, but they did so in ignorance of real Indian
> discontent created by the tactics of the white negotiators.
>
> The treaties were troublesome documents. In many cases both the
> "tribes" and the "chiefs" who had signed the treaties were the
> creations of the American negotiators\.... Washington Governor Isaac
> Stevens proved particularly eager to rush through the treaties; he was
> more interested in getting land cessions than in obtaining real Indian
> consent. His treaties brought war in their wake while the reservations
> remained virtually uninhabited for years as Indians attempted to
> remain in their old villages.[^24]

Thus, treaty negotiators on both sides sought what they could get.
United States negotiators sought Indian land, and the resources that
went with it. They evidently believed that negotiating treaties would be
more cost-effective than taking Indian land and resources by force -
although as White has identified, lines between these alternatives were
usually blurred through condonance of illegal acts by miners and
settlers.

Allowing for difficulties in translation, the quandary in which this
left Columbia- Snake area Indian Treaty negotiators is clearly evident
in their own cited words. For example:

> From what you have said I think you intend to win our country, or how
> is it to be? In one day the Americans become as numerous as the grass;
> this I have learned in California; I know that is not right. You have
> spoken in a round about way; speak straight. I have ears to hear you
> and here is my heart. ... Goods and Earth are not equal; goods are for
> using on the Earth. I do not know where they have given lands for
> goods.[^25]
>
> God named this land to us that is the reason I am afraid to say
> anything about this land. I am afraid of the laws of the Almighty,
> this is the reason I am afraid to speak of the land. I am afraid of
> the laws of the Almighty that is the reason of my hearts being sad:
> this is the reason I cannot give you an answer. I am afraid of the
> Almighty. Shall I steal this land and sell it? or what shall I do?
> this is the reason that my heart is sad.
>
> My friends, God made our bodies from the earth as if they were
> different from the whites. What shall I do? Shall I give the lands
> that are part of my body and leave myself poor and destitute? Shall I
> say I will give you my lands? I cannot say. I am afraid of the
> Almighty.[^26]
>
> A long time ago a Great Spirit spoke to my children. I am from the
> body of my parents and I set on a good place. The Great Spirit spoke
> to his children the Laws, will track on the ground straight and after
> that there have been tracks on my ground and after that the big Chief,
> the
>
> President, his ground was stepped on in the same way and for that
> reason I am not going there to trouble on his grounds and I do not
> expect anyone to tramp on mine.[^27]

Despite such concerns, threatened by superior force, and under pressure
from Governor Stevens, some Indians joined in Treaty settlement
negotiations. Where this occurred, Indian speakers **sought to retain
enough land and associated resources to survive on into the future**.
They particularly sought to retain enough land to live on, and the areas
important for fishing, hunting and gathering during their seasonal
rounds. For example:

> The reason why we could not understand you was that you selected this
> country for us to live in without our having any voice in the matter.
> We will think slowly over the different streams that run through the
> country, we will expose the country and think over it slowly. I cannot
> take the whole country and throw it to you. If we can agree this
> country will furnish food for the whites and for us\.... I will show
> you lands that I will give you, we will then take good care of each
> other\.... I think the land where my forefathers are buried should be
> mine; that is the place that I am speaking for. We will talk about it,
> we shall then know, my brothers, that is what I have to show to you,
> that is what I love the place we get our roots to live upon (meaning
> the Grand Ronde). The Salmon comes up the stream\--that is all.[^28]

Indian negotiators were partially successful in their efforts. In fact,
Stevens recognized the desirability of protecting Indian access to
fisheries in the Territories prior to negotiation of the "Stevens
treaties".

> The subject of the right of fisheries is one upon which legislation is
> demanded. It never could have been the intention of Congress that
> Indians should be excluded from their ancient fisheries.[^29]

Stevens provided reassurance to the Indians on these issues during
Treaty negotiations.

> We think they (the reservations) are large enough to furnish each man
> and each family with a farm, and grazing for all your animals. There
> is especially in winter grazing on each Reservation. There is plenty
> of Salmon on these Reservations, there are roots and berries. There is
> also some game. \...
>
> We can better protect you from bad white men there. We can better
> prevent the trader and the preacher all in one man going there. We can
> better prevent bad men from telling you to dance, and cheating you
> with lies. We can better prevent the thief who comes to steal your
> horses. Your horses will be saved to you and there will be no thieves
> to throw into hell-fire.[^30]
>
> This is a large Reservation. The best fisheries on the Snake river are
> on it; there are fisheries on the Grande Ronde river. There are
> fisheries on the Os-ker-wa-wee, and the other streams. There are
> cumesh grounds there at this place.[^31]
>
> You will be allowed to pasture your animals on land not claimed or
> occupied by settlers, white men. You will be allowed to go on the
> roads to take your things to market, your horses and cattle. You will
> be allowed to go to the usual fishing places and fish in common with
> the whites, and to get roots and berries and to kill game on land not
> occupied by the whites; all this outside the Reservation.[^32]

Swindell has summarized selected Articles of each of the "Stevens
Treaties". With particular reference to the present analysis, these
include:

> [Article 1]{.underline}
>
> Cedes to the United States certain described lands occupied by said
> tribes in the Territory\...
>
> [Article 2]{.underline}
>
> Describes boundaries of tract of land within ceded territory to be
> reserved to the exclusive use of the said Indians,
>
> Provides no whites, excepting those employed in the Indian Department,
> shall be permitted to reside upon reserved area without permission of
> tribes and superintendent. \...
>
> [Article 3]{.underline}
>
> The exclusive right of taking fish in all the streams, where running
> through or bordering said reservations, is further secured to said
> confederated tribes and bands of Indians, as also the right of taking
> fish at usual and accustomed places, in common with the citizens of
> the Territory, and of erecting temporary buildings for curing them;
> together with the privilege of hunting, gathering roots and berries,
> and pasturing their horses and cattle upon open and unclaimed
> land.[^33]

In the Treaty with the Nez Perces of 1863, the Nez Perce Tribe also
reserved associated water rights to "springs and fountains".

> The United States also agrees to reserve all springs and fountains not
> adjacent to, or directly connected with, the streams or rivers within
> the lands hereby relinquished, and to keep back from settlement or
> entry so much of the surrounding land as may be necessary to prevent
> the said springs or fountains being enclosed; and further, to preserve
> a perpetual right of way to and from the same, as watering places, for
> the use in common of both whites and Indians.[^34]

The Fort Bridger Treaty of 1868 defined a reservation for the Shoshone
and Bannock Tribes, and confirmed "hunting" rights as follows.

> ARTICLE 4: The Indians herein named agree, when the agency-house and
> other buildings shall be constructed on their reservations named, they
> will make said reservations their permanent home, and they will make
> no permanent settlement elsewhere; but they shall have the right to
> hunt on the unoccupied land of the United States so long as game may
> be found thereon, and as long as peace subsists among the whites and
> Indians on the borders of the hunting districts.[^35]

In 1972, in [State of Idaho v. Tinno]{.underline}, the Idaho Supreme
Court stated that the Shoshone word for "hunt" also included "to
fish".[^36]

> **2.1.2.3** **Relevance of Treaties for the Present Analysis**

There are three important ways in which Treaties between the United
States and referent Tribes affect the analysis to be conducted here.

1\. **Treaty-keeping sets a high standard for evaluation of federal
project actions.**

> The Courts have confirmed and reaffirmed that Treaties between the
> United States and the Tribes cannot be set aside or ignored.[^37]
> Contemporary Tribal leaders have reaffirmed the importance of the
> Tribal Treaties.
>
> The length of time a fishery's planned is mentioned in the
> negotiations of the treaties. They ask our people, 'How long?' when we
> said 'we are going to cede certain lands to you, but we are going to
> reserve which is ours already. Nothing you're giving me, but we're
> going to reserve what's there already, which is the salmon.' They
> named all the foods areas and the water. "That we will reserve.' And
> they ask them, 'How long?' They said, 'Forever,' which is a very long,
> long time. 'And you're going to protect that for me as one of the
> treaty responsibilities. As a treaty responsibility you're going to
> protect that.' Its like, 'I'm the majority now and you the minor
> population at the time\--the minor voice and minor power. But you're
> going to grow in time, and I'll be the minor group and you'll be the
> majority. But nevertheless, the law of the treaty's never going to
> change. You're going to still be responsible for protecting what I
> reserved as a part of the treaty agreement.' So that's a long time,
> and planning for 10, 15, 20, 30 years is not the question they had to
> answer. They said, 'You're going to be responsible forever, because
> that's my reserved right\--something that I reserved.' Which was
> salmon; its the most important one. So there's no question there that
> the people hold you responsible forever to manage the salmon and all
> of the foods that they reserved. And that's a simple answer to the
> concern of how long do you manage. I understand that now some people
> say, 'Why the fisheries resources getting small, it's so minor now. It
> isn't worth planning for any longer.' The industrial and economic
> people saying, "Let us go another direction. To heck with the good
> rivers, clean rivers and salmon. Let's go another way.' And that is
> not the case. We're going to be there to say you're going to keep your
> promise. Forever![^38]
>
> In this analysis, an important criterion used to evaluate Lower Snake
> project alternatives will consequently be the "treaty keeping"
> capability of each alternative considered. More generally, if a
> proposed federal action will, or is likely to, have an effect on
> Treaty-secured tribal trust assets, analysis of that action must not
> solely involve an examination of relevant Congressionally-enacted
> statutes, such as the National Environmental Policy Act, the Clean
> Water Act, the Fish and Wildlife Coordination Act, etc.. Compliance
> with Treaties and fulfillment of federal Trust Responsibility must be
> paramount factors in the analysis.

2\. **Historic fact or circumstances related to Treaties must be
considered as Tribal peoples**

**would have perceived them**.

This issue has been previously discussed in Section 2.1.1.6. In the
event that perceptions

differ with respect to Treaty-related historic circumstances or fact,
this report will rely on

Tribal perception.

3\. **From an economic perspective, the Treaties enabled a trade of
valuable Tribal assets,**

**ceded [from]{.underline} Tribes to the United States** **at Treaty
times, in exchange for the guarantee**

**by the United States [to]{.underline} the Tribes of certain** **assets
reserved by the Tribes, over future**

**years in perpetuity**.

> The Treaties enabled transfer of Tribal assets and associated wealth
> to the United States (in the form of land and associated resources),
> and provide a baseline from which to identify any cumulative trends
> with respect to asset transfer between the parties over subsequent
> years.
>
> In fact, for the "Stevens Treaties", Governor Stevens' principal
> objective was the transfer of wealth from the Tribes to the United
> States. Valuable assets **retained** by the Treaty Tribes included
> reservation lands and the right to fish, hunt and gather at usual and
> accustomed places throughout the lands they ceded to the United
> States.
>
> In the Fort Bridger Treaty, the Shoshone-Bannock peoples also
> transferred valuable lands and other resources to the United States,
> in return for on-Reservation guarantees, retaining the right "to hunt"
> on unoccupied lands in their traditional areas.
>
> Such consideration of transfers of **assets** and **wealth** fits well
> into both Tribal and non-Tribal perspective, and will be a major
> element of our subsequent analysis.
>
> **2.1.2.4 Tribal Trust Resources**

The referent Tribes, through their various Treaties, reserved resources
they considered sufficient to maintain their way of living. These
represent the perpetual guarantees offered by the United States at
Treaty times. Resources to be held in trust for the Tribes are described
as **tribal trust resources**. The federal government is said to have a
"trust responsibility" with respect to both Treaty and non-Treaty
Tribes. Tribal trust resolurces are further defined in the following
quotations.

> The "trust responsibility" is one of the "primary cornerstones" of
> federal Indian law. Its central thrust recognizes a federal duty to
> protect tribal lands, resources, and the native way of life from the
> intrusions of the majority society. As a doctrine that evolved
> judicially, the trust responsibility stands independent of treaties
> and inures to the benefit of all tribes, treaty and non-treaty alike.
>
> The origin of the trust responsibility is best understood as a duty
> arising from the transfer of native lands to the federal government -
> whether by conquest, treaty, executive order, or congressional fiat.
> \...
>
> Each federal agency is bound by this trust responsibility. Federal
> agencies must respond to the independent obligations the trust duty
> forms in carrying out statutory programs that affect tribes. Courts
> have often emphasized that federal agencies must deal with tribes
> according to the "most exacting fiduciary standards". [^39]

Further;

> While the trust responsibility is relatively straightforward in the
> context of managing tribal lands and resources - a function largely
> performed by the Bureau of Indian Affairs (BIA) - the duty of
> protection is admittedly complex in the context of agency
> implementation of general environmental or land and resource
> management programs that have an impact on tribal property rights.
> Full adherence to the trust responsibility is vitally important in
> this context, however, as a tribe's way of life can be wholly
> destroyed by agency actions that impair the full use and enjoyment of
> tribal property or treaty rights. It is well settled that the trust
> responsibility applies to actions taken off the reservation that
> impact tribal lands. Moreover, many tribes retained in treaties the
> right to use certain resources in ceded areas off the reservation;
> such as water rights, fishing and hunting rights, and gathering rights
> are all tribal property rights to which the federal government owes a
> duty of protection.[^40]

These conclusions respecting trust responsibility are confirmed by
testimony of tribal spokespersons.

> The United States trust responsibility toward American Indians is the
> unique legal and moral duty of the United States to assist Indians in
> the **protection** of their **property** and **rights**. Too often,
> the federal government has construed protection to mean control. \...
> In the spirit of the law, we seek federal assistance to **defend**
> against injury to our trust resources.[^41]
>
> As the record indicates, the federal courts have usually addressed
> trust resources in the context of water, money, land, timber, mineral
> or gas resources, and fish and wildlife. The CTUIR considers all
> aspects of the natural environment to have some purpose in preserving
> and sustaining life and subject to the protection of the Treaty. The
> CTUIR has stated:
>
> \...The rights we reserved were the basis of our economy and the core
> of our culture and religion. These rights include the right to fish at
> our usual and accustomed fishing stations throughout the Columbia
> Basin, and the right to a sufficient quantity and quality of water to
> maintain these fish runs. The Treaty also reserved the right of
> continued Tribal access to certain lands for hunting, for gathering of
> traditional foods and medicinal herbs, and for religious purposes.
> Without the promise that these rights and resources would be
> protected, our ancestors would not have signed the Treaty\... . [^42]

In the context of our present analysis, federal trust responsibilities
to the Tribes provide the legal and analytical pathways linking Tribal
Treaties to specific project impacts. These linkages include, but may
not be limited to:

1\. Potential project effects on salmon/ salmon fishing and on other
Treaty fisheries.

2\. Potential project effects on game/ game hunting.

3\. Potential project effects on plants used for food and/or medicines.

4\. Potential project effects on usual and accustomed places for
fishing, hunting or gathering.

5\. Potential project effects on the overall assets and wellbeing of the
referent tribes.

> **2.1.2.5 A Summary of Other Selected Laws Relevant to Tribal
> Protection**

Several other laws are important with respect to protection of tribal
cultures, sites and resources. Among these are:

1\. **Native American Graves Protection and Repatriation Act, as amended
(NAGPRA)**

**P.L. 100-601**.

> NAGPRA provides for the protection of Native American graves and for
> the return and repatriation of human remains, burial artifacts,
> unassociated burial artifacts and sacred objects of cultural
> patrimony.

2\. **Archaeological Resources Protection Act (ARPA) 16 U.S.C. 470aa-
47011: 43 CFR 7.**

ARPA prohibits the willful or knowing destruction and unauthorized
collection of

archaeological resources on federal lands - and establishes a permitting
system for

archaeological investigations taken thereon.

3\. **American Indian Religious Freedom Act (AIRFA) P.L. 95-41**.

> AIRFA protects and preserves for American Indians of their right of
> freedom to believe, express, and exercise the traditional religions of
> the American Indian, Eskimo, Aleut, and Native Hawaiians -- including,
> but not limited to, access to sites, use and possession of sacred
> objects, and freedom to worship through ceremonial and traditional
> rights.

4\. **National Historic Preservation Act (NHPA) of 1966**.

NHPA created the National Register of Historic Places (NRHP), and
identifies that state and

local interest, as well as national interest, may be considered in
identifying historic places.

NHPA also authorized creation of State Historic Preservation Offices
(SHPOs). These are

particularly important under Section 106 of NHPA -- which requires the
SHPO to review all

projects involving federal money or licensing which may impact cultural
resources.

**2.1.3 Analytical Issues Affecting Assessment of Impacts on Tribes**

Assessment of tribal impacts within the context of this largely
non-Tribal federal process requires attention to several key issues that
arise when carrying out analysis between cultures. Sue and Sue (1990)
point out that failure to sensitize and validate analysis from the
subject culture's perspective can lead to misinformation, and may
actually damage the subject (i.e. tribal) culture. They term such
failure **cultural encapsulation**.

> \...cultural encapsulation\...refers specifically to (a) the
> substitution of model stereotypes for the real world, (b) the
> disregarding of cultural variations in a dogmatic adherence to some
> universal notion of truth, and (c) the use of a technique-oriented
> definition of\...process.[^43]

Cultural encapsulation, the authors point out, is an ongoing problem for
researchers.

> As\...professionals, we have a personal and professional
> responsibility to (a) confront, become aware of, and take actions in
> dealing with our biases, stereotypes, values, and assumptions about
> human behavior, (b) become aware of the culturally different client's
> world view, values, biases, and assumptions about human behavior, and
> (c) develop appropriate\... structures that take into account the
> historical, cultural and environmental experiences/ influences of the
> culturally different client.[^44]

The problem of cultural encapsulation is particularly acute for
economists and other social scientists who have traditionally been
trained to apply rigorous non-Tribal analytical procedures, and to play
a role of "assessor" from "outside" the subject culture. It is also a
problem for bureaucrats following procedural "rule books". Cultural
encapsulation can be oppressive, and lead to discrimination[^45],
blaming[^46] and exploitation[^47] against minorities. For example:

> That exploitation occurs in\...ethnic communities is exemplified in
> the Colville Indian reservation (Williams, 1974). An anthropologist,
> after gaining the trust and confidence of the Colville Indians in
> Washington, conducted a study of factionalism among the tribe. A
> subsequent study by another group of White researchers recommended
> that the best course of action for the Colville reservation was to
> liquidate its assets, including land, rather than consider economic
> development. Part of the justification for liquidation was based on
> the factionalism results of the first study, and termination of the
> reservation was recommended. There were several primary issues about
> the action that merit attention. First, the reservation was composed
> of 1.4 million acres of land that was rich in timber and minerals.
> There was strong pressure on the part of whites to obtain the land.
> Second, the problems of factionalism were actually created by a
> society that attempted to "civilize" the Indians via Christianity and
> by White businesses that offered promises of riches. Third, many of
> the Indians confided in the White researcher and were led to believe
> that the information obtained would not be released.
>
> It is this type of study, as well as the continued portrayal of ethnic
> communities and groups as deviants, that makes minorities extremely
> distrustful about the motives of the White researcher. Whereas social
> scientists in the past have been able to enter ethnic communities and
> conduct their studies with only minimal justification to those
> studied, researchers are now being received with suspicion and overt
> hostility. Minorities are actively raising questions and issues
> regarding the values system of researchers and the outcome of their
> research.[^48]

Avoidance of cultural encapsulation is consistent with contemporary
Corps of Engineers guidance (Note 11). Conversely, if analysis is unable
to avoid cultural encapsulation, the concerns over environmental
injustice, recently codified by EPA, will intensify.

Discussion of other key issues for inter-cultural analysis follows.
Integration of these dual approaches will allow us to reach credible
conclusions concerning the impact of Lower Snake River project
alternatives on the referent Tribes.

> **2.1.3.1 Crediting What Tribes Say**

Given the impossibility of one culture completely understanding the
perspectives, values and life views of another, the least the non-tribal
analyst can do is **listen carefully to Tribal statements and
conclusions - and begin from the premise that [such statements are
valid]{.underline},** extant strong evidence to the contrary. In fact,
this provides the kind of **groundtruthing** that careful science
demands, and protects the analyst from becoming "lost in his or her
model", to the detriment of accuracy and even-handed judgment. For
example, Ridington notes:

> The thoughtworld of anthropology is different from that of the
> Dunne-za. For the Dunne-za, knowledge and power comes to a person
> through direct experience of the world. They come through dreaming and
> through the instructions of a mythic reality that becomes biographical
> in the searing transformative experience of the vision quest. For
> anthropologists, knowledge and power come from books, from
> institutions, and perhaps only finally from the experience of
> fieldwork. Anthropological discourse assumes that its own written
> texts, and their institutionally situated authors, have a privileged
> authority. As a producer of such texts from within an institutional
> setting, I have been concerned and even apprehensive about their
> possible impact on a readership with whom I have no direct contact.
>
> A relief from this apprehension, I believe, lies in the feedback
> between my texts and those of the Dunne-za.[^49]

The present analysis will incorporate direct commentary from Tribal
members in order to present tribal perspective in tribal words, and to
groundtruth our findings against Tribal perception and reality. In the
event conclusions from non-Tribal analysis and Tribal direct statements
differ, we will explore why these differences have occurred. Too often
in the past, such differences have been left unexamined, with
researchers ignoring Tribal perspective, where it is contrary to their
(non-tribal) analytical findings.

> **2.1.3.2 Tribal Culture is Modern and Evolutionary**

Tribal culture grows from a rich heritage of the past, but also lives in
the present, and will evolve into the future. The National Park Service
defines **culture** to mean:

> \...the traditions, beliefs, practices, lifeways, arts, crafts and
> social institutions of any community, be it an Indian tribe, a local
> ethnic group, or the people of the nation as a whole.[^50]

From tribal perspective, culture and tradition are inextricably linked
and inseparable. Chambers (1985) describes culture as:

> \...a group of people who share standards of behavior and have common
> ways of interpreting the circumstances of their lives.[^51]

Fourlines (1991) notes:

> Culture is what you do every day of your life\--its constantly in
> change. Tradition is to always remember the knowledge of the first
> cup. You don't throw away your history. You don't throw away your
> experience.[^52]

A member of the Quinault Indian Nation illustrated the manner in which
tradition and culture come together for Tribal peoples.

> When you're down at the beach, you remind yourself of how your
> ancestors lived. When you're digging clams by moonlight I feel close
> to my great grandparents. I'm reminded of my grandmother. It reminds
> us that **we are just doing what our people have always done**. It
> reminds me that my ancestors live on through me, and it makes me more
> responsible.[^53]

Finally, it is important to distinguish between **culture** as defined
here, and **cultural resources** as defined in many federal analyses.
Federal "cultural resource analysis" often confines itself to
"non-living" elements of Tribal culture - graves, historic artifacts,
historic structures and so on - but often does not assess the
circumstances of contemporary Tribal populations. Tribes think in a more
integrated manner - and view **culture** and **cultural resources** as
inseparable. These issues are discussed more extensively in Appendices 1
and 2.

This analysis employs the broader Tribal perspective of culture
incorporating past traditions, present living circumstances and
expectations for the future. We will incorporate narrower definitions of
"tribal cultural resources" in our mitigative analysis where
appropriate.

> **2.1.3.3 Tribes View Themselves and Their Resources Holistically**

Non-Tribal analysis, particularly economic analysis, tends to narrowly
delineate and separate out elements of lifestyle. Such analysis assists
"numeric results" and better serves statistical manipulation of data. It
is often enabled by two major simplifying assumptions - "**ceritus
paribus**" (all other elements of lifeways remain unaffected), and
"**marginal analysis**" (the basic character of the single element under
analysis remains unchanged, save for a discrete and measurable increment
or decrement). Tribal peoples are usually more holistic in their
thinking,

viewing all elements of their lifeways in an integrated fashion. For
example, Feinup-Riordan, talking about assessing impacts on Alaska
natives, notes:

> \...it is critical in sociocultural systems description and analysis
> that categories true to the Native point of view be sought. Also, as
> categories of persons, objects and activities begin to emerge, it is
> the [relations]{.underline} of these categories over time and at any
> one point in time that must be seen to characterize the sociocultural
> system. In other words, the exchange of goods and services that
> characterizes the spring distribution of seal meat on the one hand and
> the gift of seal meat to a close relative on the other cannot be seen
> as representative of two distinct domains of activity, e.g.. economic
> and social. Rather, the consideration of social, economic,
>
> and political activities at any one point in time as well as the
> consideration of any particular kind of human activity through time
> will be seen as expressions of a common ideological structure which
> simultaneously connects and to some extent explains them. Thus, the
> analysis of sociocultural systems involves a relational world
> view.[^54]

Ridington affirms this view.

> In the reality of Indian experience, each story contains every other.
> They circle one another like the seasons. They circle like the hunter
> and his game. They circle like the dreams that connect a child's
> visionary experience in the bush with those of the old person.[^55]
>
> **2.1.4 Selecting Indicators of Tribal Circumstances and Potential
> Effects**

It is beyond the capabilities of contemporary non-Tribal analysis to
build a fully explanatory model of the whole of Tribal circumstance,
perspective and potential impacts from Lower Snake project alternatives.
Rather, we will examine specific elements of Tribal circumstance that
may fairly be considered as "indicators" for Tribal circumstance and
wellbeing. An indicator approach to assessment of impacts on Tribes has
been recently validated in federal court.[^56]

> **2.1.4.1 Salmon and Access to Salmon Fishing**

Salmon have been a central part of the lifeways of referent Tribes since
time immemorial - and the right to continue to fish for salmon was
specifically reserved by the Tribes in their Treaties with the United
States.

> God created this Indian country\... He put the Indian on it. They were
> created here in this country, truly and honestly, and that was the
> time this river started to run. Then God created fish in this river
> and put deer in these mountains and made laws through which has come
> the increase in fish and game\... When we were created, we were given
> our ground to live on, and from that time these were our rights.
>
> My strength is from the fish; my blood is from the fish, from the
> roots and the berries. The fish and game are the essence of my life. I
> was not brought from a foreign country and did not come here. I was
> put here by the Creator.
>
> Whenever the seasons open, I raise my heart in thanks to the Creator
> for his bounty that this food has come.[^57]
>
> It's just that salmon are part of the country, they're part of the
> environment. They belong here as much as Indians belong here. And in
> that way they complement each other. They've become a part of us
> because it's what we depend on to live\... . You know, it becomes a
> part of the person's or people's culture. See, its the same way with
> these salmon. It's very important that the salmon survive or that they
> be brought back to this river. And Indians as I know them are always
> seeking salmon. \... That kind of a cultural relationship becomes a
> part of your world, your environment.[^58]
>
> At certain times of the year, certain ceremonies would be held, like
> the first foods feast of the season\.... And in these ceremonies water
> would be drunk first, and that would be recognizing the importance of
> water, you know, for sustaining life. And these other foods came in
> order after water. You know, in importance to the people\--like salmon
> and deer meet and the roots and the berries. And we say that the water
> was the same as the blood in our body. In relation to the Mother
> Earth, the water flows like blood in our veins along the various
> rivers and, you know, inside the earth. So that's how we related the
> water to our Earth and to our bodies\....
>
> A young person was recognized for being able to provide salmon. And he
> would be brought up before the elders, and they would eat the meat or
> the fish that he had provided, and he was recognized as a fisherman or
> a huntsman. And of course, you know, when you're recognized for
> something you become more able and more willing to provide for your
> family. You know, all people aren't able to be good hunters or good
> root diggers. You know, there's varying degrees of expertise in
> whatever you may be doing. And so these strong points of individuals
> were brought out in this way. Also it became socially acceptable
> behavior, you know, in your family group, or in your tribal group. So
> this way it was perpetuated by recognizing these abilities of an
> individual and pointing out his strong points and saying, 'You're a
> good hunter', or "You're a good fisherman'. So it perpetuated the
> social structure of the Nez Perce tribe.[^59]
>
> Our religious leaders told us that if we don't take care of the land,
> the water, the fish, the game, the roots and the berries we will not
> be around here long. We must have our salmon forever! [^60]

Salmon are also at the center of the assessment of alternatives
considered by the Lower Snake project. It consequently makes sense to
give salmon and salmon fishing a central role in our analysis - from
both Tribal and non-Tribal perspective. Such assessment will consider
spiritual, sustenance and, as appropriate, commercial uses of salmon by
each referent Tribe.

> **2.1.4.2 Hunting and Gathering Activities**

As identified in Section 2.1.2.4, protection of hunting and gathering
activities for the referent Tribes are federal trust responsibilities -
and the importance of these activities has been referenced by Tribal
spokespersons in the preceding section of this report. Should impacts on
these activities be identified along the Lower Snake, we will provide
corresponding impact analysis as part of our Tribal assessment.

> **2.1.4.3 Historic Villages, Grave Sites and Usual and Accustomed
> Fishing, Hunting**
>
> **and Gathering Areas**

These areas play at least two important cultural roles for Tribes.
First, they provide tangible prehistoric and historic evidence of "who a
people are" - reminding modern-day tribal persons of their history, of
the experiences of their ancestors, and of lessons to be learned from
their past.

Second, culture is also contemporary. Access to prehistoric and historic
areas and resources provides important connections and opportunities to
**maintain one's culture.** Such access allows tribal members to live
and carry out present-day cultural activities in the places that
ancestral experience taught the Tribes they needed to be carried out -
and to learn, building human capital and strength from these
experiences.

Dam breaching along the Lower Snake River will also expose some cultural
areas. A careful assessment of potential beneficial and costly effects
is consequently required.

> **2.1.4.4 Speaking Tribal Languages**

Hunn identifies that Tribal language differs from English, not just in
using different sounds to describe common concepts, objects and
transactions - but in describing a unique tribal world.

> Learning a foreign language such as Sahaptin involves more than
> learning a strange set of sounds, getting used to unfamiliar
> grammatical patterns, and memorizing a new vocabulary. It also
> requires learning a new way of thinking and adopting a different
> perspective on reality. \... The hypothesis of linguistic
> relativity\... was put strongly by Sapir when he asserted that people
> who grow up speaking different languages do not live in the same world
> with just the labels for things changed, but live in unique
> worlds.[^61]

Further, because tribes place strong emphasis on experience, language
not only illuminates culture, but also protects Tribal knowledge, and
hence, Tribal power.

> Human survival hinges on the outcome of such ecological events as
> finding food, eating, killing, escaping, meeting, mating, feeding and
> dying. With language we can describe, catalog, and analyze a very
> large number of such events as well as imagine, and perhaps create,
> new ecological realities. Language is thus not merely a means of
> self-expression but also a tool of survival more powerful than
> bow-and-arrow, net or plow. In language we
>
> construct our battle plan for our daily skirmish with hard reality.
> \...This knowledge must be acquired, remembered, and passed on. [^62]
>
> Knowledge, the elders say, enables a person to live in this world with
> intelligence and understanding. They recognize that knowledge is a
> distinctly human attribute. **They recognize that knowledge is a form
> of power**. (emphasis added)\... A person with power reveals what he
> or she knows through the ongoing story of his or her life. A person
> with power does not disclose knowledge without a purpose. He or she
> may use power to heal relatives who are ill. He or she may use it to
> feed people. A person who "knows something" may even be obliged to use
> power to defend against an attack. These circumstances reveal the
> times and places in which power may be revealed. They define knowledge
> and power in terms of experience.[^63]

In 1995, Conservation International, Ecotrust and Pacific GIS selected
"percent speaking own language" as their **tribal diversity indicator**,
in their study of Pacific Rain Forests and their People.

> **The Rain Forests of Home** reports the first results of an effort to
> assemble a portrait (of a bioregional community). It presents
> information on forest cover and indigenous languages as first proxies
> for forest integrity and cultural diversity throughout the entire
> North American coastal temperate rain forest bioregion\... . This
> report offers the first comprehensive picture of the rainforests of
> home, one that reconciles scientific definitions and administrative
> boundaries with the natural watershed boundaries of the coastal
> landscape. The holistic perspective that it provides can help identify
> opportunities and priorities for conservation-based development.[^64]

We conclude that the evolution of "own language speakers" between
Treaty-time and the present is an important point of reference for
referent Tribes. We are unsure to what degree we will be able to develop
direct project-specific linkages with language in the present analysis.

Sections 2.1.4 through 2.1.4.4 have described the particular focal
elements of assessment of Tribal circumstances and particular impacts.
As noted, we will utilize this information, and other insights provided
by the referent Tribes to assess overall potential effects on each Tribe
associated with Lower Snake project alternatives.

> **2.1.5 Integration of Tribal Assessment with Non-Tribal Models for
> Assessing**

**Circumstances and Potential Impacts on Tribes**

While procedures consistent with Tribal viewpoints are essential to this
analysis, it is also necessary to provide assessment of potential
effects on tribes in conventional non-Tribal terms. Such assessment can
be done without prejudice to Tribal interests by selecting additional
procedures that will be considered reasonable by both Tribal and
non-Tribal reviewers - and by developing an overall analytical construct
that enables integration of selected non-Tribal and Tribal indicators of
circumstance and potential impact into a comprehensive overview
framework of logic.

This section will discuss one such overview framework, and will then go
on to identify selected indicators that are common to non-Tribal
analysts - and that will complement deployment of some of the Tribal
indicators already discussed.

> **2.1.5.1 A "Hierarchy of Needs" Model for Integration of Tribal and
> Non-Tribal**

**Assessment Measures**

In the analysis presented here, a "hierarchy of needs" overview based on
work by Maslow[^65] may prove useful perspective for joint consideration
of Tribal and non-Tribal indicators of circumstances and potential
impact. Bachtold (1982), in work specific to damages to fisheries in the
present referent area, has presented such an approach as "non-Tribal" in
origin, but having properties "consistent with" Tribal circumstance and
perspective.

> According to Indian belief and practice, "the Creator made food for
> all creatures and it must be free for all". Consequently, they shared
> what they had with those in need. \...
>
> Assured of sustenance, tribal members could turn their attention to
> higher level needs, such as need for mastery or power, which was
> viewed by the Yurok as "excellence in doing something". \... All parts
> of the body and spirit\--the whole person\--were believed to be
> coordinated by mental power which kept body and spirit in harmony\....
>
> Unity of body and mind have also been expressed in Western
> contemporary psychology\... .
>
> Whereas Indian belief often ascribed the motivation for human behavior
> to supernatural forces, Western psychologists constructed the
> unconscious. These psychologists explained that basic needs must be
> met before human-kind can be motivated to meet higher level needs. In
> order to be able to reach one's full potential as a person, everyone
> must have first succeeded in satisfying (a) physiological needs, (b)
> safety needs, (c) belongingness and love needs, and (d) self-esteem
> needs, all in this order. As Maslow explained, these "deficiency
> needs" form a hierarchy which underlies humankind's highest goal, "an
> increasing trend toward unity, integration, or synergy, within the
> person". Someone who is absorbed totally in fulfilling ongoing hunger
> needs, for example, will attend less to safety needs; and, a person
> whose security is constantly threatened will be less able to develop
> intimacy with others\....
>
> When people are found to be behaving in ways that clearly indicate
> that they are under stress, the question must be asked, "Where on the
> hierarchy of needs have they been blocked\...?"
>
> Regardless of the culture in which this growth occurs, all humans move
> through genetically determined stages which progress from the infant's
> learning to trust; the toddler's striving for autonomy; the young
> child's struggling for initiative; the older child's working for
> industry; the adolescent's straining for identity; the young adult's
> establishing of intimacy; the mature adult's achieving generativity;
> and, the attaining of integrity in old age. When normal development is
> distorted by an unfavorable environment, unhealthy traits characterize
> the developing organism, according to the stage of psycho-social
> growth, i.e., mistrust, shame and doubt, guilt, inferiority, identity
> diffusion, isolation, self-absorption and despair. [^66]

Meyer (1998) has recently employed this perspective to provide a
framework for integration of native and non-native information in an
assessment of native circumstances and effects in the State of
Hawaii.[^67] A schematic representation of the framework is provided in
Figure 1.

> **2.1.5.2 Non-Tribal Indicators of Tribal Circumstances and Potential
> Impacts**

This section identifies five non-Tribal indicators that will be
integrated with those discussed in earlier sections, to provide an
overall assessment of Tribal circumstances and potential impacts. Use of
the first four of these have been previously affirmed in federal
court[^68]. The fifth involves use of a concept common in the economic
profession - but which also has meaning for Tribes.

> **2.1.5.2.1 Tribal Poverty**

The US Bureau of the Census provides data on the percentage of persons,
and groups of persons, living below the poverty line. These data will be
contrasted against percentages for state and national populations as a
whole, and utilized as one indicator of Tribal circumstances.

> Poverty statistics\...are based on a definition developed by the
> Social Security Administration in 1964 and revised in 1969 and 1981 by
> interagency committees. This definition was established as the
> official definition of poverty for statistical use in all Executive
> departments by the Bureau of the Budget (in Circular No. A-46) and
> later by the Office of Management and Budget (in Statistical Directive
> No. 14).
>
> The original poverty index provided a range of income cutoffs adjusted
> by such factors as family size, sex of family head, number of children
> under 18 years old, and farm-nonfarm residence. At the core of this
> definition of poverty was the economy food plan, the least costly of
> four nutritionally adequate food plans designed by the Department of
> Agriculture. It was determined by the Department of Agriculture's 1955
> survey of food consumption that families of three or more persons
> spent approximately one-third of their income on food; the poverty
> level for these families was therefore set at three times the cost of
> the economy food plan. For smaller families and persons living alone,
> the cost of the economy food plan was multiplied by factors that were
> slightly higher in order to compensate for the relatively larger fixed
> expenses of these smaller households. Annual revisions of these SSA
> poverty cutoffs were based on price changes of the items in the
> economy food budget.
>
> As a result of the deliberations of a Federal Interagency Committee in
> 1969, the following two modifications to the original SSA definition
> of poverty were recommended: (1) that the SSA thresholds for nonfarm
> families be retained for the base year 1963, but that annual
> adjustments to the levels be based on changes in the Consumer Price
> Index (CPI) rather than on changes in the cost of food included in the
> food economy plan; and (2) that the farm thresholds be raised from 70
> to 85 percent of the corresponding nonfarm levels. \...
>
> In 1980, another interagency committee recommended three additional
> modifications that were implemented in the March 1982 CPS as well as
> in the 1980 census: (1) elimination of separate thresholds for farm
> families, (2) averaging of thresholds for female-householder and "all
> other" families, and (3) extension of the poverty matrix to families
> with nine or more members. \...
>
> The poverty thresholds rise each year by the same percentage as the
> annual average Consumer Price Index. [^69]

The Bureau of the Census considers the terms "below the poverty line"
and "poor" to be interchangeable.[^70]

The present study will utilize these data, and contrast them with
historic narrative concerning Tribal circumstances, to determine
cumulative effects, present poverty levels and potential future effects
related to Lower Snake project alternatives.

> **2.1.5.2.2 Tribal Unemployment**

The US Bureau of the Census and the US Bureau of Indian Affairs each
provide estimates of unemployment among the Tribes[^71]. The Census data
is more rigorous, but overestimates employment for any work designation
over one week. The BIA data provides numbers that are likely more
indicative of Tribal circumstances, particularly over winter months -
but these estimates lack statistical rigor. This analysis will consider
both data sets to draw conclusions respecting Tribal unemployment - how
it compares to Tribal circumstances at Treaty times - how it is related
to unemployment levels for citizens in general at present - and how it
may be affected by project alternatives.

> **2.1.5.2.3 Tribal Per Capita Income**

Per capita income data is readily available from US Bureau of the Census
sources for both tribal and non-tribal populations. The Census defines
total income as follows.

> 'Total income' is the algebraic sum of the amounts reported separately
> for wage and salary income; net nonfarm self-employment income; net
> farm self-employment income; interest, dividend, or net rental or
> royalty income; Social Security or railroad retirement income;
> retirement or disability income; and all other income.[^72]

The income indicator is the narrowest employed in this analysis.
Nonetheless, it is relatively easy to obtain and commonly used - and we
will include it here.

> **2.1.5.3 Tribal Health**

Bachtold suggests that health is indicative of a broad range of
material, economic, social and psychological conditions experienced by
individuals (Section 2.1.5.1). This perception is confirmed by a tribal
spokesperson.

> Ultimately, health and way of life cannot be separated.
>
> (Armand Minthorn, CTUIR)

Further, comparison of health and health services between Tribal members
and non-Tribal residents was accepted as valid indicator information by
the Court in the [US v Washington]{.underline} case cited earlier. In
this study, we:

1.  Gather data from cited sources to develop a baseline health and
    health services comparison

> between Tribes and non-Tribal residents of Washington, Oregon, Idaho
> and the United
>
> States as a whole.

2\. Utilize historic information to contrast Tribal health today with
that in earlier times.

3.  Consult with health professionals at referent tribes to validate or
    invalidate a hypothesis

> recently discussed by Trafzer (1997), involving analysis of death
> certificates for Yakamas
>
> living on their reservation between the years 1888 and 1964.
>
> The theoretical framework used in the presentation of Yakama death
> data is derived from work by Abdel R. Omran and Barry Popkin. Omran
> offers the theory and provides a model that informs us about Yakama
> epidemiological transitions. He argues that in the United States,
> there was an historical shift in the nineteenth century from
> "pandemics of infectious diseases to the degenerative and man-made
> diseases which are now the chief forms of illness and causes of
> death."\...
>
> Omran argues that generally "mortality patterns distinguish three
> major successive stages of epidemiological transition including the
> Age of Pestilence and Famine, the Age of Receding Pandemics and the
> Age of Degenerative and Man-Made Diseases\...." Yakama people began to
> enter the Age of Pestilence as Euro-American traders introduced
> infectious diseases to Native Americans living along the coast of the
> Pacific Northwest. Thus, throughout the entire nineteenth and early
> twentieth centuries, the Yakama lived in the Age of Pestilence, facing
> the scourge of many contagious diseases\.... The Age of Pestilence and
> the Age of Receding Pandemics merged during the 1920s, giving way to
> the Age of Degenerative and Man-Made Diseases\....
>
> In their ground-breaking study, **Fatal Years: Child Mortality in Late
> Nineteenth- Century America**, Samuel H. Preston and Michael R. Haines
> maintain that child mortality in 1900 was not linked to food because
> food was abundant and cheap. Their statement pertained to America as a
> whole, but it surely did not apply to most Native Americans,
> particularly those living on the Yakama Reservation. Certainly, as
> Popkin has suggested, the destruction of native food resources had
> some impact on the health of the people, especially when the people
> lost their native foods and received no supplements to replace them in
> their diets. \... Also, traditional native foods were (and are) far
> more than items to consume, for they were part of the sacred creation
> and were eaten ceremoniously during the year as part of religious
> ritual. \... This is not to argue that the loss of native foods was
> the only factor influencing death on the Yakama Reservation or that it
> was the most important condition surrounding death. It was one of many
> factors that influenced mortality on the reservation, factors born of
> policies and actions out of the control of native peoples.
>
> All the elements surrounding mortality on the Yakama Reservation.
> including the destruction of food resources, are difficult to
> quantify, but we know they influenced mortality on the reservation
> throughout the twentieth century. As a result of the destruction of
> food resources, white invasion, treaty making, the Plateau Indian War,
> political subjugation, Christian conversions, forced removal,
> relocation, and the reservation system, Indians living on the Yakama
> Reservation suffered a social anomie or depression that contributed to
> ill health and death\....
>
> After 1859, when the United States ratified the Yakama Treaty, the
> confederated tribes of the Yakama Nation lived under the thumb of
> agents, ministers, and pro-government Native American factions. They
> witnessed Western expansion first hand as ranchers, farmers, lumber
> companies, miners, merchants, and other "settlers" overran their
> former lands. They lost hunting, grazing, fishing and root grounds.
> They lost their seasonal rounds by which they obtained their
> livelihood, and they slipped into a communal depression that weakened
> their minds and bodies, making them more susceptible to viruses and
> bacilli.
>
> This is a condition that cannot be quantified or measured
> scientifically, but anyone- native or non-native - familiar with
> Native Americans living within the early reservation system will
> attest to its existence. It surely had some effect on Indian health
> and one's vulnerability to disease. It is known that Yakama people
> lived in abject poverty with substandard housing, inadequate food,
> poor water, few sewer facilities, insufficient health care, little
> economic opportunity, and limited political power\.... People lived to
> die and to die young. Still, Yakama people survived and did not vanish
> from the face of the earth.[^73]
>
> To gather further information concerning this hypothesis, expert
> health officials at each subject reservation, including Yakama, were
> asked the following questions.
>
> \* Is it your judgment that the hypothesis that the causal factors
> listed by Trafzer
>
> contributed significantly to Tribal ill health and death historically
> valid for your Tribe?
>
> \* Have the present health circumstances on this reservation changed?
> If so, in what way?

4\. Finally, during the study the same panel of experts on Tribal health
were asked:

> \* Would continued loss of fisheries be expected to have any health
> effects on Tribal
>
> members? Can you categorize the effects that would be expected?
>
> \* Would restoration of Lower Snake River salmon be expected to have
> any health effects
>
> on Tribal members? Can you categorize the effects that would be
> expected?
>
> **2.1.5.4 Tribal Assets and the Associated Values they Produce**

A final indicator parameter focuses attention on the values produced
from Tribal assets. **The value of early Tribal assets lay in The Land -
interpreted broadly to include the land, water, salmon, animals, plants,
minerals, and** **all that resided in the Land or upon it**. Tribal
perspective with respect to these Tribal Trust Assets is evident in many
of the citations provided earlier - and in the words of (then) CTUIR
chairman Donald Sampson in a 1994 memorandum.

> Trust Assets are property in which Indians hold and maintain legal
> interests, and which are held in trust by the United States for tribes
> and individuals. They include, but are not limited to, lands, water,
> fish, wildlife, plants, minerals\--essentially, everything necessary
> to preserve and maintain a way of life.[^74]

Similarly, interest in the wealth of Tribal Lands was the principal
motivation of the United States in seeking to make treaties (citation at
Note 24) - and little difference exists between the words on asset
valuation offered by Mr. Sampson (Note 74) and by conventional economic
definition.

> (An asset is) an entity possessing market or exchange value, and
> forming part of the wealth or property of the owner.[^75]

The Massachusetts Institute of Technology (MIT) economic dictionary goes
on to point out:

> In economics an important distinction is made between 'real' assets,
> which are tangible resources like plant, buildings and land yielding
> services in production or directly to consumers; and financial assets,
> which include money, bonds and equities.[^76]
>
> Anything which has a market value and can be exchanged for money or
> goods can be regarded as **wealth**. It can include physical goods and
> assets, financial assets and personal skills which can generate an
> income\.... All wealth has the basic property of being able to
> generate income, which is the return on wealth. Thus, whereas wealth
> is a stock, income is a flow concept. The present value of this income
> flow constitutes the value of the stock of wealth.[^77]

Tribal and non-tribal persons may discount income flows received over
time due to consumer impatience, to take advantage of loanable funds, or
for other reasons. But economists do not claim that persons discount the
value of **assets** over time -- unless those assets depreciate or
become obsolete. More particularly, the tribes do not discount **treaty
trust assets, such as tribal lands, salmon and wildlife** over time --
nor do they consider them exchangeable for money or other goods and
services. Tribes continuously assert that: **"Treaty Assets** are
assured in Treaty agreements with the United States, retain their value
in perpetuity, and are **"not for sale"**.

> We would like to see it (salmon) preserved for our future children.
> Maybe 100, 200 years\-- forever\--I would say forever. Forever and
> ever. As long as there'll be an Indian on this earth.[^78]
>
> We've got to stand up for our rights, you know, that we had, not only
> fishing but hunting rights. We've got to preserve them one way or
> another, regardless. As long as it ever exists. You know, let our
> youngsters live with them too.[^79]

And to repeat part of an earlier citation from Delbert Frank Sr.;

> So there's no question that the people hold you responsible forever to
> manage the salmon and all of the foods that they reserved. And that's
> a simple answer to the concern of how long do you manage. I understand
> that now some people say, 'Why the fisheries resources getting small,
> it's so minor now. It isn't worth planning for any longer.' The
> industrial and economic people saying, 'Let's go another direction. To
> heck with the good rivers, clean rivers and the salmon. Let's go
> another way.' That's a question coming pretty close I understand. And
> that is not the case. We're going to be there to say you're going to
> keep your promise. Forever![^80]

The details of tribal insistence on protection of Treaty assets will
vary with the unique characteristics of each Treaty. However, preference
for permanence of valued assets can be generally found in both tribal
and non-tribal societies.

(Tribal) behavior is similar to other collectives that set out to
establish and protect

unchangeable and enduring assets of wealth, ranging from The Capital,
through abbeys and

cathedrals, to state buildings, boulevards, monuments and cemetries. At
the same time, states

and groups set aside parks, reserves, viewpoints, national forests,
ecosystems, and so on.

Less tangibly, collectives create a constitution, set up jurusdictions,
and draw national

boundary frontiers. Less collectively, they enforce private laws of
property which enable

individuals to decide whether to continue to hold land and structures in
a particular condition,

or change them or transfer them. The public trust, the private trust,
the treaty, the consitution,

the land registry, the courts are all important facilitative
institutions here. Many of these

assets, public and private, tangible and intangible, man made and
natural, are made durable,

permanent, everlasting, in part or entirely because of the statement
they make and the values

and traditions of which they remind persons or groups.

It is not unusual for collectives to designate an asset as permanent, to
intend that it will

continue to serve its functions and symbolism forever, and to refuse to
"discount" its future.

Those tribes who select such permanent assets and commitments are not
thereby revealing a

profound cultural difference. Others do so too. [^81]

Since the tribes do not devalue their tribal trust assets over time**,**
this assessment will not discount the future value of Tribal Trust
Assets, compared with their value today.

Economists and Tribes have always agreed that **Tribal Lands are of high
value**. In fact, it is the struggle for this Land, including the
resources upon it and the waters flowing through it, that has colored
relations between non-Indian citizens of the region and the Tribes from
contact times to the present. Consequently, the concept of "Tribal
assets" provides a framework useful to the Tribes and to non-Tribal
analysts as well.

As Scott identifies (Note 81), treatment of Treaty-protected waters,
salmon, tribal land and wildlife as undiscounted permanent tribal trust
collective assets is not inconsistent with discounting of other elements
in the DREW analysis where appropriate.

Where annual income flows are subject to consumer impatience or interest
opportunity cost, economists use a **discount rate** to progressively
reduce the weighting given to benefits and costs incurred in future
years, relative to present years. The Drawdown Regional Economic
Workgroup intends to discount such future benefits and costs at 4.75%
(the discount rate preferred by BPA); and 7.275% (the discount rate
preferred by the US Army Corps of Engineers). They will also display
results without discounting. If one assumes a \$1,000 impact will occur
each year for 100 years, the practical effect of each of these rates of
discount can be displayed in Table 1.

Table 1

[Actual Benefits or Costs Counted Each Year, Per \$1,000
Impact]{.underline}

[- At Selected Discount Rates and Future Time Periods -]{.underline}

Discount

[Rate]{.underline} [Years Into the Future]{.underline}

-%- [10 years]{.underline} [25 years]{.underline} [50 years]{.underline}
[75 years]{.underline} [100 years]{.underline}

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--annual value in
dollars\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\-\-- 1,000 1,000 1,000 1,000 1,000

4.75 629 313 10 3 1

7.25 497 174 3 1 \--

It can be observed that, as increasingly large positive discount rates
are used, economic analysis becomes less and less concerned with any
impacts that do not occur almost immediately. In the Lower Snake
Drawdown circumstances where project implementation costs will be
incurred at the outset, and salmon recovery benefits under any PATH are
not expected for several years - the

influence of selected positive economic discount rate assumptions upon
conclusions reached may be particularly significant.[^82]

In sum, our approach to valuation of tribal assets in this report will
be:

1.  Identify trends in the availability to the tribes of Tribal Trust
    Assets (particularly, land, water, fish and wildlife) from contact
    times to the present.

2.  Relate tends in the availability of these Asset, and the annual
    benefits flowing from them, to

> present **material** and **cultural** values provided annually to each
> referent Tribe. This
>
> assessment will consider the range of indicators discussed previously.

3\. Examine the effect, if any, of Lower Snake project alternatives on
Tribal Assets, and

consequently, on the annual stream of values they produce at benchmark
time periods.

> **2.1.6 Differing Concepts of Value -- a Cautionary Note**

Economic analysis usually distinguishes between "value in use" and
"value in exchange".

> Since the time of Aristotle onwards it has been traditional to
> separate the concepts of use value and value in exchange. Value in use
> is not an intrinsic quality of a commodity, but its capacity to
> satisfy human wants. Value in exchange is the worth of a commodity in
> terms of its capacity to be exchanged for another commodity.[^83]

Webster variously defines "intrinsic" as:

> Private, secret: belonging to the innermost constitution or essential
> nature of a thing: being good in itself or irreducible.[^84]

Since the late nineteenth century, economic models have principally
addressed exchange values associated with the "allocation of scarce
resources to specific uses rather than searching for intrinsic
value"[^85] - and that has been the mainstream focus of work within the
Lower Snake Drawdown Regional Economic Workgroup (DREW).

From the perspective of affected tribal cultures, analytical constructs
of value must differ somewhat. Even in contact times, Tribes also had a
well developed system of exchange values, although these were not
initially very understandable to non-Indians.

> One of the most erroneous conceptions perpetrated by the whites is
> that the aboriginal Indian had no sense of values. \...(T)he earliest
> white traders were delightfully shocked at the amazing "bargains" they
> were able to make with the natives\....
>
> The whites, of course, judged the situation solely on the basis of
> their own tradition of values that had evolved in a utilitarian world
> of the age of metal and glass. Viewed objectively, the aboriginal
> reaction to first contacts with European trade goods was not
> particularly strange at all. From a practical standpoint, the first
> iron tool obtained by a village was worth more to the inhabitants than
> any number of furs. Furs could be replenished by their own efforts at
> any time, but an object of iron, never. In this sense, native-white
> contact was a meeting of opposites. Each valued highly what the other
> possessed, and neither much valued what the other desired. However, as
> soon as the Coastal Indians became aware of the quantity and variety
> of goods that the whites had at their command, and the great value
> that the whites ascribed to furs, they took advantage of the
> situation\--advantage, that is, from their own point of view.
>
> Naturally enough, the natives bargained in terms of the traditional
> values of their cultures. And fortunately for the profits of the fur
> trade, these cultural values were nonutilitarian in many respects\....
>
> The Indians, then, not only possessed different sets of values than
> the white man, but in many instances clung to these tenaciously, long
> after the [raison d'etre]{.underline} had ceased to exist.[^86]

Even today, where the tribes participate in "white man's market
exchanges" voluntarily - or where such participation is sometimes
forced - differing value perceptions based on differing culture still
exist. In particular, tribal cultures share a strong concern for
intrinsic values - both use and nonuse related - with economists of the
previous century.

> What kind of foods did God set aside for you, reserve for you
> (non-Indians)? Like salmon and deer meat and the roots and berries
> were set aside for us. That's what we still obtain yet. We still go
> out and get it. And that's what we eat today. And that's what we use
> for communion with God.[^87]
>
> It's just that salmon are part of the country, they're part of the
> environment. They belong here as much as Indians belong here. And in
> that way they complement each other. They've become part of us because
> it's what we depend on to live\... . You know, it becomes a part of
> the person's or peoples' culture.[^88]

These differences in perception of value pose strong risks that
economists may culturally encapsulate project impacts on tribes. Too
often in the past, economic valuation models have misrepresented tribal
effects and damaged tribal interests. Alternatively, tribal values have
not been treated substantively - and such values have been marginalized
and appendicized in related reports[^89]. This has been damaging to
reasonable consideration of tribal effects.

Our present report attempts to improve on this adverse record -
combining economic construct from both historic and contemporary
economic reasoning - and merging it with value constructs considered
relevant by the five subject tribes.

> **2.1.7 Assessing Tribal Circumstances and Benefits - A Summary of
> Method**

Following the discussion of this section, the procedure used here will:

1\. Identify changes in Tribal material and cultural circumstances from
pre-treaty to present

> times for each referent Tribe. Particular attention will be paid to
> the terms of each Tribe's
>
> Treaty (s) as they relate to assessment issues for Lower Snake project
> alternatives.

2\. Identify Tribal Trust Assets that may be affected under Lower Snake
project alternatives.

> These trust assets are the pathways which connect impacts of the Lower
> Snake project to its
>
> effects on the five referent Tribes. Tribal Trust assets assessed will
> include salmon - and
>
> other wildlife and plants where impacts may be identified. Each
> project alternative's
>
> potential impact on "the overall wellbeing of the study Tribes" will
> be considered.

3\. Develop **cultural and material indicators** of Tribal wellbeing to
assess Tribal

> circumstances and potential project-related impacts. These indicators
> will consider the
>
> cultural, nutritional and material role of salmon, and if possible, of
> wildlife, of roots and

berries; traditional Tribal settlement and use areas; and Tribal
language. They will also

assess Tribal poverty, unemployment and income. Contemporary
circumstances and potential

project impacts related to Tribal health will be examined, using a
hypothesis developed

during assessment of Yakama on-reservation deaths between 1888 and 1964.

> 4\. Consider these indicators of Tribal circumstances and potential
> project effects using a
>
> "hierarchy of needs" framework that bounds the interrelationship
> between land, water,
>
> natural resources, beneficial activities - and the physiological,
> social and personal wellbeing
>
> of the Tribes and their members.
>
> **3.0 Assessing Potential Tribal Effects of Lower Snake River Project
> Alternatives**

Tribal perspective and EPA guidance are congruent in considering
historic causal trends important to description and comprehension of
existing circumstances - and to assessment of cumulative effects (see
previous). In this section, discussion of the evolution of each Tribe to
its present condition is provided. Particular attention will be paid to
changes in the indicator characteristics identified in prior
methodological discussion.

**3.1 Linkages Between Lower Snake River Project Alternatives and
Referent Tribes**

The principal effects of the Lower Snake River Project alternatives will
relate to effects on fish (primarily salmon), on traditional Tribal
villages and other culturally important locations, and on usual and
accustomed fishing, hunting and gathering areas (recall Section
2.1.2.2). Potentially, these direct effects will relate to the levels of
food available under each project alternative, to villages, burial sites
and/or to fishing/hunting/gathering areas uncovered should the four
project reservoirs be drawn down[^90].

> **3.1.1 Securing Tribal Assets**

In order to understand linkages between potential project actions and
Tribal assets, one must first understand the manner in which the Tribes
secured and used the resources they depended on. Both in historic times
and today, the Tribes of the Columbia/Snake basin have depended on two
interrelated land areas: a "home territory" area where they established
(usually permanent) winter villages - and "usual and accustomed"
fishing, hunting and gathering areas which were partly inside the
Tribes' home territory and partly outside it. Traditionally, groups
within each present-day Tribe selected a home base within their
territory to provide shelter from the extremes of winter weather, for
proximity to winter food sources (such as some forms of game), and for
security from attack from any potentially hostile outsiders.

Each Tribal group went forth in the spring from these base areas to its
usual and accustomed fishing, hunting and gathering areas - visiting
each when the fish were running, the game were available and the roots
and the berries were ready for taking. These visits made up the
**seasonal round** for each tribal group. They were determined by where
and when each resource was available, and by the mobility of each Tribal
group to move in time from harvest area to harvest area, and to return
to their base at the onset of winter. Detail for each Tribe will follow.
The point to understand at the outset is **it was the interaction
between base areas and those areas**

**essential to each Tribal group's seasonal round that provided for the
material survival needs of the Tribes**.

> \...nothing could be more stable than the repetition, year after year,
> of the same shifts of residence from winter village to a round of
> summer fishing camps, invariably at the same sites and in the same
> sequence. [^91]

All base areas and many of the usual and accustomed harvest places were
within the territories considered "to belong" to each particular Tribe.
But some "usual and accustomed" harvest places were not. Relationships
between tribes in the referent area were generally characterized by
cooperation and friendship, save for some adjacent areas between the Nez
Perce and Bannock peoples. For example:

> \...people like the Nez Perce accepted friendly visitors into their
> territory and freely shared access to their resources. Chalfant notes:
>
> The Nez Perce invited many tribes to share the harvest of their
> (camas) grounds on Camas Prairie and at Weippe, Idaho. These groups
> included: Cayuse, Umatilla, Yakima, Flathead, and even Crow, Spokane,
> and Colville Indians\.... The Umatilla, Cayuse and Yakima used to fish
> along the Wallowa River in summer...[^92]

Similarly, the Nez Perce regularly fished at Celilo and other sites
within the territory of downriver tribes. Lane, Lane and Nash have
summarized these relationships.

> While there was considerable freedom in use of fishing places in
> widely dispersed locations, it is important to understand the
> aboriginal tenure system. Like other Plateau people, the Sahaptans had
> clear concepts of territoriality. These included the right to live in
> the territory and the right to use the resources of that territory
> according to accepted rules and precedents. These rights were
> recognized and respected by others.
>
> The missionary Asa Smith, writing of the Nez Perce and Cayuse in 1840
> \...noted that respect for ownership rights in resources was vital
> because of the limited carrying capacity of the local environments. At
> the time he observed that because of the uneven distribution of
> certain kinds of resources, it was advantageous for bands to share
> particularly favorable resource areas.
>
> Within their own territories, people had special rights to particular
> places based on customary occupation and use. These rights were most
> clearly defined with respect to living sites and major fishing places.
> With respect to fishing places, rights of primary use and
>
> responsibility for regulating activities relating to the fishery
> rested with the recognized owners.
>
> Visitors wishing to use a fishing place in the territory of another
> group generally were expected to obtain permission from the owners
> unless such permissive use had become established as customary through
> habitual use over time. Permissive use might be solicited by indirect
> request; often an invitation was proffered by the owners\....
>
> Sharing enabled people to cope with the ever present problem of
> recurrent local shortages. It also provided means to more efficient
> and more equitable resource use by providing access for large numbers
> of people to particularly favorable resource areas. \...
>
> One of the results of these patterns was that **a group might have
> usual and accustomed fishing places [outside]{.underline} as well as
> inside their own territory**. (our bolding and underlining)[^93]

In fact, this is precisely the case for the Nez Perce, Umatilla, Yakama
and Warm Springs tribes, who carefully protected their "usual and
accustomed" harvest places in each of their Treaties.

The Shoshone and Bannocks were known as "roaming tribes", and also
sought to retain access to off-reservation "hunting" areas upon which
they had always depended.

> **3.1.2 Linkages between Tribal Fishing and the Lower Snake River
> Project**

Some of the "usual and accustomed places" of the Nez Perce, Yakama and
Umatilla tribes fall within the lower Snake River corridor. Some are
located above it. Some are below it. The Confederated Tribes of the Warm
Springs Indian Reservation (at least) fish for Snake River salmon runs
in the mainstem Columbia River. Consequently, all four tribes will be
affected by project-related changes in levels of lower Snake River
salmon, steelhead and sturgeon. This will, in turn, increase or diminish
Tribal assets, and affect the material and cultural wellbeing of the
four CRITFC Tribes. The Treaty rights of the tribes stand undiminished,
but the degree of consistency between federal action and federal
responsibility will similarly be affected by selection of alternatives
currently being considered along the lower Snake River.

Traditional fishing places of the **Shoshone-Bannock Tribes** are
protected by the Fort Bridger Treaty, as interpreted in [State of Idaho
v Tinno]{.underline}. While there was some communication between
Shoshone-Bannock with the tribes to the north and the west, sharing of
traditional fishing places between these groups was not the norm. Lane &
Lane Associates and Nash again quote Chalfant.

> Permission to use their (Nez Perce) lands was never granted to the
> Shoshonean tribes to their south. That the Shoshoni, Paiute and
> Bannocks were traditional enemies and in a state of war with the Nez
> Perce from time immemorial to late historic times is well known.[^94]

Consequently, potential linkage between alternative project actions on
the lower Snake River and the Shoshone-Bannock Tribes must depend on
whether affected salmon, steelhead and sturgeon stocks proceed
sufficiently far upriver to reach traditional harvest places of the
Shoshone-Bannock peoples. This question is easily resolved. While the
area of primary interaction between Nez Perce and Shoshone-Bannock
peoples has been periodically contested, scholars have identified
significant Shoshone-Bannock historic presence throughout the area of
the upper Salmon River, its southern tributaries - and thoughout most of
the Weiser River drainage[^95].

> Fish constituted an important part of Northern Shoshone and Bannock
> subsistence. Trout, perch and other fish were found in streams
> throughout the region, but the most important fish, the salmon, was
> restricted to the Snake River below Shoshone Falls, to the lower Boise
> and Weiser rivers, and to the southern tributaries of the Salmon
> River, including the Lemhi.[^96]

Leaving the issue of exact determination of boundaries to others, we can
safely conclude that Snake River salmon, steelhead and sturgeon
potentially affected by Lower Snake River Project alternatives swim
upstream into Shoshone-Bannock traditional territory and are potentially
accessible at Shoshone-Bannock traditional fishing areas. This
conclusion holds for time periods prior to construction of the dams of
the Middle Snake, and for periods thereafter.

> **3.1.3 Linkages between Usual and Accustomed Tribal Areas and Project
> Reservoirs**

Finally, we turn to the issue of **tribal presence** **within** the
lower Snake River reservoir

areas. The reservoir influence of the Lower Snake River Project goes
from about four miles above Lewiston on the Snake and Clearwater Rivers
downstream to the area of Ice Harbor Dam, near the confluence of the
Snake and Columbia Rivers.

Lane, Lane and Nash have identified the importance that water courses
held for the tribes.

> The Nez Perce were organized and linked to territories in named winter
> villages which were usually located where tributary streams entered
> mainstreams. In turn, all the villages along a mainstream or a section
> thereof were linked, more or less as a watershed unit. Often the name
> of the watershed, the group of villages, and the most important
> village on the watershed had variants of the same name.
>
> In addition to these named local groups, there were larger units
> which, whether or not they had political or isolating social
> structure, did have geographic coherence. There may have been six such
> units (along the Snake below the Clearwater, on the Grande Ronde, on
> the Salmon, and on the Snake above the Clearwater).[^97]

Thus, along many stream sides, Tribal fishing sites and Tribal villages
were congruent.

> Nez Perce villages and fisheries extended down the Snake on both banks
> to the vicinity of the mouth of the Tucannon River. Beyond this, there
> were other groups of people along the Snake and the Columbia most of
> whose descendants retain treaty fishing rights. \...
>
> The [Palouse]{.underline} lived on the north bank of the Snake River
> below Nez Perce territory. These people were Sahaptin speakers and
> they were closely related to the people living in the villages farther
> down the north bank of the Snake River. Chalfant, who investigated
> them for the Department of Justice during the Indian Claims Commission
> hearings said: "\...the Palus no longer exist as an identifiable
> group\..."
>
> The Palouse today are also represented in the Confederated Tribes of
> the Umatilla Reservation although they are not formally recognized.
> The Palouse were supposed to be included in the Yakima Treaty of 1855.
> There were Palouse present at the signing of the treaty but some of
> the Palouse people were uninterested in or hostile to the treaty
> making. Between 1855 and 1858 they joined with Kamiakin in hostilities
> against the U.S. Defeated at the end of this period, they ceased to
> exist as an identifiable group and dispersed as landless refugees.
> Many drifted about the country refusing to settle on a reservation.
> Others settled with friends and kin on the Colville, Yakima, Umatilla
> and other reservations.
>
> The territory of the Palouse centered about the lower Palouse River
> and their major village was at its mouth\....
>
> The [Walla Walla]{.underline}, sometimes called the Wallula, lived
> along the Walla Walla River, along the Columbia near the mouth of the
> Walla Walla, and a short distance downstream along the Columbia. They
> also occupied territory downstream from the Nez Perce on the south
> bank of the Snake River and perhaps on the north bank as well. Perhaps
> because of the importance of fishing in their lives, they seem not to
> have moved about a great deal\....They occupied the same territory
> from when they were first encountered by Whites until they were
> removed to the Umatilla Reservation. Even after the treaty of 1855, a
> very large number remained scattered along the Columbia at their
> traditional fishing sites. \...
>
> The people living downstream from the Palouse along the north bank of
> the Snake to its juncture with the Columbia have been variously named
> and identified. Some writers include them with the Palouse. Others
> linked them to or included them with the Walla Walla. Some writers set
> them apart with other names. Considering those who treat them as a
> separate group, three names are used by one authority or another.
> These are Wanapam, Wauyukma, and Walula.
>
> \...the juncture of the Snake and the Columbia was the location of
> major fisheries which were used by many surrounding peoples\....
>
> The [Cayuse]{.underline} had access to the Clearwater anadromous fish
> runs although they did not fish along the Snake and the Columbia to
> the same extent as their Sahaptin neighbors. At the time of European
> contact, they were living in and around the northern part of the Blue
> Mountains, close to but not on the Columbia River. They were in close
> and friendly contact with their Sahaptin neighbors, particularly the
> Nez Perce\... .
>
> Evidently Lewis and Clark met them on the Snake River. They called
> them the Ye-let-po and placed them on We-ar-cum (Asotin?) Creek.
>
> The [Umatilla]{.underline} \...seem to have occupied lands about the
> mouth of the Umatilla River and along the south bank of the Columbia,
> from above the mouth of the Umatilla, down to the vicinity of Willow
> Creek (Oregon). Ray places them on the north bank of the Columbia as
> well\....
>
> The term [Yakima]{.underline} had been known (to non-Indians) since
> the early nineteenth century. \... Cox stated that:
>
> The Yackamans are a numerous tribe, who inhabit the lands on the
> northern banks of the Columbia, from its junction above Lewis' River
> (the Snake) until some distance above a river which flows from the
> northward, and is called after the name of the tribe. \...
>
> The [Tenino]{.underline} were people who shared a common Sahaptin
> dialect and lived, in part, along the Columbia from Celilo Falls
> upstream. On the south bank, they occupied at least the downstream
> watersheds of the Deschutes and John Day rivers. On the north bank,
> they occupied an indefinite span of country upstream from Celilo
> Falls. \...
>
> The [Wishram]{.underline} and the [Wasco]{.underline} were closely
> related people living at the Dalles. The Wishram lived on the north
> (Washington) side and the Wasco lived on the south side of the
> Columbia:
>
> These Indians, most of whom are now on the Yakima Reservation,
> Washington, \...are known by their Yakima and Klickitat neighbors
> (tribes of the Sahaptin stock) as Wu'cxam, which, in its anglicized
> form of Wishram, or Wishham, is their common appellation today.
>
> The [Klikitat]{.underline} were the westernmost Sahaptins speaking a
> dialect closely related to that of the Kittitas (Upper Yakima) and
> Yakima.[^98]

At Treaty times, discussion with these individual tribes was not pursued
on a "group by group" basis. Nor were tribes' "home territories"
universally respected by US treaty negotiators. Rather, the US
government - backed by its military, and the hostility of non-Indian
residents - "consolidated" the tribes identified in the immediately
preceding citation into four main Reservation groups. These
"consolidated Tribal groups" incorporated Indians from previously
existing bands and tribes - and afforded "treaty status" to four such
groups, called - The Nez Perce Tribe, the Confederated Tribes of the
Yakama Indian Nation, The Confederated Tribes of the Umatilla Indian
Reservation, and the Confederated Tribes of the Warm Springs Reservation
of Oregon[^99]. Many original bands were included and/or forced into
these groups. Other bands were left out - intentionally or otherwise.
Table 2 provides an outline relating contemporary Treaty Tribal
organization for the CRITFC tribes to preexisting Tribal bands and
groups - based on information from Kappler.[^100]

Table 2

[The Relationship Between Present Tribal Treaty Organization and
Pre-Contact Tribal Groupings]{.underline}

[in the Lower Snake Reservoir Area]{.underline}

Other Tribal Groups

[Present Tribal Treaty Organization]{.underline} [Original Tribal Groups
Included]{.underline} [Present/ Not Present]{.underline}

The Nez Perce Tribe Nez Perce Indians living in The Wallowa bands of Nez

Idaho and downstream along Perce were forced from

the Snake River. their lands in 1863. After

the Nez Perce War, some of

these Indians returned to

the Nez Perce Reservation,

some were exiled to the

Colville Reservation, some

returned to the Wallowa

country and some died in

the East or disappeared.

The Yakama Indian Nation. Yakima. Other original tribal groups

Palouse. were also included at

Pisquouse Yakama.

Wenatshapam

Klikitat Today, Palus also reside on

Klinquit the Umatilla Reservation

Kow-was-say-ee and on the Colville

Li-ay-was Reservation.

Skin-pah

Wishram

> Shyiks
>
> Ochechotes
>
> Kah-milt-pah
>
> Se-ap-cat

The Confederated Tribes of the Walla Walla. Palus also reside on this

Umatilla Indian Reservation. Cayuse. Reservation.

Umatilla.

The Confederated Tribes of the 4 bands of Walla Wallas

Warm Springs Reservation of (Taih, Wyam, Tenino &

Oregon. Doc-spus).

3 bands of Wascos

(Ki-gal-twal-la, Dalles &

Dog River.)

In sum, the evidence considered here suggests the following.

1\. Ancestors of at least three of the CRITFC Tribes were **accustomed**
to living in fishing

villages and **had fishing territories** within the range of influence
of the four Lower Snake

reservoirs.

> **Nez Perce** villages and home fishing territory extended downstream
> on the Snake River to the confluence of the Tucannon and Snake
> Rivers - an area presently influenced by the reservoirs of **Lower
> Granite, Little Goose** and **Lower Monumental dams**.
>
> The **Walla Wallas**, now part of the Confederated Tribes of the
> Umatilla Indian Reservation,
>
> occupied territory and fished on the south side of the Snake River,
> downstream from Nez Perce territory - and may have fished on the north
> side of the river as well. These areas are presently influenced by the
> reservoirs of **Lower Monumental** and **Ice Harbor dams**.
>
> The **Palouse** (or Palus) home territory was centered at the
> confluence of the Snake and Palouse Rivers. Palouse peoples are one of
> the listed tribes and bands of the Yakama Indian Nation, and also live
> on the Umatilla Reservation today. Their original territory is within
> the range of influence of the reservoirs of **Lower Monumental** and
> **Ice Harbor dams**.

2\. Tribes now associated with the Nez Perce Tribe, the Confederated
Tribes of the Umatilla

Indian Nation (CTUIR), the Yakama Indian Nation and the Confederated
Tribes of the Warm

Springs of Oregon cooperate in their fishing - and did so in ancient
times. It was

consequently **usual** for these tribes to fish in each others'
territory - and they were

**accustomed** to doing so. It is reasonable to assume that such
cooperation included their

fisheries of the Lower Snake River. In addition, the **Cayuse**, now
part of the CTUIR, were

accustomed to fish with the Nez Perce on the Clearwater River. These
joint fishing areas may

also be within the influence of the reservoir associated with Lower
Granite Dam.

Consequently, it can be reasonably concluded that the **usual and
accustomed fishing**

**villages and fishing places** of the four CRITFC tribes are
distributed throughout the

approximately 140 miles of river presently inundated by Lower Snake
reservoirs.

3\. Some tribal groups were scattered during the mid-1880's treaty
making process - and

reliance on ethnicity and kinship lines would identify a broader
geographic distribution of

persons whose tribal relatives "once lived on the Lower Snake". Some of
these peoples will

be represented in this analysis through association with study tribes.
Others will not be.

Finally, while there are some oral reports of particular
Shoshone-Bannocks and Nez Perce fishing cooperatively, we have found no
specific citation confirming that Shoshone- Bannock regularly fished
within the confluence of the four Lower Snake reservoirs that are the
subject of this report. Given this lack of evidence, documentation of
the less-than-cooperative overall relationship between the
Shoshone-Bannock and the Nez Perce, and the distance from the Salmon
River country to the Snake River below Lewiston, it is considered
unlikely that the Shoshones or Bannocks maintained villages or
traditional fishing places within the reservoir areas of the four Lower
Snake River dams discussed here.

> **4.0 Circumstances and Impacts on Nee-Me-Poo (Nez Perce)**

EPA guidance defines cumulative impacts as effects of a project, when
added to the impacts of other past, present and reasonably foreseeable
future actions (at Note 17). This section provides information on past
impacts and related present circumstances on Nee-Me-Poo (We, the
People), the first two elements of three required for cumulative effects
assessment. Reasonably expected future effects on Nee-Me-Poo will be
discussed in a following project impacts chapter of the report.

> **4.1 Accustomed Tribal Areas and Seasonal Harvest Rounds of
> Nee-Me-Poo**

At contact times, the Nez Perce occupied a home territory that covered
parts of Idaho, Oregon and Washington, and has been estimated between 13
million[^101] and 17 million acres[^102]. They exploited resources over
a far greater area, conservatively estimated at 147 million acres.

> (The Nez Perce) customarily exploited a much larger territory
> conservatively set at 230,000 square miles. They ranged from Kettle
> Falls in the north to Burnt River and American Falls in the south and
> from Willamette Falls in the west well out into the Plains, certainly
> as far as the territory of the Crow, and probably much farther.[^103]

Tribal historian Allen P. Slickpoo and Deward Walker talk of Nee-Me-Poo
as follows:

> Aboriginal Nez Perce (home) territory has been estimated at 13,204,000
> acres. We probably were the largest group in aboriginal Idaho and our
> settlements ranged from thirty to 200 individuals, depending on the
> season and the type of social group. We were divided into the upper
> and lower Nez Perces, primarily on the basis of dialect differences.
> The upper Nez Perces were somewhat more oriented toward a Great Plains
> life style. \...
>
> Along with their travels, that included parts of southern Idaho,
> eastern Oregon and Washington, as well as down into the Columbia
> River, the Great Plains soon became a well-
>
> traveled area, although their permanent home became the northcentral
> part of what is now the State of Idaho. \...
>
> Nez Perce territory spanned the Clearwater River and extended to the
> south and middle forks of the Salmon River drainage basins. The deep
> canyons cut by the Clearwater, Salmon and Snake rivers brought about
> extensive seasonal migrations for food.[^104]

The Nez Perce traveled through their usual and accustomed territories in
search of food, taking each resource in its appropriate time and place.
Salmon was the mainstay of their existence.

> (T)he Nez Perces were impressively dependent on aquatic foods in the
> aboriginal period\.... For example the Nez Perces regularly took the
> following types of fish: chinook, silver, dog and blueback varieties
> of salmon; Dolly Varden, cut throat, brook, lake, rainbow, and
> steelhead varieties of trout; several kinds of suckers and white fish,
> sturgeon, squaw fish, lampreys, and an unidentified but numerous
> minnow\.... The four types of salmon mentioned were the most important
> and best liked fish\....
>
> Given the size of this (salmon) catch and its consequent importance
> for the Nez Perce diet, it is not difficult to understand why downward
> fluctuations in the size of runs were critical. As we have seen for
> the Plateau generally, such fluctuations were one of the primary
> reasons for Nez Perce fishing in other parts of the Plateau as well as
> for other Plateau groups fishing in Nez Perce streams. As we have
> seen, also, such normal fluctuations were one of the primary
> stimulants of trade and travel in the aboriginal Plateau. Accumulating
> evidence suggests that this is a very ancient pattern, long antedating
> the appearance of the horse.[^105]

The Indian Claims Commission, in 1967, concluded:

> The Principal fish (of the Nez Perce) was salmon. This was a very
> important food item.[^106]
>
> \...the (Nez Perce) economic cycle can generally be summarized as ten
> months of salmon fishing and two months of berry picking, with hunting
> most of the year; that the principal items of food in the diet of the
> Nez Perce were roots, salmon and other fish and game\..."[^107]

Lane, Lane and Nash (1981a) note:

> Fishing was so important to the Nez Perce that all villages were
> located at fisheries. Spinden, who made the first comprehensive study
> of Nez Perce culture, writes:
>
> \...As remarked before, they (villages) were situated on the banks of
> streams or on islands in the streams. A favorite location was near a
> riffle where salmon could be caught\.... In the uplands the Nez Perces
> never built permanent villages, though in a few places, where camas
> and kouse were abundant, they constructed temporary summer
> camps.[^108]

The Nez Perce also took other resources, each in its appropriate time
and place. Historian Slickpoo and Deward Walker provide a flavor of the
gathering of roots and berries.

> The various roots we gathered ripened in the early spring in the lower
> elevations of the Lewiston area, but roots in areas such as Oo-yipe
> (Weippe) sometimes did not ripen until mid- August. Our basic (root)
> foods were kehm-mes (camas) bulb, the thlee-tahn (bitterroot), khouse,
> tsa-weetkh (wild carrot), and keh-kheet (wild onion). Fruits gathered
> included serviceberries, gooseberries, hawthornberries, thornberries,
> huckleberries, currants and chokecherries. Pine nuts, sunflower seeds,
> black moss, and pine bark were also eaten.
>
> We made our life according to the seasons which we named as follows:
> El-weht (Spring); Ta\--yum (Summer); Sehk-nihm (Fall); A-nihm
> (Winter).[^109]

The Nez Perce calendar reflects this seasonal round of activities. The
calendar displayed in

Table 3 is based on information from Slickpoo and Walker (pp. 30-31),
supplemented by a calendar provided by Leroy Seth, a Nez Perce elder.
Spellings differ, one from the other, as authors attempt to convey the
phonics of the Nez Perce language.

Table 3

**Nimiipum Inmitwit: Nez Perce Year of Seasons**

[Nez Perce Period of the Year]{.underline} [Approx. Non-Tribal
Period]{.underline} [Characteristics of the Period]{.underline}

[WEWXP]{.underline} [Spring]{.underline}

Lah-te-tahl March New life begins. Flowers and plants

begin to blossom.

Keh-khee-tahl April First harvest of keh-kheet roots.

Ah-pah-ahl May High rivers from melting snow. Move

to higher ground to harvest roots.

Bake Up-pa (a loaf) from Khouse.

[TAYAM]{.underline} [Summer]{.underline}

Toose-te-ma-sah-tahl June Continue to dig roots. Blueback

salmon begin to show up.

Khoy-tsahl July Blueback salmon returns.

Tah-ya-ahl August Salmon reach the upper streams to

spawn. Weather is hot.

[SEXNI'M]{.underline} [Fall]{.underline}

Pe-khoon-mai-kahl September Fall salmon runs go up river. Finger-

lings go down-river to the ocean.

Hope-lul October Colder weather. Tamarack needles

are shedding and trees turning color.

Buck deer are running.

Sekh-le-wahl November Leaves shedding and turning color.

Large animals mating.

[ENI'M]{.underline} [Winter]{.underline}

Ha-oo-khoy December Doe carries her young. No hunting

of female game.

We-lu-poop January Cold weather. Snow.

Ah-la-tah-mahl February Hard to build a fire. Freezing

weather.

> **4.2 Natural Capital and Annual Productive Yield of Original
> Nee-Me-Poo Lands**

Viewed from either tribal or non-tribal perspective, the lands and
waters of the Nez Perce traditional territory represented the "natural
capital" which allowed tribal peoples to survive and prosper. In
economic terms, the fish, game, roots, berries and other lifeway
materials produced and sustained by the Land can be viewed as the annual
produce or yield from Nez Perce natural assets. As noted in the prior
section, salmon was the key element of this annual produce. Several
authors have estimated the amount of salmon that may have been taken, on
average, by the Nez Perce in pre-contact times. These estimates have
been based: (i) on salmon's likely role in fulfilling nutritional
requirements of individual Nez Perce; and, (ii) on observations of
tribal catch at various fishing stations.

Hewes[^110] assumed an average person living in the Columbia/Snake
region in pre-contact times would have required 2,000 calories per day
to survive. He further judged that this intake would be supplied daily
by approximately two pounds of food - chiefly salmon, supplemented by
game - as most other foods had relatively low fuel values[^111].
Finally, he conservatively assumed that "somewhat less than one half of
the caloric requirement of the average native consumer" would come from
salmon - and estimated a per capita annual consumption of 365 pounds for
the area[^112]. Craig and Hacker (1940) similarly estimated average
annual per capita consumption of salmon by native peoples in the area at
one pound per day[^113] Hewes arbitrarily adjusted his estimate downward
to 300 pounds per capita per year for the Nez Perce - based on his
assumption that they were less intensive salmon fishers than the tribes
of the mid-Columbia[^114].

Walker identifies additional native uses of salmon, for example for
fuel, and concludes that Hewes' estimates of consumption are low. Walker
estimates a range of possible annual per capita consumption between 365
and 800 pounds for Plateau tribes - and suggests the median of that
range, 583 pounds per capita[^115].

Finally, Swindell (1942) identifies that tribes of the mid-Columbia area
caught fish for trade, as well as for own consumption. A respondent
indicated that each family, having taken care of their own needs, would
catch more than a third more additional salmon for trading
purposes[^116].

For this analysis, we will incorporate conclusions from each of these
earlier authorities. We select Walker's median estimate of 583 pounds
per capita for annual consumption of salmon in the mid-Columbia/Snake
area in the early 1800's and before. Noting that "lower river" Nez Perce
had full access to their own bountiful fisheries on the Snake, the
Clearwater, the Salmon and other rivers - as well as to the abundant
mid-Columbia fisheries - and that "upper river" Nez Perce incorporated a
somewhat greater element of Plains lifestyle - we follow Hewes, and
reduce our Nez Perce annual per capita consumption estimate by 18
percent, to 479 pounds. Finally, we consider the information on
additional catch of salmon for trade on the mid-Columbia to be somewhat
conditioned by the substantial abundances offered in those fisheries -
and increase our "for own use" estimate for Nez Perce by 16.65 percent,
half of the mid-Columbia "for trade" figure reported by Swindell. In
this manner, we arrive at a per capita estimate of annual Nez Perce
catch of salmon in the early 1800's of 559 pounds. Utilizing a Nez Perce
pre-contact population estimate of 5,000 persons from Walker[^117], this
results in an estimated early 1800's annual Nez Perce salmon catch of
2.8 million pounds. If a later (1863) population estimate[^118] of 2,800
persons is referenced, resulting Nez Perce annual salmon catch would be
1.6 million pounds.

While salmon was the Nez Perces' key survival resource, the tribe also
depended on a rich array of game, roots, berries, native vegetables and
medicinal plants, each taken in its own appropriate time and season (see
previous). These resources were provided by the land of the Nez Perce
traditional areas - but no set of data exists to enable direct estimates
of the annual magnitude of pre- contact harvest in these other areas -
for food, for other own use, for trade or for personal enjoyment.
Nevertheless, some inferential estimate of the potential magnitude of
such harvest is useful to our analysis. We will develop inferential
estimates in the following way.

1.  We utilize data from Lane, Lane and Nash (1981), estimating Nez
    Perce fish use at 40

> percent of total food consumption[^119], and our own judgement that
> consumption of fish "for
>
> food" only by the Nez Perce may have approximated 480 pounds per
> capita in pre-contact
>
> times, to estimate total annual food consumption by the Nez Perce at 6
> million pounds.
>
> Salmon was the most important, but not the only fish utilized by the
> Nez Perce.
>
> Consequently, this procedure may produce an underestimate. By about
> 1865, declines in
>
> Nez Perce population, primarily due to epidemics, would have reduced
> estimated total
>
> food consumption to 3.4 million pounds.

2\. Contemporary procedure by the US Bureau of the Census estimates that
families on an

economy budget spend approximately one third of their income on
food[^120]. We will employ

that convention here - and assume that the Nez Perce in pre-contact
times obtained annual

produce of both food and nonfood items from their usual and accustomed
lands and waters

"equivalent to" 18 million pounds of food. By 1865, due to the ravages
of epidemics on the

Nez Perce population, this "equivalence" estimate is reduced to 10
million pounds.

As noted, this estimate is inferential. Recent discussion suggests that
the ratio of food costs to total income may have been falling for
Americans over recent time. On the other hand, the Bureau of the Census
estimates apply to families on a low-cost food budget, while the Nez
Perce of the early 1800's considered themselves well off - with
extensive herds of horses, firs, dentalium ornaments and other valued
possessions. For example:

> The principal wealth of the Nez Perce was horses, and individuals
> possessed as many as 50 to 100 head.[^121]
>
> Wealth in horses was highly respected and our leaders and their
> families had large herds, some as large as several hundred horses.
> Horses were exchanged as gifts, sold, and acquired through raids. We
> had elaborate horse trappings made of rawhide, horse hair, bone and
> antler, and decorated with dyes, porcupine quills, and beads.
> Different saddles were made for men and women and for packing.[^122]
>
> **4.3** **A Broader Perspective of Nez Perce Living Circumstances in
> Pre-Contact Times**

Possessed of adequate food and other resources, tribal health in the
pre-contact times has been viewed in comparatively positive light by
subsequent commentators. Trafzer, writing of the Yakama, and referring
to neighbor tribes as well, notes:

> Prior to their contact with whites, the Yakama suffered severe eye
> ailments and they died from many causes, but few from communicable
> diseases such as smallpox, measles, typhoid, typhus, tuberculosis,
> influenza, or pneumonia. Although the Indians of the Columbia Plateau
> did not live a utopian life before white contact, their standard of
> living was relatively high due to diet, climate, housing, and the
> availability of resources.[^123]

The interconnectedness of Nez Perce traditional lifeways are summarized
by Caroline James.

> The Nez Perce depended on the land of their ancestors for their food,
> shelter, clothing, and comfort of spirit. To the Nez Perce, land was
> and is the everlasting source of life. The cyclic nature of the
> weather dictated the patterns of their lives. In the summer, they
> moved up to the mountains to escape the heat and also to hunt, gather,
> and collect plants and berries as they ripened in different
> elevations. From spring through fall roots were gathered, and in the
> winter, steelhead, salmon and white fish were caught and cooked over
> fires. People's lives revolved around the land; their livelihood came
> from nature. [^124]

Taken together, the evidence presented in preceding quotations indicates
that, in pre-contact times, the Nez Perce peoples substantially achieved
the hierarchical requirements for a satisfactory life identified by
Maslow, and cited by Bachtold.

> In order to reach one's full potential as a person, everyone must have
> succeeded in satisfying (a) physiological needs, (b) safety needs, (c)
> belongingness and love needs, and (d) self-esteem needs, all in this
> order\.... Fully functioning people are those who have been able to
> fulfill basic needs in a secure environment, where their interaction
> with others includes
>
> mutually caring relationships, and they view themselves and are viewed
> by others as persons of value.[^125]

This "fully functional" Nez Perce society establishes the baseline from
which to assess subsequent **cumulative effects** in our report (Figure
2).

> **4.4 Changes in Nee-Me-Poo Circumstances Due to the Treaties of 1855
> and 1863**

By the 1850's, movement of settlers, miners and others into the Nez
Perce territory exacerbated relations with the Nez Perce - and Governor
Issac Stevens was commissioned to draft treaties with the Nez Perce and
other northwest tribes. The objective of the United States was
straightforward - to obtain tribal lands without an outright war. The
response of the Nez Perce and other tribes was mixed. Some tribal
reaction was hostile - preferring to fight the United States rather than
lose the lands of their ancestors. For many, particularly those led by
older chiefs, initial response to treaty overtures was noncommittal.
Other tribal persons, possibly fearing inundation by lawless settlers
and miners, felt that what the United States offered "was all they could
get"- and basically agreed to the US treaty offer. It was this last
"agreeable" group of Indians that Governor Stevens asserted to be Nez
Perce "chiefs" and "leaders", as he signed them up in only a few days in
1855.[^126]

Irrespective of how the Treaty with the Nez Perces of 1855 was arrived
at, it has remained a basis for legal decision making by US courts to
the present day. For the purposes of this analysis, the principal
salient results of the 1855 Treaty were:

1\. The United States obtained title to over 6 million acres of former
Nez Perce territory,

together with a commitment from Nez Perce signatories that the Nez Perce
would live in

peace on their remaining approximately 7.5 million acres of Nez Perce
lands.

2\. The Nez Perce retained title and the rights of exclusive use to 7.5
million acres of their

homeland, **and** retained the right to travel around to fish, hunt and
gather roots, berries and

plants at their usual and accustomed places in the 6+ million acres they
had just **ceded** to the

United States.

The Nez Perce had given up major portions of their homeland - at
substantial material and emotional cost. Yet the Nez Perce signatories
had kept half their territory, together with all their usual and
accustomed fishing, hunting and gathering areas - and it must have
seemed to them that their people could at least continue their seasonal
rounds and maintain their supplies of food. On this basis, they may have
thought that, while less wealthy, the Nez Perce could still sustain a
"reasonable" standard of living - while peacefully sharing their
traditional territory with the whites.

The Nez Perce soon discovered this was not to be. Immediately following
the Treaty of 1855, gold was discovered in Idaho, and whites spilled
onto the reserved Nez Perce lands. Allen Slickpoo, Nez Perce historian,
has combined prior research with his own knowledge.

> Gold was discovered in the neighborhood of Fort Colville and Pierce,
> Idaho, and the announcement of it was made about the time of the
> holding of the council. As was usual on such occasions, hundreds of
> whites came flocking to the gold districts. The rush commenced soon
> after the close of the council. As the routes of the whites led
> through our country, the new intruders committed excesses and outrages
> of the grossest nature upon us. They were not satisfied with stealing
> our horses and cattle, but they claimed the privilege of ravishing
> Indian women and maidens at their liberty.
>
> In 1861 there were no less than 10,000 miners in the Nez Perce country
> prospecting for gold. To attempt to restrain these miners was like
> attempting to stop a cyclone. Treaty stipulations were disregarded and
> trampled under foot. The superintendents with the aid of loyal chiefs
> restrained us from hostile action. But within our heart was growing a
> feeling of distrust, disrespect, and hatred which was to well up into
> a mighty, unquenchable burst of passionate flame\....
>
> In the fall of 1860 our reservation was so overrun with settlers
> rushing to the mines, that, to avoid conflict, an agreement was
> entered into (between some Nez Perce and the United States) \...that
> that portion of the reserve lying north of the Snake and Clearwater
> Rivers, the South Fork of the Clearwater, and the trail from said
> South Fork by the "Weipe root ground" across the BitterRoot Mountains
> was opened to the whites in common with the Indians for mining
> purposes. In defiance of the law, and despite the protestations of the
> Indian agent, a town-site was laid off in October, 1861 on the
> reservation and Lewiston, with a population of twelve hundred, sprang
> into existence\....
>
> It was recommended that further negotiations be entered into with the
> Nez Perce tribe with a view to the purchase of that portion of their
> reservation containing the gold. This region had been represented as
> rugged, barren and mountainous - unfit for civilization - and
> therefore of little use or no value to the Indian.
>
> The Treaty of 1863 was concluded in the valley of Lapwai,\...on the
> ninth day of June, 1863. It was signed only by those of us referred to
> as the Upper Nez Perce group\....
>
> The Upper Nez Perces\...occupied primarily the Lapwai region. The
> Lower Nez Perces\... occupied the Wallowa region\....
>
> Those who actually signed the treaties had no authority to commit the
> (Nez Perce) nation as a whole. This fact has been steadfastly
> maintained by the Wallowa or "non-treaty" Indians from the last words
> of Old Joseph - that he "signed no papers" - to the present time. The
> fact is further substantiated by a Court decision made in 1901.[^127]

Peterson (1995) confirms many of these observations.

> Each day (in the early 1860's) more prospectors streamed into the
> country. In open violation of the law, many ventured south of the
> Clearwater into Salmon River country. Soon infringements became
> flagrant, none more so than the establishment of Lewiston, a town that
> boomed into a thriving trading center at the confluence of the Snake
> and Clearwater rivers, smack in the heart of sacred Nez Perce
> land\....
>
> Soon (1863) government officials began pressing the Nez Perce for
> access to even more land, hoping to legitimize the trespasses at
> Lewiston and in the mining regions.[^128]

A letter by Many Wounds, great grandson of the legendary Nez Perce chief
Red Grizzly Bear, to the Senate Committee on Indian Affairs provides
further information.

> Their (the US 1863 treaty negotiators) treacherous scheme was to
> execute a new treaty, under color of legality or under a sham
> agreement to execute such a new Treaty, the purpose of which was to
> limit the reservation of the Nez Perce People as to permit the miners
> to hold on to the gold-bearing lands. The Indians did not wish to give
> up their Salmon River rights, any more than Chief Joseph desired to
> yield up his Wallowa country. They therefore had to devise ways and
> means for getting such a new treaty into existence as would dispossess
> the Indians of the gold lands and thus oblige the U.S. Government to
> confine the Indians to their restricted confines which it was their
> wicked design to hem them inside of. Pursuant to these ideas, these
> mischievous and unscrupulous factors got together a few Indians whom
> they styled "head men", all of whom were of the upper Nez Perces,
> lived tributary to the Christian Missionary region about Spalding,
> Idaho, and many of whom were styled "head men" for the special
> occasion; and dealing with the un-representative make-believe chiefs,
> they purported to have made a Treaty with the whole Nez Perce People,
> and by it - the false and graft contract called the Treaty of 1863 -
> they pretended to have bought from the whole Nez Perce People, their
> homes and hunting and fishing grounds.[^129]

Liljeblad (1972) confirms this observation.

> The Nez Perce scrupulously kept their treaty obligations and made
> far-reaching concessions to the white intruders, but Indian
> conciliation could not keep pace with the influx of white settlers who
> became increasingly provocative. By utilizing the rivalry and state of
> disagreement between leaders of the different bands, the government
> commissioners in 1863 succeeded in negotiating a new treaty signed by
> a minority group and reducing the reservation to a fraction of its
> former size, thus forcing the majority of the Indians to give up their
> lands, village sites, and camping places.[^130]

McWhorter adds:

> We shall not dwell on the mock proceedings of this treaty, a travesty
> on national honor. Suffice it to say that for the meager sum of
> \$262,500 an empire was wrested from its rightful owners.[^131]

Finally, Beckam (1998) notes:

> Although relatively isolated from Euro-Americans until the opening of
> the region east of the Cascades to settlement in 1859, the Indians of
> the Plateau were subjected to repeated trespass and carving up of
> their reserved lands.[^132]

The 1863 "treaty" reduced the Nez Perce reservation lands from 7.5
million acres to 760,000 acres - so that, within a time span of 8 years,
the Nez Perce lost almost 90 percent of their home territory, some 12
million acres. The US "promise" of tribal access to usual and accustomed
fishing, hunting and gathering areas was not affected by the 1863
"treaty" - and the right of access to springs and fountains in their
ceded areas was added. However, for those Nez Perce that had hoped the
1855 Treaty would allow them to live reasonably, and at peace with the
whites, events in the following years - and the 1863 "treaty" itself -
must have disabused them of such ideas.

In 1873, a limited area was reserved for the Wallowa Nez Perce in the
Wallowa Valley by executive order - but the clamor from whites in Oregon
became so great that the President rescinded this order two years
later[^133]. As a result of the 1863 "treaty" and the rescinding of Nez
Perce reserved land in 1875, the Wallowa Nez Perce, led by Looking Glass
and Young Joseph, became engaged in the conflict sometimes termed "Chief
Joseph's War". The Nez Perce loss of land resulting from the Treaty of
1855 and that of 1863 are illustrated in Figure 3.

> **4.5 Further Allotment of Nez Perce Lands - To Tribal Members and to
> Whites**

Attempts by US citizens to gain more tribal lands and resources at Nez
Perce, and elsewhere among Northwest treaty tribes, did not stop after
the 1850's and 60's. As Hunn notes:

> The settlers' demands for more and more land led to the passage of the
> Dawes' Severalty Act (a.k.a., General Allotment Act) by Congress in
> 1887. The pious justification of this abrogation of treaty guarantees
> was that it would encourage the Indians' transition to a civilized way
> of life by virtue of the alleged moral force of private property
> ownership, a powerful element of the "liberal" political ideology of
> the day. The hidden agenda was clearly otherwise. All reservation
> lands remaining after each enrolled tribal member received his or her
> 80 acres of farmland or 160 acres of grazing or timber land was to be
> declared *surplus*. The government was then authorized to buy this
> from the tribes for distribution by sale or homestead title to the
> citizenry at large. Furthermore, the Indians' allotted acres - after a
> period of up to twenty-five years in trust status - could be converted
> to *fee patent* ownership, that is, their lands could be freely bought
> and sold.[^134]

Nez Perce tribal historian Slickpoo confirms these observations.

> During the 1880's a growing hostility toward the reservation system
> kept growing. Whites objected to reservations largely because they
> blocked off large land areas from white exploitation. In time Congress
> yielded to the white pressures and in 1887 passed the Dawes Act. Under
> this act, the president could, whenever he saw fit, divide up a
> reservation, and give each member of the tribe on that reservation a
> certain number of acres. Upon making a choice (of land) the individual
> was to receive a fee patent which stipulated in part that the land
> would be held in trust by the United States government for twenty-five
> years. It was felt that twenty-five years was all that was necessary
> for Indians to learn how to live more like whites, to adopt white
> customs, and in short, to become "responsible citizens".[^135]

However, the whites were not prepared to wait 25 years to obtain more
tribal lands.

> The Burke act in 1906 again amended the Dawes act. This act provided
> that the Indian holding an allotment would not become a citizen, nor
> fall under (the protection of) the civil and criminal laws of state or
> territory until his trust patent had been exchanged for a fee patent.
> However, the mandatory twenty-five year waiting period was removed and
> the new act stipulated that any time the Secretary of the Interior
> felt that an individual was capable of taking up the responsibilities
> of citizenship, the trust patent could be exchanged for a fee
> patent\....
>
> Many of our people lost the trust status of their allotments because
> of the "forced patent" clause. Even today it is questionable whether
> such lands were taken from us by voluntary or involuntary
> methods.[^136]
>
> The Dawes Severalty Act of 1887 became the means for the most
> significant assault on tribal land tenure of any measure since the
> ratification of treaties and cession of aboriginal homelands in the
> 1850s and 1860s. Allotment was another variant of the scheme of
> consolidating Indians, reducing their land base, and increasing
> government control and oversight over their activities.[^137]

In 1893, the US government obtained 542,000 acres of Nez Perce "so
called" surplus tribal land[^138] - reducing Nez Perce ownership of the
lands within their Reservation boundaries to less than one million
acres.

> On November 8, 1895, President Grover Cleveland declared the Agreement
> of 1893 to be in effect and ten days later the unallotted lands were
> opened to white settlement. The subsequent rush for homesteads could
> be described as somewhat similar to the Oklahoma land rush when the
> Indian Territory was opened to homesteading.[^139]

The adverse effects of the Dawes Act upon the Nez Perce continued well
into the present century. Non-Indians continued to obtain Nez Perce land
from fee patent holders, until, by 1976, they held the greatest part of
the lands within the 1863 boundaries of the Nez Perce reservation
(Figure 3).

As of 1976, the Nez Perce owned only 175,000 acres[^140] within their
Reservation boundaries - **approximately one percent of their
traditional homeland**. Further, due to the Dawes Act, these lands were
discontinuous, and checkerboarded within the 1863 reservation boundaries
(Figure 4). This further impaired the ability of the Nez Perce to
initiate resource protection programs and economic development projects
that might benefit Nee-Me-Poo.

We conclude that cumulatively, over the period from 1855 to the early
1980's, **virtually all of the wealth associated with lands of the Nez
Perce home territory has been transferred to non-Indian residents of the
region**. Even using the reduced area under the 1855 Treaty as a basing
point, by the early 1980's, only 2 percent of these lands remained in
Nez Perce hands. These transfers of assets from the Nez Perce to
non-tribal citizens of Idaho, Oregon and Washington have been variously
effected through Treaty negotiation, by unilateral action of the US
Congress, by misrepresentation and subterfuge, by breaking promises to
the Nez Perce, and by the outright application of threat and force. They
have enabled non-Indians to develop vast agricultural areas, to generate
extensive amounts of cheap electricity and have supported lucrative
forest and minerals based enterprises. They have left the Nez Perce
peoples destitute.

> **4.6 Nez Perce Access to Usual and Accustomed Fishing, Hunting and
> Gathering**
>
> **Areas**

The Treaty of 1855 guaranteed Nee-Me-Poo both exclusive use of their
reservation lands, and the right to fish, hunt and gather at usual and
accustomed places outside their reservation boundaries. Prior sections
identify how exclusive use guarantees were breached by US miners and
settlers. Over the time following the Treaty, Nez Perce access to usual
and accustomed tribal resources outside their reservation were similarly
"cut off" - by white settlements, use of public land for grazing,
fencing, and general harassment of Indians whenever they left the
reservation - if, in fact, they were permitted to leave at all. Often,
these actions were supported by local and state government. This result
was not surprising - for US policy was not only to wrest as much land as
possible from the tribes - but also to confine the tribes on what little
tribal land they had left.

> Anglo Americans in the West thought the Indian's fate was the price of
> progress; it was the Indian's problem and none of their own. They
> expected their government to take land from the Indians and give it to
> the whites. They expected, too, more indirect aid in reallocating
> resources, as when federal troops protected buffalo hunters who
> slaughtered buffalo for market and, in the process, made it impossible
> for nomads to continue their accustomed way of life.[^141]

Throughout the latter part of the 19th Century, and much of the 20th
Century, the Nez Perce (and other Stevens treaties tribes) have fought a
losing battle to preserve access to the off-reservation survival
resources that were assured in the Treaty of 1855.

> (Following 1877) the Nez Perce attempted to adjust to their rapidly
> changing world. The rich pastures and fisheries of the Wallowa were
> closed to them. They continued to fish the Salmon river drainage but
> they were increasingly cut off by settlement from old camp grounds and
> fishing sites.[^142]

These cutoffs increased the importance of remaining tribal mainstem
fishing sites[^143]. In this sense, had they been able, the Nez Perce
would have needed to take much more than their estimated treaty times
catch of 1.6 million pounds of salmon from these remaining sites, to
compensate for preemption of harvests of fish, game, roots and berries
at other usual and accustomed sites that were lost. Yet even at mainstem
sites the northwest tribes needed to repeatedly refer to the courts to
beat back attempts to preempt their treaty resource-access
guarantees[^144].

> **4.7 Changing the Production Function for Nez Perce Lands and
> Waters**

Economists describe the manner in which the output of a good or service
and the inputs of capital and labor required to make it are combined as
a **production function**. In early times, the Nez Perce combined their
own efforts with their natural assets - their lands, waters, fish, game,
roots, berries -- to "produce" the foods and other material incomes that
provided the annual basis for their survival as a people.

As the 20th century progressed, not only has Nez Perce access to
traditional fishing, hunting and gathering grounds been greatly
diminished, but where access was secured, non-Indians had often changed
**the production function** for lands and waters upon which Nez Perce
Treaty guarantees depended. Increasingly over time, when Nez Perce came
to the meager number of usual and accustomed places they had left to
exercise their Treaty-protected right to fish, hunt or gather, **they
found the salmon and other resources were no longer there!** Rather, the
land and waters of the Nez Perce traditional territory have been
employed in new productive combinations that grow agricultural cash
crops, support commercial logging and produce electricity **-** but that
have severe adverse consequences for salmon, game, roots, berries and
tribal medicinal plants.

By 1975, available chinook salmon habitat in the Columbia basin had been
reduced to less than half of its original amount[^145]- and associated
annual salmon catches by all fisher groups had fallen to only 1.4
million salmon over the 1987-1991 period[^146]. Conversely, by the end
of the 1970's, over 7 million acres of irrigated agriculture had been
developed in the Columbia Basin[^147] - and an extensive network of dams
to produce hydroelectric energy has been developed.

This **transformation of Nez Perce lands and waters has been achieved
over the objections of the Nez Perce Tribe. It has enriched the
non-tribal peoples of the basin - at the expense of the Treaty-based
resource assets, particularly in river's capability to produce salmon
for the tribe, that the Nez Perce believed they had assured to
themselves in the Treaty of 1855**. This arbitrary transformation of Nez
Perce Treaty-protected wealth and associated income must be added to the
other actions responsible for impoverishment of the Nez Perce
people[^148].

In sum, the assets available to the Nee-Me-Poo from Nez Perce lands has
been reduced to a very small portion of that which existed in 1855 and
before. Tribal usual and accustomed harvests from Nez Perce fisheries
have also been greatly diminished. Restriction of tribal access to usual
and accustomed harvest locations and continuing harassment by some
non-Indians have contributed significantly to this reduction.
Transformation by non-Indians of the Treaty-protected production
functions that assured Nez Perce peoples their guaranteed fishing
opportunities have reduced the Treaty-based assets and related income of
the Nez Perce yet again. These actions have had the cumulative effect of
transferring extensive wealth associated with Nez Perce Treaty-protected
lands, waters and associated activities from Tribal to non-Tribal
residents of the region.

> **4.8 Lower Granite, Little Goose, Lower Monumental and Ice Harbor
> Dams**

Four run-of-the-river hydroelectric dams were built on the Lower Snake
River between 1962 and 1975. These dams effectively impounded the Lower
Snake River from the Ice Harbor Dam near the confluence of the Snake and
the Columbia to a point approximately four miles upriver of the
confluence of the Snake and the Clearwater rivers near Lewiston, Idaho.
Construction of these dams - and their predecessors - was not without
contestation or controversy.

> A myth has developed about the callous attitude of early Army
> Engineers in the Pacific Northwest toward the preservation of
> anadromous fish runs. Specifically, the myth claims that the Corps did
> not seek fish-passage facilities at Bonneville Dam, the lower
> Columbia's first great multipurpose project; that only after
> unrelenting public pressure did they compromise. The myth is
> wrong\....
>
> In fact, the Corps' initial design, submitted to Congress in 1933,
> included fish-passage facilities. Facing pressure from the federal
> government to get unemployed people working immediately at Bonneville,
> the Corps had no time to develop detailed fish passage plans. Yet the
> original budget included \$640,000 for fishways. (F)ish passage - once
> the Engineers completed final planning - cost over \$7 million\.... It
> is inaccurate to say the Corps showed indifference toward fish. Forced
> to act quickly during the project's initial planning stages, the Corps
> subsequently cooperated with state and federal fishery agencies and
> commercial fishing interests\... .
>
> The effort seemed to pay off, for at first Bonneville appeared to be a
> success. \...
>
> Even in the midst of this success some remained skeptical. All
> Bonneville actually proved, they claimed, was that most strong
> upstream and downstream migrants could overcome one large dam. While
> praising Bonneville's success, the Interior Department's Bureau of
> Fisheries also warned that the cumulative effects of more dams might
> doom anadromous fish. As early as 1938 biologists realized that some
> fish died attempting to pass the dam. Later studies showed mortality
> rates for downstream migrants to be as high as 15 percent. Lose that
> many fish at each dam and the string of federal projects proposed from
> Bonneville to Lewiston could exterminate Idaho's anadromous fish.
> Fishery people could live with Bonneville, but they would fight to
> prevent dams on the lower Snake, the gateway to some of the most
> significant salmon and steelhead spawning grounds in America.[^149]

By 1937, controversy with respect to proposed Lower Snake dams was
evident - with representatives of the Inland Empire Waterways
Association (IEWA) in support, and fishery agencies expressing
concern[^150]. Initially, IEWA attempted to work with fishery interests,
but:

> The alliance between fishery agencies and the IEWA would be
> short-lived as the agencies stridently fought lower Snake dams. In
> 1945 an Oregon chapter of the chamber of commerce urged the IEWA to
> "adopt measures to effectively combat" the "highly organized"
> opposition to dams by fish and wildlife agencies.[^151]

By this time, the Corps of Engineers had been unable to avoid the tide
of special interest ebbing and flowing through the Lower Snake dams
debate.

> Even the Corps' Assistant Chief of Engineers Thomas Robins, a man
> generally sympathetic to fishery concerns during his tour of duty in
> the Pacific Northwest, grew exasperated with the increasing animosity
> of fishery advocates. Testifying before Congress in 1941 he noted that
> Bonneville fishways had been eminently successful and claimed he had
> every reason to believe fish could safely pass in both directions over
> Snake River dams fitted with similar facilities. The dams' turbines
> were "absolutely incapable of hurting the fish. If you could put a
> mule through there, and keep him from drowning he would go through
> without being hurt. Before we put the wheels in, we carried on
> experiments with fish, and proved conclusively that the pressure of
> the turbines will not injure fish." It was a broad statement.
>
> Actually, the turbines at Bonneville and other Columbia River dams did
> kill fish, although researchers eventually found that the barriers
> also created numerous other, more serious difficulties for the
> migrants unrelated to turbine mortality. Dams, in other words, killed
> fish in a variety of ways. Still, Robins' comment provided fuel for
> advocacy groups like the IEWA and became almost a soundbite, a sort of
> shorthand, knee-jerk defensive mechanism: "since turbines don't kill,
> dams are safe."[^152]

The tribes knew that these dams threatened the salmon. But if their
counsel was sought, it was not listened to. This period of conflict
between dam advocates on the one hand, and fishery agencies on the other
continued into the 1950's. Again, Peterson summarizes.

> (A)nother myth has developed concerning fish and dams along the
> Columbia/Snake waterway, this one perpetuated by the Corps of
> Engineers, the Bonneville Power Administration, and hydropower
> advocates. This myth states that in the 1930's and 1940's, when the
> Engineers began construction Northwest dams, fishery biologists
> worried only about passing adult fish and expressed no concern about
> getting juveniles to the sea. "When hydroelectric dams were originally
> constructed in the Northwest it was believed that providing adequate
> upstream passage over the dam was sufficient to sustain salmon and
> steelhead runs." reads a publication of the Northwest Power Planning
> Council, a statement frequently repeated by employees of the Corps and
> hydropower advocates in public meetings and during conversations. It
> is a convenient myth, for it absolves the Corps and BPA of much of the
> blame for the extreme losses of juvenile fish the dams would
> eventually cause, losses that would lead to exterminating or
> endangering several species. "We just didn't know," becomes a familiar
> refrain. But the Corps did know. So did the Bonneville Power
> Administration.
>
> It is true that biologists now know much more about the problems dams
> cause downstream- migrating juveniles than they did in the 1930s,
> 1940s, and 1950s. \... But it is more a deception of recent political
> convenience than a statement of facts known at the time to say the
> Corps was unaware of the difficulties its river work caused smolts.
> \...
>
> As early as 1934 the Bureau of Reclamation recognized the difficulty
> of attempting to get juvenile fish past a major dam. Largely because
> of this vexing problem, the Bureau chose to provide no fish passage at
> Grand Coulee, and that dam forever blocked the upper Columbia to
> anadromous fish. In 1947 biologist Harlan Holmes began studying
> juvenile mortalities at dams and discovered some turbines could be
> "literal sausage grinders." In 1952, when Holmes estimated that
> Bonneville Dam killed 15 percent of juveniles passing through, the
> Corps refused to publicize his report. In 1948 the U.S. Fish and
> Wildlife Service stated of the proposed lower Snake dams specifically,
> "Adequate facilities can be provided for the upstream passage of
> fish\... The potential loss of downstream-migrating fingerlings
> presents a more serious problem. \... The lower Snake River dams
> collectively present the greatest threat to the maintenance of the
> Columbia River salmon population of any project heretofore constructed
> or authorized."[^153]

Fishery agencies were successful in pressing their concerns over the
proposed lower Snake dams into the mid-1950's, so Herb West of the IEWA
switched his strategy.

> Having had little luck persuading Congress of the dams' safety, West
> sought other causes for the Northwest's decreased fish runs. His
> bogeymen became those who fished the rivers. Greedy Indian, commercial
> and sport fishers, not dams, were primarily responsible for declining
> returns. It was an argument that would be repeated often by dam
> builders and power producers in the decades to follow. And it had some
> merit.
>
> Beginning with the advent of the Columbia River's commercial canning
> industry in the 1860s, commercial fishers had taken a severe toll, as
> had, to a lesser extent, Indians and sport fishers. However, due to a
> variety of new laws and seasons, runs had largely stabilized by the
> 1930s. When federal dams came, fish faced yet another obstacle, and
> runs of wild salmon and steelhead again plummeted. Unless the debate's
> focus could be shifted from dams to other fish-kill causes, the lower
> Snake might never get its development. So the Corps of Engineers
> joined West in making the case against commercial fish operations\....
> The North Pacific Division had formed their office primarily to
> construct McNary and the four lower Snake dams. (By 1955) They had
> completed McNary. If Congress continued to refuse funding for Ice
> Harbor there might well be no reason for the District to exist. So the
> District attempted some persuasion of its own, despite the agency's
> rhetoric that it never lobbies, instead doing only as Congress wishes.
> After a year of observing fish passage at McNary, like West, the Corps
> announced a scientific victory. Results there, the Corps asserted,
> "discount considerably the claims of the fish industries that dams on
> the river are a hindrance to the anadromous hordes;" enough fish had
> eluded the real culprits, "the commercial fishermen's nets and
> sportsmen's lures," to insure survival.[^154]

The mythical hypotheses of the 1930s, 1940s and early 1950s that "dams
don't kill fish" were refuted with finality by the death of millions of
Columbia River salmon. The following myth that "its someone else's
fault" was also refuted when, despite increasingly strict regulation of
fisheries - millions more of the salmon stocks that had survived initial
impacts, died also. These results are evident from Snake River run size
estimates of the Columbia Basin Fish and Wildlife Authority (CBFWA)
(Table 4).

Table 4

[Characterization of the Condition of Snake River Salmon and Steelhead
at the End of the 1980's]{.underline}

Historic Run Size: Run Size: CBFWA Comment re. Effect

[Species]{.underline} [Run Size]{.underline} [1954-69]{.underline} [Late
1980's]{.underline} [of Lower Snake Dams]{.underline}

**\-\-\-\-\-\--**numbers of salmon\-\-\-\-\--

Spring Chinook 100,000+ 40,000 18,000 Stocks depressed due to L. Snake &

Columbia mainstem dams.

Summer Chinook 1,000,000+ 51,000 5,000 Stocks depressed. due primarily
to

hydroelectric system.

Bright Fall Chinook \-\-- 33,000 2,000 Stocks depressed - due to dams,

(1954 high) habitat loss & fishing.

Summer Steelhead 233,000 80,000 77,000 Stocks generally healthy. (1940)
Reductions due primarily to dams.

Grande Ronde Sockeye 700,000 **\-\--** 0 Stock extinct. Restoration
limited

(approx.) by Snake & Columbia dams.

Salmon River Sockeye **-**signif.- 1,000 2 Stocks depressed/decreasing -
due

primarily to Sunbeam Dam &

Columbia & Snake River dams.

Clearwater Coho -signif.- \-\-- 0 Extinct - due to mixed stock fishing

& Columbia/Snake River dams.

Grande Ronde Coho -signif.- \-\-- 0 Extinct - due to mixed stock fishing

& Columbia/Snake dams.

Source: Columbia Basin Fish and Wildlife Authority, 1990. **Integrated
System Plan for**

**Salmon and Steelhead Production in the Columbia River Basin,** pp. 25
to 121.

In recent years, these hypotheses have been reborn. The Corps of
Engineers (and others) once again turn their attention to "technological
breakthroughs" that offer hope of assisting salmon to safely pass dams.
And some bureaucrats, seemingly forgetting the conclusion of the US Fish
and Wildlife Service in 1948 (Note 152), still assert uncertainty that
removing the Snake River dams will help the salmon substantially - and
urge less stringent adjustments to the status quo, and further study of
a wide range of elements in the river and the ocean that might affect
the way restoration turns out. This opinion has less credence with
publication of latest PATH findings[^155], and their review by a panel
of independent experts, but it is still argued by some.

Tribal elders, leaders and scientists are skeptical of such arguments.
They have experienced more than 50 years of claimed scientific
breakthroughs at the dams. But these "breakthroughs" have an empirical
record of failure - and the salmon have continued to decline.

The same empirical record clearly shows the major role of the Lower
Snake dams as killers of salmon - and the tribes find statements that
"we're not sure and need to do more work to see if dam removal would
significantly help salmon" devoid of either a sense of the history of
the river, or of sound empirical justification. They also believe that
such "status quo and study" responses are contrary to the direction of
the federal district court of Oregon[^156] - and worry that these
assertions are less indicative of the limits of science than, to use
Petersen's earlier terminology, "a deception of recent political
convenience". Most importantly, the Tribes worry that if the salmon once
again have to die to refute these new claims - there will be no salmon
left in the Snake River.

This history of institutional interface with the Columbia/Snake river
and its salmon is important to an assessment of the effects of project
alternatives at lower Snake River on cumulative trends affecting tribal
peoples and their resource assets. Of particular importance is the
insight it provides concerning how river managers have dealt with
uncertainty with respect to impacts on salmon - as uncertainty continues
to be a major issue at both biological and social scientific levels in
the Feasibility Study. As the information in this section illustrates,
throughout much of the twentieth century, river managers were willing to
accept significant levels of risk to the salmon of the Columbia and
Snake rivers as they developed their in-river projects and initiatives.
Their philosophy with respect to the salmon seemed to be, "we don't know
much about the salmon, but we are confident we can use technology to
maintain significant stock levels in the system". This risk-insensitive
approach facilitated transformation of the production function of the
rivers to produce vast wealth for electrical consumers, irrigated
agriculture, navigation enterprises and other (primarily) non-Indian
interests.

In the 1990's, as salmon stocks have become threatened and endangered,
salmon recovery projects have become a focus for feasibility analysis -
as they are here. However, **as the focus for in-river project action
has switched from development of electricity, irrigated agriculture,
navigation services, etc. to restoring salmon, [treatment of risk to
salmon by key management entities has switched completely as
well]{.underline}**. **Now, where action to save and restore salmon is
the issue, some of the same river managers are claiming "they need to be
highly certain of salmon results" before they can act.** In technical
terms, they are demonstrated to be far more risk adverse with respect to
uncertainty when the issue is saving the salmon, than when the issue was
developing the river for other uses.

From an economic perspective, this inconsistency with respect to how
river managers and their technicians have treated uncertainty regarding
salmon has two complementary effects. During much of the 20th century,
it facilitated an arbitrary transfer of theTreaty-protected
wealth-creating capabilities of the Columbia and Snake rivers from the
tribes to non-tribal citizens, who enjoy the greatest portion of
benefits associated with power production, irrigated agriculture,
navigation and so on. In recent years, the "switch" to avoid uncertainty
where salmon recovery is concerned is delaying and/or negating remedial
action - and preempts rebalancing transfers of Treaty wealth back to the
tribes.

The effect of these inconsistent policies, and of the lower Snake River
dams, on the peoples of the Nez Perce is clear. As noted earlier, Nez
Perce villages and traditional use areas extend down the Lower Snake
River on both banks to at least the vicinity of the mouth of the
Tucannon River. The lower Snake River dams have directly inundated these
areas - as well as usual and accustomed fishing locations the Nez Perce
shared with tribal peoples living downriver from there to the confluence
with the Columbia (recall Table 2). Consequently, substantial numbers of
Nez Perce village areas, usual and accustomed fishing areas, burial
areas and spiritual areas were drowned when these four dams were put in.

Lower Snake River dams, together with dams on the mainstem Columbia,
contributed significantly to the destruction of Nez Perce
Treaty-reserved salmon, steelhead, sturgeon, eulechon - as well as
flooding areas Nez Perce peoples were accustomed to go to gather roots,
berries and medicinal plants - and are consequently major contributors
to destruction of Treaty assets assured to the Tribe in the Treaty of
1855, and to the present adverse circumstances of the Nez Perce peoples.

As we have noted, from an economic perspective, the "dams don't kill
fish" and "its somebody else's fault" hypotheses facilitated massive
transformation of the production function of the lower Snake River - and
with it, a massive transfer of Treaty-protected Nez Perce wealth, from
the Nez Perce Tribe to non-Indian residents of the region. And today,
the "new science can fix the dams/ we need more testing and study"
hypotheses effectively protect against redistribution of any significant
portion of "taken Tribal Treaty assets" back into Nez Perce hands.

> **4.9 Post-Contact Nez Perce Tribal Health**

The population of the Nez Perce peoples plummeted after initial contact
due to pestilence brought by early white explorers and trappers. Hunn,
talking of the Columbia River tribes, notes:

> The new life promised by the coming of the whites and widely
> prophesied brought a very high price. As far as can be ascertained at
> present the first bill came due about 1775. Robert Boyd believes,
> based on a meticulous survey of early documents, that the first wave
> of smallpox might have come from the west about 1775 from ships
> exploring for furs along the north Pacific coast\... .
>
> Smallpox again ravaged along the Columbia in 1801, attacking a new
> generation of susceptibles grown up since the first visitation. This
> likely carried off another 10 to 20 percent, reducing the original
> population to about half by the time of Lewis and Clark's exploration.
> In their journals Lewis and Clark describe old men with pockmarked
> faces among the Upper Chinooks of the Lower Columbia River and were
> told the disease had struck a generation before. Smith documents its
> ravages among the Nez Perce at about the same time.
>
> (T)he Plateau people next found themselves in the path of thousands of
> immigrants crossing the continent over the Oregon Trail\....With the
> immigrants came a potpourri of diseases against which the Indians had
> no resistance. In 1844 there was scarlet fever and whooping cough, in
> 1846 more scarlet fever, and so forth. Many white settlers saw this
> mortality of the Indians as an act of God, clearing the rich
> bottomlands\...for Christian settlement.[^157]

Accordingly, Nez Perce population plummeted from pre-contact times to
the end of WW II. The estimates in Table 5 are from Walker (1967) and
Lane & Lane and Nash (1981).

Table 5

[Estimated Historic Population of the Nez Perce Tribe - Selected
Years]{.underline}

[Year(s)]{.underline} [Population]{.underline}

Pre-contact (approx. 1780's) 5,000

1863 2,800

1893 2,009

1910 1,433

1940 1,469

Trafzer(1997) estimates that pestilences among Columbia/Snake tribes
predominated into the 1920's and 30's when modern preventative medicine
began to reach the reservations[^158]. Speaking of the Yakama, but
generalizing with respect to neighbor tribes, Trafzer hypothesized that
by the 1950's, degenerative and man-made disease had become a principal
focus for tribal mortality - and that loss of traditional diet from
native foods, the pressures of white invasion and violence, dislocation
to reservations, loss of autonomy and control over their lives, high
poverty and low medical services all affected tribal mortality
adversely.[^159] Again, these observations are congruent with the
devastation of the Nez Perce resource base, with the violation of Nez
Perce peoples discussed in earlier sections of this report and with the
findings by Bachtold.

> **4.10 Present Circumstances of the Nee-Me-Poo**

Having reviewed the cumulative devastation to Nez Perce Treaty-based and
other resource assets, the attendant abuses suffered by Nez Perce
peoples, and the continuing and cumulative transfers of wealth from the
Nez Perce to non-tribal residents of the Columbia/Snake area from Treaty
times through much of the 20th century - it is appropriate to determine
whether significant recent changes have occurred and to assess the
present circumstances of the Nez Perce peoples.

> **4.10.1 Remaining Nez Perce Lands**

Enrolled Nez Perce tribal membership currently stands at approximately
3,000 persons[^160] - a little more then double the level of the 1930's
and 40's. Yet Nez Perce lands, held in tribal trust, in individual
trust, or in fee simple, have again declined, from a level of 175,000
acres in 1976, to a present level of 94,000 acres[^161]. This latter
acreage represents 1.2 percent of the lands the Nez Perce believed they
had secured for their own use in the Treaty of 1855.

> Today the Nez Perce people hold fragments of land scattered in the
> canyon breaks and plateau areas of the Clearwater Drainage. The land
> is a remnant of the former holdings and rings with hollow treaty
> language which promised no white man would ever live there without
> consent of the tribe. \...
>
> The land and what it held was valuable to non-Indians. Gold, grass,
> grain and timber combined with governmental policies and practices
> transformed the Nez Perce Reservation into a landscape mostly owned by
> non-Indians. The General Allotment Act of 1887 and the Indian
> Apportionment Act of 1894 opened the reservation and flooded the lives
> of Indian people in new and confusing ways. The game was depleted, the
> roots were depleted, the fish were going quickly\--the verdant
> landscape remade into field and farm, harvested timberlands, small
> towns, amid a small patchwork of "Indian Land". The sons of hunters,
> fishermen and warriors needed a job and there were few to be had. If
> one theme stands clear in the economic and social matrix of the Nez
> Perce it is loss of land and the mining of the remaining land for
> anything of cash value.[^162]
>
> **4.10.2 What Remains of the Salmon**

The status of fisheries - particularly salmon - upon which the Nez Perce
depend, is similarly desperate. While salmon stocks continue at dire
risk, federal agencies seek solutions whose results are certain - and
which will minimize or have no adverse effects on entrenched
(non-salmon) economic interests. Federal judicial opinion has judged
such "status quo" approaches ineffective.

> Two landmark judicial opinions called attention to the ineffectiveness
> of salmon restoration efforts in 1994. Both the Ninth Circuit and the
> federal district court of Oregon characterized the plans promulgated
> by the Northwest Power Planning Council (Council) under the Northwest
> Power Act and the National Marine Fisheries Service (NMFS) under the
> ESA as substantively inadequate. The Ninth Circuit faulted the
> Council's plan for failing to give proper deference to the views of
> fisheries agencies and for adopting river flow measures advocated by
> power interests, despite what the court considered "an overwhelming
> consensus among (fishery) agencies and tribes in favor of higher flows
> and more scientifically-based biological objectives." The district
> court struck down NMFS's 1993 biological opinion (BiOp) on Columbia
> Basin hydroelectric operations because it was "too heavily geared
> toward a **status quo** that has allowed all forms of river activity
> to proceed in a deficit situation", resulting in "relatively small
> steps, minor improvements and adjustments - when the situation
> literally cries out for a major overhaul." (our bolding)[^163]

In recent years, some agencies have rationalized failure to restore the
Snake River salmon by claiming they are "uncertain about what to do".
Substantial uncertainty exists with respect to the effects of dams on
salmon - but this did not impede action to build the dams in the first
place.

From a Tribal perspective, uncertainty is not the problem. Rather,
economic interests who, as noted earlier in this report, have obtained
substantial amounts of wealth via negotiation, by changing the laws, and
by illegal destruction and/or taking of Nez Perce Treaty assets **-**
and who have unilaterally transformed the land and waters of the
Columbia Snake system to obtain still more wealth at Tribal expense -
are understandably reluctant to see any significant portion of that
wealth redistributed back to the Nez Perce Tribe. From this perspective,
"claims of uncertainty about what to do" are viewed as substantially
influenced by "status quo" distributions of wealth - and to Tribal ears,
sound the same as claims that the Dawes Act "was good for the Indians" -
as some of its backers prepared to steal away more of the Nez Perce
tribal wealth in earlier times.

This situation is exacerbated by what the Tribes view as an overly
optimistic view by some federal agencies of the salmon restoration
potentials associated with discrete structural changes at Columbia/Snake
dams, despite decades of evidence to the contrary - and too often, a
refusal to seriously consider contrary Tribal information, advice and
counsel.

> While biologists studied and debated, Indians, living by the river,
> saw fish quality decline and sea gulls eating dead smolts out of dam
> spillways. More often than not, Indian concern and counsel was
> ignored.[^164]

It is these wealth transfer concerns that likely underlie attempts to
establish two conditions for Snake River salmon restoration that, given
present circumstance, may be inconsistent with recovery of the
stocks**:** no substantial income redistribution (complete mitigation)
for some economic sectors; and, high certainty before action is taken.
The tribes are concerned that such insistence in the face of the
perilous condition of Snake River salmon will likely ensure that, race
by race, the salmon of the Snake River continue to dwindle toward
extinction.

> And while the arguments raged, the salmon continued to decline. Recent
> (1995-1996) run size estimates for many Columbia Basin stocks are the
> lowest in recorded history.[^165]

As a result of this devastation, Nez Perce catches are now very small.
Tribal fish managers estimate an annual average Nez Perce Zone 6
commercial catch of approximately 105,000 pounds for chinook, steelhead,
sturgeon, coho and sockeye combined for the period 1990-1993. Tribal
Snake River catch is for Ceremonial and Subsistence (C&S) purposes
only - and is more limited - with a chinook salmon take estimated of
approximately 55,000 pounds in 1997[^166]. Using these estimates, **Nez
Perce present harvest approximates 10 percent of the fish we estimate
was taken by the Nez Perce around Treaty times**.

> **4.10.3 A General Assessment of Present Nez Perce Material
> Circumstance**

Henry Penney summarized the general material predicament of the Nez
Perce Tribe in 1982.

> Well, I think that looking at our depleted resources that you can see
> what we had before was about 14 million acres of area, probably even
> greater than that if you consider when the Nez Perce went to Montana
> and the Dakotas for buffalo. You know, there's a vast amount of
> resources out there that's not available to us now. And each treaty
> and agreement since 1855 has gradually taken away a lot of our
> resources\.... How do we get the tribal members back on par with the
> dominant society? We have very limited resources now.[^167]

The magnitude of the present Nez Perce resource predicament can be
illustrated by reference to our earlier approximation that Nez Perce
lands and waters in pre-contact times produced annual benefits
equivalent to more than 18 million pounds of food (p. 51). Applying the
direct salmon losses discussed here - and using our estimates of loss of
Nez Perce lands as a proxy for loss of non-salmon traditional
production - we can conclude that the Nez Perce peoples today obtain
from their Treaty-based resources production equivalent to less than
500,000 pounds of food per year - **approximately 2 percent of the value
their lands originally produced**.

This difficult Tribal economic situation stood little changed through
the mid-1990's. Nez Perce peoples continue to obtain limited revenue
from timber, limestone and convenience store sales and from other small
business initiatives[^168] - as well as lease revenue from some fee
lands. Data from the US Bureau of the Census and from the Bureau of
Indian Affairs translate the overall effect of these initiatives into
non-Indian statistical terms (Table 6).

Table 6

[Comparative Data Showing the Relative Circumstances of the Nez Perce
Tribe - 1989-91]{.underline}

[Economic Indicator]{.underline} [Nez Perce Tribe]{.underline}
[Idaho]{.underline} [Washington]{.underline} [Oregon]{.underline}

Families in Poverty (%) 29.4 9.7 10.9 12.4

Unemployment: US Census (%) 19.8 6.1 5.7 6.2

: BIA 62.0\*

Per Capita Income (\$'000) 8.7 11.5 14.9 13.4

\*The US Bureau of the Census employs a relatively liberal "employment"
standard. BIA's

employment measure requires employment over a longer time period to
qualify. The

higher BIA unemployment estimate is judged to better reflect the degree
of material

difficulty the Nez Perce experience - particularly in winter months.

Source: US Bureau of the Census - 1990 Census Data. US Bureau of Indian
Affairs - 1995

Indian Population and Labor Force Estimates..

By 1996 the Nez Perce Tribe had identified one economic activity that
offered a measure of economic hope for its people. In the fall of that
year, the Tribe opened Clearwater River Casino. By 1997, the Tribe
estimated that this casino, and one at Kamiah was employing some 240
persons - 95% of them tribal[^169] - with an estimated annual payroll of
some \$2.8 million[^170]. This single initiative is insufficient, by
itself, to return Nez Perce peoples to even a moderate level of material
wellbeing - but it offers hope for significant material improvement. The
Nez Perce gaming operation is in its infancy, and more time is needed to
confidently assess any long term role it may play in the Nez Perce
economy. Further, some Idaho politicians, having again "found wealth" on
Nez Perce lands, proposed to enact laws to transfer significant portions
of potential tribal gaming revenues to non-Indian residents of the
region[^171]. Prior sections of this report indicate that such "wealth
transfer" actions by non-Indians are fully consistent with those of
their regional predecessors. Such "anti-Indian" gaming initiatives
continue to contribute to the uncertainty of the material future of the
Nez Perce Tribe. The overall importance of Tribal gaming employment in
providing some measure of economic relief for the Nez Perce Tribe is
illustrated in Table 7.

Table 7

[Estimated Number of Employees in Nez Perce Tribal Enterprises:
1997]{.underline}

[Enterprise/Activity]{.underline} [Estimated Employment]{.underline}

[Full Time]{.underline} [Part Time]{.underline}

Gaming enterprises 240

Tribal government 178

Convenience stores 16 4

Limestone enterprise 4 25-30

Forest Products enterprise 6 22

Land Commission (agriculture) 5

Arts and Crafts 2 2

Source: Nez Perce Tribe Overall Economic Development Plan: 1997-1998,

Appendix D-1.

> **4.10.4 Nez Perce Tribal Health**

Nez Perce tribal health is coincident with the difficulties already
described. The Northern Idaho Service Unit of the Indian Health Service
covers Nez Perce, Lewis, Clearwater, Idaho, Latah and Boundary
counties - and principally services Nez Perce tribal members[^172].
Indian Health Service (1994) reports that the 1989-1991 age-adjusted
death rate for Indians in the Northern Idaho Service Area exceeded that
for "all other races" by 1.7 times[^173]. Table 8 provides comparative
statistics for the five leading causes of tribal death.

Table 8

[Leading Causes of Tribal Death - Northern Idaho Service Area:
1989-1991]{.underline}

Ratio of NA

[Cause of Death]{.underline} [Native American]{.underline} [All Other
Races]{.underline} [to Other Races]{.underline}

\-\-\-\--deaths per 100,000 population\-\-\--

Heart disease 80.8 89.2 0.9

Motor vehicle accidents 69.3 17.3 4.0

Cerebrovascular disorders 73.1 24.2 3.0

Malignant Neoplasms 59.5 113.2 0.5

All Other Accidents 37.1 15.9 2.3

Source: US Indian Health Service, 1994. **Supra** at 55.

Diabetes mellitus and musculoskeletal problems are also significant
causes of death - accounting for 6.5% of total deaths each[^174].

High accident-related death rates for the Nez Perce are consistent with
Bachtold's hypothesis relating loss of foods, poverty and loss of a
meaningful activity environment to mistrust and despair[^175] - and with
Trafzer's hypothesis relating native mortality to man-made pressures and
events[^176]. Experts on Nez Perce health were also concerned about
linkage between loss of traditional Nez Perce foods, particularly
salmon, and the high rates of diabetes evident among the Tribe[^177].

> Diabetes stems from many factors. But increasing salmon content in
> present-day Nez Perce diets would definitely reduce diabetes-related
> mortalities for the Tribe. Salmon replace saturated fats with Omega 3
> fatty acids in the diet, bringing body weight and blood sugar down.
> The exercise involved in harvesting salmon and other native foods also
> acts to reduce body weight and improve health. As a result, incidence
> of diabetes would be reduced, and better control of the disease among
> Nez Perce would be achieved.[^178]

The Nez Perce health group echoed Bachtold in also emphasizing the
positive role that traditional fishing, hunting and gathering plays in
building the self-esteem of tribal members.

> Traditional activities such as fishing, hunting and gathering roots,
> berries and medicinal plants also build self-esteem for Nez Perce
> peoples - and this has the capability to reduce the level of death by
> accident, violence and suicide affecting our people. When you engage
> in cultural activities you build pride. You are helped to understand
> "what it is to be a Nez Perce" - as opposed to trying to be someone
> who is not a Nez Perce. In this way, the salmon, the game, the roots,
> the berries and the plants are pillars of our world.[^179]

The Nez Perce health group noted that opportunities to practice
traditional fishing, hunting and gathering pursuits are increasingly
limited in the present day - and that Nez Perce members are still often
threatened and harassed as they try to pursue such activities.

> Sometimes I feel like I'm looking for the last fishing spot that's
> left - fishing for the last fish that's left. How will I go and get
> it? Will I get beat up if I go?[^180]

Yet the Nez Perce health group was unanimous that salmon remained a key
to Nez Perce cultural survival - and that removal of the Lower Snake
reservoirs and restoration of tribal salmon would benefit tribal health
and lifeways.

> Our traditional activities are being buried deeper and deeper. We need
> to restore them, not just talk about it. As long as there is one
> fish - as long as there is game - as long as we keep our language - we
> will not die.[^181]
>
> Reservoir removal would restore Nez Perce fisheries, it would provide
> more opportunity to hunt game, it would provide more gathering places.
> It would bring the land to life. [^182]

The difficulties of the Nez Perce people have also been confirmed by an
outside commentator.

> The personal suffering and tragic lives of many (Nez Perce) people are
> not revealed in the cold reports of tribal and federal governments. It
> can, however, be seen and felt in the towns and the countryside\--in
> the eyes of men and the despair of mothers with few or no options for
> change. When you can no longer do what your ancestors did; when your
> father or mother could not do those things either; when they or you
> found little meaning in and limited access to the ways of mainstream
> culture\--the power of 70 percent winter time unemployment, and 46
> percent of the population below poverty level, is visible throughout
> the Nez Perce landscape.[^183]

Finally, the key role that **language** plays in protecting the health
of a culture was discussed in earlier methodological sections of this
report. Through the 19th century, it is safe to say that all Nez Perce
were able to speak in their native language(s). Today, beset by loss of
traditional opportunities and attendant economic and social
impoverishment, it is estimated that only about 32 percent of Nez Perce
retain the capability to speak in their own tongue at home[^184].

Again employing a Maslow-based framework, present overall circumstances
of the Nez Perce Tribe are outlined in Figure 5.

> **5.0 Circumstances and Impacts on the Shoshone and Bannock Bands**

This section provides information on past impacts and related present
circumstances of the peoples of the Shoshone and Bannock Bands of
Indians.

> **5.1 Traditional Tribal Areas and Seasonal Harvest Rounds of the
> Shoshone and**
>
> **Bannock Bands**

This report refers to the Shoshone and Bannock peoples who principally
lived in what is now the State of Idaho.

> The Northern Shoshone and Bannock Indians occupied an area roughly
> coincidental with the political boundaries of the state of Idaho,
> south of the Salmon River. The names Northern Shoshone and Bannock do
> not refer to discrete political or social entities. The term Northern
> Shoshone has arisen in anthropological usage only as a general means
> of distinguishing Shoshones of the upper Columbia drainage from the
> Western Shoshone of Nevada and Utah and the Eastern Shoshone of
> western Wyoming. The Western Shoshones differed from both the eastern
> and northern populations in lack of horses and access to the buffalo
> hunting areas of the Plains\... .The Eastern and Northern Shoshones
> are less easily distinguished from each other. The conventional
> division made between them rests primarily upon their separate locales
> and the importance of salmon fishing to the Northern Shoshone diet.
> The Indians themselves made no recognition of the Eastern, Northern
> and Western distinction; and actual social units among the Northern
> Shoshone varied in type from composite, mounted bands to isolated
> families or small clusters of families uninvolved in larger political
> units. Consistent with this variety and fragmentation, there are no
> clear cultural boundaries, and the Northern Shoshone blended into and
> merged with the other Shoshone to the south and the east.
>
> The distinctiveness of the Bannock rested on a basis different than
> that of the Northern Shoshone. The Bannock were Northern Paiute
> speakers who had migrated from Oregon into the general area of the
> Snake River plains, where they lived among Shoshone speakers in
> peaceful cooperation. The Bannock became differentiated from their
> fellow Northern Paiutes to the west through the acquisition of the
> horse and participation in organized buffalo hunts, but the
> populations continued to interact socially, and the separation was not
> deep enough or long enough to result in substantial linguistic
> divergence.[^185]

Initially speakers of distinct languages, the close living arrangements
of what Murphy and Murphy term the "Northern Shoshone and Bannock"
peoples enabled a relatively rapid movement toward inter-cultural
understanding and intelligibility between these two peoples.

> A.L. Kroeber (1907) was the first to report that they (the Shoshone
> and Bannock) spoke separate and mutually unintelligible languages.
> \...
>
> (But) the spread of the Numic languages in the Great Basin, with the
> consequent separation between Western and Central Numic, was recent
> enough so that Bannock and Shoshone remain quite similar languages,
> and there was considerable Bannock-Shoshone bilingualism among both
> groups in southern Idaho\.... Among the consequences of the regency of
> the spread of the Numic languages is the absence of major dialect
> differences, whose development was retarded by continued contacts
> among the highly mobile seminomadic groups (Liljeblad 1957). This is a
> most important point, for one of the characteristics of Shoshone and
> Bannock groups was their openness, their interchangeability of
> members, and the continual move and flux of people. This tended to
> minimize dialect differentiation, just as it did cultural separation.
> On both the linguistic and cultural levels, the Shoshone and Northern
> Paiute, including the Bannock, evidenced small and incremental change
> from area to area. The absence of sharp discontinuities was a function
> of their social life.[^186]

Thus, at its broadest, Shoshone and Paiute speakers extended west into
Oregon, south into Utah and Nevada, and eastward as far as Wyoming -
with no firm boundaries between resident or migratory groups. This
study - dealing with cumulative losses of salmon to tribal populations,
and subsequent salmon restoration activities in the Lower Snake River
area - provides a narrower focus for Shoshone-Bannock analysis - namely,
**those Shoshone and Bannock groups who would be directly affected by
salmon abundances during their subsistence rounds**.

The locations where salmon that passed through the Lower Snake River
were harvested by Shoshone and Bannock peoples can be generally
identified.

> Fish constituted an important part of Northern Shoshone and Bannock
> subsistence. Trout, perch and other fish were found in streams
> throughout the region, but the most important fish, the salmon, was
> restricted to the Snake River below Shoshone Falls, to the lower Boise
> and Weiser rivers, and to the southern tributaries of the Salmon
> River, including the Lemhi.[^187]

The range of the salmon defines an area that follows the Snake River and
its tributaries through much of south-central Idaho. To the north, it
includes much of the Salmon River basin, including the Lemhi River and
other southern tributaries. To the west, it extends to the Oregon border
and into the Owayhee, Malheur and Burnt Rivers of Oregon. Turning east,
its follows the Snake River through southern Idaho to Shoshone Falls -
which is sufficiently proximate to substantial Shoshone-Bannock
populations using the Fort Hall area to include them in our affected
study referent group. In sum, our assessment in this study will
generally be bounded by the map provided by Murphy and Murphy in their
Smithsonian Institution article[^188] - focusing on Shoshone-Bannock
populations dependent on areas roughly outlined by present boundaries of
the State of Idaho to the west, east and south - inclusive of
descendants of fishing peoples now resident on the Duck Valley
Reservation on the Idaho/Nevada border - and to the aforementioned areas
of the Salmon River drainage to the north. This focus recognizes and
will account for seasonal migrations of some Shoshone and Bannock
peoples further eastward in search of buffalo. It also recognizes that
reports exist of some cooperative fishing for salmon to the north and
west of these approximate boundaries[^189]. However, for the purposes of
identifying primary linkage between potential actions at Lower Snake
River dams and the wellbeing of Shoshone-Bannock peoples, this study
focus is considered reasonable and sufficient[^190].

Shoshone-Bannock peoples did not confine themselves to single
locations - so they depended broadly on the fish, game, roots, berries
and other plants available within the areas they lived in and
traversed - and cannot be defined as dependent on only one resource or
one resource area.

> According to an indigenous Shoshonean tradition\...people who remained
> for a shorter or longer time in a certain region, and had their
> subsistence more or less temporarily from a particular kind of food
> procurable in this locality, were often named after this food. Thus,
> families joining a buffalo-hunting expedition to the Plains proudly
> called themselves [kutsundeka'a]{.underline}, which means "buffalo
> eaters"; at other times, individuals of the same subgroup might have
> been called [agaideka'a]{.underline} or "salmon eaters". Small groups
> of Shoshoni, when hunting in the mountain districts of central Idaho,
> were often called [tukudeka'a]{.underline}, which means "mountain
> sheep eaters" (in local English usage corrupted to "Sheepeaters"); but
> the same Indians, when wintering on the Lemhi River, were called
> "salmon eaters". Various Shoshoni groups foraging north and south of
> the present state border between Idaho and Utah were sometimes called
> "rabbit eaters", at other times "seed eaters", or, when visiting the
> pinon groves in northern Utah, "pine-nut eaters". There are several
> dozen such "food-named groups" on record\... . To interpret them as
> native terms for culturally distinct or politically independent units
> or "tribes", as has frequently been done in the literature, is utterly
> wrong.[^191]

Rather, the Shoshone and Bannock people traveled across the lands they
depended on - taking each food resource in its appropriate place and
season.

> During the 1700s and into the reservation era, the Shoshone-Bannock
> tribes followed a pattern of land use based on the availability of
> resources in specific areas of their domain.Their lifestyle was
> dependent upon the land, what the land could provide, and when it
> could provide it. In the winter months the primary food was dried meat
> taken from the fall hunts of buffalo, elk and deer, as well as roots
> and berries that could be found within the region of the winter camp.
> For the Bannocks, this camp was usually made on the Snake River above
> Idaho falls at the mouth of Henry's Fork. Mule deer and cottontail
> rabbits which also wintered in this area provided the Bannocks with an
> additional source of subsistence. Historically the Shoshones wintered
> apart from the Bannocks in a region which offered them more protection
> from their enemies. They tended to spend the winter on the Portneuf
> River between Pocatello and McCammon, Idaho, and occasionally farther
> south at Malad City, Idaho. As with the Bannocks, the Shoshones relied
> on dried buffalo meat from the fall hunt and whatever game could be
> hunted in their winter encampment.
>
> Spring found both the Bannocks and the Shoshones broken into smaller
> groups for hunting and in the late spring and summer traveling to
> fisheries for salmon. Salmon was the main food source in the spring
> and summer, along with various roots such as that of camas and other
> plants which could be collected. During the midsummer and fall, the
> primary activity was the hunt for buffalo and other game animals. At
> this time of year, roots and plants were collected. Although they were
> involved in a pattern of cyclical land use, the Shoshones and Bannocks
> followed their food sources and so they did not have set locations to
> visit at all times of the year. While plants and to a slightly lesser
> extent fish, were relatively dependable, larger game was not and thus
> the Indians had to follow the game to wherever that might lead.[^192].

While salmon was an important element in the diet of virtually all
Shoshones and Bannocks, seasonal rounds varied between groups - and
salmon was most important for those whose seasonal rounds were closest
to the salmon bearing rivers.

> Most of the subsistence patterns of Shoshone and Bannock bands
> involved seasonal cycles with different but nonetheless wide ranging
> migratory movements. There was yet another pattern associated
> primarily with the Shoshone and Bannock bands who wintered and
> remained much of the year along the lower and middle reaches of the
> Snake River and its tributaries.[^193]

It should be noted that careful reading of authorities such as Albers et
al. (1998) indicate that their geographic definition of "lower" and
"middle" Snake River seems to differ from the "Lower Snake" definition
used in the DREW analysis. DREW defines the "Lower Snake" area as
extending from approximately Lewiston, Idaho downriver to approximately
the confluence with the Columbia River. Albers et al. describe the
"lower" Snake River as downstream of the mouth of the Brunei River, and
mention the Boise, Payette and Weiser rivers and their sister
tributaries, the Owayhee, Malheur and Burnt rivers as being part of this
"lower Snake River" territory[^194]. Much of the Salmon River basin,
including the Lemhi and other southern tributaries should also be
clearly included in this definition - but as we have identified earlier,
there is no reference to regular Shoshone-Bannock subsistence rounds
"lower down" on the Snake River between Lewiston and the Snake River
mouth at the Columbia. Albers et al. define the "middle" Snake River as
extending downstream from Shoshone Falls to the mouth of the Bruneau
River[^195]. For the area they define as the "Lower Snake", Albers et
al. note:

> The region was rich in food resources. As Julian Steward wrote, "The
> rivers afforded salmon, the meadows had roots, especially camas, and
> pasturage for horses, and the low altitude produced mild winters".
> Indeed, the resources of this region were so abundant that the
> population who wintered here did not have to move far afield to make
> their livelihood. And in the salmon season, from the late spring
> through early fall, it supported an even larger population as the
> banks of the rivers became filled with Shoshones and Bannocks from the
> mountainous regions to the north, from the desert highlands to the
> south and west, and from the upper Snake River plains\....Salmon and
> other fishes were a major part of local diets\....
>
> This portion of the Snake River was a major crossroads, where the
> riparian trails of six major waterways came together. This was a
> location where Shoshone and Paiute speakers intermingled, where they
> traded, intermarried, celebrated together, and collaborated in common
> subsistence pursuits like fishing, and where they also joined ranks in
> times of conflict and war.[^196]

Similarly, for the area they describe as the "Middle Snake River",
Albers et al. note:

> Further upstream from the mouth of the Bruneau to Shoshone Falls, the
> middle reaches of the Snake also supported a local population who
> wintered in the area, and during the salmon runs, it hosted peoples
> from many other locations as well. According to Julian Stewart, the
> "main economic life" of the groups who wintered on the middle Snake
> "centered around fishing and seed and root gathering". Like some of
> the populations who stayed in the river valleys farther west, they
> wintered at various valley locations near their salmon caches and for
> protection from the raids of predatory bands. Many of them traveled
> north to Camas Prairie to dig roots in the early spring and to the
> mountains north and south of the river to hunt in the fall.
>
> The groups who drew much of their subsistence from this area were
> identified by several different terms, including Taza Agaitika,
> "Summer Salmon Eaters", Pia Agaitika, "Big Salmon Eaters",
> Koa'agaitika, "Fish-trap Salmon Eaters", and Yahandika, "Ground Hog
> Eaters", the last two names also applied to people on the lower
> Snake\....
>
> Although salmon and other fish were the main subsistence pursuit of
> those who wintered along the middle reaches of the Snake, a variety of
> insects and roots were also important in local diets. Hunting was not
> a significant subsistence pursuit in this area.[^197] [^198]

Considering the information presented here, we reach the following
conclusions.

1\. The Shoshone and Bannock peoples ranged over a vast territory,
taking various foods - each

in its appropriate place and season - and depending on the particular
areas and circumstances

in which each group found themselves.

2\. The salmon of the Snake River were a significant element of these
seasonal rounds for

virtually all Shoshone-Bannock peoples - and were the principal element
of diet for peoples

who wintered along the Salmon drainage, and along the Snake River and
its tributaries

upriver to Shoshone Falls.

> **5.2 Natural Capital and Annual Productive Yield of Original Areas of
> the**
>
> **Shoshone and Bannock Bands**

In this section we draw an inferential baseline concerning the lands and
waters in the area through which the Shoshones and Bannocks roamed - the
"natural capital" that allowed these tribal peoples to survive. In
economic terms, the fish, buffalo, other game, roots, berries and
additional lifeway materials can be viewed as the natural assets of the
Shoshone-Bannock, producing annual material and revenue returns for
their people. Tribal and non-tribal peoples often value the annual
produce of lands and waters of the Shoshone-Bannock differently - but as
our earlier historical section showed, both tribal and non-tribal
interests understood that these lands and waters were of great value to
those who could gain access to them and utilize them.

As salmon provides the direct linkage between actions at the four Lower
Snake dams/reservoirs and Shoshone-Bannock peoples, our estimates will
focus there. Hewes (1947) estimated that Bannock, Northern Paiute and
Northern Shoshone peoples consumed 50 pounds of salmon per capita per
year in pre-contact times[^199]. This figure may be reasonable for
Shoshone-Bannock peoples who wintered at some distance from the "salmon
rivers", and only visited them during particular salmon runs. The figure
is clearly too low, however, for Shoshone-Bannocks who spent most of the
year in close proximity to these rivers (recall previous section 5.1) -
particularly when compared to the 583 pounds per capita median estimate
Walker attributed to the Nez Perce[^200], and up to 500 pounds per
capita Hewes attributed to tribes fishing on the mid-Columbia[^201].
Given this conclusion, we will employ the following protocol.

1\. Utilize Hewes' annual estimate of 50 pounds of salmon per capita for
Shoshone-Bannock

wintering and spending much of their time away from "salmon rivers".

2\. Apply Walkers' annual estimate of 583 pounds of salmon per capita
for tribes immediately to

the north to Shoshone-Bannock peoples spending most of their year close
to the "salmon

rivers" - and, following general procedure for other study tribes,
adjust this upward by 25

percent (to 729 annual pounds per capita) to allow for harvest taken for
trading purposes.

3\. Utilize population estimates in Murphy and Murphy (1986), adjusted
by data from Clemmer

and Stewart (1986) and Leland (1986), to distinguish between these two
groups.

Murphy and Murphy, citing Stewart, estimate a Shoshone-Bannock
population of 3,000 persons during the 1860's[^202]. It is unclear to
what degree this estimate accounts for Shoshone and Paiute fishers of
the Bruneau and Owyhee drainages, however. Clemmer and Stewart (1986)
estimate

that about 300 such people agreed to settle at Duck Valley between 1882
and 1886[^203]. We consequently utilize an 1860's base population
estimate of 3,300 persons. Populations of Shoshone and Bannock bands
were much higher at contact times -- but epidemics ravaged Indian tribes
following contact with the Whites. Leland (1986) suggests a depopulation
ratio of 3.4 to 1 for Great Basin Indians, from contact times to the
lowest tribal population observed in the 20th century[^204]. Applying
this ratio to an estimated Shoshone-Bannock population low of 1,688
persons in 1930[^205] - adjusted upward by 200 Indians at Duck Valley -
we obtain a pre-contact (late 1700's) population estimate of 6,400
persons for our Shoshone-Bannock study referent group.

Finally, Murphy and Murphy's estimates break out subpopulations in the
Shoshone-Bannock area as follows (Table 9).

Table 9

[Estimated Shoshone-Bannock Populations in the 1860's]{.underline}

[Area]{.underline} [Estimated Population]{.underline}

Fort Hall 1,200

Lemhi (incl. Shoshone, Bannock 1,200

& Sheepeaters)

Boise Shoshone 245

Bruneau Shoshone 355

Source: Murphy, Robert F. and Y. Murphy, 1986. **Supra** at 289.

The Boise and Bruneau Shoshone clearly would be categorized as fish
eaters. Further, some of the Shoshone-Bannocks counted (after
resettlment) at the Fort Hall and Lemhi reservations would also fit into
the fish eater category - as would many Shoshone-Bannocks settling at
Duck Valley. For this calculation, we will categorize 50 percent of
Shoshone-Bannocks as salmon eaters, and 50 percent of Shoshone-Bannocks
as less frequent users of salmon. On this basis, and utilizing the
calculating protocol outlined on the previous page, we arrive at an
overall annual per capita salmon consumption estimate for
Shoshone-Bannocks of 389 pounds - and a total annual consumption
estimate of 2.5 million pounds in the pre-contact period. If we consider
the lower human population estimates from the 1860's, our procedures
produce an annual fish consumption estimate of 1.3 million pounds for
the referent Shoshones and Bannocks.

Finally, using the same procedure as for other study tribes, we expand
the Shoshone-Bannock salmon consumption estimate, first to estimate
"total food consumption" in historic times - and second to derive a
minimum estimate of total produce from Shoshone-Bannock natural
resources, expressed in "food equivalents".

We have been unable to identify a direct estimate of the proportionate
role that salmon played in the Shoshone-Bannock food cycle. Rather, we
assume that the average overall food requirements for the
Shoshone-Bannock would have been about the same as for adjacent northern
tribes - and follow Lane, Lane and Nash (1981a) in estimating that fish
consumption amounted to about 40 percent of total diet for Indians
living near the river (Note 118). On this basis, we reach an inferential
conclusion that salmon provided an average of about 28 percent of the
Shoshone-Bannock diet for all Shoshone-Bannock peoples considered
together - wherever they were located[^206]. Proceeding as with other
study tribes, this produces an annual "all foods" estimate of
Shoshone-Bannock consumption in pre-contact times of approximately 6.0
million pounds - and of 3.1 million pounds in the 1860's.

Again employing a contemporary procedure used by the US Bureau of the
Census - which estimates that food accounts for one third of the income
requirements of an economy budget for a average family (recall Note
69) - we can infer that the Shoshone and Bannock peoples must have
annually obtained both food and non-food items from their usual and
accustomed lands and waters "equivalent to" approximately 18 million
pounds of food in pre-contact times, and equivalent to 9.3 million
pounds of food in the 1860's.

> **5.3 A Broader Perspective of Shoshone-Bannock Living Circumstances
> in**
>
> **Pre-Contact Times**

We have already cited information provided by Albers et al.(1998),
respecting the resource-rich environment historically available to those
Shoshone and Bannock peoples to be found along "salmon streams". More
broadly:

> Before the era of treaty-making, which began in 1863, the predecessors
> of the Shoshone and Bannock bands who would later become members of
> the Shoshone-Bannock Tribe of Idaho ranged over a wide area which
> extended from the Sweetwater River in Wyoming in the east to the
> Deschutes River of Oregon in the west and from the Missouri River in
> the north to the Humboldt River in the south. \... In subsistence, the
> heart of their range was the Snake River, its tributaries and its
> sister rivers, the Salmon to the north and the Bear to the south\....
>
> These riparian corridors were the routes by which the Shoshone and
> Bannock bands not only traveled to procure subsistence and engage
> their trade with neighboring peoples, but they were also the locations
> of their encampments. The corridors were rich in fish, game and plant
> resources the Shoshone and Bannocks depended upon for their
> livelihood. Productive salmon fisheries were located along the Snake
> River below Shoshone Falls and along the Salmon River to its head
> waters. These two rivers and the others the Shoshone and Bannocks
> traveled contained a variety of non-anadromous species which were
> regularly harvested as well. The banks of the rivers and their
> affluents held abundant plant grounds where many nutritious roots were
> dug, an assortment of berries were picked, and a wide range of seeds,
> grasses and leaves were gathered for food, medicine and other
> purposes. The valleys supported large and varied animal populations,
> which included the bison and antelope plains of the upper Snake River,
> the elk and moose grounds in the Bear River drainage, and the beaver
> and bighorn trails in the Salmon River basin.[^207]

Considering this and earlier citations, together with additional
information contained in identified references, we conclude that while
not all Shoshone and Bannock peoples may have matched the affluence of
some other tribes, in historic times they seldom lacked subsistence
foods - which represented the essential material elements of their
existence. While information is limited, it is also reasonable to
conclude that, in the sense identified by Bachtold[^208], the Shoshone
and Bannock bands were "fully functional" - able to provide for their
own physiological and safety needs, speaking their own languages, sure
of "where they belonged", and viewing themselves as worthwhile members
of Shoshone-Bannock society (Figure 6).

> **5.4 Changes in Shoshone and Bannock Circumstances - and the Fort
> Bridger Treaty**
>
> **of 1868**

Liljeblad reports that initial contacts between the Indians of Idaho and
whites were usually peaceful and mutually beneficial.

> Autochthonous Indian trade profited by the arrival of Canadian fur
> traders and trappers who moved in strong brigades through the Snake
> River country in the 1820's and 1830's, and by the simultaneous
> activity of their American competitors who held their summer
> rendezvous on the Green River in Wyoming. From 1825, when the first
> great rendezvous took place, and for fifteen years thereafter, not
> only the nearby Shoshoni and Ute participated in these events; mounted
> bands of Flathead and Nez Perce, each one counting hundreds of men,
> women and children, moved for weeks through Shoshoni territory to
> exchange their peltry and other products for the goods which the
> American pack trains had brought from St. Louis to the mountains. It
> was a time of prosperity and mutual amity between Indians and
> whites.[^209]

This period of amity soon began to change, however.

> The discovery of gold in 1860 and the resultant beginning of permanent
> white settlement brought about a conflict between two divergent
> cultural forms, the primitive civilization of nomadic hunters, and the
> commercialized one of settled miners, cattlemen, farmers, and
> industrialists. \...
>
> In the knotty web of evils which changed the short "period of pleasant
> contact" into a prolonged period of mutual suspicion there are, first
> of all, two things to be noted: the disregard of the white immigrants
> for the need of the natives to exploit resources essential for
> survival under primitive conditions, and the lack of efficient and
> impartial control by a superior administrative authority in regulating
> disputes during the initial and most crucial stage of contact.[^210]
>
> Permanent white settlement of Shoshoni territory in Idaho began in
> 1860 in the Bear River Valley. Contrary to the policy of the United
> States that the occupation of Indian land could be authorized only
> after the Indian title to the land had been extinguished by treaty and
> compensation, the immigration on Bear River proceeded with
> uncontrolled appropriation of the wintering grounds of the local
> Shoshoni population. The fertile valley had once been the range center
> of several numerically strong bands, but extensive trapping operations
> by white men in the 1820's had been a disturbing moment. In 1863, the
> major part of the remaining native population, presumably about three
> hundred individuals who had congregated in their winter village near
> the town of Franklin, was massacred by a military command under the
> pretext of executing a punitive action in retaliation of formerly
> committed depredations.[^211]
>
> When white men came to stay in the country of the people, they came
> suddenly and by the thousands; and they took possession of the land
> without formal relinquishment by its old occupants. With the discovery
> of gold in the early 1860's on John Day River in Oregon and in the
> Boise Basin and on Jordan Creek in Idaho, boom towns sprang up almost
> overnight, and prospectors penetrated every part of the territory. In
> the wake of the miners, many white settlers brought in livestock which
> caused rapid destruction of the food plants upon which the Indians
> depended. Living at a bare subsistence level to begin with and seeing
> their existence threatened by foreigners who possessed inconceivable
> resources, the people aimed their flint- pointed arrows at the "white
> buffaloes", as they called the cattle grazing among the seed patches
> on the old food-gathering grounds which the newcomers now called their
> ranches. The unexpected consequences were not long in presenting
> themselves to the people. Raids by parties of white volunteers
> organized by miners and settlers on defenseless Shoshoni and Paiute
> camps became increasingly common. Confounded by fear, the people did
> not know which way to turn\.... The concentration of the native
> population for mutual protection and the fear of moving about freely
> made foraging extremely difficult and raids on the white settlements
> more common. The people soon found themselves hemmed in by a chain of
> forts and camps, most of the troops being massed in the Boise military
> district. Detachments continually took the field, scouting
> southwestern Idaho and southeastern Oregon in search of Indians who,
> wherever found, were mercilessly slaughtered regardless of sex or age.
>
> In the face of a public opinion favoring extermination of the Indians
> at any price, the governor of Idaho Territory had meanwhile
> established contact with the Shoshoni occupying the Boise Valley and
> with some of the scattered groups south of the Snake River. In 1864
> and 1866, he concluded separate treaties with these Indians, who in
> their own interest consented to go to reservations at the discretion
> of the United States Government. These treaties were never ratified.
> However, all Indians still to be found in this corner of Idaho were
> gradually rounded up by the soldiers and brought into custody near
> Boise.[^212]

Shoshone and Bannock bands to the north and east, who generally traveled
by horseback, faired better during this period.

> The principal bands of mounted Shoshoni and Bannock had the good luck
> to be left to themselves until finally approached by the United States
> Government for treaty negotiation. By that time, they were well
> prepared to meet the challenge. On their annual journey of a thousand
> miles or more from their headquarters on the Snake and Lemhi Rivers to
> the Camas Prairie in the west and to the far-off buffalo country in
> the east, they had developed a certain amount of band solidarity - at
> least in times of distress - and had learned to submit to a more or
> less temporary leadership of entrusted men who knew how to negotiate
> with the whites. They were well armed, and had fought the hostile
> Plains Indians for generations, and they felt that they were perfectly
> capable of taking care of themselves as long as they were free to come
> and go where they pleased. Their chiefs claimed that they had always
> been on friendly terms with the white people they had met so
> far.[^213]

A series of abortive treaty discussions followed. Finally, in 1868, the
Fort Bridger Treaty established a reservation of some 1,800,000 acres at
Fort Hall, Idaho[^214]. This Treaty did not initially include the
so-called Lemhi group of Shoshone - who, in 1875, moved to a small
reservation created for them by Executive Order, where they continued to
live until 1907[^215]. Also:

> Between 1882 and 1886, about 300 people under Bruneau John, Big Jim
> and Panguitch consented to locate permanently at Duck Valley under
> threat of being sent to the Yakima Reservation.[^216]

Assignment of a homeland within specific boundaries must have been a
difficult concept for the Shoshone and Bannock bands, who roamed over
far more extensive areas during their seasonal rounds - and whose
culture did not treat land as "owned". In fact, Shoshone and Bannock
leaders were very careful that the Fort Bridger Treaty stipulated that
they could continue to conduct their seasonal rounds, going to each area
and in each season where they knew food would be available. Albers et
al. (1999) report:

> The Fort Bridger treaty of July 3, 1868 guaranteed the Shoshones and
> Bannocks reservations, as well as,
>
> ...the right to hunt on the unoccupied lands of the United States so
> long as the game may be found thereon, and as long as peace subsists
> among the whites and the Indians on the borders of the hunting
> districts.
>
> There can be little doubt that the (Shoshone-Bannocks) understood
> fishing as part of this general hunting right. There is no distinction
> in the Shoshone and Bannock languages between the verbs "to hunt" and
> "to fish".[^217] [^218]

The perception by the Shoshone-Bannock of "salmon fishers as hunters"
continues today.

> " **NOTICE**
>
> **SHOSHONE-BANNOCK**
>
> **SALMON HUNTERS**
>
> The Business Council hereby provides notice to
>
> Tribal hunters, salmon monitors, and game wardens\..." [^219]

The importance of Shoshone-Bannock off-reservation harvest areas has
been further stated in testimony to the U.S. Congress.

> The Shoshone-Bannock Tribes, like many other Indian tribes, possess
> extensive off- reservation federal treaty rights to use federal
> lands\... . The Shoshone-Bannock use rights include hunting, fishing,
> trapping, gathering of wild foods, grazing of livestock, and cutting
> of timber\... . Exercise of these traditional use rights\...reaches to
> the essence of the Shoshone-
>
> Bannock culture and subsistence economy. These traditional activities
> remain sacred to the Shoshone-Bannock today, just as they were at
> least 6,000 years before the birth of Christ. \...
>
> The history and nature of these treaty rights must be understood.
> Overriding federal law and the honor of this Nation as well as the
> states demands no less.[^220]

Shoshone and Bannock bands removed to the Fort Hall reservation over
following years. However, where white settlers saw wealth could be
acquired, they paid little or no attention to the Fort Bridger Treaty -
or its protections afforded the Shoshones and Bannocks.

> White encroachment on the reserved Indian land occurred as usual.
> Wealthy stockmen who kept cattle grazing on Indian land and even took
> up residence within the reservation limits, and against whom the
> (Indian) agent was powerless, could not see how fifteen hundred
> Indians who had neither cattle nor plows nor any permanent structures
> of any kind could possibly make use of so much land.[^221]

The circumstances of the Shoshones and Bannocks at Fort Hall were
further exacerbated by the fact that neither their prior hunting and
fishing experience, nor the resources available to them at Fort Hall,
were sufficient to sustain even a moderate level of survival solely on
the reservation.

> The true establishment of the Fort Hall Reservation began with the
> arrival of the Boise and Bruneau Shoshones in the spring of 1869, and
> from the beginning it was clear that survival on the underfunded and
> undersupplied reservation was going to be a struggle. White officials
> had no choice but to accept, and indeed encourage, the continuation of
> traditional subsistence practices. On the one hand, the Shoshones and
> Bannocks had no desire to give up their traditional life ways. In his
> first monthly report from Fort Hall, Captain Powell blamed the
> Indians' "disposition to roam" for their lack of interest in
> agriculture. He added, "away they went in pursuit of game and fish".
> Idaho's superintendent of Indian affairs Colonel Lancey Floyd-Jones
> also recognized that,
>
> They will, very naturally, ask to be permitted to visit when
> practicable, their hunting and fishing grounds - the Bannocks to hunt
> the Buffalo, in the vicinity of the Wind River mountains and the
> Shoshones the fisheries and hunting grounds about the head waters of
>
> the Malad River, which embraces the Kamas grounds of the district,
> rich in the various roots of which they are exceedingly fond.
>
> On the other, the government never provided an adequate subsistence
> for the Indians on the reservation. In 1871, Fort Hall Agent
> Montgomery Berry lamented;
>
> I am not at all astonished at the action of my predecessors in giving
> the Indians long permits of absence from the reservation, having been
> obliged to do precisely as they did, viz, push the Indians out on
> fishing and hunting excursions for the purposes of economy.
>
> Thus, whether pulled by cultural traditions or pushed by hunger,
> traditional subsistence practices remained crucial for the Indians at
> Fort Hall.[^222]
>
> The agent at Fort Hall was aware of the risk involved each time his
> protégés took their departure. He urged them to keep at a respectable
> distance from white settlements and - as he put it himself - from
> "going any place that might cause a conflict". The Indians gathered
> their staple food, the camas bulb, in large quantities west of the Big
> Wood River in the vicinity of the present town of Fairfield, an area
> generally called "The Camas Prairie". The region was referred to in
> the Fort Bridger Treaty as "Kansas Prairie", apparently in consequence
> of the understandable ignorance of the clerk who had couched the text
> of the treaty. The second article of this treaty explicitly states
> that "reasonable portions" of the area were to be reserved for the
> unrestricted use of the Indians. White settlers were nevertheless
> permitted to move in and use the camas for hog food.[^223]

Thus, an undetermined further area of Camas Prairie, assured to the
Shoshones and Bannocks in the Treaty of Fort Bridger - but either "taken
in error", or "illegally taken because of an error" - were never
formally credited as treaty lands - and most of these protected assets
were effectively transferred into non-Indian hands. It would seem that
this correction of this "error", together with accounting for the "Lemhi
reservation" lands, taken back in 1907, would put Shoshone-Bannock
original treaty-assured lands at at least two million acres.

As with other study tribes, loss of traditional Shoshone-Bannock assets
did not stop with treaty signing.

> The first major encroachment on the (Fort Hall) reservation came with
> the building of the Union Pacific Railroad from Ogden, Utah, through
> the reservation to the mines of western Montana in 1877, followed two
> years later by the extension of the railroad to Oregon. As a result of
> the railroad cessions, and the growth of the city of Pocatello as a
> transportation hub and center for White squatters, the boundaries were
> renegotiated in 1881; by 1900 the reservation acreage was
> halved.[^224] [^225]

Given the desperate material circumstances of the Shoshone and Bannock
peoples, and the threats of violence from Whites, it is not clear that
the term "negotiated", contained in the preceding citation, is
appropriate. Nonetheless, by whatever means, within approximately twenty
years, the Shoshone and Bannock peoples had lost approximately half of
the lands they believed they had reserved for themselves in the Fort
Bridger Treaty - to the Union Pacific, to Pocatello, and to other White
purposes. During this period, preemption by Whites of traditional tribal
fishing activities also continued with little or no abatement. For
example:

> Throughout the 1860s and 1870s, white-owned fish traps which all but
> prevented runs from ascending the Lemhi River were a source of
> friction between the Indians and white settlers.[^226]

Confined to an ever diminishing land area, threatened and abused by
white settlers when they attempted to go to their usual and accustomed
harvest areas, often finding resources had been preempted or destroyed
if they reached those areas - whatever sustaining conditions the
Shoshone and Bannock peoples had hoped to achieve by the Fort Bridger
Treaty - they found little to sustain themselves in the decades that
immediately followed.

> **5.5 Further Allotment of Lands Reserved to the Shoshone and Bannock
> Peoples**

The Dawes Act of 1887, and the amending Burke Act of 1906, was
represented by some proponents as a measure to facilitate entry of
tribal peoples into mainstream society - by "allotting" small acreages
to individual families, with the proviso that these parcels could
subsequently be sold to anyone. In fact, the actual effect of these
Acts, and similar measures, was to separate the Indian from still more
of his wealth in land.

> Beginning\...in 1869, there was an attempt to streamline the
> administration of Indian matters and to apply a uniform policy to all
> reservations. The purpose of this policy was to de- Indianize the
> Indians; to make them into rural farmers of Christian faith, literate
> in English (and preferably speaking no other language), "unfettered"
> by ancient traditions and customs, and skilled in blue-collar
> professions that would turn Indian communities into approximations of
> rural American towns. The cornerstones of this policy were: a resident
> agent for each reservation; one or more Christian missions for each
> community; establishment of farming as the dominant economic strategy,
> regardless of the pre-existing expertise of their inhabitants; removal
> of all Indians to reservations or creation of reservations around
> them; and implementation of behavioral codes meant to encourage
> acculturation. Between 1890 and 1929, the effort to "stamp out
> nativism" was particularly acute. The effort aimed at banning
> religious ceremonies, prohibiting Native doctoring, and mandating
> sectarian Christian instruction in government-operated schools. Those
> who defied the bans and prohibitions were punished, often with
> imprisonment for weeks or months. \...
>
> The "pan-reservation" policy must be judged a failure on nearly all
> counts. First, it should be noted that fewer than 60 percent of all
> Great Basin Indians were actually on reservations. Even for well
> settled reservation groups several factors intervened between the
> implementation and accomplishments of the government goals. One factor
> was the
>
> significant resistance to acculturation and domination, ranging from
> the Bannock War of 1878 to institution of the Ghost Dance, Cry, and
> Sun Dance in many communities. A second fact was that most
> reservations were only marginally suited to agriculture: many lacked
> adequate water or had water usurped by non-Indian users up-stream.
> Those that did have adequate water were far removed from
> transportation facilities and had precariously short growing seasons.
> Third, local non-Indian interests often worked against the goals of
> reservation administrators, hoping either to dislodge Indians from
> desirable lands or to divert water or mineral resources from Indian
> control. In many cases, administrators and Indians were powerless to
> halt outright encroachment\....
>
> Another reason for failure was the variability in length of contact
> and reservation-based experiences among (tribal) groups. Mere
> placement of several different ethnic groups on one reservation did
> not automatically melt away differences or fuse the groups into a
> single reservation community\.... Finally, the ostensible attempt to
> create reservation communities of farmers was predicated on a
> dependency model that set up the agent and his staff as wholesalers of
> seeds and farming implements, marketers of agricultural products, and
> caretakers of Indian financial affairs\.... At the same time, the
> world in which Indians were expected to operate was based on a
> capitalistic model that assumed a primary drive on the part of all
> human beings to acquire and accumulate wealth naturally and to affix a
> monetary value to all goods and services. Often, both the dependency
> and capitalistic models violated Indian systems of ethics and social
> relationships. Such contradictions resulted in patronized and
> beleaguered communities that were anything but self-sufficient.[^227]

With specific reference to the reservation at Fort Hall:

> Further shrinkage of (Shoshone-Bannock) reservation lands was brought
> about by the Dawes Severalty Act of 1887 and the allotment of
> reservation lands to individual Indian families during the years 1911
> to 1916. Aridity and poverty of soil made small holdings infeasible,
> and the program was largely a failure. Allotment in severalty was
> terminated by the Indian Reorganization Act of 1934, and as of 1956,
> there were 277,900 acres of (Shoshone-Bannock) land in allotment,
> 204,600 acres in tribal ownership, and 41,400 acres in government
> holdings. The land problems were exacerbated by lack of irrigation
> water and the fact that the Fort Hall Irrigation Project of 1912 and
> subsequent water developments mainly benefited White farmers. Add to
> this the flooding of the Snake River bottomlands by the American Falls
> Reservoir, the inroads of timber and phosphate mining interests, and
> further cessions for highway and other rights-of-way, and it becomes
> clear that the integrity of the Fort Hall Reservation has been
> seriously compromised.[^228]

Clemmer and Stewart identify the following alienations of tribal Treaty
lands of the Shoshone-

Bannock, subsequent to 1868 (Table 10).

Table 10

[Alienation of Shoshone-Bannock Treaty Lands Subsequent to
1868]{.underline}

[Alienating Action]{.underline} [Year]{.underline} [Acreage]{.underline}

Taken by Union Pacific Railroad. 1888 1,840

Taken by Marsh Valley Homesteaders. 1889 297,000

Taken by Congress for homesteading, 1900 418,000

the city of Pocatello and mining

under the Dawes Act.

Taken by BIA for Lemhi Indians. 1907 325,000

Lemhi Reservation taken for 1907 64,000

homesteading.

Taken by Congress for American Falls 1924 28,000

Reservoir.

Takings n.e.s. 1950-1971 864

Source: Clemmer, Richard O. and O.C. Stewart, 1986. **Supra** at 544.

As a result of these policies and actions, by 1956, the Shoshone and
Bannock peoples at Fort Hall had only 524,000 acres of marginally
productive land left from the approximately two million acres that US
government negotiators told them at the Fort Bridger treaty talks would
secure their future[^229]. The Indians living on the Duck Valley
Reservation were not subjected to the allotment procedures[^230].

> **5.6 Shoshone-Bannock Access to Traditional Fishing, Hunting and**
>
> **Gathering Areas**

While the Shoshone-Bannock peoples now living at Fort Hall had lost
approximately 74 percent of their Treaty lands by the 1950s, this was
not the most serious economic or cultural impediment they have had to
deal with. It will be recalled that the Shoshone and Bannock were
"roaming" peoples - going to each traditional area at the appropriate
time to harvest their natural food sources. It was this seasonal round
that assured their survival. And it has been White actions to "corral
the Indians off" from such widely dispersed Treaty food sources, or to
destroy these sources altogether, that has had the most devastating
effect on Shoshone-Bannock wellbeing.

> From 1868 through 1877, the hostility of settlers and inadequate
> facilities of Fort Hall made life virtually impossible for the
> Bannocks and Snake River Shoshones that had been targeted for
> relocation to the reservation. For one thing, the reservation had been
> illegally settled by homesteaders, and the town of Pocatello had
> become entrenched. For another thing, although Bannocks and Shoshones
> had been guaranteed access to traditional hunting, gathering and
> fishing areas the hostility of settlers off the reservation was as
> great as those encroaching on Fort Hall, and many Indians were so
> fearful of reprisals that they did not leave the reservation to gather
> foodstuffs for the winter. Inadequate rations at various times forced
> the Indians to either starve on the reservation or to risk punishment
> for leaving to gather food.[^231]

Resistance by non-Indians to tribal use of traditional harvest places -
and action against Indian interest to protect the wealth acquired by
non-Indians - has continued through the 20th century. For example,
commenting on a tribal vote in the 1930's concerning the Indian
Reorganization Act - an Act to provide more empowerment to tribes,
Liljeblad (1972) notes:

> Rejections were caused in the main by campaigns on a local level from
> those people, mostly white, who feared that they would lose advantages
> of one kind or another through the application of a new policy. In his
> annual report, the Commissioner of Indian Affairs made the following
> comment:
>
> Joining hands in this campaign of misrepresentation were stockmen who
> feared that the Indians would run their own stock on the land hitherto
> leased to white interests; traders who were afraid of losing their
> business through the competition of Indian consumers' cooperatives;
> merchants and politicians in white communities on the edge of the
> reservations; a few missionaries who resented the extension of the
> constitutional guarantee of religious liberty and freedom of
> conscience to Indians\...; lumber interests which did not want to see
> Indian tribes exploit their own forest resources. [^232]

Even when tribes can secure access to traditional harvest areas,
anticipated food resources are often no longer found there. Beginning in
contact times with destruction of camas grounds by settlers' pigs, and
preemption of tribal salmon catches by non-Indian downstream weirs, a
range of activities have progressively acted to change the way in which
land and water in Shoshone- Bannock country is combined - to produce
electricity, irrigation, minerals and other products of value to the
non-Indian - rather than fish to feed the Shoshone-Bannock peoples.
Albers, et al. (1999) follow a modern "coyote story" with the following
comment.

> This newer version of a story where Coyote creates structures along
> the Snake River is an apocryphal tale, a foreshadowing of the modern
> era when the building of great concrete dams diminished the salmon
> runs on the Snake River and confined them largely to locations below
> the Hell's Canyon Dam. When the older version of this story was told
> by generations of Neme long past, anadromous species of fish were
> still abundant along the Snake River below Salmon Falls and throughout
> the Salmon River basin. \...
>
> Mining was one of the first industrial developments to impact Idaho's
> water and its fisheries. \...(G)old strikes took place among many
> watercourses in the heart of the Neme's territorial range. The Boise
> Basin and the Yankee Fork of the Salmon River were among the locations
> where the food procurement sites were damaged by mining and where the
> local Neme were displaced as a result\....
>
> Dams, created to harness the hydroelectric power of the Columbia River
> and to store water for agricultural use, also degraded local
> fisheries. Dams were constructed on the Columbia and its tributaries
> until 1975 and scientific studies indicate these dams contributed
> substantially to the endangerment and extinction of several species of
> salmon. This took place throughout the salmon's range but it was
> especially pronounced along the Snake where some of the Neme's richest
> and most productive fisheries were located in historic times.
>
> More recently, agricultural pesticides have had deleterious effects on
> riparian environments in the greater Northwest as well\.... Whether
> singly or in combination with one another, agriculture, dams and
> mining irreversibly changed Idaho's riparian environments; and in the
> process, they forever altered the Neme's access to many of the
> traditional fisheries guaranteed them under the Fort Bridger Treaty of
> 1868.[^233]

These actions have seen a Snake River salmon and steelhead all-species
historic run size estimated at 2 million+ fish decline by 90 percent, to
an estimated 200,000 fish in the mid- twentieth century - and decline by
half again to about 100,000 salmon and steelhead by the late
1980's.[^234] In tribal eyes, these impacts extended well beyond
counting fish.

> My grandfather explained to me how the elk, as it grows up, eats
> plants that have nutrition and medicine in them. It stores these
> things in its body as it grows - and carries the medicine with it. One
> day, at the right time, we go and hunt it. Often we put it away for
> the winter, when we need the protein. Same with the salmon.
>
> When the willows turn a certain color, the old people tell us, "it's
> time to go fish" - when it turns a little yellower, "the summer run's
> coming". We don't see that anymore. Once you put the dams in, those
> willows are gone - that identify the time to go fishing. Its the whole
> river system - the gravels, the sage - it all adds up.
>
> It takes a long time to learn these things - sometimes a whole
> lifetime to learn about the river - sometimes a whole lifetime to
> learn to talk Indian - that's what I always tell the kids. You have
> your whole lifetime to speak Indian - don't give up because someone
> blasts you.
>
> And that also applies to the salmon. Our people have always talked to
> the salmon - to the animals. For they also have a spirit. You can't
> get away from it.[^235]
>
> The tribes were never consulted when they were building the dams.
> There are sacred sites all along where they built the dams. That's the
> places where our people used to go to get the fish and to pray. Today
> we can't do that because the dams destroyed these places - and in that
> way, they've destroyed our customs and traditions.
>
> Not only that - but today we have no fish. Water quality is way below
> where it should be. I don't believe in "EPA standards". We need to
> consider that "pristine means pristine" - and not try to depend on
> just what the scientist thinks.
>
> When they base all their decisions on human consumption, they forget
> to look at the fish. They forget to look at the resources that grow
> along the river. They forget to look at the alkali that's with the
> system - the gravel - the land. It's all part of the river.[^236]
>
> Some non-Indians say; "All these bad things happened before I got
> here." But it was their forefathers who displaced the Indians - who
> raped our mothers and our daughters - who killed the children - and
> then forced us to go to different areas because of precious metals -
> because they wanted the water - because they wanted the forests. These
> are the ugly histories they say do not pertain to them - yet
> unfortunately some of us still carry the hurt and pain within our
> hearts. Some of that old history will hopefully be remembered some
> day - because they did it to us. They need to know it was their
> forefathers.
>
> One way of correcting that is to recognize our Treaty. Too many times
> the non-Indian complains: "Why do the Indians come here?" "Why do they
> get a fish free?" Now you know why! Because of their forefathers! And
> one way of correcting that is by going back and recognizing what they
> did. It's Ugly! Totally Ugly! [^237]
>
> **5.7 Post-Contact Shoshone-Bannock Health**

The Shoshone and Bannock peoples considered in this study were also
adversely affected by contact with new "white man's diseases" against
which they had no immunity - and by 1873 their population is estimated
at just under 2,000 persons[^238]. Leland (1986) provides estimated
Shoshone and Bannock populations from that date forward until 1950
(Table 11).

Table 11

[Estimated Historic Populations of the Northern Shoshone and Bannock
Peoples - Selected Years]{.underline}

[Year(s)]{.underline} [Population]{.underline}

Pre-contact 3,000

> 1873 1,937
>
> 1890 1,925
>
> 1910 1,699
>
> 1930 1,688
>
> 1950 2,292
>
> Sources: Murphy, Robert F. and Y. Murphy, 1986. **Supra** at 289.
>
> Leland, Joy, 1986. **Supra** at 609-612.

By 1950, Shoshone-Bannock populations were recovering. However,
information from Knack (1986) makes clear that the **linkages suggested
by Bachtold and Trafzer between poverty and ill health were evident
among Shoshone and Bannock peoples in the recent past.**

> (In 1963) (t)he average cash income per employed worker (at the Fort
> Hall Reservation) was \$1,780, or \$540 per capita\.... Over 12
> percent of the population earned less than \$100, and 42 percent
> earned less than \$300 per year\.... In 1950, the income of Idaho
> non-Indians was 36 percent greater than the average at Fort Hall, and
> in 1967, it was more than twice the Indian average.
>
> The social consequences of this economic situation were plain\... .
> Only 5 percent of Fort Hall housing was rated as comparable to that of
> surrounding rural non-Indians\.... Fort Hall houses were small,
> substandard and crowded\....
>
> The Fort Hall study documented another social result of the economic
> situation, its effect on the health of the people. While, like Indians
> generally, they had lower than state and national rates of death due
> to cancer and heart disease, many other categories were
> disproportionately high - 3.66 times the Idaho rate for accidents,
> 4.25 times the influenza and pneumonia, 15.5 times the tuberculosis,
> 89 times the dysentery, 29 times the meningitis, and 29 times the
> deaths due to measles. All these categories can be attributed to poor
> and uninsulated housing, unsanitary water sources and waste disposal,
> and inadequate and untimely health care. In short, "the single worst
> factor found in relation to diseases at Fort Hall is the general
> living conditions of the people".[^239]
>
> **5.8 Present Circumstances of the Shoshone and Bannock Peoples**

Previous sections have reviewed the cumulative adverse effects on the
Shoshone and Bannock peoples from progressive destruction of their
Treaty-based and other resource assets - and the transfer of benefits
from those resources to non-Indians. This section considers whether any
significant recent changes have occurred with respect to these adverse
trends - and assesses the present circumstances of the Shoshone-Bannock
peoples.

> **5.8.1 Remaining Shoshone-Bannock Lands and Resources**

In 1996, the Native American population in and adjacent to the Fort Hall
reservation stood at approximately 3,700 persons[^240] - up somewhat
from our pre-contact estimate. In addition, 1,003 Native Americans were
reported resident on the Duck Valley Reservation by the 1990
Census[^241]. Lands of the Shoshone-Bannock Reservation have increased
slightly from levels of the 1950's, to approximately 544,000 acres -
with about 3 percent of these lands held in fee simple[^242]. Thus, the
Shoshone-Bannock today exist on approximately 27 percent of the
Reservation lands they believed they had secured in 1868. From an
economic perspective, much of this land is marginal.

The Duck Valley Reservation consists of 293,700 acres - virtually all in
tribal ownership[^243].

Contrary to the Fort Bridger Treaty with the United States, the
Shoshone-Bannock peoples were also deprived of access to most of their
off-Reservation subsistence resources - the lifeblood of their
traditional way of living - well before the modern era. While attempts
to fish, hunt and gather off-reservation continue, success is now low.
The extensive trade in salmon and game once conducted by the Shoshones
and Bannocks has now disappeared - with such meager harvests as can be
obtained retained for subsistence purposes. Even more adverse, where
access to such resources is obtained by the Shoshone-Bannock, they often
find that their traditional resource assets have been destroyed - for
example, above Hells Canyon, and at Duck Valley, where the salmon that
used to swim up the Bruneau and Owyhee Rivers are gone. This conversion
of the land and water of the Shoshone-Bannock treaty territory to
non-Treaty uses has a long history - starting with the destruction of
camas grounds at Camas Prairie in the 1800's, continuing through the
shutting off of salmon from extensive areas of Shoshone-Bannock fishing
territory in the 1950s and 60s, and incorporating extensive use of
waters - depended on by Shoshone-Bannock - as waste depositaries for
agriculture and industry in the present day.

The Pacific Northwest River Basins Commission (1974) reported that "as
many as 17,000 fall chinook and 10,000 steelhead were recorded as once
having migrated annually into and through the Hell's Canyon reach of the
Snake River"[^244]. These runs are now gone - and the run size for Snake
River salmon and steelhead was reported down to 5 percent of its
historical levels by the 1980's[^245]. The runs are lower still today.
Shoshone-Bannock members harvested approximately

2,000 pounds of salmon in 1997 - and only for subsistence
purposes[^246]. For the ten year period 1989-1998, Shoshone-Bannock
salmon harvests have averaged 795 pounds annually. **This figure is less
than one-tenth of one percent of estimated Shoshone Bannock harvest near
Treaty times.** It is approximately one-third of one percent of
estimated pre-contact Shoshone-Bannock harvests.

But even these stark statistics understate the impact of these resource
losses as seen through Shoshone Bannock eyes.

> The tribes have looked at the river as a system, a life giving entity
> that provided for our needs. My grandfather was a medicine man. One
> day he showed me a spring out here. He talked to the water and said,
> "Your soul and the water's soul can communicate." The water had
> religious as well as life-giving properties. Now there are no more
> medicine men. Up on the Salmon River, my grandfather walked on the
> backs of salmon. That's something that was once ours. I wish we had it
> today. A lot of things have been lost. How you pray has pretty much
> been lost. Now we hire engineers and identify and quantify our "needs"
> for water. Mankind invented dams and pipes and sprinklers and all
> these wonderful things and spent a lot of money screwing up the river.
> Now, no one will spend the money to correct the problems. Now we dam
> the river and hold the water hostage.[^247]
>
> **5.8.2 A General Assessment of Present Shoshone-Bannock Material
> Circumstance**

Present-day Shoshone-Bannock circumstances caused by this cumulative
destruction of tribal trust resources and transfer of tribal wealth to
non-Indians can also be seen in contemporary statistical data. Table 12
compares the relative economic circumstances of the Shoshone-Bannock
peoples with peoples in Idaho and Oregon as a whole.

Table 12

[Comparative Data Showing the Relative Circumstances of the
Shoshone-Bannock Tribes]{.underline}

[Economic Indicator]{.underline} [Shoshone-Bannock]{.underline}
[Idaho]{.underline} [Oregon]{.underline}

Families in Poverty(%) 43.8 9.7 12.4

Unemployment: US Census (%) 26.5 6.1 6.2

: BIA 80.0\*

Per Capita Income (\$'000) 4.6 11.5 13.4

\*The US Bureau of the Census employs a relatively liberal "employment"
standard.

BIA's employment measure requires employment over a longer period of
time to

qualify. The higher BIA unemployment figure is judged to better reflect
the degree of

material difficulty the Shoshone-Bannock experience - particularly in
winter months.

Source: US Bureau of the Census - 1990 Census of Population: Social and
Economic

Characteristics - American Indian and Alaska Native Areas. 1990 CP-2-1A.

: US Bureau of Indian Affairs, 1995. Indian Service Population and Labor

Force Estimates.

At present, Shoshone-Bannock employment at Fort Hall depends principally
on phosphate-related industrial activity, tribal governance, gaming and
a cluster of small businesses near the highway - consisting of a trading
post, clothing store, restaurant and truck stop - as well as a tribal
farm. Principal employment of Fort Hall Shoshone-Bannock members is
identified in Table 13.

Table 13

[Principal Employment of Shoshone-Bannock Members]{.underline}

[Activity]{.underline} [No. Employed]{.underline}

Phosphate industry 500

Governance 290

Gaming 139

Tribal enterprises 85

Source: TERO Office. Shoshone-Bannock Tribe. June, 1998.

In summer, an additional approximately 150 jobs may be obtained in
construction[^248]. These figures are slightly improved from levels of
1995, chiefly due to an expanded tribal gaming business[^249]. However,
this improvement still leaves approximately 68 percent of the
Shoshone-Bannock potential work force unemployed in summer - and
unemployment rises to an estimated 72 percent in winter months. Further,
some Idaho politicians, in a manner fully consistent with their historic
predecessors, have been attempting, under cover of law, to capture
substantial portions of Shoshone-Bannock gaming revenue for non-tribal
interests - thus putting the modest employment gains Shoshone-Bannocks
have been able to achieve over the past few years at risk.

The economy at Duck Valley is similarly bleak, with the 1990 Census
reporting 35 percent of Indian families living below the poverty line
and 25 percent unemployment[^250]. The US Bureau of Indian Affairs
reports 48 percent unemployment on the Idaho portion of the Duck Valley
Reservation in 1995[^251].

> **5.8.3 Shoshone-Bannock Tribal Health**

Shoshone-Bannock tribal health indicators reflect the adverse conditions
previously described. The Fort Hall Service Unit of the Indian Health
Service serves Bannock, Bingham, Caribou, Lemhi and Power counties.
Indian Health Service (1994) reports that the age-adjusted death rate
for Indians in the Fort Hall Service Area exceeded that for "all other
races" by 2.3 times[^252]. Table 14 provides comparative data for the 6
leading causes of tribal death.

Table 14

[Leading Causes of Tribal Death - Fort Hall Service Area:
1989-1991]{.underline}

Ratio of NA

[Cause of Death]{.underline} [Native American]{.underline} [All Other
Races]{.underline} [to Other Races]{.underline}

\-\-\--deaths per 100,000 population\-\-\--

Heart Disease 338.8 121.5 2.8

All Other Accidents 104.6 20.3 5.2

Malignant Neoplasms 112.9 108.9 1.0

Cirrhosis of the Liver 56.3 6.5 8.7

Diabetes Mellitus 69.9 11.9 5.9

Source: US Indian Health Service, 1994. **Supra** at 47.

Motor vehicle accidents are also a significant killer of
Shoshone-Bannock peoples, accounting for 5.9 percent of deaths in the
1989-1991 period[^253].

A 1996 "Community Needs Assessment", conducted on the Fort Hall
Reservation by the Shoshone-Bannock Health and Human Services
Department, in collaboration with Centers for Disease Control (Atlanta,
GA), confirms the problematic nature of Shoshone-Bannock health[^254].

In its Executive Summary, that report notes:

> Despite great improvements in recent decades, the health of Native
> Americans continues to lag behind that of the overall United States
> population. For the period 1989-1991, life expectancy was still about
> three years shorter for Indians than for the U.S. white population.
> Most of the major causes of death that are considerably more prevalent
> among Indians than among other Americans are related to individual
> behaviors, especially alcoholism, diabetes and intentional and
> unintentional injuries. Thus, any efforts aimed at substantially
> reducing mortality and improving health among Native Americans must
> recognize the importance of the behavior of individuals and not be
> limited to the provision of medical care.[^255]

As Bachtold (Note 66) and Trafzer (Note 73) point out, when peoples are
denied the opportunity for meaningful activity, separated from essential
elements of their very "Indianness" and treated unjustly at almost every
turn, such unacceptable levels of adverse health can be predicted.

Significant improvements in Tribal health services continue to be made
on the Fort Hall Reservation[^256]. But many of the health problems
already cited remain.

> A lot of our people suffer from diabetes, high blood pressure,
> alarmingly high triglyceride levels. We have a lot of overweight kids,
> low levels of immunization - we have a lot of people with low
> hemoglobins, who suffer from anemia. In our present existence, high
> calorie/low nutrient foods are characteristic of diets on the
> reservation.[^257]
>
> Many of our accidental deaths involve drugs or alcohol. Generally,
> this does not involve kids who are brought up in traditional
> ways.[^258]

According to Shoshone-Bannock leaders and experts, the health of the
salmon and the health of tribal peoples are interrelated.

> When you're at a young age and catch your first salmon, he had what
> the white man calls "a ceremony". He first experiences the enjoyment
> of the catch. Then he says a prayer that he'll be able to catch
> another one. It is the same when we cut a tree. We talk to the tree,
> and tell it what we are going to use it for. In this way, the young
> person broadens his senses - understands more about who he is.
>
> The biggest step is to give his catch to someone. That puts him on the
> right trail - it ties him to the land and to the people. And somehow,
> after you've done that, its easier to hunt for your fish and game. You
> know where to go - what to see - what to smell - what to look for.
>
> It all adds up, and it all comes back to being Indian. That's when you
> earn respect from your people - it ties you to the earth. When you go
> through that, you appreciate your father's and your peoples'
> teaching.[^259]

This quote from a Tribal leader gives definition to some of the
requirements that Bachtold identifies to be requisite for development of
the healthy personality. More clinically:

> Loss of the salmon is one of the significant reasons for the health
> problems our people have. Fish would be a good preventative tool for
> many of the complications our young people are facing today - such as
> obesity, which turns to diabetes, kidney disease and so on. Salmon
> contain high levels of omega-3 fatty acids, and its consumption
> benefits the diabetic. These fatty acids also reduce blood pressure,
> assist prevention of arthritis, lower cholesterol and triglyceride
> levels, and provide other health benefits. It has also been reported
> that such fatty acids are important for brain development and
> function - which has particular relevance for our young people.
> Fishing also provides exercise - which is important for health.
>
> Hunting and fishing is an effective health preventative. In addition
> to the other benefits I have mentioned, it also provides mentorship
> and self-esteem[^260].

Finally, in historic times, every Shoshone or Bannock person spoke their
own language. Today, according to US Bureau of the Census data, only 34
percent of people at Fort Hall speak their "own language" in their
home[^261]. Even at the more isolated Duck Valley Reservation, only 38
percent of Shoshone-Bannock peoples are estimated to speak their own
language[^262].

As with other study tribes, present circumstances of the
Shoshone-Bannock Tribes are also characterized by the type of Maslow
hierarchy diagram suggested by Bachtold (Figure 7).

> **6.0 Circumstances and Impacts on the People of the Yakama Indian
> Nation**

This section provides information on past and related present
circumstances of the fourteen tribal peoples who now form the Yakama
Indian Nation (Table 2)[^263]. Expected effects of Lower Snake project
options will be discussed in the later project impacts section of this
report.

> **6.1 Accustomed Tribal Areas and Seasonal Harvest Rounds of the
> Peoples of the**
>
> **Yakama Indian Nation**

In pre-contact times the peoples now living together as the Yakama
Indian Nation (YIN) ranged over 12 million acres[^264], from the
confluence of the Columbia and Methow Rivers southwesterly along the
Columbia to the Cascade Range[^265]. This territory included Mount Adams
in the Cascades and the north side of the Snake River, downstream of the
confluence of the Palouse[^266]. From this territory, traveling parties
of the peoples now described as the Yakama also fished, hunted and/or
traded westward as far as the rivers flowing into Puget Sound, and
eastward as far as the buffalo country. Above all, the Yakama were
people of the land.

> In the beginning, our Creator spoke the word and the earth was
> created. He spoke the word again and all living things were put on
> earth. And then He said the word and we, the people, were created and
> planted here on this earth.
>
> We are like the plants on this earth. Our food was put here as plants
> to feed us; just like when we plant a garden. That is the way our
> earth was in the beginning.
>
> There were salmon, deer, elk, and all kinds of birds. It is as if our
> bodies are the very end of the earth, still growing while our
> ancestors are all buried in the ground.
>
> He named everything he created. He put water on this earth. He made it
> flow into the rivers and lakes to water this great garden and to
> quench the thirst of the people, the animals, plants, birds and fish.
>
> He took the feet of the people and made them walk on the earth. He
> created the horse; which is like a human being. He put the horse and
> the people together to help one another.
>
> All the land where we live and where our ancestors lived was created
> for the \[Indian\] people.[^267]
>
> \...the Yakima today still live on the same land that has been a part
> of their traditional territory for thousands of years. Their roots are
> deeply sunk into the earth. Their sense of identity is clear. As a
> result, many of the Yakima's cherished traditions still live,
> imparting a sense of the wisdom that sustained the people in the past
> and enabled them to survive into the present.[^268]
>
> The land don't belong to the Indian; the Indian belongs to the
> land.[^269]

As did their neighbors, the Yakama peoples of the pre-contact era lived
with the land - following seasonal rounds of fishing, hunting and
gathering - in each usual and accustomed location at the appropriate
time and season.

> The Yakima derived their subsistence primarily by fishing and by
> gathering wild plants, but they supplemented their supply by hunting.
> In order to obtain as much food as possible, they traveled to wherever
> plants or wildlife were most plentiful during a specific time of year.
> Although the camps they established at these sites were temporary,
> they had an air of permanence because people tended to return to the
> same areas year after year.[^270]

A general sense of these seasonal rounds is provided in Table 15.

Table 15

[A General Profile of the Seasonal Rounds of the Yakama
Peoples]{.underline}

[Time of Year]{.underline} [Characteristics of the Period]{.underline}

February. Snow begins to melt - and Yakamas begin to break winter camps
in the

Valley bottoms. Before leaving these camps they harvested the first
plant

food of the new year - a wild celery called khasija.

Late February The Yakama arrived at fishing stations on the Columbia,
Lower Snake and

& into March. Yakima rivers, and their tributaries. These rivers teemed
with early run

salmon (nusukh), including chinook, silver, sockeye and chum. The Yakama

also fished for steelhead, resident trout, sturgeon, suckers and
lampreys.

Late April. Harvests from fishing sites declined, and the Yakama moved
to root-digging

grounds - where the women gathered more than 20 varieties of roots, and
the

men hunted for deer, and other wildlife such as elk, bear, wolves,
foxes,

mountain sheep and goats, and birds.

June. Families returned to fishing sites to harvest the second salmon
run of the

season.

July. Families moved to cooler higher elevations, where the men hunted
and the

women gathered wild plants.

August. Many Yakama families traveled south to the Klikitat territory to
gather

roots. They traded with other Indian groups and fished for trout.

In mid-month, women and girls, guarded by an older man or a boy, went
into

the mountains to pick huckleberries.

Early Fall. Families began to return to the river valleys for the fall
fish runs. Often, these

fishing centers were also places for extensive trade between tribal
groups.

Families gathered and stored the supplies they would need for winter,
and

some men went into the mountains to hunt deer and elk.

Mid-November. Families returned to their winter camps in the valley
bottoms, which were

protected from severe winter weather. They repaired their homes for
winter,

made tools and needed clothing during this quiet time. They remained
there

until snow-melt, socializing, and living on the roots, berries, salmon,
venison

and other foods they had gathered in previous months. Sometimes, the men

ventured out to do limited hunting during this winter period.

Source: Developed from, Schuster, Helen H., 1990. **The Yakima**. pp.
21-25.

Of the resources of the "land" which the Yakama depended on, water was
first, salmon was second, and the other food sources were also required,
each in its season.

> Since immemorial days we have had great prophets to guide our laws
> that had been established for us to follow and which we do so at the
> present knowing the living God still exists; first, the water; second,
> the salmon; third, the big game; fourth, the roots; and fifth, the
> berries. All of which we used each year to give thanks to our living
> God, which when first taken are new to us each year, in other words
> "communion" with our living God through the water and the food he
> provides us with each year.[^271]
>
> We were talking about the essence of the teaching as our Creator
> handed down to our people, which has been handed down through
> centuries or through generations. And I always sing that song before
> we eat and when I'm coming back from services. That's at the Longhouse
> with the Seven Drum religion. And this song does explain the three
> promises God made to mankind, not just to Indian people, to mankind:
> that the food would always be plentiful if it's carefully been kept,
> and used in care and respect for the food itself. The first food is
> salmon to us; that's our first food. And we recognize that, as such,
> without it our life would not have its full potential as far as our
> existence is concerned\.... (T)he salmon goes and then comes back. The
> old ones give up their life for the new ones, just like the mother
> gives birth to young. That is what we're taught \-- to show respect
> and have empathy for the salmon.[^272]
>
> Since the beginning of time \-- since time immemorial the people of
> the YAKIMA NATION have been told the history of our ancestors and
> their ancestors before them by our tribal elders. History and legends
> are kept and handed from one generation to the next generation.
>
> Ranking first is our Creator's most precious gifts of water, and land
> \-- Mother Earth. These he gave us for our daily use, our sustenance,
> our survival. He blessed the waters and instructed our First Peoples
> to take care of the water because it is there for a reason. For
> without water nothing can survive. There would be no rivers, streams
> or creeks for our salmon, trout, eels; No trees (forests), plants,
> roots (edible and medicinal) berries. There would be no animal life -
> no life at all.
>
> It has been this way since our Creator placed us in this part of the
> world and instructed our First Peoples in the care, and the gathering
> of all fish, game, fowl, roots and berries. Creator chose certain men
> and women of the First Peoples to be teachers and showed them what
> fishes, animals and fowls that were allowed to give up their lives to
> sustain ours; what plants, roots and berries we could use to keep our
> bodies healthy and strong. He taught our Old Ones which trees and
> grasses we could use for shelter, for processing and storage of our
> foods.
>
> Nothing is to be wasted, and so Creator taught us how to replenish all
> that He provided for our sustenance. Our Creator taught us how to
> survive on what he provided.
>
> The Old Ones say the Creator told them to follow his path, a path of
> religion that would be in gratitude to Him for all that is provided
> for our sustenance and our life. Our religion begins all meals with
> His first blessing \-- water, followed by Salmon, the deer/elk, first
> roots and berries. All meals conclude with water as we were instructed
> by the Creator.
>
> Creator's second gift of life to the Yakima Indians is the Salmon.
> Salmon was placed in the Columbia and in its tributaries for us to
> harvest as the Creator said the salmon was to help nurture and sustain
> us. In return for the gift \-- we are to care for the waters that
> sustain the salmon.[^273]

Outside experts have reached similar conclusions with respect to the
role of fishing in Yakama traditional life.

> Fishing was a major economic activity for the Yakima. Some early
> writers referred to salmon as the "main staple" and "chief food
> resource"; and as a single item it probably was.[^274] [^275]
>
> **6.2 Natural Capital and Annual Productive Yield of Original Yakama
> Lands and**

**Other Resource Assets**

In economic terms, the lands, waters and salmon producing capacity of
the traditional territories of the Yakama peoples represented the
"natural capital" upon which they depended. This natural capital
produced the annual harvests of salmon and other fishes, of game, and of
roots, berries and plants that allowed the peoples who are now called
the Yakama to survive and prosper. As noted earlier, salmon was the key
element of this annual produce.

Hewes estimated that the Yakima, Klikitat, Palus and Wanapum peoples
would have consumed approximately 400 pounds of salmon per person per
year in pre-contact times (approx. 1780), based on caloric
requirements[^276]. Walker identified additional uses of salmon, for
example, for fuel, and suggested a median consumption of salmon per
capita of 583 pounds for Plateau tribes[^277]. Swindell identified that
tribes of the mid-Columbia caught salmon for trade as well as for their
own consumption - with one respondent indicating that a family on the
river would catch a third more additional salmon for trading purposes.

Allowing for Hewes' differentiation between consumption rates for
downriver tribes and his average rates for the Plateau (+9.6%),
adjusting to coincide with Walker's median estimate, and increasing
harvest by a further 25 percent as a discounted adjustment for
Swindell's trade observation, we estimate an annual per capita salmon
catch for the peoples now known as the

Yakama Indian Nation of approximately 800 pounds in pre-contact times.
This also coincides with the upper range of Walker's average estimate
for all Plateau tribes[^278].

Schuster estimates that, prior to contact in about 1805, and ensuing
epidemics, the population of Upper and Lower Yakima bands was
approximately 7,000 persons[^279]. Estimates of the population of Yakima
bands at Treaty times (1855) vary from 2,000 persons (Schuster[^280] and
Selam[^281]), to approximately 3,000 persons (McWhorter[^282]), and to
3,500 persons (Fitch[^283]).

Using the middle 1855 estimate of 3,000 persons, and our per capita
annual harvest estimate of 800 pounds - we estimate that peoples of what
is now the Yakama Indian Nation likely harvested approximately 5.6
million pounds of salmon annually prior to contact, and approximately
2.4 million pounds of salmon in the mid-1800's.

Lane, Lane and Nash estimated that Yakima fish consumption in
pre-contact times amounted to approximately 40 percent of total food
consumption, based on estimates from the nearby Umatilla peoples[^284].
On this basis, and using the extrapolations discussed previously for
other tribes, total annual food consumption by Yakama bands is estimated
at 9.2 million pounds in pre-contact times, and at 3.9 million pounds in
1855.

Finally, use of the US Bureau of the Census estimate that contemporary
families on an economy budget spend one third of their income on
food[^285], would result in an estimate that Yakama bands gathered both
food and non-food items from their usual and accustomed lands and waters
equivalent to 28 million pounds of food in pre-contact times, and
equivalent to 12 million pounds of food in 1855.

> **6.3 A Broader Perspective of the Living Circumstances of Yakama
> Peoples in**

**Pre-Contact Times**

Expert assessment suggests that the Yakama peoples were generally well
off in pre-contact times.

> The rich environment of the Yakima homeland allowed prehistoric
> peoples to prosper there.[^286]
>
> Throughout this vast primeval (Yakama) expanse the accumulated wealth
> of millions of years was deep buried or heaped upon the land. Other
> wealth swam in the seldom silent rivers, congested at the fisheries
> along the Columbia or winged low above the marshes.[^287]

In these times, Yakama wellbeing extended across material and spiritual
lifeways.

> The People's survival from year to year, generation to generation, was
> assured. **Their way of life was in rhythm with nature. Earth and life
> were sacred. The land taught material and spiritual values**.[^288]
>
> The relationship of the Yakama to the earth, animals, and plants was
> far more than economic. It was a spiritual relationship that
> originated at the beginning of time. This axiom is at the heart of
> Yakama tradition, culture, and history, and without an appreciation of
> the significance of the earth and spiritual beliefs, there is little
> understanding of any aspect of Yakama history.[^289]
>
> Although the Indians of the Columbia Plateau did not live a utopian
> life before white contact, their standard of living was relatively
> high due to diet, climate, housing, and availability of resources.
> Most tribes, even those from other language families, coexisted in
> relative peace, sharing food resources, geography, and ceremonies\....
> Yakama people "knew what to expect as causes of death. Predictability
> is of course, a staple of human existence."[^290]
>
> It was as Wa-tum-nah said in his predictions, "We are a happy people -
> but it would not always remain so".[^291]

As with other neighbor tribes, pre-contact Yakama peoples exhibited the
physiological, safety, belongingness and love, and self-esteem
characteristics required for a fully functional society, outlined by
Maslow, and cited in Bachtold[^292] (Figure 8).

> **6.4 Changes in Yakama Circumstances Following the Treaty of 1855**

As with neighbor tribes, the coming of the white man resulted in great
changes for the Yakama peoples.

> Life changed for us forever on the morning of October 17, 1805. On
> this date the Lewis and Clark Expedition arrived at the confluence of
> the Taptette (Yakima) and the Ench-wana (Columbia) Rivers\....
>
> After Lewis and Clark came other explorers, fur trappers and traders.
> These strangers were welcomed as guests, and as tradition required,
> were extended our hand in friendship\....
>
> America's growing population was moving west. They came along the
> trails through our Valley urged on by the discovery of gold and the
> desire for land\.... Our people watched these events with growing
> concern\....
>
> In 1850 Congress enacted the Donation Act which invited settlers to
> occupy the Pacific Northwest Lands. No longer was the white man a
> visitor. He began to live on our land, and he now wanted to divide it
> up and own it privately for himself. Our People could not conceive of
> buying and selling land, of owning a part of Nature for oneself. We
> stood in awe of Nature.
>
> "My Mother is the earth, my Father the light, when I die, my body
> returns to my Mother and my spirit to my Father"\...
>
> The Yakimas feared the rising, irresistible tide of people with ideas
> about private property that threatened to deprive them of their land.
> These strangers brought diseases to which the Indians had no
> resistance. Tribes in the Willamette and Grand Ronde Valleys and along
> the Columbia were wiped out in appalling numbers\....
>
> Eager to clear the land for white settlement, the (federal) government
> began hurried preparations for the making of treaties which would
> establish federal title to the land. Governor Stevens began a series
> of negotiations with the Tribes along the coast of Washington
> Territory and then moved inland. In the summer of 1855 the Walla Walla
> Valley was the site selected for negotiations that would lead to a
> treaty with the inland Tribes of the Walla Wallas, Cayuse, Umatillas,
> Nez Perce and the Tribes and Bands of the Yakimas.[^293]

These Treaty negotiations troubled tribal peoples. This is evident in
the words of Yakima Chief Kamiakin.

> We wish to be left alone in the lands of our forefathers, whose bones
> lie in the sand hills and along the trails, but a pale face stranger
> has come from a distant land and sent words to us that we must give up
> our country, as he wants it for the white man. Where can we go? There
> is no place left.
>
> Only a single mountain now separates us from the big salt water of the
> setting sun. Our fathers from the hunting grounds of the other world
> are looking down on us today. Let us not make them ashamed! My people,
> the Great Spirit has his eyes upon us. He will be angry if, like
> cowardly dogs, we give up our lands to the whites. Better to die like
> brave warriors on the battlefield, than live among our vanquishers,
> despised. Our young men and women would speedily become debauched by
> their fire water and we should perish as a race.[^294]

At the same time, dialogue from Governor Stevens included substantial
threats.

> In the summer of 1854, Governor Issac Stevens met with Ow-hi, leader
> of the Upper Yakimas. Governor Stevens told Ow-hi that he wanted to
> make a treaty with the Indians of Eastern Washington and Oregon
> concerning purchase of Indian lands. Ow-hi advanced the position of no
> sale lands. It was at this time that the threat of genocide was made
> by Governor Stevens. He asked that Ow-hi deliver a message to the
> leaders of the tribes indicating that a council be gathered and that
> if the tribes did not make a treaty, the white people would take the
> land, anyhow. He further stated that in addition to the land grab by
> the European descendants, the soldiers would come and "wipe them off
> the face of the earth\...".[^295]
>
> The Indians were called in council, including the Nez Perces, Yakimas,
> Cayuses, Palouses, and Walla Wallas. Several days were occupied in
> feasting and talking, but apparently making no progress in the aim of
> the meeting, finally the Governor getting out of patience,
> recapitulated all that had been said and offered, and concluded by
> saying:
>
> "If you do not accept the terms offered and sign this paper (holding
> up the paper) you
>
> will walk in blood knee deep."[^296]

Given this "incentive":

> All the chiefs signed, Kamiakin was the last, as he turned to take his
> seat, the priest punched me and whispered, "Look at Kamiakin, we will
> all be killed." He was in such a rage that he bit his lips that they
> bled profusely.[^297]

The Yakima Treaty was subsequently ratified by the US Senate in 1859.
The Yakima Treaty required that 14 different tribes and bands live
together on 1.2 million acres, later referred to as the Yakima
Reservation - approximately 10 percent of their original home
territory[^298]. As with other "Stevens treaties", ability to move from
food source to food source, harvesting each

resource in its appropriate time and place, was critical to the peoples
who are now described as the Yakama - and they retained the right:

> **...to fish within the reservation and outside it "at all usual and
> accustomed places", right to hunt, gather roots and berries, and
> pasture horses and cattle on "unclaimed land.. .**[^299]
>
> **6.5 Allotment of Yakama Lands - To Tribal Members and to Whites**

Non-Indian efforts to obtain Yakama land did not stop with the Treaty of
1855. The principal means for further alienation of Yakama land was the
Dawes' Severalty Act of 1887 (also known as the Allotment Act) - and as
subsequently amended.

> \...the Allotment Act\...ended common ownership of the entire Reserve
> and brought the members of the Tribe closer to the white man's ideas
> of dividing the land and owning individual plots. The results of this
> Act were momentous. It led to non-Indian ownership of much of the most
> valuable flat land and made the Yakimas a minority on their own
> Reservation.
>
> The Allotment Act provided for the allotting of tracts of this
> tribally owned land to individual Indians. Reluctant at first, but
> forced by government pressure to divide up the Reservation, a majority
> of tribal members finally agreed to accept the new plan whereby
> individuals received tracts in various sizes up to 160 acres.
>
> \...This Act allowed allotments to be given along the Columbia and
> Wenatchee Rivers. Members could retain in this way their traditional
> fishing sites. Allotments were also made at good water or good grazing
> locations. This explains how a number of Yakimas made their homes on
> the ancient sites inhabited by their ancestors but not located within
> the boundaries of the Reservation.
>
> \...With the granting of allotments, the Indian owners were allowed to
> request and obtain fee patents removing the trust restrictions from
> their land. They were then free to dispose of the lands to any buyer
> they chose. Land sales became frequent to land hungry whites with the
> result that much of the valuable irrigated land went out of Indian
> ownership very quickly. Towns on the reservation, such as Toppenish
> and Wapato, were founded during this period through purchases of fee
> patent land from Indian owners and through special bills enacted by
> Congress.
>
> As many individual Indians were persuaded to sell their land, most of
> the flat fertile land in the northeastern part of the Reservation
> became rich ranches owned by whites. Today (1977) non-Indian ownership
> amounts to 253,280 acres, leaving 1,118,638 under Indian ownership --
>
> mostly mountain timberland and dry foothills good for stock grazing.
> Today (1977) 80% of
>
> the 27,000 people living within the boundaries of our Reservation are
> non-Indian.
>
> The allotment Act undermined the treaty handed down by our
> ancestors.[^300]

Non-Yakama reviewers have been similarly critical.

> The beginnings of new times and changed days commenced with
> explorations, forerunner years to military occupation and land
> settlement. Wrongs imposed during this era by others stronger and
> powerful enough to do so have never been denied. Yet these
> intolerances have never been rectified through just compensation or by
> full use of an element upon which no monetary evaluation can be
> placed. \...
>
> The earth did not know the strangers in the way it knew its children,
> the First People.
>
> The strangers came.
>
> They took more and more country, squeezing the First People with an
> ever tightening force. Whether they were explorers, missionaries,
> miners or land settlers they seemed determined to exterminate a
> culture older than the Pyramids. Modified in hundreds of ways this
> determination carried through the settlement and upbuilding years has
> never relaxed. Nor is it likely to ease as long as there is
> Indian-owned land, and while a multitude of friends keep their tongues
> silent.
>
> Always the land seizures have been defended on the thin pretext of
> "progress". Yet here were people whose masses of population existed in
> contentment without knowledge of gold and silver currency. They took
> their wealth as it was offered, from the earth.[^301]
>
> The majority of Yakima Indians were reluctant to accept allotments.
> \...
>
> The Yakima's fight against allotment of reservation land failed,
> however. To enforce its policy, the government informed all resisters
> that if they did not claim their allotments, the land would be opened
> to non-Indian homesteaders. Eventually most Yakima reluctantly
> accepted allotments.
>
> As the Yakimas were assigned tracts and issued fee patents,
> non-Indians began to infiltrate their land. Many promoted fraudulent
> land deals, often with the assistance of bootleg whiskey. The Indians'
> rights were ignored, and Indian-white relations worsened\....
>
> As allotment continued, Yakima country soon became like a
> checkerboard, as non-Indians established holdings among the
> Indian-owned allotments\....
>
> By 1914, when allotment of the Yakima Reservation ended, 4,506 tribal
> members had received a total of 440,000 acres, leaving 780,000 acres
> still tribally owned. Today (1990), non-Indians own about 253,280
> acres, more than half of the Indian land originally allotted.[^302]

De-watering of Treaty lands also created difficulties for the Yakama
peoples.

> With the opening of the reservation, many existing problems escalated.
> Large-scale irrigation projects were developed both on and bordering
> the reservation. Political and legal battles quickly raged over who
> had the rights to the irrigation water. The irrigation projects drew
> water to off-reservation lands, diminishing the supply that was needed
> for reservation irrigation and for the Indians' livestock.[^303]
> [^304]

Checkerboarding of tribal and non-tribal ownership within Reservation
boundaries further exacerbates difficulties for tribal governments, by
severely limiting Tribal jurisdiction over non-Indians living
on-Reservation[^305] [^306].

In 1900, the federal government corrected an "error" associated with the
original survey of the reservation, returning an additional 357,879
acres to the Reservation[^307]. Recent YIN Reservation acreages under
control of Yakama peoples are identified in Table 16.

Table 16

[Present Yakama Land Holdings Within the Yakama Reservation]{.underline}

[Type of Ownership]{.underline} [Acreage]{.underline}

Yakama in Trust 866,445

Yakama Individual Fee Ownership 260,000

Non-Indian [253,280]{.underline}

Total Reservation Acreage 1,379,725

Source: Schuster, Helen H., 1990. **Supra** at 83-84.

> **6.6 Yakama Access to Usual and Accustomed Fishing, Hunting and
> Gathering**

The 1855 Treaty guaranteed the peoples of the Yakama Indian Nation (YIN)
the right to fish, hunt and gather at usual and accustomed places within
and outside their reservation boundaries. Given that their homeland was
reduced to one-tenth of its former size by the Treaty, and that the
peoples of the YIN traditionally harvested over a more extensive area,
this guarantee was essential to their material and cultural survival.
But subsequent to the Treaty, the access of YIN peoples to usual and
accustomed harvest places was progressively reduced. In part, this was
due to the spread of white settlement over YIN traditional areas - as
YIN rights to hunt and gather were conditioned in the Treaty by the
availability of public lands. With respect to hunting and gathering,
this adverse effect was partially mitigated by the Yakama retention of
extensive upland areas within their 1855 Treaty Reservation boundaries -
and, in fact, today, about one third of their Reservation is "closed" to
non-Yakamas, and extensive traditional gathering and ceremonial
activities are still undertaken by tribal members in this area.

Usual and accustomed fishing resources of the Yakama have not fared
well, due to attempts to preempt Tribal access to these resources in
early years, and to the progressive transformation of the land and water
upon which the salmon depend. On balance, these actions have eliminated
Yakama Treaty assets, and created wealth for other interests, at Yakama
expense.

> Irrigation dams prevented salmon from making their regular spawning
> runs, prompting more controversies involving fishing rights. In
> addition, small salmon, or fingerlings, were often caught in lateral
> irrigation canals. Unable to reach the rivers, they perished by the
> millions\.... White fishermen on the Columbia added to the problem by
> using fish wheels. \...
>
> The Yakama's right to fish at their traditional sites was also
> threatened. White homesteaders on lands adjoining the fisheries
> sometimes refused to allow the Indians to cross their lands in order
> to reach these stations. In 1905, the U.S. Supreme Court upheld the
> Indians' right to use their ancient and accustomed fisheries in *U.S.
> v. Winans*, a case brought against a white settler whose homestead
> blocked Indian access to these sites. The Court also ruled that the
> treaties the Indians had made with the United States were to be
> interpreted in the way the Indians had understood them. It stated that
> "a treaty was not a grant of rights *to* Indians but a grant of rights
> *from* them".
>
> However, non-Indian fishermen often ignored the ruling. Eight years
> later, U.S. Attorney Francis Garrecht was called to defend Yakima
> Nation fishing rights in *U.S. v. the State of Washington*, a case
> involving two principal Yakima chiefs, George Meninock and Jim
> Wallahee. Meninock presented the following speech as part of the
> tribal testimony:
>
> God created this Indian country and it was like He spread out a big
> blanket. He put the Indians on it\... Then God created the fish in
> this river and put deer in these mountains and made laws through which
> has come the increase of fish and game. \...For the women, God made
> roots and berries to gather, and the Indians grew and multiplied as a
> people. When we were created we were given our ground to live on, and
> from that time these were our rights. This is all true. We had the
> fish before the missionaries came. \...This was the food on which we
> lived.. \...My strength is from the fish; my blood is from the fish,
> from the roots and the berries. The fish and the game are the essence
> of my life. \...We never thought we would be troubled about these
> things, and I tell my people, and I believe it, it is not wrong for us
> to get this food. Whenever the seasons open, I raise my heart in
> thanks to the Creator for his bounty that this food has come.
>
> Through the years, the Yakama Indian Nation was fairly successful in
> defending its treaty rights in the federal courts, but the abuses
> against them continued. For instance, the Yakima's traditional Indian
> fishing grounds at the Long Narrows and Great Cascades were flooded in
> 1938 when the government constructed Bonneville Dam on the Columbia
> River. Congress passed legislation promising that the salmon and
> steelhead that had been destroyed would be replaced by hatchery fish.
> However, this act was implemented by establishing almost all of the
> hatcheries downriver from Bonneville Dam, where only non-Indians
> fished, instead of upriver in the tribal fishing areas. Similar
> problems arose in 1941 when Grand Coulee Dam was built on the Columbia
> and blocked miles of spawning grounds.
>
> The late 19th and early 20th centuries brought the Yakima into
> conflict with both white settlers and government officials as the
> tribe tried to hold on to the land and resources that were legally
> theirs. These years were only a prelude to the battles the Yakima
> Nation would be forced to fight in the last decades of the 20th
> century.[^308]
>
> **6.7 Changing the Production Function for Yakama Natural Assets**
>
> **6.7.1 Tribal Perspective Concerning Yakama Lands, Waters and
> Salmon**

The previous section identifies that the production function for the
Columbia/Snake basin - defined as the manner in which residents of the
area Basin combine lands, waters and associated assets such as salmon
productive capability to create annual benefits - has changed over time;
and in a manner that has increased the wellbeing of non-Indians in the
region while reducing tribal peoples to poverty. Cheap electricity to
support modern industries, millions of acres of irrigated agriculture,
use of rivers and reservoirs as waterways and as depositories for waste,
and the demise of available salmon harvests are particular features of
this change. The Northwest Power Planning Council captured the essence
of this wealth transfer in 1982.

> Three generations ago, when the Columbia River and its many
> tributaries ran free to the sea and the fish and wildlife flourished,
> the people of our region were presented an unmatched opportunity. To
> the credit of their vision, skill and courage, they harnessed this
> mighty river system into a seemingly boundless supply of low-cost
> electricity. Thanks to their visions of the time, we have all
> benefited immensely.
>
> But this achievement, like all great achievements, had a price. The
> development of the Columbia River System's hydro-electric projects
> dramatically changed the natural fish and wildlife habitat, especially
> that of the prized Pacific salmon and steelhead. The fish runs were
>
> nearly destroyed. It falls to the next generation to rebuild these
> natural resources which thrived before we came.[^309]

Tribal peoples did little sharing in the benefits described by NPPC -
and it was the Yakama Indian Nation and other basin tribes who have paid
much of the price referred to in the previous

citation. Understandably, as the tribes watched the center of their
lifeways being destroyed, they raised their concerns and objections.

> My name is Watson Totus, member of the Yakima Tribal Council. I am a
> direct descendent of the Columbia River tribes and chiefs who signed
> the Yakima Treaty of 1855.
>
> I am protesting the construction of the Dalles Dam. It should never
> have been authorized by the United States Congress in 1950 and the
> 82nd Congress never should have appropriated \$4,000,000 and let the
> contract for construction in 1952.
>
> I make this statement because the proposed dam violates the Yakima
> Treaty and threatens to abolish and destroy one of the most historical
> and scenic natural monuments in the United States. The dam would do
> irreparable damage to Celilo Falls fisheries, tribal traditions, and
> religion.
>
> My people fished at Celilo and many other tribal fishing places, both
> above and below the falls. Even yet, many Indians fish here to
> supplement their subsistence and livelihood. \...
>
> I teach my people that (1) water is blessed by God; (2) salmon is
> blessed by God, and it is the first food that we partake of in the
> "Washeat" church ceremonies on Sunday, fresh-root festivals and "first
> salmon-catch" festivals.
>
> I am now asking Congress to change its mind and not construct the
> Dalles Dam. It will make the spirits of my dead chief of long past
> rejoice and will build confidence in my present and future people that
> our treaties of 1855 are sacred and shall not be abrogated by Congress
> of the strongest and most religious country of the world, the United
> States of America.
>
> The spirits of my past chiefs cannot plead for justice. I can only
> pray, save Celilo Falls and all it represents. May the Great Spirit
> bless you all. I have spoken for my people.[^310]
>
> As you come up the river, dam by dam by dam, every dam we look at and
> talk about has done some damage to the Indian culture and the Indian
> tradition, has taken away something every time a dam is built. And if
> you want to talk about Bonneville Dam then you go back to the very
> first dam, and it took away Cascade Rapids from the Indian people. It
> took away a big fishery. And as you come up, the Dalles Dam probably
> did the greatest damage of all, because it inundated the ancient
> fishing ground of Celilo and the rocks, and all of Spearfish and
> Tenino. The Dalles Dam also inundated an ancient burial ground\....The
> John Day Dam inundated John Day Rapids and inundated Blalock Rapids
> all the way up to what is usually known as Patterson. And there was a
> great Indian fishing village in that area. Used to be a big rapids in
> that area. Naturally the dams were built on places that were
> shallowest, and those places were the places where Indians fished, in
> the rapids. McNary Dam, I don't know how much damage that did, but I
> suppose it did a lot of damage to spawning areas\.... Priest Rapids
> has done a great deal of damage. It's ruined major spawning beds, and
> big, big fishing area, what we used to call Wannapum, Priest Rapids,
> Whitebluffs, all through that area.[^311]

Evidence found throughout this manuscript suggest that many of the
regions' residents, intent on creating wealth for themselves, had
limited or no regard for the adverse impacts they were creating for the
Yakama and other tribal peoples - terming such impacts the "price of
progress"[^312]. From the perspective of distributive economics, and
recognizing that non-Indians reaped benefits while Indian peoples paid
the "price", such a conclusion is not surprising.

In some cases, scientists and bureaucrats responsible for managing the
salmon claimed "to know better" than tribal peoples.

> That's one thing you can't tell the biologist. They think they know
> more about it than the first people. Like last fall, they got the
> twelve hour season down there. They caught 70-some thousand fish. I
> looked at the television screen and saw that fish they were bringing
> out\--pure black. That's fish that's been in the river a long time.
> When they first coming in from the ocean they got to be chrome,
> silver. They weren't that. I told them guys down at the meeting those
> fish were held back purposely. The way they do that is with electric
> fence impulse. You see some of that fish that gets down in there
> burnt. They got spots on them. The biologists didn't want to admit
> nothing. They said they come out of the ocean. No, they did not.
> They'd been in the river for a long time\--I know.[^313]
>
> I can tell you. The fish used to be really bright. \... When the
> Dalles Dam came in and then John Day Dam, they became very poor. Like
> he says, they fall apart\.... The last fish I caught on the Yakima was
> up near what they call "Upper Dam", the last dam that began there. I
> was up there fishing and I caught a salmon. \...I gave it to the old
> man that lives there\.... While he was sitting there talking, he said,
> "See out that window. It's changed since they put Dalles Dam in. I
> noticed the change in the creek." He says, "I've fished here a long
> time. And the fish at that time used to be able to jump and reach the
> top of the dam. But today they jump, they barely reach halfway up." So
> it has taken away. \...They have become weak, like he says. And I'm
> thinking about that, and it seems to have lost a great deal of their
> constitution, what keeps them solid.[^314]
>
> The hatchery fish live in a tube, and when they're released, they
> don't know how to camouflage themselves. When they hit the stream they
> jump around at the surface, and kind of bundle up together - and the
> birds come and pick them off. They have trouble now acclimatizing to
> the river. We didn't ever agree to let them make dummies out of our
> fish.[^315]

In other cases, biologists claimed "not to know enough" to save the
salmon. The following quote, written some fifteen years ago, and
referencing Indian certainty concerning the adverse effects of dams on
salmon, is similar to some aspects of current debate.

> Indian people have been consistently conservative in risking fisheries
> for other water-related development. Indian people correctly predicted
> the deleterious effects that dams and their associated mitigative
> measures would have on the salmon and steelhead of the Columbia River.
> **While biologists studied and debated, Indians, living on the river,
> saw fish quality decline and sea gulls eating dead smolts out of dam
> spillways. More often than not, Indian concern and counsel was
> ignored**. (Our bolding)
>
> It would appear that Indian people, with their extensive knowledge of
> the salmon, its characteristics and requirements, can provide valuable
> information for ongoing decision- making on the river\....(T)heir
> advice on safety margins needed by salmon during flow, fish passage
> and other river-related decisions, their ability to quickly observe
> whether programs are working or not, and their basic common sense
> concerning the salmon resources of the river could be invaluable to
> any upper river restorative effort.[^316]

Other non-Indians and their agencies are reported to have simply not
told the truth, and buried salmon killed by dams at night.

> On these ladders they're talking about, I was one of those boys that
> went around to the farmers over in Nickleson area and Horsehaven area.
> Talked to the farmers about this (in 1956-57): We should have, its
> like a river, a channel, like a canal, somewhere above or down where
> the fish would go up. Well, the farmers went along. They had a big
> list of people signing that petition to have the dam fixed up. Well
> the Corps of Engineers agreed to it. They said, "We'll do it." But
> when the dam went up there was no channel.[^317]
>
> She's angry about when they took the Falls from the people that were
> here\....She says, "What good would it do to speak up?"\...Like the
> promises that they made to the Indians that we get free electricity
> from the dam. I think it was three months they got it. The next thing,
> the people were getting light bills and they were getting water
> bills.[^318]
>
> I've got something to say to comment on the fishing. I know four
> people who were lucky to get jobs at the dams, and these are the
> things that they come back and tell me. I won't mention names, you
> know, because\...I don't want to say my name, all right? These people
> work at the dams. They usually help clean the ladders out, fish
> ladders. And they hauled out tons of fish that were found under the
> steel grating that's under the fish ladders. A lot of them were dead
> or they were damaged pretty bad. These guys were working there and
> they had to clean the ladders out, you know, help. Well, they used to
> come home and they'd tell me about it. And they'd say they'd haul them
> out by the pick-up load. You know, these pick-ups they use at the dam.
> Cuz the guys that work there, they tell me, "Oh, we were cleaning fish
> ladders. And they took these fish out, and they dug holes, and they
> burned this fish. And then they buried them. To hide the evidence. And
> then they turn around and blame the Indians, that the Indians are
> catching all the fish.
>
> A lot of these things happened right when John Day Dam came up. They
> worked on the dam from '66, '67, '68. Then I think the last year they
> worked, since they quit hiring Indians out there, see. A long time ago
> they made a promise to the Indians that there would be ten percent
> Indians working on the dams. I don't think there's one Indian working
> on any dam now.[^319]

Some officials compounded folly with attempts at intimidation and with
arrogance. The following statement is from a US Army Corps of Engineers
official, during a 1954 meeting with representatives of the Yakama
Indian Nation.

> (I)t is noted\...that the Yakima Tribe contend that the
> \$23,000,000.00 represents only 85% of the total value of the Celilo
> fishery because of the alleged losses that occurred during the year
> 1947 to 1951, due to the construction of the Bonneville Dam. This
> office does not admit that there is any loss of the Columbia River
> fish due to the construction of Bonneville Dam. In fact, we
> categorically deny that there is a loss due to this reason. \...
>
> Mis-information sometimes attributed to the press, but for the most
> part disseminated by word of mouth, has created a false public
> opinion, especially among the Indians, that the fish runs at
> Bonneville have decreased in recent years due to the construction of
> Bonneville Dam. The actual fact is that the runs have increased since
> 1938 and the convincing figures which are briefly stated above must be
> admitted as facts and taken into account if the contention that there
> is a loss due to Bonneville Dam is considered objectively and with
> unbiased honesty.[^320]

Whether because the "price was right", because biologists were unsure,
because tribal knowledge was ignored, because of unintended or forgotten
promises, or due to arrogance and disingenuous behavior - the number of
salmon that survive in the Columbia/Snake system has steadily declined.
For the Yakama people, the human toll resulting from these wealth
transfers along the river has been substantial. Where such destructive
action has been accompanied by intent or deceit, reaction by some
Yakamas has been one of anger and despair.

> I don't know what we would call such a policy. Genocide? Yes, I think
> perhaps that is the word.[^321]
>
> **6.7.2 Economic Perspective Concerning Yakama Production Functions**

Fitch (1974), in his Phd. dissertation at Stanford University, provides
an economist's perspective of Yakama circumstances during the late 19th
and early 20th centuries.

> The picture which emerges during the period after the opening of the
> Reservation (to whites) is one of stagnation of Indian economic
> activity. Downward trends in farming and livestock are evident\... . A
> series of legal battles over Indian fishing rights had not been
> successful in re-establishing viable salmon fishing on the Columbia
> River for the Yakimas during this period. Access continued to be a
> problem, and the fish wheels were not eliminated from the river until
> 1926.[^322]

Summing up from a later (1974) perspective, and discussing Yakama
adaptive efforts, Fitch continues:

> The historical analysis makes a number of points quite clear. First of
> all, a large portion of the impact of the various modern activities
> which have been introduced to the Reservation has come in the form of
> payments for the use or purchase of resources to the Yakimas\--that
> is, land rentals, timber sales and so forth. While recent improvements
> in Indian employment are encouraging,\...the employment status of the
> Yakima is still deplorable.
>
> \...While the entry of outside factors to the Reservation economy may
> have greatly increased the returns to the Yakimas' natural resources,
> this has acted to limit returns to their human resources or labor, and
> in the long run to depress human capital formation applicable to
> modern production. \...
>
> With the opening of the (Reservation) land market\...there was a
> decrease in Indian production and an increase in land rentals. This
> response was probably reinforced\...by discrimination against Indians
> in water project administration and in the government regulation of
> the use of individual Indian monies, tending to cause inadequate
> capital formation. Discrimination and a generally hostile reservation
> environment for Indians also contributed to stagnation in human
> capital formation. Given these unfavorable circumstances for
> participation in modern activities, together with renewed
> possibilities for fishing and the production of cattle, in the
> low-wage depression era the Yakimas returned to these two largely
> traditional activities. Note, however, that this switch was a joint
> result of (the lack of)
>
> economic incentives, the existence of traditional preferences and
> alternatives, and possibly discrimination\--not due to any one of
> these factors alone.[^323]

Meyer Resources (1983), writing eight years later, provides a more
quantitative glimpse of Yakama circumstances.

> While the Yakimas are relatively better off than many tribes of the
> Columbia River, they cannot be considered wealthy by non-Indian
> standards. In 1975, per capita income was \$2,100, compared to \$5,827
> in Yakima County and \$6,284 in Washington State. Unemployment among
> Indians (1978) was estimated at 30 percent, compared to a 10 percent
> rate in the county. In 1982, unemployment was estimated at 72 percent
> of the employable Tribal labor force.[^324]
>
> **6.8 Lower Granite, Little Goose, Lower Monumental and Ice Harbor
> Dams**

As identified previously, peoples who now form the Yakama Indian Nation
had usual and accustomed fishing stations and villages throughout the
mid-Columbia area. They fished Snake River salmon stocks along the
Columbia river - and the impacts of the four Lower Snake dams being
assessed under this project directly affect Yakama fisheries and Yakama
peoples.

The Palouse peoples had their principal village at the confluence of the
Palouse and Snake Rivers - and their home territories and fishing areas
also extended along the north bank of the Snake, from Nez Perce
territory to its confluence with the Columbia[^325]. The Palouse peoples
were included in discussion at the Treaty with the Yakamas - and today
descendants live on the Yakama and Umatilla Reservations[^326]. In
addition, they fished cooperatively with the Nez Perce at several
upstream locations along the Lower Snake River (Section 3.1.3).

Consequently, in addition to the existence of usual and accustomed
fishing areas along the Lower Snake River, and downstream on the
Columbia River, an extensive array of villages, fishing sites, hunting
and gathering areas, burial sites and other resources important to the
culture and lifeways of the peoples of the Yakama Indian Nation are
currently inundated by the reservoirs created by **Lower Monumental**
and **Ice Harbor** dams. These Yakama areas and resources will most
likely be found - but not exclusively - along the north bank of the
original Lower Snake River.

It was earlier identified that the initial "allotment" legislation
enabled Yakama peoples to receive title to some traditional sites that
were off reservation[^327]. Yakamas report that some of these sites were
along the Lower Snake River, and have been affected by the dams.

> I no longer have any fishing sites, the Palouse peoples' fishing sites
> were destroyed by Ice Harbor Dam; the Corps of Engineers told us that
> we can fish below Ice Harbor dam, but I, nor the rest of the Palouse
> people utilize the fishing site\... . I have not received full
> compensation for my loss, the loss of my birthplace, birth rights, and
> my rights to fishing; for I no longer enjoy my God's gift, the first
> food of my people, as well as the rest of the Columbia River Indian
> people.
>
> I want to know if my fishing site and my fishing right still exists.
> My fishing site is now below Ice Harbor dam, both sides of the Snake
> River. I have proof. I have in my possession a photo of a fisherman
> and his grandson.
>
> That area is my father's birthplace, and that now belongs to white
> people. I did not, nor my father, give any type of consent to let
> white people own that land. We did not receive any monetary
> compensation, nor did we receive any exchange of any land. So I want
> someone to do right by that crime committed to me and my Palouse
> people. Give me my food back. Give me my birthplace and birth right
> back.[^328]
>
> My maternal grandmother was Palouse. She owned an allotment that is
> now inundated by Ice Harbor Dam. When it came time to build the dam, a
> Corps man named Ed Markley approached me and my brother to take money
> for this property. We refused. So he determined that other Indians had
> a 51% ownership and did a deal with them. I did not have access to a
> lawyer at the time to fight this injustice, but I have never agreed to
> sell my grandmother's allotment - and have never been compensated for
> it.[^329]

Finally, the Yakama, as with other study tribes, have suffered adverse
impact - first as river managers risked Snake River salmon stocks in
order to transform the river for power, navigation and irrigation
purposes, and today as those same managers set far higher standards for
predictive certainty before taking action to restore Treaty-protected
fisheries[^330].

> **6.9 Post-Contact Yakama Tribal Health**

In pre-contact times the peoples now known as the Yakama Indian Nation
had a relatively good standard of living based on diet, climate,
housing, an available resource base, and a satisfying and predictable
rhythm of living[^331]. During this period:

> Yakama (native) doctors were practitioners, holy people, pharmacists,
> shamans, and psychologists, and they recognized no division between
> mind and body.[^332]

Selam (1975) notes that Yakamas living in the pre-contact period had a
happy life - but that it was not to remain so[^333].

From a health perspective, erosion of traditional lifeways followed fast
after the coming of the whites.

> Indian doctors and Yakama people suffered several epidemics before the
> introduction of the reservation system, but they were largely
> powerless to prevent the waves of death that swept across the Columbia
> Plateau in the nineteenth century and those that struck the native
> population in the twentieth century.
>
> Smallpox was the first disease to strike Northwestern Indians. The
> first epidemic started in 1775, the result of sailors from trading
> vessels off the Northwest coast introducing it to native peoples.
> Another smallpox epidemic traveled up the Missouri River in 1873, but
> its effect upon the Plateau is unknown. In 1801, still another
> smallpox epidemic spread among the native people of the Northwest,
> reducing the original population to about one half by the time of
> Lewis and Clark's expedition in 1805. In 1824-25, and in 1853,
> smallpox likely killed more Indians. In 1830, "fever and ague" broke
> out at Fort Vancouver, infecting native people for four years. The
> epidemic may well have been malaria, although it was linked to an
> outbreak of influenza, and the "mortality directly or indirectly
> attributable to this scourge\...is 90%". The malaria outbreak in 1830
> reportedly did not spread much above The Dalles, and Plateau Indians
> probably died instead from influenza, although the number of deaths is
> not known. In 1844, scarlet fever and whooping cough spread across the
> Columbia Plateau, and scarlet fever struck again in 1846. In 1847,
> measles moved across the Plateau, taking the lives of many Indians and
> sparking the killings of Marcus and Narcissa Whitman and others at the
> Whitman Mission which, in turn, triggered the Cayuse Indian War of
> 1848. These epidemics and the new diseases that followed killed
> numerous Yakama and their neighbors. Diseases depopulated the native
> peoples and strained the social, cultural, and spiritual fabric of
> Yakama society whose *twati* could not undo the horrors of white
> diseases.[^334]

By 1865, the ravages of these diseases had more than halved the 7,000
Yakama pre-contact population estimated by Schuster[^335]. Table 17
arrays Yakama population estimates between 1865 and 1972 from Lane &
Lane and Nash (1981b, p. 43). That publication should be referenced for
original sources.

Table 17

[Selected Population Estimates for Yakama Peoples, 1865 through
1972]{.underline}

[Year]{.underline} [Population]{.underline}

1865 3,400

1892 2,700

1899 1,909

1910 2,679

1923 2,939

1928 3,000

1940 2,904

1950 3,598

1960 4,844

1972 7,480

Yakama ill health and death during this period did not stem from
epidemics alone.

> For approximately thirty years, roughly from 1870 to 1900, native
> people living on the Yakama Reservation witnessed a radical cultural,
> social, and economic transformation of their native lands as white
> ranchers, farmers, politicians, bureaucrats, ministers, bankers, road
> builders, and a host of other whites invaded their country, altering
> nearly every aspect of traditional Indian life. The process
> accelerated in the twentieth century as hunting, root, berry, and
> grazing areas declined or were destroyed. Indians living on the
> reservation lost their native foods which were closely tied to their
> spiritual beliefs. They lost more than their economy, for they lost
> important threads of their social fabric. Indians living on the Yakama
> Reservation faced a social and cultural calamity by 1900, a communal
> depression that corresponded with a serious rise of infectious
> diseases, particularly tubercular infection. Between 1900 and 1940,
> the Yakama population suffered greatly from tuberculosis, pneumonia,
> and gastrointestinal disorders, bacterial infections that preyed on a
> Yakama host seriously injured by government Indian policies and the
> reservation system.[^336]

It can be observed from this information that from the contact with the
whites in the 1800's, through much of the 20th century, death - often
from causes that the Yakamas could neither predict nor control -
"stalked the Yakama". Trafzer suggests that principal causes of Yakama
death during this period evolved - from an age dominated by "Pestilence
and Famine" (contact through the early 20th Century) to an "Age of
Receding Pandemics" featuring death from bacterial infections (from
early century to the 1920's - 30's)[^337].

By the 1930's, Trafzer concludes that causes of Yakama death had evolved
still further, entering an "Age of Man-Made and Degenerative Diseases"
that continues to the present.

> During the late twentieth century, alcohol-related deaths, diabetes,
> murders, and suicides rose significantly as accidental deaths and
> pneumonia continued to plague Yakama people\... . Barry Popkin has
> argued that part of this transition to man-made disease is a
> predictable product of nutrition related to "modernization". He is
> correct in terms of Yakama people who had lost nearly all of their
> traditional foods by the 1940's\... .[^338]

Trafzer notes that loss of traditional foods, while important, is not a
sole cause of Yakama mortality.

> Resettlement of the Columbia Plateau by whites, the building of dams,
> and the destruction of the natural foods familiar to the Yakama
> brought about a change in lifestyle and housing. Whites farmed,
> ranched, and logged many regions of the Columbia Plateau, modifying
> the environment, which was detrimental to Indians. Rather than moving
> about for a good portion of the year, the Yakama became confined to
> the reservation\... . The health of the Yakama people suffered from
> inadequate sanitation, absence of clean ground water, polluted rivers
> from insecticides, and complete lack of any means of treating sewage.
> The change of housing among the Yakama contributed to their ill
> health, and as a consequence, the people became ill and died.[^339]

Too often, death of Yakama and other tribal members has been following
by post-mortem abuse.

> Before the early twentieth century, the Yakama and their neighbors
> usually wrapped the body in tule mats and placed it in crevices of
> hills and mountains. They also buried their dead in designated
> cemeteries, where they interred a number of people from the same area,
> village, or family. These cemeteries were and are sacred places to
> Yakama who revere the remains of their loved ones - long past and
> recent past. They respect the dead of their own people as well as the
> dead of other nations, believing that it was and is sacrilege to
> disturb burials of any people. Many believe that the spirits of the
> dead cannot rest if their bones are taken out of the earth or
> generally disturbed by contractors, pot hunters, etc.[^340]
>
> A white rancher who hated (Yakama Chief) Kamiakin had led a scientist
> to the grave and had helped the "scholar" cut off Kamiakin's head with
> a shovel. The scientist tore off Kamiakin's head, placed it in a gunny
> sack, and took it to his lab for analysis. When the family found that
> Kamiakin's remains had been disturbed, they cleaned the remaining
> bones and reburied them on lands belonging to a friendly white rancher
> in eastern Washington territory. Members of the family knew the
> location of the grave, and they returned periodically to pray for the
> spirit of the famous chief. Kamiakin's head has never been recovered,
> and the associated grave goods buried with him have not been
> repatriated. However, some members of the Indian and non-Indian
> communities continue to search for Kamiakin's head so that it can be
> repatriated and reburied in the heart of the Columbia Plateau. The
> desecration of this grave is just one example of many that have
> occurred in the Pacific Northwest.[^341]
>
> When the United States began building power dams in the Pacific
> Northwest, construction crews ruined several burials in canyons along
> inland rivers, **including the Snake River**. Sometimes archaeologists
> working for the federal government raided Indian burials to preserve
> choice specimens for university collections before water from a new
> dam inundated the locations.
>
> **Mary Jim, a Palouse elder living today on the Yakama Reservation,
> still laments the theft of her grandfather from the family's cemetery
> on an island in the Snake River**. She remembers the night in the
> 1960's when an amphibious vehicle came up the Snake River and moved
> onto the island. While white men dug up the grave, Mary's cousin,
> Charlie Jim, paddled out to chase the whites away. "They took our
> grandpa," Mary reported years later, "they took him. They went across.
> And they took that grave. They dug a hole and we hollered at them.
> Charlie Jim went out to tell them to stop. We waved red flags at them,
> telling them to stop. Then the car went through the water and on the
> ground too. We didn't know how to chase them or where they went. And
> we reported this to the agency but they never helped us."
> Unfortunately, the Palouse were not able to prevent the "scholars"
> from stealing the canoe coffin that contained the remains of Mary and
> Charlie's grandfather.[^342] (Our bolding)
>
> The Yakama and their neighbors have faced a continual onslaught by
> ghouls, construction crews, and government agencies that disregard and
> discredit the spiritual beliefs of the Northwest Indians in reference
> to their dead. Many Indians believe that when the graves of
>
> their ancestors are desecrated, the souls of the dead are also
> disturbed, unable to rest until they are placed back into the bosom of
> the earth.[^343]

White disease killed thousands of Yakama and their neighbor tribes in
the 1800's and early 20th century. Violated by disease and in other ways
in life, some of these persons have been violated again in death -
through actions perpetrated by some, and permitted by others. Not only
can the souls of these "violated" not rest, but many of their
descendants, living today, cannot rest either until desecration of
Indian graves stops - and the violated dead are returned to rest in the
earth.

Trafzer concludes that, from the late 1800's though the mid-1900's:

> The reservation system of the United States destroyed the native
> standard of living and introduced a host of viruses and bacilli to the
> Indians living on the Yakama Reservation. The result was poverty, ill
> health and death among Yakama people. Once the United States had
> destroyed much of Indian culture, they failed to enrich it in
> accordance with trust and treaty responsibilities by providing minimal
> health care for native people living on the Yakama Reservation.[^344]

Bachtold, writing with respect to Northwest tribes, concurs:

> It appears that Native Americans, as a group, have been blocked on the
> hierarchy of needs at basic levels. Many are dealing with survival -
> trying to resolve physiological and safety needs. This condition often
> leaves belongingness and self-esteem needs essentially unmet. Movement
> through developmental stages has been perilous, beginning with birth
> itself, increasing with entry into school, and peaking in excessive
> stress for young adults, who should be entering the productive years
> of life and in control of their environment.
>
> Alleviation of poverty conditions are clearly indicated as essential,
> for as Pareek emphasized, "Poverty is causally related to behavior,
> producing a series of behavioral patterns relevant to the conditions
> of poverty. \...
>
> Gloster\...identified economics as potentially the key to improvement
> for Native Americans. He further maintained it is essential that they
> control their land and water. On this point he is congruent with the
> psychological prerequisite for a healthy personality outlined in this
> section - if Indian people are to obtain a greater level of
> achievement and satisfaction in their lives, and regardless of
> respective goals, it will be essential that they achieve a greater
> level of control over their psychological, social and economic
> environment.[^345]
>
> **6.10 Present Circumstances of the Yakama Indian Nation**

Having reviewed the cumulative pattern of abuse and impoverishment
through distruction of Treaty assets and transfers of wealth to
non-Indians that the Yakama peoples were subject to, this section
considers any recent changes in tribal opportunities and lifeways - and
profiles present-day circumstances of the peoples of the Yakama Indian
Nation.

> **6.10.1 Remaining Yakama Lands**

Yakama tribal membership presently stands at 9,601 persons, a
substantial recovery from earlier years of this century.[^346]

Since losing approximately 90 percent of their homeland in the Treaty of
1855, the Yakama Indian Nation has been somewhat successful in holding
onto the Treaty lands they retained. The ravages of the Dawes Act have
facilitated the loss to the Yakama of a further almost 20 percent of
lands within Reservation boundaries (253,280 acres) - but about 70
percent of Treaty lands are still in Yakama hands - 866,000 acres held
in trust, and 260,000+ in fee simple ownership. The fact that
significant portions of this land is forested, and that approximately
one third of Reservation lands, in the western portion of the
Reservation, are closed to non-Yakamas has allowed the YIN to retain and
expand benefits for its people.

Commercial timber harvest has been a particular strong point for the YIN
(Table 18).

Table 18

[Volume and Value of Timber Harvested Under Yakama Sales Program - 1943
to 1992]{.underline}

[Year]{.underline} [Volume in MBM]{.underline} [Value in Thousands of
Dollars]{.underline}

1943-44 9,172 23.6

1950 29,906 361.7

1960 70,892 1,922.3

1970 116,271 4,406.7

1980 172,686 23,755.5

1990 93,523 19,749.9

1991 99,134 23,819.7

1992 93,688 28,513.3

Source: Yakima Indian Nation, 1993. **Yakama Indian Reservation Forest**

**Management Plan: 1993-2002**. with, US Bureau of Indian Affairs, p.
VII-3.

These forest activities employ approximately 137 Yakama Indians[^347],
generate important revenue for YIN infrastructure**,** and yield annual
"dividend" payments that amounted to \$1,753 per Yakama member in
1992[^348]. The YIN has, for some years, been examining "adding value"
earned from tribal timber harvest by establishing a timber processing
facility - but such a facility has not been established to date.

Conversely, as we noted previously, much of the acreage the Yakamas have
lost because of the Dawes Act is located in fertile valley areas of the
Reservation - and YIN agriculture-based revenues have been substantially
limited as a result. Meyer Resources (1983) reported that the Indian
share of revenue from crops in the irrigated portion of the Reservation
in 1981 was \$2.7 million, out of total revenue of \$79.5 million[^349].
In 1990, the value of irrigated lands within the Reservation exceeded
\$200 million[^350] - but we have no indication that the Yakama share of
this revenue has increased substantially.

A number of additional economic initiatives are in the planning
stage[^351], but timber, agriculture, rental income from lessees of
tribal land and fishing continue to be the sustaining features of the
Yakama economy.

> **6.10.2 What Remains of the Yakama Salmon?**

Protection and renewal of salmon in the Yakima River basin has been one
of the principal efforts of the Northwest Power Planning Council's Fish
and Wildlife Program. In 1997, the four tribes of the Columbia River
Inter-Tribal Fish Commission (CRITFC) initiated a "direct commercial
sales" program for some Zone 6 catches. This program has approximately
doubled revenue received by participating tribal fishermen - and
expanded the opportunity available to tribal members for involvement in
traditional fishing and processing activities. Despite these promising
developments, Yakama catches of salmon for the 1993-1997 period averaged
less than half of tribal harvests at Treaty times (Table 19).

Table 19

[Estimated Commercial, Ceremonial and Subsistence Harvests of Salmon and
Steelhead]{.underline}

[of the Yakama Indian Nation: 1993 to 1997]{.underline}

[Year]{.underline} [Chinook]{.underline} [Steelhead]{.underline}
[Sockeye]{.underline} [Coho]{.underline} [All Species]{.underline}

\-\-\-\-\-\-\-\-\-\-\-\-\--in thousands of
pounds\-\-\-\-\-\-\-\-\-\-\-\-\-\--

1993 832.5 251.5 22.2 8.7 1,114.9

1994 696.7 174.5 2.7 22.5 896.2

1995 674.4 170.6 1.4 4.8 851.2

1996 1,181.3 173.5 4.3 4.4 1,363.5

1997 1,199.4 207.7 6.2 4.0 1,199.4

Five Year Average 1,128.7

Source: Developed from data provided by the Yakama Indian Nation,

Department of Fisheries.

> **6.10.3 A General Assessment of Present Yakama Material
> Circumstance**

The material wellbeing of members of the Yakama Indian Nation, relative
to citizens of Washington State as a whole, is illustrated in Table 20.

Table 20

[Comparative Data Showing the Relative Material Circumstances of the
Yakama Indian Nation]{.underline}

[Economic Indicator]{.underline} [Yakama Nation]{.underline} [Washington
State]{.underline}

Families in Poverty (%) 42.8 10.9

Unemployment: US Census 23.4 5.7

: BIA (1995) 73.0

Per Capita Income (\$,000) 5.7 14.9

Source: US Bureau of the Census, 1990 - Special Tribal Run.

US Bureau of Indian Affairs, 1995 - Indian Population and Labor Force
Estimates.

It can be observed that while timber and some fishing provide economic
bright spots for YIN, as with neighbor tribes, the Yakama peoples'
material prospects overall remain difficult.

> **6.10.4 Yakama Tribal Health**

In 1992, the Center for Health Statistics of the Washington State
Department of Health issued a report on People of Color in the state.
They concluded:

> Currently, the health status of Native Americans is very poor, with
> high rates of mortality, infectious disease, and limitation of major
> activities due to chronic health problems.[^352]

The same report identified that death rates for Native Americans were
significantly higher through age 59 than for Washington residents as a
whole[^353].

These conclusions are generally supported by a 1993 analysis of American
Indian health status in the State of Washington by the American Indian
Health Care Association (AIHCA). The AIHCA study reported that, in
Washington, the average Native American dying prior to age 65 loses 7.6
more years of life than his counterpart in the general Washington
population - and that a Native American female dying prematurely (prior
to age 65) loses 6.1 more years of life than her general population
counterpart[^354]. The study concludes:

> The health status of Washington's American Indians can be illustrated
> by birth characteristics, disease prevalence and mortality. The
> findings on all these factors form a picture of American Indian health
> that is, in many ways, alarmingly poor.[^355]

Both the studies cited previously identify poverty as a causal factor
with respect to the unsatisfactory level of health of Native Americans
living in Washington State[^356].

Data from the US Indian Health Service further confirms these findings.
Based on data from 1989-91, the Native American age adjusted death rate
in the Yakima Service Area[^357] was 1.9 times the rate for other
races[^358]. Table 21 provides comparative data on the five leading
causes of tribal death in the Yakima Service Area.

Table 21

[Leading Causes of Tribal Death - Yakima Service Area:
1989-1991]{.underline}

Ratio of NA

[Cause of Death]{.underline} [Native American]{.underline} [All Other
Races]{.underline} [to Other Races]{.underline}

\-\-\-\-\-\--deaths per 100,000 population\-\-\-\-\-\--

Heart disease 215.0 141.6 1.5

Motor vehicle accidents 117.8 26.9 4.4

Malignant Neoplasms 102.8 129.6 0.8

Cirrhosis of Liver 80.0 5.7 14.1

All other accidents 44.5 16.1 2.8

Source: US Indian Health Service, 1994b. **Supra** at 214.

Diabetes are also a significant cause of Yakama death, accounting for
4.5% of mortalities[^359].

**These types of statistical outcomes are consistent with the hypotheses
advanced by both Trazfer (Note 73) and Bachtold (Note 66) - relating
unsatisfactory levels of health to poverty and deprivation-related
stresses**. Discussion with Yakama health experts provides further
insight regarding present health conditions on the Reservation - and
their relationship with fish and fishing.

> A lot of Yakama people don't have access to salmon on a daily basis.
> So that, of course, affects their health. They've lost a source of the
> type of protein that is very beneficial. Fish makes a positive
> contribution to the diet. Even giving the people an opportunity to eat
> fish two or three times a week would be beneficial. There is a real
> strong link between the fats salmon provide and preventing heart
> disease - and at present, heart disease is a major problem here.
>
> What's been substituted for fish has the opposite effect on health.
> Hamburger and fried foods raise LDL's and cholesterol levels.
>
> Diabetes is a problem at Yakama. The type we have here is Type II
> diabetes. Its onset has a strong link to poor diet and lack of
> exercise, which can lead to weight gain, which in turn
>
> exacerbates onset of diabetes at an earlier age. Diabetes in turn is
> linked with kidney and heart disease. Type II diabetes has a genetic
> component. But genes do not dictate destiny. Good diet and exercise
> will put off the onset of diabetes considerably.
>
> The lack of traditional foods and the lack of traditional preparation
> of foods seems to have impacted worse than everything. The roots
> grounds are gone. The fishing grounds that sustained them through the
> whole year are largely gone. Its more than food. Its also loss of
> income - and there is a real spiritual component. Its part of their
> culture - part of their living.[^360]
>
> They don't consider what salmon really means to our people. When I was
> growing up, my whole life was centered around what we gathered - what
> we used. The fishing brought families close together - not only for
> the food, but also spiritually and for religion. That way the family
> was able to cure a lot of its own problems. Fishing is for the family
> as well as the food. When we lose the salmon, its not just one thing
> we've lost. You have to take everything into consideration.[^361]
>
> My specialty is psycho-social nursing. From my perspective, everything
> is tied together. Nothing is separate. The health of the kids is
> impacted every day. We see kids come in who are grossly overweight,
> and they're laying the groundwork for the diabetes to come. The impact
> of the loss of the salmon, and the loss of the traditional grounds -
> the loss of the time with the elders to learn the ways and to feel as
> if they're part of this community, instead of feeling alienated not
> only from their neighbors and their families but also from the bigger
> community of humans - has a devastating effect on the kids. I have
> moms come in here eighteen years old who have been pregnant two or
> three times, who use substances and who don't teach their children the
> old ways because they don't know them. They don't feed their kids the
> old foods because they don't have any idea what they were. So the loss
> of the food and the salmon is monumental - and it is all tied
> together. Food is a really big part of the Yakama culture - as it is
> elsewhere. Anywhere you look in the world, food carries culture. So if
> you lose your foods, you lose part of your culture - and it has a
> devastating effect on the psyche. You also lose the social
> interaction. When we can fish, we can spend time together - you share
> all the things that impact your life - and you plan together for the
> next year. Salmon is more important that just food.
>
> In sum, there's a huge connection between salmon and tribal health.
> Restoring of salmon restores a way of life. It restores physical
> activity. It restores mental health. It improves nutrition and thus
> restores physical health. It restores a traditional food source, which
> as we know, isn't everything - but its a big deal. It allows families
> to share time together and build connections between family members.
> It passes on traditions that are being lost. If the salmon came back,
> these positive changes would start.[^362]

Finally, health experts at YIN expressed concern regarding dumping and
leaching of toxins into the waters of the Columbia/Snake system. A study
by the Columbia River Inter-Tribal Fish Commission (1994) identifies
that CRITFC tribes, because of the material and cultural importance of
fishing to them, consume about nine times more fish than national norms
used by EPA to set health standards[^363]. Subsequent work by Harris and
Harper (1997) identifies that exposure levels for tribal members who
target traditional foods is far higher[^364]. This suggests that study
tribes may face significant risk from deposition of toxins in Snake and
Columbia waterways - particularly from consumption of resident fishes.
Further analysis of potential toxin loadings of key fishes is being
pursued by the tribes, in coordination with EPA.

> **6.10.5 Present Incidence of "Own Language" Speakers Among the
> Yakama**

According to the 1990 Census, approximately 15 percent of Yakamas still
speak their original language at home[^365].

> **6.10.6 A Diagrammatic Profile of Yakama Present Circumstances**

Finally, present circumstances of the peoples of the Yakama Indian
Nation are represented in Figure 9 using a Maslow-like diagram.

> **7.0 Circumstances and Impacts on the Confederated Tribes of The
> Umatilla Indian**

**Reservation**

These sections provide information on the historic and related present
circumstances of the Confederated Tribes of the Umatilla Indian
Reservation (CTUIR). Estimated impacts associated with Lower Snake River
project alternatives will be discussed in a following section.

> **7.1 Accustomed Tribal Areas and Seasonal Rounds of the CTUIR**

The peoples who presently form the Confederated Tribes of the Umatilla
Indian Reservation (CTUIR) originated from three tribes, the Walla
Wallas, Cayuses and Umatilla - and a number of other bands[^366].
Members of the Palouse peoples are included in these latter (Table 2).

Suphan (1974) has provided detail with respect to the traditional areas
frequented by the peoples who are now the CTUIR. With respect to the
**Umatillas**:

> The permanent camps or villages of the Umatilla Indians\...were strung
> along both shores of the Columbia River from about the Gilliam-Morrow
> county line in Oregon upstream to the mouth of the Umatilla River; two
> other sites were along the lower course of the Umatilla. \...
>
> During the summer treks, the Umatilla crossed over the Blue Mountains
> into the Grande Ronde valley to numerous fishing, root-gathering,
> hunting and berrying areas. \...In none of these subsistence areas
> were the Umatilla the sole exploiters, Walla Walla, Cayuse and Nez
> Perce Indians visiting these same spots. \...
>
> Just east of the Grande Ronde Valley, the Umatilla exploited a spot on
> the Minan River, together with the Cayuse, Walla Walla and Nez Perce
> Indians, while they also journeyed into the Wallowa River Valley to
> subsistence spots about the present towns of Wallowa, Lostine,
> Enterprise, Joseph, and Wallowa Lake. These areas were also frequented
> by the neighboring Walla Walla, Cayuse and Nez Perce.
>
> Further southward, in what is now Baker County, the Umatilla and
> Cayuse fished and hunted on Eagle Creek and on Pine Creek two miles
> above Halfway with the Nez Perce. The only other spots in Baker County
> known to have been utilized by the Umatilla Indians were on Anthony
> Fork some 5-8 miles above the town of North Powder, and in Sumter
> Valley near Lockhart on the Powder River; both were shared with the
> Cayuse.
>
> To the west and south of the Grande Ronde Valley, the Umatilla people
> spread out into various fishing, hunting, and gathering spots on Snipe
> Creek just north of Albee, along Camas Creek at Ukiah and Lehman
> Springs, and to the heads of Winom, Cable, and Big creeks south of
> Lehman Springs. South of these areas, in what is now Grant County, the
> Umatilla occupied various spots along the forks of the John Day River
> from about Monument eastward\.... Virtually every one of these sites
> was shared with the Cayuse, while those along the John Day, Silvies,
> and the Malheur River were also visited and exploited by the Warm
> Springs (Tenino), Columbia River Indians, and the Paiute. \...
>
> \...it may be concluded that the Umatilla Indians had their permanent
> winter quarters or villages along the Columbia from Alderdale,
> Washington, to the Umatilla River, and on the lower course of the
> Umatilla. Here too, were many accustomed fishing areas which extended
> farther eastward to the Oregon-Washington state line. In summer and
> fall, the Umatilla wandered in the Blue Mountains, Wallawa and Grande
> Ronde valleys, and along the John Day River to numerous subsistence
> areas for hunting, fishing, and gathering. It is impossible to say
> with what frequency any one spot was visited; undoubtedly those nearer
> the winter supply quarters were the more intensely and regularly used,
> simply because of convenience. Yet the distant sites along the heads
> of the Silvies and Malheur rivers were said by informants to be of
> paramount importance to the Umatilla not only because of their
> plentiful natural resources, but also because of the trading and
> social activities carried on there with other Indian groups.[^367]

With respect to the **Cayuse**, Suphan reports:

> The Cayuse wintered in several local groups along the upper courses of
> the rivers lying between the Columbia River and the Blue Mountains in
> what is now Oregon and Washington.
>
> \...The Cayuse bands remained in these winter quarters until well into
> the spring, for salmon runs ascended the Umatilla and Walla Walla
> rivers and their tributaries, while roots and berries could be found
> close to these camp sites. Some families either then or later in the
> year, journeyed to the Columbia to fish at the mouth of the Umatilla
> River with the Umatilla Indians; some went as far as Celilo Falls to
> fish and trade. However, the Cayuse seem to have depended more heavily
> on the annual migrations of salmon into the headwaters of such streams
> as the Grande Ronde, Minam, and Wallowa rivers for their supplies of
> this staple than on the Columbia River fisheries. During the balance
> of the summer and in the fall, they were then found making their
> circuits through the mountains and valleys intercepting the fish as
> they arrived at various places. This, too, was the season for hunting,
> berrying, and root- digging\....
>
> Summing up, the Cayuse Indians were subdivided into seven or eight
> named local groups, collectively designated by themselves as
> Waiilatpu. Wintering along the northern foothills of the Blue
> Mountains from Butter Creek on the west to about where Walla Walla,
> Washington now stands, they spread out during summer and fall through
> the Blue Mountains, into Grande Ronde and Wallowa valleys, and as far
> as the John Day, Silvies and Malheur rivers.[^368]

Suphan also provides some information with respect to the **Walla
Walla** Indians.

> The Walla Walla Indians, or Walula as they called themselves, spoke a
> Sahaptin dialect said to have been closely related to that of the Nez
> Perce.
>
> Permanent sites of the Walla Walla were few in number, located on the
> Columbia near the entrance of the Walla Walla River. \...
>
> Fishing sites considered to "belong" to the Walla Walla Indians were
> along the Columbia on the east bank from a point about where the
> Oregon-Washington state line intersects the river upstream to the
> Snake River junction; the only known point on the west bank in this
> region was directly across from the entrance of the Walla Walla River.
> On that river, fishing areas extended upstream about two miles. In
> keeping with general native practice, these were not exclusively used,
> however, for the Cayuse fished at least one, while the site at the
> Snake junction was fished by the **Palus** and Upper Columbia
> (Wanapum) as well. \...
>
> Inland, the Walla Walla moved up both forks of the Walla Walla River
> and over into the country about the forks of the Wenaha River;
> subsistence spots along both these streams were used in conjunction
> with the Cayuse. In the Grande Ronde Valley, they journeyed to sites
> about the present location of the towns of Hilgard and La Grande to
> which the Umatilla, Nez Perce, and Cayuse also resorted. On the Minam
> River, they exploited in a region about opposite Cove, Oregon. Further
> eastward, they ascended the Wallowa River to favored subsistence areas
> near where the towns of Minam, Wallowa, Lostine, Enterprise, and
> Joseph now stand, and at Wallowa Lake; the Umatilla, Cayuse and Nez
> Perce were present at all of these. As in the case of the Umatilla
> Indians, it is impossible to say with what frequency any one such spot
> was visited; informants alleged that each would be visited at least
> once yearly by some members of the Walla Wallas.[^369]

Lane & Lane and Nash (1981a) also point out that the Walla Walla
"occupied territory downstream from the Nez Perce on the south bank of
the Snake River and perhaps on the north bank as well"; and that the
**Palouse** territory was centered at the confluence of the Palouse and
Snake Rivers, and that they "lived on the north bank of the Snake River
below Nez Perce territory"[^370].

As with neighbor tribes, salmon was the key resource for the tribal
peoples now known as the Confederated Tribes of the Umatilla Indian
Reservation.

> Salmon has played the key role for the people of the CTUIR since
> earliest remembered time. Every CTUIR leader and elder who speaks
> reminds us that the salmon is at the core of their material and
> cultural wellbeing.[^371]
>
> When God created Indians on the Earth, he gave us everything. Main
> thing was salmon and meat. And all the vegetables\--the potatoes,
> celery\--everything, you name it, that's what he gave to us. And
> that's what we were raised on.[^372]
>
> It's just that salmon was part of the country, they're part of the
> environment. They belong here as much as the Indians belong here. And
> in that way they complement each other. They've become a part of us
> because its what we depend on to live\... .[^373]
>
> The first catch, you know, the first spring salmon? We still have a
> big feast. Like in Celilo they do yet. They always did so our Creator
> would preserve it, help the Indian people to have more salmon come up,
> and so they could get more fish to the Indians. Most of us people this
> way, we like fish. I know that's all I could eat; I can hardly eat
> meat anymore, but I can sure eat salmon. We're known this way as
> "salmon eaters" by the Montanas and the Dakotas; and they're meat
> eaters that way. That's what I hear. They tell me, "What do you like?"
> I say, "Salmon, of course. I'm from that way." So they call us "salmon
> eaters".[^374]
>
> **7.2 Natural Assets and Annual Productive Yield of Original CTUIR
> Lands, Waters**
>
> **and Salmon**

The lands, waters and salmon producing capability of the CTUIR
traditional territory were the natural assets which allowed these tribal
peoples to survive and prosper. These assets were responsible for the
"annual harvests" of fish, game, roots, berries and edible plants upon
which the CTUIR peoples depended. As noted, salmon was a key element for
tribal wellbeing.

Hewes assumed that an average person living in the Columbia/Snake region
in pre-contact times would have required 2,000 calories per day to
survive[^375], on this basis, estimated that each Umatilla and Walla
Walla person would have consumed 500 pounds of salmon annually - and
that each Cayuse person would have consumed 365 pounds[^376]. Hunn
(1990) considers these estimates to be conservative[^377]. Walker (1967)
identified that the tribes also used salmon for other purposes, such as
fuel, and adjusted Hewes' annual per capita consumption estimates upward
by a median figure of 16.6 percent[^378]. Finally, information from
Swindell (1942) suggests that tribal families fishing in the
mid-Columbia area would catch more than one-third more salmon for trade,
after having taken care of their own needs[^379].

With respect to the population size of ancestors of CTUIR peoples, we
follow estimates by Ray.

> Dr. Verne F. Ray testified, without contradiction by the government's
> expert witness, that the population of the three tribes in 1790 was
> approximately 5,000. He estimated that by 1850, the tribal populations
> had been reduced by epidemics to 2,300, as follows: 1,000 Walla
> Wallas, 800 Cayuse, and 500 Umatillas.[^380]

Using Hewes estimates, adjusted by Walker - and, per Swindell,
increasing harvest estimates for Umatillas and Walla Wallas by one
third, and Cayuses by one-quarter, to allow for trade - we obtain the
following estimated CTUIR harvests in pre-contact and at Treaty times
(Table 22).

Table 22

[Estimated Pre-Contact and Treaty Annual Salmon Harvests by Tribes of
the CTUIR]{.underline}

[Per Capita Harvest]{.underline} [Total Annual Tribal Harvest
.]{.underline}

Consumption [Pre-Contact Period]{.underline} [About 1850]{.underline}

[Tribe]{.underline} [Consumption]{.underline} [Plus Trade]{.underline}
[Population]{.underline} [Harvest]{.underline} [Population]{.underline}
[Harvest]{.underline}

\-\-\-\--pounds per year\-\-\-- '000 lbs. '000 lbs.

Walla Walla 583 775 2,200 1.7 1,000 0.8

Umatilla 583 775 1,100 0.9 500 0.4

Cayuse 426 532 1,700 0.9 800 0.4

Total CTUIR 3.5 1.6

Salmon was the principal, but not the sole food, for the pre-contact
peoples of the CTUIR.

> All of Indian groups of the Middle Columbia River depended on fish,
> and particularly upon anadromous fish for their sustenance. However,
> it is doubtful if any depended upon this source of food to a greater
> degree than did the Walla Walla and their close kin the Umatilla.
> Murdock has estimated that between 36 percent and 45 percent of the
> food of the Umatilla came from the fisheries. Murdock's estimates are
> generally conservative. For the Walla Walla, if not for the Umatilla,
> we would suggest that their dependence on fishing may have been
> greater than that.[^381]

Using these estimates, we assign the top of the range percentage to
Walla Walla (45%), a median range percentage to Umatilla (40%), and
adjust the Cayuse fish percentage proportionately downward (to 27%). We
then apply these percentages to Hewes' estimates of "fish consumption
only" from the previous page. These calculations estimate total annual
annual food

consumption by the three CTUIR tribes to be equivalent to 6.1 million
pounds in pre-contact times, and to 2.8 million pounds around 1850.

Finally, if we were to utilize the US Bureau of the Census' present-day
estimate that families on an economy budget spend one-third of their
income on food[^382] - we could infer that, at Treaty times, the CTUIR
Tribes obtained food and non-food items from their usual and accustomed
lands and waters equivalent to 8.4 million pounds of food each year -
and equivalent to 18.3 million pounds in pre-contact times. These
estimates are inferential. It may be that in historic times, the ratio
of food to non-food items obtainable by the tribes was greater than that
used here. At the same time, however, the Census estimates are for
"budget" families - and by the lights of the day, the CTUIR people lived
well.

> The Plateau region of the Umatilla, Cayuse, and Walla Walla may be
> fairly described as one of relative abundance. From a pure survival
> standpoint, none of these Indians were customarily threatened with
> starvation, yet the cyclical, rhythmical nature of their food quest
> determined by the annual runs of fish, the ripening of the roots and
> berries, and the life-habits of the game resulted in their existing in
> a semi-nomadic state for about eight months of the year, and meant
> that the problem of subsistence was always the dominant factor of
> their lives. Yet the problem was only one of securing sufficient
> supplies, provided only that they keep on the move.[^383]
>
> The horse was the key to expansion of the Sahaptian culture. Mobility
> of the horse brought the people into contact with other Indian
> cultures in Montana, Canada, California, Nevada, and the Pacific
> Northwest. The region was rich with food, materials for shelter,
> water, fish, game, and food and medicinal herbs. The geographical
> setting placed the people in the prime situation of being the
> middlemen of the trade between the Great Plains and the rich Pacific
> Coast cultures. The people were in essence the wholesalers and
> retailers between the two cultures.[^384]
>
> **7.3 A Broader Perspective of CTUIR Living Circumstances in
> Pre-Contact Times**

As Suphan notes, in pre-contact times, survival for the CTUIR peoples
required only that they move with the natural food resources they
depended on. The 1996 Comprehensive Plan of CTUIR provides further
detail.

> The numbers of salmon, lamprey, steelhead, sturgeon and other fish
> were infinite. The fisheries were the staple of all life on the
> Columbia Plateau. Eagles, Bears, Coyotes, Cougars and Indians were
> amongst those who relied on the Salmon. Elk, deer, antelope, and many
> other smaller mammals were abundant. The rivers and streams abounded
> with beaver and otters, seals and sea lions were known to venture up
> the Columbia River to the great fisheries at Celilo. Several kinds of
> grouse, quail, and multitudes of geese and ducks, as well as hawks,
> owls, badger, rabbits, and other wildlife shared the diverse wetland,
> steppe, desert and upland.
>
> Roots, nuts berries, mushrooms, medicine, food, and fiber plants were
> seasonally available during the year. The hillsides were covered with
> lush bunch grasses, the timbered mountains were healthy, natural
> wildfires and floods were part of the cycle, the river vegetation was
> lush, and the water was cool and clean. The conditions were pristine
> and wildlife was naturally abundant. Survival was not easy for Indian
> people but the tools and resources were available to support Tribal
> life since time immemorial. \...
>
> The abundance of Salmon in the Columbia and Snake Rivers gave wealth
> to the tribes who fished there. They dried and processed the salmon
> for their own subsistence and for trade to the other tribes of the
> Plateau and the surrounding regions. The vast grasslands and mountains
> populated with game, roots and berries were wealth for those tribes
> who occupied them. \...
>
> Wealth was personal strength, family, community, comfort and
> happiness.[^385]

Like other neighbor tribes, the peoples of the CTUIR were devastated by
epidemics once contact occurred[^386], and more than half of their
people lost[^387]. Prior to that time, however, evidence suggests that
the peoples of the CTUIR lived in a manner that was fully consistent
with the hierarchical requirements for a satisfactory life identified by
Maslow and cited by Bachtold[^388]. This "fully functional" baseline
condition is diagrammed in Figure 10.

> **7.4 Umatilla, Walla Walla and Cayuse Circumstances, and the Treaty
> of 1855**

The circumstances leading up to yet another "Stevens Treaty" in 1855
have been summarized in a recent CTUIR document.

> Estimates from 1842 to 1849 indicate a total of 12,287 immigrants
> moved through tribal homelands. \...
>
> Indian tribes were willing to live with the newcomers until relations
> were strained by continual immigration into their land, loss of
> resources, disease and other pressures. Certainly there were cultural
> differences between the Indians and non-Indians but in the beginning
> there was diplomacy, communication and consideration. After time
> non-Indians began to take land the U.S. Government had offered that it
> did not own. \...
>
> As immigrations began to increase, the Tribes heard rumors that
> government representatives were plotting to steal the homelands. The
> Donation Act of 1850, and territorial approval of settlers in the
> Columbia Plateau without regard to tribal consent, made for a
> pressure-packed situation.[^389]

In 1855, treaty discussions were held in the Walla Walla Valley between
peoples from the Nez Perce, Cayuse, Walla Walla, Umatilla, Yakama,
Palouse and other tribes, and a United States delegation headed by Isaac
Stevens, Governor of Washington Territory.

> The Umatilla Indian Reservation, the Yakama Indian Reservation and the
> Nez Perce Reservations were created during these negotiations\.... The
> Umatilla, Walla Walla, and Cayuse tribes agreed to live on the
> Umatilla Indian Reservation\.... The Cayuse, Walla Walla and Umatilla
> had ceded 6.4 million acres to the United States\...and had reserved
> 510,000 acres to live. The Treaty was subsequently ratified by
> Congress on March 8, 1859.
>
> In negotiating such treaties Stevens was successful in his drive
> toward opening up the Columbia River and the Washington Territory. The
> Indian people who traditionally lived along the rivers for a major
> part of the year were systematically removed, sometimes by military
> force, to the reservations. This was the actual beginning of
> non-Indian control of the land.[^390]

While the peoples of the CTUIR ceded away vast land-based wealth in the
Treaty of 1855, they remain clear about the rights they still reserved
for themselves. Most notably, these included the Reservation, and the
rights to continue to fish, hunt and gather at usual and accustomed
places.

> \...The rights we reserved were the basis of our economy and the core
> of our culture and religion. These rights include the right to fish at
> our usual and accustomed fishing stations throughout the Columbia
> Basin, and the right to a sufficient quantity and quality of water to
> maintain these fish runs. The Treaty also reserved the right of
> continued Tribal access to certain lands for hunting, for gathering
> traditional foods and medicinal herbs, and for religious purposes.
> **Without the promise that these rights and resources would be
> protected, our ancestors would not have signed the Treaty** (our
> bolding)**.**[^391]
>
> The Treaty of 1855 between the United States and the Walla Wallas,
> Cayuses and Umatilla tribes, and bands of Indians, occupying lands
> partly in Washington and partly in Oregon Territories (now the CTUIR)
> defined and formalized the interests, rights and responsibilities of
> the signatories, and their successors, with respect to the natural and
> cultural resources of the Columbia River Basin. In the Treaty, the
> CTUIR ceded (**gave**) 6.4 million acres of land to the United States.
> In the Treaty, the CTUIR also specifically reserved, in perpetuity,
> rights to use, occupy and enjoy off-reservation lands and waters, to
> access them for the continuation of our traditional customs and
> practices, including plant, root and berry gathering, hunting for
> small and large game, and fishing at all usual and accustomed
> stations. \...
>
> Tribal rights secured by the Treaty of 1855 (and others), including
> the right to take fish at all usual and accustomed stations, were
> **not** granted to the CTUIR and other sovereign Indian Nations by the
> United States. We **reserved**\--retained\--such pre-existing rights
> as part of our status as a prior and continuing sovereign.[^392]

These rights, codified in the "Stevens Treaties", remain in full force
today. For example, in a recent Washington State fishing case, the Court
concluded:

> The one significant promise for purposes of this litigation is the
> promise by the United States to the Indians that they would enjoy a
> permanent right to fish as they always had. This right was promised as
> a sacred entitlement, one which the United States had a moral
> obligation to protect. The Indians were repeatedly assured that they
> would continue to enjoy the right to fish as they always had, in the
> places where they had always fished.[^393]
>
> **7.5 Further Allotment of CTUIR Lands - To Tribal Members and to
> Whites**

Having obtained over 90 percent of the homelands of the Walla Wallas,
Umatillas, Cayuse, Palouse and other represented tribes via the Treaty
of 1855, non-Indian residents of the region immediately turned their
attention to obtaining the rest.

> The Reservation boundaries were under attack even before it was
> surveyed. Public meetings were held in La Grande, Pendleton, and Walla
> Walla by the late 1860's, to remove the Indians from the Umatilla
> Reservation. The settlers had discovered that Indian lands were
> capable of producing wheat, and the mountains were good for livestock
> grazing.[^394]

If settlers could not immediately have all reserved land of the CTUIR
Reservation, they got a good start via another one of the "**survey
errors**" that seem consistently associated with the Stevens Treaties -
and always against Tribal interest.

> The (CTUIR) Tribes had reserved 510,000 acres for the Reservation in
> 1855. The actually surveyed Reservation totaled approximately 245,000
> acres or approximately half of the Reservation reserved by the
> Treaty.[^395]

Some non-Indians concluded that even this arbitrary reduction in
Reservation size left too much land in CTUIR hands.

> The Umatilla Reservation, though relatively small, was so
> extraordinarily rich in grazing land that, as early as August 15,
> 1870, Lieutenant W.H. Boyle could write from the Umatilla Agency that
> the amount of grass on the reservation was "without limit". "The
> horses and cattle," he observed, "are always in splendid condition,
> and scarcely need any care in winter, as grazing is good all year
> round, rendering it a very popular as well as profitable business to
> raise stock."[^396]
>
> As early as July, 1867, the Agent for the Umatilla Reservation
> reported that the Indians under his care, fearful of losing their
> reservation, were causing him no end of "trouble and vexation". "The
> reservation", he wrote, "is completely surrounded by white
> settlements." \...
>
> So anxious are the white people in the vicinity to possess this land,
> that threats to remove the Indians by violence are not infrequently
> heard."[^397]
>
> Some desperate emigrants attempted to obtain treaty lands by goading
> Indians into hostile acts. Others circulated petitions to Congress and
> the State Legislature requesting that the Indians be relocated.[^398]

In 1881, rail and road easements began to appropriate remaining CTUIR
land[^399] - and these have continued to the present day. In 1882,
Pendleton acquired 640 acres of CTUIR land - and another 200 acres in
1912[^400].

The Slater Act, forerunner to the Dawes Act, was passed in 1885 and
facilitated further transfer of CTUIR wealth in land to non-Indians.

> Failure to persuade the Confederated Tribes to sell the reservation
> fostered a renewed interest in the policy of land allotment. The
> concept was relatively simple. Each Indian would receive or be
> assigned to a parcel of land as stipulated in Article 6 of the 1855
> treaty. The remaining land would then be sold with the proceeds
> deposited to the credit of the Indians.[^401]

Implementation of the Slater Act provisions provided additional
opportunity for sharp practices to alienate CTUIR wealth in land.

> In 1892, Professor C.C. Painter vividly described the situation on the
> Umatilla reservation to the Board of Indian Commissioners. \...His
> remarks were generally substantiated by news items appearing in the
> Pendleton [East Oregonian]{.underline} and in the records of resident
> agents. According to Professor Painter the resident agent arrived on
> the reservation in a state of intoxication and was in that condition a
> number of times during the process of allotment. Tribesmen protested
> that aliens were allowed land; that some members of the tribe received
> no allotment; that the same piece of land had been allotted to more
> than one person; and that surplus land belonging to the Indians had
> been possessed by whites. Government officials informed the professor
> that the complaints were too vague and indefinite to become the basis
> of official action. There was no lack of evidence. In March of 1891,
> the [East Oregonian]{.underline} favored retaining the resident agent
> despite his drinking problem. His replacement later expressed shock in
> finding three full blood Norwegian children receiving the benefits of
> tribal membership. \...
>
> The conduct of surplus land sales were no less surprising. Although
> the methods of obtaining land were not illegal, they were unethical. A
> writer for the [East Oregonian]{.underline} was amused by a commotion
> staged to distract bidders from a McKay Creek land sale. The "clever
> trick" benefited a certain white rancher but constituted a loss to the
> Indians. \...it was not uncommon for several ranchers to pool their
> resources and outbid the independent rancher. Having outbid the
> independent, they would default on payment, and later obtain the land
> at appraised value. This was usually 25 percent less than real
> value.[^402]

As a result of the Slater Act, ensuing sharp practices, and widespread
leasing of CTUIR land by Indian allottees, by 1895, ninety percent of
the Reservation's arable land was farmed by non- Indians. Hunn, speaking
of the allotment process, concludes:

> In 1914 the allotment rolls were closed, but the damage had been done.
> The best agricultural lands of the reservation had become a
> checkerboard of Indian and white ownership with whites resident within
> the reservation boundaries outnumbering Indians ten to one. Whites now
> (1975) own the most productive 10 percent of all Yakima Reservation
> lands. The Umatilla Reservation has experienced even more severe
> erosion of its land base.[^403]

Drawing chiefly on Kennedy (1977), a general outline of the diminishment
of CTUIR wealth in land during this period is displayed in Table 23.

Table 23

[Diminishment of CTUIR Land: 1855 to 1975]{.underline}

Original CTUIR homeland. 6.9 million acres

CTUIR Reservation under the 1855 Treaty. 510,000 acres

CTUIR Reservation after "survey error". 245,000 acres

> CTUIR Reservation in 1975. 157,982 acres

Thus, in a little more than 100 years, the CTUIR's Treaty-based
ownership of land, secured by the peoples of the CTUIR in 1855, was
reduced by about 70 percent. These remaining lands (as of 1975) amounted
to 2 percent of their original homeland.

> **7.6 CTUIR Access to Usual and Accustomed Fishing, Hunting and
> Gathering Areas**

The substantial diminishment of CTUIR lands, in 1855 and thereafter,
together with the ongoing adverse pressure from surrounding whites,
severely restricted CTUIR access to usual and accustomed fishing,
hunting and gathering areas - even though such access had been
guaranteed by Treaty.

> Although the Treaty of 1855 provided for the gathering of native foods
> and pasturing of livestock off reservation, such activities were
> becoming increasingly difficult. Confrontation with the emigrants must
> have been anticipated with every journey off reservation.[^404]
>
> During the nineteenth century, the Plateau Indian population declined
> drastically. It might be argued that this would have taken pressure
> off the game resources. This was not the case, for the century brought
> thousands of non-Indians who, in the frontier tradition, also looked
> upon the game resources as a cheap supply of food. The end result of
> these changes was an intensification of fishing by Indians. \...
>
> Native vegetable foods also declined in importance as they became less
> available during the nineteenth century. Here also the reason related
> to the advent of non-Indians. \... Some of the most important plants,
> whose tubers were used for food, grew in just those areas that were
> most suitable for non-Indian occupation and utilization. \...The
> native food plants were both reduced by the pasturing of stock and
> made inaccessible to the Indians as land was fenced off.
>
> \...The mountain basins and valleys at the edges of the arid or
> semi-arid regions of the Columbia Basin were very attractive to
> non-Indian settlers\... .
>
> Such settlement, by converting the lands around traditional fishing
> places to leased or private property blocked access to innumerable
> fisheries. Until cars and trucks were used, the availability and
> character of campsites was an important consideration in choosing a
> fishery. Horses were used for transport and a campsite required
> adequate grass for the horses. Increasingly, traditional campgrounds
> were fenced off or otherwise barred to Indians. Often, although not
> always, there was hostility toward Indians on the part of the
> settlers. Often this hostility was part of the traditional anti-Indian
> prejudice of so many frontiersmen. It was usually bolstered by
> accusations of damage to fences, crops, and grass; and of gates left
> open and stock strayed or lost. Fishing at many traditional fishing
> places declined because of such opposition.
>
> The Wallowa Valley was an example. \... The (Indian) agents placed the
> Wallowa Valley off limits (in 1881) and thus cut off access to a rich
> hunting, fishing and gathering region. \...
>
> So far as we know, no legal challenge was made to this cutting off of
> traditional fishing places. The locations were usually minor fisheries
> and the loss of any one of them may have been annoying but may not
> have seemed a critical issue. The number of fishermen affected (by
> each action) might have been very small. The situation was different
> than that on the Columbia River where interference with access has
> critically affected larger numbers of (Indian) people and has been
> challenged.
>
> When Sahaptin-speakers such as the Walla Walla, Umatilla, and Cayuse
> traveled away from their home communities on foraging expeditions,
> they rarely went for a single purpose. On hunting trips, a given
> campsite would be selected that was convenient to berrying or root
> digging grounds. Fishing sites were often selected in terms of access
> to hunting grounds as well. Consequently, people might cease to use a
> perfectly good fishing location because adjacent camas beds had been
> destroyed or because nearby hunting was no longer possible. **The net
> result of the interaction of all these conditions and events was that
> fishing became more and more restricted to large mainstream fisheries
> and to tributary fisheries still accessible to the permanent community
> bases of increasingly sedentary (Tribal) people.** (our bolding)
> [^405]

As usual and accustomed fishing, hunting and gathering areas were cut
off from CTUIR peoples, and the Indians placed greater emphasis on
fishing sites that were larger, and closer to their reservation, these
larger sites also saw adverse pressure from whites. Initially, this
involved direct competition for the fish. In 1866, Hapgood, Hume and
Company located the first fishing cannery on the Columbia River[^406],
heralding an era of technological intensification of fishing effort and
the entry of non-Indians into large scale fishing and processing.
Subsequently, gillnetters, fish traps and seiners expanded "out in
front" of Columbia and Snake rivers tribal fishers. The fish wheels,
capable of taking thousands of pounds of fish per day, greatly
intensified fishing power until outlawed in 1926[^407]. As a result of
these commercial developments, CTUIR and other tribal fishermen fishing
Columbia and Snake rivers stocks soon

faced massive technology-driven competition from non-Indian fishermen,
who, by 1911, were taking the lion's share of salmon originating from
the Columbia and Snake rivers[^408].

> **7.7 Changing the Production Function for CTUIR Lands, Waters and
> Salmon**
>
> **Producing Capability**

As the 20th Century emerged, so did a new technique for taking Treaty
wealth from the tribes. Non-Indians not only caught the lions share of
salmon that were available, but began to **transform the rivers**. This
transformation has, since its inception, increased production of
irrigated crops and electricity - and reduced production of the salmon.
Dams on the Columbia and the Snake rivers have played the greatest part
in this transformation of the rivers' production function[^409]. Some
sense of the effect on salmon from this transformation is provided in
Table 24.

Table 24

[Transformation of the Columbia/Snake River System from Salmon
Production]{.underline}

Estimated

[Year]{.underline} [Harvest]{.underline} [Benchmark .]{.underline}

-millions of lbs.-

1872 17.0

1900 25.8 Non-Indian fishing pressure increases.

1911 49.5 Salmon harvest peaks, aided particularly by the salmon wheel.

1927 37.7 The salmon wheel has been outlawed.

1931 27.0

1933 26.8 Rock Island Dam completed. First dam on the Columbia mainstem.

1938 18.8 Bonneville Dam completed - First mainstem dam to impede Snake

stocks.

1940 19.3

1941 31.6 Grand Coulee Dam completed on the Upper Columbia.

1950 13.3 Anderson Ranch Dam completed on the Snake.

1952 10.7 Cabinet Gorge Dam completed on the Snake.

Hungry Horse completed on the Snake.

1953 9.7 McNary Dam completed on the Columbia. Impedes Snake R. salmon.

1957 7.3 The Dalles Dam completed on the Columbia. Impedes Snake salmon.

1958 8.1 Brownlee Dam completed on the Snake.

1959 6.1 Priest Rapids Dam completed on Columbia. Impedes Snake salmon.

1961 5.4 Oxbow Dam completed on the Snake.

1961 5.4 Ice Harbor Dam completed on the Lower Snake River.

1967 9.4 Wells Dam completed on the Columbia. Impedes Snake salmon.

Hells Canyon Dam completed on the Snake.

1968 5.6 John Day Dam completed on the Columbia. Impedes Snake salmon.

1968 5.6 Lower Monumental Dam completed on the Lower Snake River.

1970 12.6 Little Goose Dam completed on the Lower Snake River.

1974 6.3 Dworshak Dam completed on the North Fork of the Clearwater.

1975 8.2 Lower Granite Dam completed on the Lower Snake River.

1990 3.9

Source: Smith, C.L., 1979. **Supra** at 110-112.

: Oregon Department of Fish and Wildlife & Washington Department of
Fisheries,

1991\. **Status Report**, p. 67.

Salmon catches have continued to decline in the 1990's, until, at
present, the existence of some Snake River salmon stocks are threatened
and/or endangered[^410].

Tribal spokespersons have not agreed with the transformation of the
Columbia/Snake system into one which produces extensive wealth
associated with electricity and crops - but fewer and fewer salmon. As
with their neighbor tribes, their concerns with respect to their Treaty
resources have been largely ignored.

> The Indians didn't have no voice at all. Because I remember when they
> built the John Day Dam the fish wouldn't go up the fish ladders. And
> they said the fish down there just died by the thousands at The Dalles
> Dam, because they didn't know how to go up them ladders. Plus the
> water was several degrees warmer above than it was below, and they
> couldn't adjust to that. Everyone knew that, even white people.[^411]
>
> On each reservation, the story is the same. Inadequate provision for
> salmon and steelhead during dam construction and
> operation\--consequent decline of natural stocks\--broken and
> discarded promises by hydroelectric interests respecting safeguards
> and compensation\--and severe inroads into capability for tribal
> survival. These conditions have also spawned a present attitude of
> almost universal mistrust among Indian people, accompanied either by
> hopelessness or outrage\--depending on the person involved.[^412]

The anguish associated with this transformation has been summarized by
CTUIR elder Carrie Sampson.

> My heart cries for my people, cuz we are no more Indians. We have
> taken up all the white man's ways. If we were still Indians, we'd be
> living peacefully and happily the way we used to. All our horses are
> gone. No more cattle. All the pasture, the land, the hillsides, taken
> up by the farmers, by the white man. Our horses don't roam no more; we
> don't have no more horses of our own like we did at one time. Every
> inch of the tillable ground is taken up. Where our houses used to be,
> they tear that down, and they put wheat in there or peas right on
> every inch of the ground. And they've taken down all of the fences,
> and they've plowed through there. These big farmers, they've got
> everything in the world. The (Indian) owners have nothing. And they've
> taken everything. Like I say, they've taken our land, they've taken
> our rivers, they've taken our fish. I don't know what more they
> want.[^413]
>
> **7.8 Lower Granite, Little Goose, Lower Monumental and Ice Harbor
> Dams**

As with neighbor tribes, the CTUIR peoples directly fished Snake River
stocks as adult salmon returned upriver. They fished these stocks both
at their usual and accustomed fishing stations along the mid-Columbia,
and along the lower Snake River. Lane & Lane and Nash (1981a) report
that, on the Lower Snake River, the Walla Walla tribe occupied territory
downstream of the Nez Perce on the south bank[^414], perhaps from below
the mouth of the Tucannon River to the confluence of the Snake and the
Columbia Rivers. Palouse peoples, many of whom now reside on the
Umatilla Reservation, lived along the north bank of the lower Snake, at
and below the mouth of the Palouse River[^415]. We consequently conclude
that permanent cultural sites of the CTUIR peoples have been inundated
by Ice Harbor and Lower Monumental Dams, and that Little Goose and Lower
Granite Dams inundated Treaty fishing stations fished cooperatively by
CTUIR peoples with the Nez Perce. These dams also flooded associated
areas depended on by CTUIR peoples for hunting, and for the gathering of
roots, berries and plants.

In order to properly assess impacts associated with lower Snake River
reservoirs on tribes, and following Court direction (Section 2.1.1.5),
it is necessary to consider "cultural resource" impacts from a tribal as
well as an archaeological perspective. These perspectives differ.

> Tribes look at cultural resources differently than archaeologists do.
> King and Dodge (1996), working for Keepers of the Trust, speak about
> the differences between tribal and Euro-american (archaeological)
> worldviews in regard to cultural resources. Most generally, they note
> that (tribes consider that) a cultural resource is "any place that is
> valued by a tribe because of some sort of association with the tribe's
> ancestors" (p.2). They also point out that cultural resources can
> either be **places** or **practices**. The "practices" are centered
> around peoples' actions which may or may not require a special place.
> **It is the 'action' that is special to the cultural tradition or
> lifeway** (p.4). The "places are physical locations on the land that
> are important because something special is done there (vision
> questing, medicine gathering), because special things are located
> there (important plants, herbs, animals), because people did something
> there in the past (lived, buried the dead, etc.), or because they are
> associated with traditions (origin places, etc.)" (p.4). These places
> are generally considered under the archaeologist's term "site" or
> "traditional Cultural Property (TCP)". A final important general point
> Keepers of the Trust makes is that cultural resources "may be places
> where plants, animals, or minerals are found that are needed to
> maintain the ways of life passed down from the ancestors" (p.2).

The CTUIR agree with the Keepers' analysis. In Burney's analysis of why
Hanford is a Traditional Cultural Property, he says;

> "Cultural resources significant to the CTUIR world-view include such
> things as the Indian people themselves, their communities, and their
> way of life; native elders with their unique information regarding
> their personal histories as well as tribal histories; clean air; clean
> water where salmon and other fish, eels, and other riverine resources
> so highly prized by the tribes for their traditional subsistence live;
> the root grounds providing a multitude of edible roots traditional to
> their dietary needs; and the berry patches, especially huckleberries,
> scattered throughout the Blue Mountains." (1998:7)
>
> The same is true for the reservoirs along the lower Snake River.
> Clearly, a crucial cultural resource for the CTUIR, as well as other
> Northwest tribes, is the salmon. Many of the archaeological sites
> within these reservoirs show evidence of the antiquity of the
> relationship between tribal members and these fish. Should this
> relationship be broken by the extinction of the salmon, the loss to
> the tribes' culture would be immeasurable.
>
> Another important difference between the way archaeologists and tribal
> cultural resource managers look at cultural resources is in ranking.
> Historically, laws set up by the federal government to manage cultural
> resources, and many of the archaeologists who interpret them, focus on
> determining a site's eligibility for the National Register. Thus a
> site may be rated on whether it meets the criteria outlined in the
> National Historic Preservation Act. Sites that do not meet these
> criteria (these archaeologists say) do not warrant protection.
>
> This is a foreign concept to tribal members, who prefer to see the
> interaction between cultural resource sites and landforms as a system.
> As the Keepers point out;
>
> "Rather than ranking places against one another and deciding which can
> be most readily sacrificed to change, a traditional person may want to
> look at the relationship among all the parts of the interacting
> landscape system, and decide whether or not proposed changes will
> disrupt the system." (p.6)
>
> Archaeologists in particular and Euroamericans in general often fail
> to appreciate the importance American Indians ascribe to cultural
> resources. People need to understand that these sites are a library of
> the Tribe's heritage. Euroamericans read books to learn about the past
> and what their ancestors did. Tribal members turn to archaeological
> sites to understand and connect to the past and to their ongoing
> lifeways.[^416]

A fuller discussion of legal and technical issues associated with
cultural impacts and protection is provided in Appendix 2.

CTUIR cultural protection staff have focused their analytical attention
for this project on the two lowest Snake River reservoirs, those
associated with Ice Harbor and Lower Monumental dams. In general:

> When the CTUIR looks at Ice Harbor and Lower Monumental reservoirs,
> they see a system of cultural resources that is entirely out of
> balance. The river is a lake, much of the land where their ancestors
> lived their daily lives is under water, and the salmon have great
> difficulty in their migrations. The current system is
> unacceptable.[^417]

A 1995 preliminary assessment by CTUIR staff identified approximately
150 sites of particular cultural significance within the Ice Harbor and
Lower Monumental reservoirs (Table 25). These are believed to be only a
portion of the sites along the Lower Snake where the ancestors of the
CTUIR tribes lived, fished, hunted and/or gathered roots and
plants[^418].

Table 25

[An "In Part" Summary of Sites of Particular Cultural Significance to
the CTUIR]{.underline}

[- Affected by Lower Snake River Reservoirs -]{.underline}

[Reservoir]{.underline} [Number of Cultural Sites]{.underline}

Ice Harbor 73

Lower Monumental 77

Source: CTUIR Cultural Protection Staff, 1995.

Finally, the CTUIR, have seen their Treaty wealth in salmon risked, and
then taken, as the Lower Snake dams were built. In more recent times,
they have suffered further, as some biologists and river managers have
reversed their approach to uncertain actions - and refused to restore
salmon to the river unless they can be guaranteed high probabilities of
success for any rebalancing actions they might take[^419].

> **7.9 Post-Contact CTUIR Tribal Health**

As Hunn has noted, pestilence followed contact with white explorers,
trappers and settlers for the tribes of the CTUIR and their neighbors.

> (T)he first wave of smallpox might have come from the west about 1775
> from ships exploring for furs along the north Pacific coast\... .
>
> Smallpox again rampaged along the Columbia in 1801, attacking a new
> generation of susceptibles grown up since the first visitation. This
> likely carried off another 10 to 20 percent, reducing the original
> population to about one half by the time of Lewis and Clark's
> exploration\.... Two more waves of smallpox may have afflicted Indian
> people on the mid- Columbia. An outbreak of disease reported in
> 1824-25 may have been smallpox. The epidemic of 1853 was documented in
> detail by the McClellan survey party\... .
>
> \...Though spared from malaria (which ravaged the lower Columbia
> tribes), the Plateau people next found themselves in the path of
> thousands of immigrants crossing the continent over the Oregon Trail.
> Seasonal respiratory disease had become commonplace among the Indians
> who congregated at fur trading posts each winter, a pattern repeated
> at the missions. In 1843 after a tour east, Marcus Whitman returned to
> his Walla Walla mission at the head of a train of one thousand
> settlers. This scene was to be repeated each subsequent year. With the
> immigrants came a potpourri of diseases against which the Indians had
> no resistance. In 1844 there was scarlet fever and whooping cough, in
> 1846 more scarlet fever, and so forth. \...
>
> This coincidence of Whitman's hosting the hordes of settlers arriving
> late each fall from their arduous overland journey and the outbreak of
> new epidemics was not lost on the Indians. When measles erupted about
> the time of the immigrants' arrival in 1847, the Indians concluded
> that Whitman's murderous influence must be stopped.
>
> \...On November 29, a group of Cayuses attacked the mission, killing
> Whitman, his wife, and eleven other whites, and taking some fifty
> captives\... .
>
> The (pre-Treaty) history of Indian-white relations in the Columbia
> Plateau has been first and foremost a history of the ravages of
> disease, for the most part inadvertently transmitted by Old World
> immigrants to defenseless New World populations, which drastically
> reduced aboriginal populations and disrupted the social and spiritual
> fabric of Indian life.[^420]

These epidemics reduced the population of CTUIR tribes to 2,300 persons
by 1855[^421]. Population continued a sharp decline through the balance
of the 19th century - and then remained fairly constant through the
mid-20th century (Table 26).

Table 26

[Estimated Population of CTUIR Tribes: 1892 to 1950]{.underline}

[Year]{.underline} [Population]{.underline}

1892 1,081

1899 1,013

1910 1,065

1920 1,117

1930 1,111

1940 1,135

1950 1,128

Source: Lane & Lane Associates and D. Nash, 1981c. **Supra** at 31-32.

Trafzer (1997) concludes that pestilence continued to predominate among
the tribes of the Columbia and Snake rivers until the 1930's when modern
preventive medicines began to reach the reservations. He further
hypothesized that by the 1950's degenerative and man-made diseases had
become prevalent as principal causes of Indian mortality. Incorporated
in this new set of problems were: loss of traditional diet from native
foods, pressures and violence from whites, social and economic
dislocation of reservations, loss of autonomy and control over lives,
high poverty and low medical services[^422]. This hypothesis is
consistent with observations concerning devastation of the CTUIR
traditional resource base, and with the conclusions reached by
Bachtold[^423].

> **7.10 Present Circumstances of the CTUIR**

This section reviews recent circumstances of the CTUIR - and
particularly inquires whether recent circumstances have altered the
cumulative adverse effects that CTUIR peoples have suffered.

> **7.10.1 Remaining CTUIR Lands**

Enrolled CTUIR membership presently stands at 2,087 persons[^424]. The
present Treaty boundary of the Confederated Tribes of the Umatilla
Indian Reservation encompasses 292,744 acres. Only 95,136 acres (32
percent) are in Indian hands (Table 27). This represents 1.4 percent of
their original tribal homeland.

Table 27

[Present Reservation Landholdings of the CTUIR and its
Members]{.underline}

[Type of Holding]{.underline} [Acres]{.underline}

Tribal fee lands 9,360

Tribal allotment lands 68,771

Tribal Trust lands 17,005

Non-Tribal Owned Reservation lands 197,608

Total Lands within Reservation boundaries 292,744

Source: CTUIR Planning Office.

> **7.10.2 What Remains of the Salmon?**

The peoples of the Yakama, Nez Perce, Umatilla and Warm Springs
Reservations fish in common in Zone 6 on the mid-Columbia River. Catches
roughly reflect human population sizes, and associated numbers of
fishers, from each reservation - with the Yakama's securing the largest
catch, followed by the Nez Perce, and then the Umatillas and Warm
Springs. Aggregate statistics on all-tribes Zone 6 commercial catch are
kept by CRITFC; the Yakamas and the Nez Perce keep their own Zone 6
catch subtotals, while the Umatilla and Warm Springs do not; and all
tribes have some data on Ceremonial and Subsistence (C&S) catches in
tributary rivers and streams. Given these circumstances, we have been
able to approximate harvest levels for Nez Perce and Yakama peoples in
previous sections of this report. However, such direct estimates are not
available for either Umatilla or Warm Springs - and we have approximated
**joint catch** for these two tribal groups as follows.

1\. We use CRITFC catch data to estimate Zone 6 total tribal commercial
catch of anadromous

species at 820,000 pounds, the average for the years 1993-1997.

2\. Based on data from the Yakama Indian Nation, we estimate Zone 6
commercial harvest by

Yakama tribal members at 719,000 pounds.

3\. Based on data from Nez Perce, we estimate that Nez Perce fishers
take about 7.6% of

Zone 6 tribal commercial harvest - 62,000 pounds of the estimated
820,000 base all-tribes

commercial harvest.

4\. Subtracting the harvest results from Steps (2) and (3) from the
all-tribes Zone 6 commercial

harvest estimated in Step (1), we obtain a residual commercial harvest
estimate for the

**CTUIR and Warm Springs tribes, considered together**, of 39,000
pounds.

5\. Using Ceremonial and Subsistence (C&S) harvest data from all tribes,
we estimate that an

additional 38,000 pounds of anadromous fish are taken by CTUIR and Warm
Springs

peoples considered together for C&S purposes, in Zone 6, and in other
tributary rivers and

streams within their usual and accustomed territories.

6\. Adding results from Steps (4) and (5), we estimated that fishers
from the CTUIR and the

Confederated Tribes of the Warm Springs Reservation have been able to
harvest

approximately 77,000 pounds of anadromous species annually over the
1993-1997 period.

It will be apparent that these estimates are only approximate, and will
change with decreases or increases in abundance of salmonid stocks.
However, they are considered accurate within a reasonable range of
magnitude, and are sufficient to indicate that present harvests by CTUIR
peoples represent only a small fraction (3 percent for the CTUIR and
Warm Springs taken together) of the harvests they believed they had
protected in their Treaty with the United States.

> **7.10.3 A General Assessment of Present CTUIR Material Circumstance**

Preceding Sections 7.10.1 and 7.10.2 indicate that the peoples of the
CTUIR have lost 68 percent of their Treaty-protected lands and
approximately 97 percent of Treaty protected harvests of salmon and
other anadromous fish. This destruction of tribal Treaty assets and
stripping of wealth from tribal lands and rivers has had a predictable
result - severe impoverishment for the peoples of the Confederated
Tribes of the Umatilla Indian Reservation.

Data from the US Bureau of the Census' 1990 Survey and from BIA (1995)
provides a present- day comparison of CTUIR material circumstances,
relative to those of non-tribal residents of Oregon (Table 28).

Table 28

[Comparative Data Showing the Relative Circumstances of the
CTUIR]{.underline}

[Economic Indicator]{.underline} [CTUIR]{.underline}
[Oregon]{.underline}

Families in Poverty (%) 26.9 12.4

Unemployment: US Census (%) 20.4 6.2

: BIA 21.0

Per Capita Income (\$'000) 7.9 13.4

Source: US Bureau of the Census - 1990 Special Tribal Run. US Bureau of

Indian Affairs - 1995 Indian Population and Labor Force Estimates.

Recent Tribal economic activity and employment depends most heavily on
government infrastructure, and on the CTUIR Wildhorse Casino and Hotel
development - which also provides jobs for neighboring non-members. The
Yellowhawk Health Clinic is also a significant employer of tribal
members (Table 29). The Casino/Hotel complex has had a particularly
positive impact in diminishing winter unemployment peaks - although
overall unemployment rates remain unacceptably high.

Table 29

[Major Employment Sources for the CTUIR - 1998]{.underline}

[Enterprise/Activity]{.underline} [Estimated Employment]{.underline}

[CTUIR]{.underline} [Non-CTUIR]{.underline}

Tribal government 217 146

Wildhorse Casino & Hotel 108 259

Yellowhawk Health Clinic 36 29

Tribal Police 7 19

Tribal Housing Authority 6 20

Source: CTUIR Public Information Office.

> **7.10.4 CTUIR Tribal Health**

US Indian Health Service (1994b) reported that, for the 1989-1991
period, the age-adjusted death rate for Native Americans in the Umatilla
Service Area exceeded that of non-Indians by 20 percent[^425]. The
Umatilla Service Area covers Umatilla and Union counties in Oregon.
Table 30 provides comparative 1989-91 age-adjusted mortality data for
the Umatilla Service Area and surrounding non-Indian residents - for the
five leading causes of Native American death.

Table 30

[Leading Causes of Tribal Death - Umatilla Service Area:
1989-91]{.underline}

Ratio of NA

[Cause of Death]{.underline} [Native American]{.underline} [All Other
Races]{.underline} [to Other Races]{.underline}

\-\-\-\-\--deaths per 100,000 population\-\-\-\--

Malignant Neoplasms 126.7 104.7 1.2

Heart Disease 104.5 101.3 1.0

Cerebrovascular Disease 63.5 20.6 3.1

Cirrhosis of the Liver 56.8 3.3 17.4

Aids/HIV 18.0 0.9 20.6

Source: US Indian Health Service, 1994b. **Supra** at 97.

While diabetes ranks slightly lower as a killer on the Umatilla
Reservation than the causes of mortality listed in Table 30, it is still
a substantial problem for CTUIR peoples. Hunn, writing about the peoples
of the "Big River", makes the following comments with respect to
potential relationships between diet and a new complex of tribal
diseases, one of which is diabetes.

> How are we to understand this sudden appearance of a complex of
> diseases that were previously unknown or rare among Native Americans?
> The essential clue in this instance may lie in dietary changes. Indian
> peoples today have ready access to an abundance of processed foods
> that are high in short-chain carbohydrates and animal fats but low in
> long-chain carbohydrates and fiber. Such processed foods are
> conspicuously marketed in our supermarkets and have now largely
> replaced traditional greens, roots, fish, and berries in the Indians'
> diet. Traditional foods had a high fiber content and were rich in
> essential vitamins and minerals well preserved by indigenous drying
> techniques. Healthy fish oils were the primary source of fats. Such
> foods provided all essential nutrients, including ample
> calories.[^426]

The American Indian Health Care Association (1993) also evaluated Indian
health status and services in the State of Oregon. Their findings tended
to confirm the data from the Indian Health Service.

> State of Oregon findings indicate that the status of American Indian
> health lags behind the general population, and that health care
> facilities available to American Indians are limited in scope and
> underfunded. Furthermore, researchers found that there were severe
> access problems for all American Indians, whether they live on or off
> reservations. \...
>
> The health status of Oregon's American Indians can be illustrated by
> birth characteristics, disease prevalence, and mortality. The findings
> on all these factors form a picture of American Indian health that is,
> in many ways, alarmingly poor.[^427]

As with other tribes, the CTUIR is making positive strides respecting
tribal health. However, substantial challenges remain.

> Today the CTUIR is taking a more positive role in directly managing
> their own health care. Indian health and healthcare needs to improve,
> and the CTUIR realize that we must do this ourselves. Poor water
> quality, pesticides, no fish, and changes in traditional diet to
> commodities has affected the health of the tribes. One hundred and
> fifty years of alcoholism, drug abuse, diabetes and high cholesterol
> introduced by the non-Indian world has also weakened and hurt the
> people. The health of the Indian people is the future and we need to
> care for our family using western medicine and traditional beliefs to
> heal ourselves. With the Tribes limited successes there has been
> opposition and there are many issues to attend to. The Columbia River
> fisheries are dwindling, the forests are sick, the water is polluted.
> Through our Country passes thousands of miles of roads, power lines,
> pipelines, extensive irrigated land, cattle issues, water issues,
> forest and mineral speculators, private industry, developers, county,
> state and Federal governments. Within the CTUIR aboriginal territories
> is the Hanford Nuclear Reservation, the most polluted place in the
> Western Hemisphere.[^428]

Tribal fish Commissioner Jay Minthorn expressed further concern with
respect to water pollution at a 1998 EPA Conference on the subject.

> Water pollution affects many aspects of tribal life; our health, our
> source of food and our tribal heritage. Water quality takes precedence
> over all other resources, because it's the source of all living
> things. Of all the threats to our tribal life, water pollution is one
> of the most dangerous.
>
> **7.10.5 Languages of the CTUIR and Other Columbia/Snake River
> Tribes**

With respect to the languages of the CTUIR, and neighbor study tribes,
Hunn (1990) notes:

> The mid-Columbia Indians speak a dialect of Sahaptin. The Sahaptin
> language includes three main dialect divisions set apart by
> distinctive vocabulary items, pronunciation, and grammatical
> paradigms. Bruce Rigsby, a linguistic anthropologist who studied
> Sahaptin in detail during the 1960's, describes fourteen extant
> dialects, which he classifies as follows:
>
> *The Northwest Cluster*: Klikitat, Upper Cowlitz or Taitnapam, Yakima,
> and Kittitas or Pshwanwapam;
>
> *The Northeast Cluster*: Priest Rapids or Wanapam, Walla Walla, Snake
> River, and Palus; and,
>
> *The Columbia River Cluster*: Umatilla, John Day, Rock Creek
> (Washington), Wayampam (Celilo), Tenino, and Tygh Valley.
>
> Sahaptin is closely related to Nez Perce, spoken along the (lower)
> Snake River and its tributaries above the Palouse River junction, and
> the two languages together form the small Sahaptian language
> family.[^429]

In previous methodological Section 2.1.4.4, we cited Hunn's conclusions
concerning the importance of "own language" for tribes. We repeat his
observations here.

> Learning a foreign language such as Sahaptin involves more than
> learning a strange set of sounds, getting used to unfamiliar
> grammatical patterns, and memorizing a new vocabulary. It also
> requires learning a new way of thinking and adopting a different
> perspective on reality\.... The hypothesis of linguistic
> relativity\...was put strongly by Sapir when he asserted that people
> who grow up speaking different languages do not live in the same world
> with just the labels changed, but live in unique worlds.[^430]

Because tribes place strong emphasis on experience in learning how to
live effectively, language not only illuminates culture, but also
protects Tribal knowledge - and hence, tribal power.

> Human survival hinges on the outcome of such ecological events as
> finding food, eating, killing, escaping, meeting, mating, feeding and
> dying. With language we can describe, catalog, and analyze a very
> large number of such events as well as imagine, and perhaps create,
> new ecological realities. Language is thus not merely a means of
> self-expression but also a tool of survival, more powerful than the
> bow-and-arrow, net or plow. In language we construct our battle plan
> for our daily skirmish with hard reality. \...This knowledge must be
> acquired, remembered, and passed on.[^431]

Ridington (1990) adds:

> Knowledge, the elders say, enables a person to live in this world with
> intelligence and understanding. They recognize that knowledge is a
> distinctly human attribute. **They recognize that knowledge is a form
> of power**. (emphasis added)\... A person with power reveals what he
> or she knows through the ongoing story of his or her life. A person
> with power does not disclose knowledge without a purpose. He or she
> may use power to heal relatives who are ill. He or she may use it to
> feed people. A person who "knows something" may even be obliged to use
> power to defend against an attack. These circumstances reveal the
> times and places in which power may be revealed. They define knowledge
> and power in terms of experience.[^432]

Thus, a persons' "own language" can keep knowledge from outsiders - and,
in so doing, protect the power of tribal peoples.

Today, only a minority of members of the CTUIR, and of other tribes,
speak their own language.

> Sahaptin survives in the memories of several hundred elders because it
> has served its people well, and it may yet survive to serve their
> descendants in a world dominated by languages of empire, such as
> English, Spanish, Arabic, and Mandarin Chinese\....
>
> The extinction of languages such as Cayuse does not require that we
> imagine dramatic conflicts among linguistic "tribes" for domination
> over the Plateau populace. Hunter-gatherers do not create empires,
> they tend rather to mind their own business. Linguistic change is more
> likely a slow process whereby "successful" languages (that is, those
> learned by increasing numbers of people) spread at the expense of
> neighboring languages by *creeping*, not *leaping*[^433].

An estimated 9 percent of Native Americans living on or near the
Umatilla Reservation speak their own language at home[^434]. Strong
efforts, led by Elders, continue to save the language and to teach it to
younger members of CTUIR. Yet at present, the ability of CTUIR peoples
to protect the power of their traditional knowledge through use of their
own language must be judged to be endangered.

Finally, as with other tribes, we provide an outline of present CTUIR
circumstances using a Maslow-based diagram (Figure 11).

> **8.0 Circumstances and Impacts on the Confederated Tribes of the Warm
> Springs**
>
> **Indian Reservation**

This section provides information on past impacts and related present
circumstances of the tribal peoples now known as The Confederated Tribes
of the Warm Springs Reservation of Oregon (hereafter, The Warm Springs).
Expected future impacts on The Warm Springs will be identified in the
following "impacts" section of this report.

> **8.1 Accustomed Tribal Areas and Seasonal Rounds of The Warm Springs
> Peoples**

The Confederated Tribes of the Warm Springs Indian Reservation report
that the ancestors of present-day Warm Springs came primarily from three
tribal groupings: the Wasco bands living along the mid-Columbia - who
spoke Chinookan; the Warm Springs bands who lived upstream of the Wascos
along the Columbia and its tributaries, and spoke Sahaptin; and the
Paiutes, who lived in southeastern Oregon and spoke a Shoshonean
language[^435].

> Over the centuries, the Warm Springs and the Wascos had developed an
> extensive economic network along the Columbia, a network that depended
> on the river and its resources, particularly the salmon. The Paiutes,
> who occupied a vast territory south and east of the Columbia River,
> subsisted largely on hunting.
>
> The Wascos were principally fishermen and traders. With the closely
> related bands of Wishram Indians on the north side of the Columbia
> River, they frequently came in contact with other Indians from without
> the region. From neighboring Sahaptin bands, they obtained surplus
> game food; from the Clackamas to the west, roots and trade shells;
> from more distant eastern peoples such as the Nez Perce, furs,
> clothing and horses. In exchange, the Wascos traded root bread, bear
> grass that could be used for basket-making, and salmon meal that could
> be stored for long periods in fish skin pouches.
>
> While the Wascos remained in their village sites along the Columbia
> throughout the year, the Warm Springs bands moved between winter and
> summer villages. They depended more on game, roots and berries, so the
> Warm Springs Indians required a larger territory than the Wascos. But
> the salmon was also an important staple for the Warm Springs
> bands\....Although the two tribes spoke different languages and
> observed different customs, they came in contact regularly and could
> converse with each other.
>
> The lifestyle of the Paiutes was considerably different. Fish was not
> as important for the Paiutes as it was for the tribes nearer the
> Columbia River. Their high plateau country required that they migrate
> widely and frequently for the plants and game they relied on. Except
> for overlapping territories, the Paiutes had little in common with the
> Chinookan and Sahaptin bands. Contact between the Paiutes and the
> Wasco or Warm Springs Indians was infrequent and, in early timers,
> usually occurred during territorial skirmishes.[^436]

Confederated Tribes of the Warm Springs Reservation of Oregon (1984)
also describes the territorial extent of each tribe's usual and
accustomed harvest rounds.

> Although Paiute territory historically included a large area from
> southeastern Oregon into Nevada, Idaho, and western Utah, the Paiute
> bands which eventually settled at Warm Springs had lived in the area
> of Lake, Harney, and Malheur counties in Oregon.
>
> The original territories of the Wasco and Warm Springs tribes extended
> from the slopes of the Cascades to the Blue Mountains in the east and
> from the Columbia River to an east-west line south of the present city
> of Bend. Located principally in the northwest corner of this area
> along the Columbia, the Wascos shared many hunting and gathering areas
> with the Warm Springs bands. In the western portion, both tribal
> groups gathered berries and other plants; occasionally they journeyed
> into the Willamette Valley to harvest eels along the rocky shores and
> cliffs of the Willamette River and its tributaries. In the north along
> the Columbia River and its tributaries they fished for salmon and
> steelhead. They hunted game in the southern parts of these lands, and
> they dug roots in the Cascade Mountain Range and nearby lands to the
> east.[^437]
>
> **8.2** **Natural Assets and Annual Productive Yield of Original Lands
> of the Peoples**
>
> **of the Warm Springs Reservation**

Hunn and French (1998) estimated that in 1805 the population of the
bands that now reside on the Warm Springs Reservation approximated 4,150
persons.[^438] Estimates of populations in the mid-1800's are hampered
by the fact that the ancestors of Paiute peoples now living at Warm
Springs did not come to the reservation until later in the
century[^439]. Stowell (1987) has estimated that ancestors of
present-day residents of the Warm Springs Reservation numbered between
1,000 and 1,400 persons at the time of the Treaty with the Confederated
Tribes and Bands of Middle Oregon (1855)[^440]. Lane and Lane Associates
and D. Nash (1981d) cite Lee in estimating 962 persons on the Warm
Springs Reservation in 1899[^441]. For this analysis, we will utilize an
estimated population of ancestors of the peoples of the Warm Springs
Reservation of approximately 1,200 persons at Treaty times.

Hewes (1947) estimated that tribes of the mid-Columbia area annually
harvested between 500 pounds of salmon per capita for consumption (full
time fishers) and 400 annual pounds per capita (substantial
fishers)[^442]. He estimated per capita annual consumption for the
Northern Paiutes at 50 pounds per capita[^443]. Walker's median estimate
of per capita consumption of fish for Plateau tribes is about 60 percent
higher, and includes non-food consumption - for example, for fuel[^444].
Swindell (1942) identifies that mid-Columbia tribes also caught salmon
for trade - with perhaps one third more fish over "own consumption
needs" taken for that purpose[^445].

For this analysis, we assign Hewes' upper mid-Columbia estimate of 500
pounds consumed per capita per year to the Wascos, his Yakima/Klikitat
estimate of 400 annual pounds per capita to the Warm Springs, and his
Northern Paiute estimate of 50 annual pounds per capita to the Paiute
ancestors of present-day residents of the Warm Springs Reservation. We
then increased the Wasco and Warm Springs estimates by sixty percent, to
account for Walker's revised estimates. We further increased Wasco
harvest estimates by one third, and Warm Springs by one sixth, to
account for fish caught for trade. Finally, we arbitrarily assumed that,
at Treaty times, about 45 percent of the ancestors of present-day Warms
Springs Reservation members would be Wasco, 45 percent Warm Springs, and
10 percent Paiute. The results of these assumptions and calculations are
displayed in Table 31.

Table 31

[Estimated Per Capita Annual Salmon Harvest by Ancestors of
Present-Day]{.underline}

[Members of the Warm Springs Indian Reservation - in 1855]{.underline}

Estimated Annual

[Tribal Grouping]{.underline} [Population]{.underline} [Per Capita
Harvest]{.underline} [Total Harvest]{.underline}

\-\-\-\-\-\-\-\-\-\--in pounds\-\-\-\-\-\-\-\--

Wasco 540 1,064 574,560

Warm Springs 540 747 403,380

Paiute 120 50 6,000

Estimated Total Harvest 983,940

Lane & Lane and Nash (1981b) cite Murdock to estimate that fish made up
between 46% and 55% of the diet of the Wishram and Chinookian peoples
near the White Salmon River in pre- contact times[^446]. We assume
Murdock's upper range estimate (55%) to apply to the Wascos -- and his
lower range estimate (46%) to apply to the Warm Springs. We utilize the
27% of food as fish, estimated for the Cayuse in the previous chapter of
this report, to estimate the percentage of "fish as food" for the
Paiutes. Applying these percentages to an adjusted "food only" annual
per capita consumption estimate for the Wasco (600 pounds), and revising
our food consumption estimate for the Warm Springs proportionately (to
421 pounds), we are able to estimate a fish-equivalent "all foods"
consumption estimate for the referent peoples of approximately 1.1
million pounds in the mid-1800's.

Finally, if we were to use a contemporary procedure of the US Bureau of
the Census which estimates that families with economy budgets spend one
third of their income on food, this would imply that ancestors of the
Wasco, Warm Spring and referent Paiute peoples may have obtained natural
production of edibles and non-edibles from their lands and waters equal
to about 3.3 million pounds of food equivalents.

> **8.3 A Broader Perspective of Wasco, Warm Springs and Paiute Living**
>
> **Circumstances in Pre-Contact** **Times**

As with neighbor tribes, the peoples of the Wasco and the Warm Springs,
and to a lesser extent, the Paiutes, lived fairly well in pre-contact
times.

> For thousands of years, the ancestors of the people of Warm Springs
> lived comfortably in "Middle Oregon." A moderate climate, an abundance
> of nutritious plants, and plentiful fish and game made their lives
> comparatively easy. Perhaps as a result of living in a land of plenty,
> they developed the characteristics displayed to the first white
> settlers. They welcomed non-Indians just as they had welcomed other
> Indian tribes to visit their land. They were generous, friendly and
> accommodating. The Indians had historically roamed freely through the
> ten million acres of central Oregon hunting, fishing, digging roots,
> gathering berries, and changing village locations.[^447]

Undoubtedly, the Paiutes life was harder, and that of the Wascos and
Warm Springs more comfortable. And these tribes, also like their
neighbors, suffered greatly from the White man's epidemic
diseases[^448] - so that, by Treaty times, their populations were
greatly diminished from those that existed pre-contact. But prior to
contact, all had enough to survive, many lived well, and they were
generally at peace - and in full control of their land, waters, fish,
game and the other resources upon which their life depended. This fully
functional society is characterized in Figure 12 using a Maslow-like
diagram.

> **8.4 Changes in Circumstances of the Confederated Tribes of the Warm
> Springs**
>
> **Due to the Treaty of 1855**

As with other study tribes, the ancestors of the present Warm Springs
peoples were pressured incessantly by the settlers in the early-to-mid
1800's. For example, in 1853, William Chinook, a Wasco, wrote:

> We are tormented almost every day by the white people who desire to
> settle on our land and although we have built houses and opened
> gardens they wish in spite of us to take possession of the very spots
> we occupy. \... Now we wish to know whether this is the land of the
> white mans or the Indians. If it is our land the white must not
> trouble us. If it is the land of the white man when did he buy
> it?[^449]

This settler agitation resulted in government attempts, via treaty, to
clear Indians from their productive lands. With respect to the Wascos
and the Warm Springs, this meant moving them from their villages along
the mid-Columbia - for the whites did not want tribal reservations
established in close proximity to white settlement.

> Joel Palmer, Superintendent for the Oregon Territory, received orders
> in 1855 to clear the Indians from their lands. He did so by
> negotiating a series of Indian treaties, including the one
> establishing the Warm Springs Reservation.
>
> Meeting near the present city of The Dalles in June 1855, Palmer urged
> the tribes to move south of the Barlow Road - the main immigrant trail
> which paralleled the Columbia River into the Willamette Valley. During
> one negotiating session, Palmer is reported to have said:
>
> I would like to accommodate him (Cush Kella, one of the chiefs of the
> Dalles band), but the great chief (U.S. President Pierce) knows this
> country. He has maps. He knows where the wagon road is. His
> instruction to me is to put the reservation off from the white
> settlement.
>
> As the session progressed, it became increasingly clear to the Indians
> that they would be forced to move onto the reservation Palmer had
> selected for them. Chief Mark, another representative of the Dalles
> Band, objected to Palmer's proposal:
>
> The place that you have mentioned I have not seen. There are not
> Indians or white men there yet, and that is the reason I say I know
> nothing about that country. If there were Indians and whites there,
> then I would think it was a good country.
>
> Similar objections were voiced by other tribal representatives. Some
> expressed their preference for lands in the Tygh Valley, some for
> lands along the Columbia River, some for lands in the root-digging
> areas east of the Deschutes River. But Palmer warned that unless the
> tribes agreed soon, they would lose everything. The tribal spokesmen
> recognized that they had much to lose, but little with which to
> negotiate. After three days, 89 Indian leaders signed Palmer's treaty.
> Included were members of the Walla Walla, the Tygh, the Wyam, the
> Tenino, and the John Day bands which collectively came to be known as
> the Warm Springs Tribe. Also present were members of The Dalles and
> Dog (Hood) bands of Wasco Indians.[^450]

In this manner, the above designated peoples were removed from an
approximately 10 million acre homeland[^451] with villages stretched
along the mid-Columbia River corridor, and resettled in a 578,000 acre
corner of their former homeland in the eastern foothills of the Oregon
Cascades[^452] - westerly of the present town of Madras. This land also
lay in an area frequented by some bands of Northern Paiutes -
traditional enemies of the Wascos and other Treaty signatories.

The Treaty was ratified by Congress in 1859. It followed the "Stevens"
model, **guaranteeing the** **tribes noninterference within their
reservation, the** **right to fish at their usual and accustomed
off-reservation places, and to hunt and gather on unclaimed lands** -
and made a number of other promises of material help and education for
the Indian signers and their people.

In the mid-1860's the United States government attempted a treaty
modification to terminate the Indians right to fish, hunt and gather
foods off-reservation.

> The treaty (modification) was so one-sided and its terms were so
> materially misrepresented to the Indians that it was never enforced. A
> federal court nullified it in 1969.[^453]

In 1871, the Warm Springs Reservation boundaries were finally surveyed.
As with other study tribes, a "survey error" - as usual, against Indian
interest - occurred, reducing the size of the Warm Springs Reservation
by 60,000 acres of valuable timberland[^454]. One hundred years later,
most, but not all, of this land was restored to the Reservation[^455].

Subsequent to 1879, several Paiute bands also moved onto the Warm
Springs Reservation - despite the fact that they had previously
conducted raids against Wascos and related peoples.

> Some Paiutes had traveled as far as the reservation lands in
> pre-treaty times to hunt and gather food, but Paiute lands generally
> lay farther east and south than Wasco and Warm Springs territory. No
> Paiutes were present at the treaty council that established the Warm
> Springs Reservation.
>
> Because their lands were more distant, the Paiutes in south-eastern
> Oregon had avoided contact with non-Indians longer than any tribes. By
> 1866, however, Paiute raids on neighboring Indian and non-Indian
> communities were increasingly frequent. The United States responded
> with military campaigns to subdue the Paiutes. Two years later, a
> peace treaty stopped the fighting but did little else. The treaty
> neither established a reservation for the Paiutes nor provided them
> with any goods or services. In 1872, President Grant set aside the
> Malheur Indian Reservation in southeastern Oregon for the Paiutes.
>
> Six years later, Bannocks from the Fort Hall Reservation in Idaho
> urged the Paiutes to join them in fighting the U.S. Army. Many Paiutes
> did so: others fled the reservation. The Army forced many Paiutes to
> move to the Yakima Reservation, and it captured and imprisoned at Fort
> Vancouver a number of others who fought with the Bannocks. In 1882,
> because no Paiutes remained on the Malheur Reservation, President
> Garfield returned its lands to the public domain.
>
> In 1879, the federal government released the 38 Paiutes imprisoned at
> Fort Vancouver. Many moved to the Warm Springs Reservation later that
> year. During the next five years they were joined by other Paiutes who
> had lived at Yakima. Most of the Paiutes from the Malheur Reservation
> who did not go to Warm Springs returned to southeastern Oregon,
> settling near the town of Burns.
>
> Indian Agent John Smith described the Paiutes' arrival on the Warm
> Springs Reservation in a September 1879 letter:
>
> I received\...a request from Gen. O.O. Howard\...to come to his
> headquarters at Vancouver Barracks\...regarding a small band of Paiute
> prisoners held by him. Anticipating what his object might be,
> \[tribal\] members here voluntarily told me that if these Indians
> wanted to come here, to bring them home with me. \... My Indians will
> give them all assistance possible, and \[will have\] the most friendly
> feeling toward them which is remarkable since but a few years ago they
> were inveterate enemies.[^456]
>
> **8.5 Further Changes in Circumstances of the Peoples of the Warms
> Springs**
>
> **Reservation**

Conditions on the Warm Springs Reservation following the resettlement of
Wasco, Warm Springs and Paiute peoples were difficult.

> The whole relationship of the river tribes to the land was altered
> when the reservation was established. Not only did they have to
> transfer their allegiance to a parcel of land that figured little into
> their culture, history, and accustomed lifestyle, they also had to
> learn new ways of inhabiting and using their land.[^457]

The land of the new reservation was not as rich as those the tribes had
left along the Columbia River corridor - but it was not without
significant natural resources.

> The (new) land was hard to dislike. The reservation was, and is, a
> land of gentle, sage- covered hills, dramatic rock formations, steep
> canyons, hot mineral springs, pine and fir forests, mountain peaks,
> and clean, rushing water. The eastern half was a land given over to
> the brown tones of hot, dry summers and cold winters, but with a brief
> soft greening in spring and a yellow profusion of sage blossoms in the
> autumn. The timbered foothills and mountains to the west and north
> offer cool, green relief and watersheds for the streams.
>
> The newcomers to the reservation found the game, roots and berries
> that had helped sustain them for millennia, although for many years
> they returned to their more familiar haunts to gather food. Trout,
> steelhead and salmon filled the reservation's rivers and streams, but
> nothing could match the flavor and volume of the Columbia River
> catch\... .[^458]

Whether because of the relatively remote location of the new
reservation, or due to tribal leadership - and likely both - the peoples
of the Warm Springs were spared much of the adverse impact of the Dawes
Act of 1887, and the following allotment process. Only about 20 percent
of the Warm Springs Reservation was originally allotted - and most of
this was not taken out of trust status[^459]. Further, there was no
"surplusing" of Reservation lands by the federal government[^460].
Consequently, most lands of the Warms Springs Reservation remained in
Indian hands.

> **8.6 Warm Springs Access to Usual and Accustomed Fishing, Hunting
> and**
>
> **Gathering Areas**

The lands of the Warm Springs Reservation provided a rich array of
fishing, hunting and gathering opportunities. However, as with other
study tribes, the Warms Springs peoples encountered opposition when they
attempted to travel off reservation to Treaty-guaranteed fishing,
hunting and gathering locations. This was a particular problem as they
attempted to continue harvesting the rich catches of Columbia and Snake
River salmon passing their usual and accustomed fishing locations on the
Columbia - leading to extreme poverty in early years.

> While the people waited for the highly touted benefits of
> civilization, their traditional methods of providing for themselves
> was fast eroding. They sank further into poverty and dependence. In
> the early years, many families frequently exercised their
> off-reservation fishing rights, usually spending the salmon harvesting
> months on the Columbia and only wintering on the reservation, much to
> the exasperation of school superintendents and agricultural personnel.
> But their off-reservation rights were not always honored. In an 1890
> letter to Washington, D.C., reservation agent J.C. Luckey reported:
>
> The Indians were all but famishing. They raised no crops last year
> (weather prevented it), and had no supplies of fish, game to subsist
> upon; during the later winter months. The game is nearly all killed
> off and they were more than ever before denied the right to take
> salmon last summer at the Columbia river.
>
> Apparently, non-Indians in the ceded area had objected to the traffic
> of Indians off the reservation, and when fences and warnings failed to
> keep hunting and gathering parties off their land and fishermen away
> from the river, they pressed for a second treaty. The so-called Treaty
> of 1865 was signed by a handful of Indians who agreed to give up all
> the tribes' hunting, fishing and gathering rights in the ceded area
> and to submit to a pass system for leaving the reservation - all for
> the paltry sum of thirty-five hundred dollars, which was to be spent
> on agricultural tools and supplies. This treaty was never enforced and
> was repeatedly discredited in court decisions, until it was finally
> pronounced dead by a federal judge in 1969. It may have been bogus,
> but the Treaty of 1865 was an accurate measure of the feelings
> harbored by settlers who made it increasingly difficult for their
> roaming neighbors to gain access to their traditional sites. While the
> off-reservation rights are still valid today, they are sometimes moot
> in the face of barbed wire, gates, dams, and poor salmon runs.

In the late 1800's and early 1900's, whites competed directly with the
tribes for salmon catch.

> Well, I think Hoyt reaffirmed in 1873 or 1874, after the Modock War,
> when he put his hand out and said, "Water", and he said "yours" - that
> these are ours. And where the water comes from the mountains, the
> Indians recall at this time that means forest lands where the water
> comes from. So he said, "Water, streams, fish are yours on the main
> Columbia river. "Wa-la- wal-la" means a small tributary to the larger
> river, larger body. \... The (non-Indian) fishing started way back
> around 1876 when they (non-Indians) first started putting those fish
> wheels in there. As time went along, as long as the Indians were
> getting their share, whether it was their fair share or not, but the
> Indians harvested the salmon, so therefore they did not complain -
> looking at it as a gift from God that he had no control over. Live and
> let live.
>
> Then the white man started harvesting - didn't say anything about it.
> We didn't say; "Hey, you're catching too much of my fish." Because we
> thought that these people were really utilizing a resource for benefit
> so that he could survive in this country. And for that reason, maybe
> was a mistake that the Indians did not complain about non-Indians
> catching salmon, which he held sacred within his house.[^461]
>
> **8.7 Changing the Production Function for Warm Springs Waters and
> Salmon**
>
> **Production Capabilities**

As the twentieth century progressed, as early excesses of commercial
harvest were brought under control, and when Warm Springs peoples were
able to gain access to usual and accustomed fishing locations, too often
they found the salmon diminished, or entirely gone. The peoples of the
Warm Springs Reservation had their own mid-Columbia fishing territory,
and fished cooperatively with CTUIR and Yakama peoples. It is therefore
possible that they also fished from time to time along the Lower Snake
River - but their usual fishing areas likely focused on the Columbia.
While their fishing focus was the "lowest downstream" of our study
tribes - the economic purposes for which whites transformed the lands
and waters of the rivers were the same - power production and irrigated
agriculture. With respect to dams:

> I think at the time the dams built up, like the Bonneville Dam\--we
> seen the structure of that dam go up\--and the fisheries was troubled
> immediately. We know the result of it. It began to show up then. And
> even before then when the non-Indian commercial fishermen moved into
> the Columbia River and built wheels and rerouted the stream to catch
> salmon by wheels for commercial purpose\.... And the dams in the Snake
> River, as well as the dams in the upper Columbia. I was there when
> Roosevelt dedicated the Grand Coulee Dam with no fishways in the dam.
> And we know that there was going to be damage from that dam because we
> visit the dam often and the people upriver found out that it had done
> away with all the upriver salmon that spawned in Canadian waters as
> well as in the upper Columbia. All the big salmon. And that damage we
> seen as it came along by the construction of dams in the Columbia
> River. No doubt that it was probably the greatest damage to the
> fishing resource at that moment. \...
>
> It's definite that the dams had the first and the real major effect on
> the salmon runs. We know that because by experience fishing in the
> Columbia River we seen this, from the time there was no dams to the
> time there were dams in the river. We know that a problem existed.
> There were different problems that affected upstream as well as
> downstream migrants, by the falls of the dams on the water. And
> different changes in the life cycle of the salmon were seen. That was
> already interpreted by our people. That would be a cause of a major
> effect on the salmon run in the future. The changing into lakes from a
> free, cold running stream, tributaries on the Columbia and down the
> Columbia, you know, that was going to effect eventually the mainstream
> runs of our fish industry. And it came about - no doubt.
>
> That's what our people said. They were not educated, but they knowed
> it was going to happen, in fact, in time to come. Because you don't
> fool with nature. That was their word. Whenever you fool with it
> you're going to cause a problem in the future. And it seemed like
> there was no real plan for it. Whenever they build a dam, they promise
> us; "We will enhance, the fishery loused up by dams upstream." The
> government didn't do that.[^462]
>
> The treaty between two sovereign nations is a court of law. Treaty was
> recognized to be the supreme law of the land between two nations. In
> that supreme law of the land it plainly tells us if I do any damage to
> a non-Indian the law will take care of me to make corrections for what
> I did wrong. The same applies to him, the other part of the sovereign
> nation. Now, we have a claim\--as long as I served on that fish
> committee. You're doing it wrong by clearing off my fish - by bringing
> nitrogen super saturation below every dam that you have built up to
> now.
>
> Now correct that wrong that you're doing me. Make possible a safer way
> for the adult fish to go back up to their spawning area. And the
> smolts that hatches in the usual spawning areas need to go back down
> to the ocean to grow. \...
>
> It's up to us, the Indians. "Say there Mr. Bonneville, you're the
> first dam below here that's killing the fish. Correct that now." We
> get up to the Dalles Dam, we do the same thing. John Day, and right on
> up the river\... Let's correct this problem. Then we'll have fish for
> everyone. \...
>
> We could tell you all about our tribal ways of preparing fish rules.
> But still, the damage is there below each dam. So the best we could do
> is work on that part. Work with the Army Engineers. They're willing to
> build a dam. They should be willing to get safer means of getting
> salmon back upstream. That's our problem. The biggest problem we
> face.[^463]

As with other study tribes, progressively through the twentieth century,
the lands and waters of the Columbia/Snake system - upon which the
peoples of the Warm Springs Reservation depended for their
Treaty-protected salmon - have been transformed - until today, they
produce vast energy, agriculture, navigation and infrastructural wealth
for non-Indian residents, but only sub-minimal amounts of wealth from
the natural assets the tribal peoples believed they had ensured to
themselves by the treaties of the mid-1800's.

> **8.8 Lower Granite, Little Goose, Lower Monumental and Ice Harbor
> Dams**

As downstream neighbors of the tribal peoples now resident at CTUIR,
across-river neighbors of the Yakamas, and co-fishers at some sites with
the Nez Perce, the peoples of the Warm Springs Reservation are fully
affected by changes to Snake River salmon stocks caused by the lower
Snake dams. It is also likely that from time to time they have fished
along the lower Snake River, in common with their upstream neighbors. We
have not encountered evidence that the people of the Warm Springs
Reservation maintained permanent villages or other sites within the four
reservoir areas of the lower Snake.

> **8.9 Post-Contact Warm Springs Tribal Health**

The Wasco and Warm Springs peoples shared fully in the ravages of
diseases spread by contact with white explorers and settlers[^464]. In
fact, their place as the most downstream of study tribes may have
provided relatively greater exposure to epidemics raging "up from the
coast". It is reasonable to assume that as with neighbor tribes, by
treaty times, death had reduced the population of these tribal peoples
to perhaps one-third or more of pre-contact numbers.

The wellbeing of the peoples relocated to the Warms Springs Reservation
suffered for other reasons beside epidemics.

> Native people uprooted from their land lose far more than the comfort
> of familiar surroundings. Displaced from a natural environment that
> has shaped and defined them for generations, they are apt to lose the
> whole focus of their economy, and ultimately, of their culture. This
> was true for the people of the Columbia River and Great Basin when
> they were moved to the Warm Springs Reservation. With the disruption
> of seasonal cycles and well- established trade patterns, the whole
> rhythm and momentum of their culture was broken. And behind the
> cultural turmoil was the more basic problem of physical survival.
>
> Life for the new inhabitants of the Warm Springs Reservation became
> characterized by poverty and a sedentary non-productivity. People
> dependent on wresting a living from the earth became dependent on
> barrels of flour, sugar, and crackers distributed from the commissary
> at the Warm Springs Agency. Poignant stories are still told about
> people's great- grandparents trying to make a palatable gravy or bread
> out of crushed pilot crackers, or fearing corn kernels because they
> look too much like the teeth of old people. And often there was not
> enough of these foods.
>
> While it is unlikely that the U.S. Government intended for the people
> of the Warm Springs to starve, it is clear from the provisions of the
> Treaty of 1855 (the U.S. Government intended) that the tribes were to
> be utterly dependent on the government until such time as they were
> "civilized", i.e. schooled in the economic and social patterns of the
> white culture.[^465]
>
> The boarding school represented a very thorough effort at
> "civilizing", from the arguably humane delousing treatments to the
> irrelevant lessons in etiquette and the staff's refusal to acknowledge
> any value in Indian culture. Although the regimen relaxed somewhat and
> the content of the curriculum was updated through the years, the
> mission of the school remained the same until it was absorbed by the
> local school district in 1961 and the dormitories closed in 1967.
> People in their forties tell the same stories their parents and
> grandparents tell about having their braids cut, being punished for
> speaking their own language, and learning from the disdain of teachers
> and administrators to feel shame for their Indianness.[^466]

These conditions of heightened mortality, inadequate supply of
traditional foods, general poverty and loss of control over family and
lifestyle seem generally consistent with the hypotheses of illness and
stress advanced by Bachtold[^467] and Trafzer[^468]. Consequently, and
for a broad range of physiological and psychological reasons, the number
of members living on the Warm Springs Reservation continued to decline
into the 1940's (Table 32).

Table 32

[Estimated Population of the Peoples of the Warm Springs Reservation
Selected Years]{.underline}

[Year]{.underline} [Population]{.underline}

1855 1,200

1899 962

1910 780

1935 479

1940 477

1945 560

1972 1,683

Sources: Stowell, 1987. **Supra** at 128.

Lane & Lane and Nash, 1981d. **Supra** at 31.

> **8.10 Present Circumstances of the Confederated Tribes of the Warm
> Springs**
>
> **Reservation**

Having reviewed the cumulative adverse effects that have impacted the
peoples of the Warm Springs Reservation since early times, this section
assesses the present circumstances of the tribes.

> **8.10.1 Remaining Lands of the Warm Springs Reservation**

The Warms Springs Reservation represents only about 6.5 percent of the
original homelands of the Wasco, Warm Springs and Paiute ancestors of
present reservation residents. However, land approximately equivalent to
that reserved the 1855 Treaty is still in Indian hands. The greatest
part of the Reservation is in forest and range land (Table 33). Table 34
specifies land holdings of the Warm Springs Tribe and its members.
Approximately 17,000 acres outside the reservation boundaries are also
included in present day Warm Springs holding totals.

Table 33

[Categorization of Land Use on the Warm Springs Reservation -
1982]{.underline}

[Land Use Type]{.underline} [Acreage]{.underline}

Commercial Forest 319,025

Range lands 244,677

Conditional Use Areas 66,381

Community Areas 7,495

Agriculture 2,660

Lakes and Reservoirs 1,783

Rural Housing [884]{.underline}

Total Acres 642,905

Source: CH2M Hill, 1982. **Warm Springs Reservation Draft
Comprehensive**

**Plan**. Developed for the Confederated Tribes of the Warm Springs

Reservation, pp. xiv-15.

Table 34

[Land Holdings of the Warm Springs Tribe and Its Members]{.underline}

[- and Non-Tribal Reservation Holdings -]{.underline}

[Categorization of Land]{.underline} [Acres]{.underline}

Tribal lands 586,803

Tribal Allotted lands 54,246

Tribal Fee lands 15,844

Tribal Trust lands 999

Indian Fee lands 218

Non-Tribal lands (all categories) 2,102

Total Land Within Warm Springs Reservation 643,000

Source: Confederated Tribes of the Warm Springs Reservation

Planning Office.

It is these Treaty land-based resources and activities that have stood
near the center of tribal economic development strategies in recent
years.

> **8.10.2 What Remains of the Salmon?**

While the tribes of the Warms Spring Reservation have retained the
greatest portion of their treaty lands, transformation of the production
function of the Columbia and Snake rivers has lead to the loss of almost
all their salmon producing capability. We have previously estimated,
based on all-tribes data for Zone 6 tribal commercial harvests, and data
on ceremonial and subsistence catch from each CRITFC tribe, that
present-day harvests for the Warm Springs and CTUIR peoples, taken
together, have declined to approximately 77,000 pounds - 3 percent of
the harvest they are estimated to have taken in Treaty times[^469].

Yet, while salmon are now scarce, they continue to play a key role in
the life of the Warm Springs people.

> Most sacred of the native foods is salmon\.... Since the white
> settlers took an interest in the rivers and their resources, the
> salmon have had to contend with fish wheels, gillnets and concrete
> dams, suffering great declines in their populations. Now, where there
> was once plenty and trade flourished peacefully, Indian fishermen
> launch their motorboats and dip their nets into rivers of controversy.
>
> Who among the generations of fishermen poised on the rocks with their
> spears and nets could have guessed that one day the rapids would lie
> still behind dams and that there would not be enough fish to feed
> their people or trade with their neighbors? Who could have envisioned
> courts instead of headmen telling the fishermen when to drop their
> nets into the river, and the fishermen sitting in jail for doing what
> their fathers had taught them to do? Who could imagine life without
> salmon?
>
> Even the treaty, with its provision that the Indians would forever be
> able to fish "at all usual and accustomed grounds and stations\...in
> common with all citizens", could not have anticipated the loss of
> salmon to generator turbines in four major mainstem dams and to
> overzealous ocean harvests. \...
>
> Though only a few Warm Springs men are now dependent on the river for
> their livelihood, salmon still figures into reservation life in a
> profound way. It is the central ingredient of every cultural event,
> served and shared as a way of honoring a person or an occasion. At
> feasts, salmon itself is honored. Besides its tangible presence in the
> diet and ceremony of the people, salmon has become a symbol of
> cultural continuity, of the importance of planning cautiously today so
> that children and grandchildren may know the taste of the sweet pink
> meat. It is not just on behalf of the few remaining Warm Springs
> fishermen that the Tribal Council has fought for tribal fishing
> rights. It is in the interest of all who value the conservation of the
> salmon resource and the continuation of the tribal culture.[^470]
>
> (T)he law of the Treaty's never going to change. You're going to still
> be responsible for protecting what I reserved as a part of the Treaty
> agreement. \... (The Indian treaty negotiators) said, "You're going to
> be responsible forever, because that's my reserved right\-- something
> that I reserved." Which was salmon; it's the most important one. So
> there's no question there that the people hold you responsible forever
> to manage the salmon and all of the foods that they reserved. \... I
> understand that now some people say, "Why, the fisheries resource's
> getting small, its so minor now. It isn't worth planning for any
> longer." The industrial and economic people saying, "Let's go another
> direction. To heck with good rivers, clean rivers and the salmon.
> Let's go another way." That's a question coming pretty close I
> understood. And that is not the case. We're going to be there to say,
> "You're going to keep your promise. Forever!"[^471]
>
> **8.10.3 A General Assessment of Present Warm Springs Material
> Circumstance**

Today, the Confederated Tribes of the Warm Springs Reservation have
3,825 registered members[^472]. Utilizing their retained Treaty land
base, the Warm Springs peoples have built a reputation as one of the
most economically progressive Reservations in the United States[^473].
Some of their most important industrial activities are based on their
398,466 acre timber resource.

> The annual average volume of log purchases (from Warm Springs), 1971
> to 1980, approximated 88 million board feet. In 1980, Warm Springs
> Forest Products, a tribal enterprise operating a sawmill and
> associated plywood and veneer facilities on the reservation, took over
> 80 percent of their logs from Indian contractors and paid them \$4.7
> million. Stumpage of \$5.9 million was paid to the tribe, while \$2.1
> million in mill wages was paid to Indian mill workers, and \$284,000
> in dividends to the tribe itself.[^474]

By 1990, the timber and sawmill operation were reported to be doing
"about thirty million dollars in sales"[^475] per year. Present forest
based-activity includes a revised forest plan to provide a sustainable
cut of smaller diameter timber and a new processing capability to cope
with these changed tree sizes. This adjustment will reduce revenue flows
for the Warm Springs, but is necessary to accommodate both exhaustion of
bigger-sized trees on the reservation, and the higher value demands of
new wood products markets.

The Tribes also own and operate Kah Nee Ta Resort, a first class tourism
facility, net \$4 million annually from operation of a hydroelectric
dam[^476], and have developed a capability for light manufacturing
activities. Table 35 offers an employment profile for the Reservation
based on White (1990), and present-day Warm Springs staff estimates.
Numeric estimates are not available for some categories.

Table 35

[Profile - Major Employers of Tribal Members - Warm Springs Reservation,
1990 and Today]{.underline}

[Economic Activity]{.underline} [Estimated Employment]{.underline}

[1990]{.underline} [Present day]{.underline}

Tribal Government 600 594

Forest Products 340 142

Ka Nee Tah Resort 75-175\* 50

Tribal Casino \-- 24

Warm Springs Composite Products \-- 24

Indian Health Service \--

Bureau of Indian Affairs 50 \--

Native Arts and Crafts - undetermined number -

\*Employment varies between summer and winter.

Source: White, Robert H. **Supra** at 211. Confederated Tribes of the
Warm

Springs Indian Reservation, Department of Personnel.

In 1990, the Confederated Tribes of the Warm Springs Reservation were
reported to be the largest employer in central Oregon[^477]. Today, a
casino has been added at Ka Nee Tah - providing jobs and revenue for the
tribes. Yet data from the 1990 US Census strongly suggests that these
promising initiatives have not been sufficient to make up for loss of
salmon resources and other aspects of Warms Springs traditional
lifestyle (Table 36).

Table 36

[Comparative Data Showing the Relative Material Circumstances of the
Warm Springs Peoples]{.underline}

[Economic Indicator]{.underline} [Warm Springs Tribes]{.underline}
[State of Oregon]{.underline}

Families in Poverty (%) 32.1 12.4

Unemployment: US Census (%) 19.3 6.2

: BIA 45.0

Per Capita Income (\$'000) 4.3 13.4

\*US Bureau of Census employs a more liberal "employment" standard - as
BIA's

measure incorporates employment over a longer period of time to qualify.
The higher

BIA unemployment figure is judged more accurate for winter months.

Source: US Bureau of the Census - 1990 Special Tribal Census Run. US
Bureau of

Indian Affairs - 1995 Indian Population and Labor Force Estimates.

> **8.10.4 Warm Springs Tribal Health**

Following Bachtold[^478] and Trafzer[^479], the adverse impacts on
material and cultural wellbeing experienced by the Warm Springs are also
reflected in information on tribal health. The Warm Springs Service Unit
of the Indian Health Service serves Clackamas, Harney, Jefferson and
Wasco counties. The majority of Native Americans in this service area
are members of the Warm Springs - and the data considered here provide a
"reasonable indication" of health circumstances for the Warm Springs
Reservation. The Indian Health Service (1994b) reports that for the
1989-91 period, the age-adjusted death rate for Indians in the Warm
Springs Service Unit was 1.6 times the rate for "all other races"[^480].
This is the highest comparative rate for all Oregon IHS units. Less than
a decade ago, White wrote:

> Despite all these (economic) efforts and the tribe's relative
> prosperity, the intractable problems of Warm Springs boil down to a
> single brute measurement: the average life expectancy within the
> Confederated Tribes is thirty-eight years. I asked every tribal
> official I met to verify that figure, and every one of them did. "Put
> it this way," said Ralph Minnick, "ninety percent of our people my
> parents' age, who would now be between fifty-five and sixty-five, are
> dead." [^481]

Table 37 provides comparative data concerning the five leading causes of
tribal death in the Warm Springs Service Area.

Table 37

[Leading Causes of Tribal Death - Warm Springs Service Area:
1989-91]{.underline}

Ratio of NA

[Cause of Death]{.underline} [Native American]{.underline} [All Other
Races]{.underline} [to Other Races]{.underline}

\-\-\-\--deaths per 100,000 population\-\-\-\--

Heart Disease 145.6 120.1 1.2

Motor Vehicle Accident 90.0 18.6 4.8

Pneumonia/Influenza 70.0 13.3 5.3

All Other Accidents 45.7 11.9 3.9

Malignant Neoplasms 49.6 119.2 0.4

Source: US Indian Health Service, 1994b. **Supra** at 106.

Cerebrovascular disease (5.2%), cirrhosis of the liver (5.2%), SIDS
(5.2%), diabetes mellitus (4.2%) and suicide (4.2%) are also significant
killers of Warm Springs peoples[^482].

The difficulties revealed by these data conform to the hypotheses of
material and cultural loss postulated by Bachtold and Trafzer. Many
tribal members, blocked at fundamental levels in meeting food, shelter
and safety needs - and prevented from engaging in the worthwhile
activities of their ancestors - see their self-worth underdeveloped or
diminished. Yet they struggle on.

> (W)hat of the young medical intern who spends two years on the
> reservation answering his pager or his doorbell at all hours? He knows
> people by their stab wounds, their diabetes- ravaged legs, or their
> children lost in car wrecks. Perhaps he has not had time to feast with
> the people at the longhouse or bathe with them at the sweathouses. It
> is common for people who come to Warm Springs with a nostalgic image
> of the Indian to leave pronouncing the culture dead. They see
> "remnants" - perhaps a bit of paid pageantry or a halfhearted beadwork
> demonstration - and they feel pity. Or they see the collision of white
> and Indian culture - a pop can flying out the window of a pickup
> overflowing with kids and powwow music - and they feel anger. What
> they do not stay long enough to see is the undercurrent of culture
> that still flows beneath these layers of visible loss. Deep-routed
> religious and cultural traditions still offer solace and a sense of
> pride to many tribal members seeking refuge from the confusion of the
> twentieth century or simply wanting to celebrate their Indianness.
> Yes, there are certain gaps in their cultural memories and
> disagreements over ritual. But the people of Warm Springs do not play
> at being Indian; there is a real continuity of customs and beliefs
> from the last century despite the interruption in their
> lifestyle.[^483]

Tribal commentators on the Warm Springs Reservation emphasized the
spiritual relationship between the salmon and the Indian people - and
the need for sufficient tribal control over matters affecting salmon and
tribal peoples[^484]. They noted that the salmon was important for
putting food on the table, but that it was far more than that - and
played an important cultural and spiritual role in the continued
survival of their members as tribal peoples[^485].

> When you lose your traditional foods, you threaten your culture - and
> then you risk losing your values too. None of that is good for your
> health.[^486]
>
> Salmon is very important to our Indian lives. I have trouble with
> thinking of salmon only as dollars. You can't drink dollars. You can't
> eat dollars. Salmon is important to our spiritual life. It helps our
> spirit survive.[^487]
>
> Some of the relationships between salmon and the wellbeing of tribal
> members are subtle. Having regular places and times to fish and to
> hunt brings stability to our lives. It gives us some sense of control,
> and makes us feel better about ourselves. It helps us connect to a
> higher power. This, in turn, is good for our health - and results in
> less risky behavior.[^488]

Protection of Warm Springs lifeways through use of "own language" is
also difficult in the present day. Data from the 1990 US Census suggest
that only 12 percent of Native Americans on or near the Warm Springs
Reservation now speak their own language at home[^489].

> The gradual silencing of the native languages on the reservation seems
> at times like an irreversible cultural loss\... . Today, very few
> people, mostly elders, would consider Sahaptin, Wasco, or Paiute their
> first language; a few more, mostly the next generation, are bilingual.
> But the younger generations are usually exposed to the languages only
> at ceremonies or during school lessons.[^490]

We employ a Maslow-based hierarchical diagram to profile present
circumstances of the Confederated Tribes of the Warm Springs Indian
Reservation in Figure 13.

> **9.0 A Summary of Historic and Present Circumstances for the Nez
> Perce Tribe,**
>
> **Shoshone-Bannock Tribes, Yakama Indian Nation, Confederated Tribes
> of the**
>
> **Umatilla Indian Reservation and Confederated Tribes of the Warm
> Springs**
>
> **Reservation of Oregon.**

**9.1 Treaties Between the Five Study Tribes and the United States.**

The Treaties signed between the five study tribes and the United States
government establish that these tribes are sovereign entities, with
rights to set their own priorities and develop and manage Tribal and
trust resources**.** The principal Treaties signed between the five
tribes and the United States are listed in Table 38. The first four
listed are part of the group sometimes known as "the Stevens treaties".

Table 38

[Treaties Between the Five Study Tribes and the United
States]{.underline}

[Treaty]{.underline} [Signing Date]{.underline} [Present Tribal
Organization]{.underline}

Treaty with the Yakima Tribe June 8, 1855 Yakama Indian Nation

Treaty with the Umatilla Tribe June 9, 1855 Confederated Tribes of the
Umatilla

Indian Nation

Treaty with the Nez Perce Tribe June 11, 1855 Nez Perce Tribe

Treaty with the Tribes of Middle June 25, 1855 Confederated Tribes of
the Warm

Oregon Springs Reservation of Oregon

Fort Bridger Treaty July 3, 1868 Shoshone-Bannock Tribes

These Treaties addressed the unique circumstances of each tribal
grouping. With respect to the present study;

\* The five tribes ceded more than 60 million acres of lands to the
United States - encompassing

most of the referent area affected by the present study.

\* The tribes agreed to move on to approximately 12.2 million acres of
lands, termed

"Reservations". The United States agreed that the Indians could live on
these Reservations

without interference from whites, and have an exclusive right to fish,
hunt, gather and graze

their animals within Reservation boundaries.

\* The CRITFC tribes reserved the right, **outside the Reservation
boundaries**, of continuing

to take fish at usual and accustomed places, in common with the citizens
of the territory**,** and

of erecting temporary buildings for curing them; together with the
privilege of hunting,

gathering roots and berries, and pasturing their livestock upon open and
unclaimed lands.

\* The Shoshone-Bannock Tribes "reserved the right to hunt on the
unoccupied lands of the

United States as long as game may be found thereon**" -** and the Court
in [State of Idaho v]{.underline}

[Tinno]{.underline} asserted that the term "to hunt" also meant "to
fish".

**Treaties between each of the five Tribes and the United States are
"high law"**. Court cases have affirmed that they cannot be overturned
or contradicted by ordinary federal laws, by state laws, or by
interagency agreements. The United States Supreme Court has further
affirmed:

> In construing any treaty between the United States and an Indian
> tribe\...the treaty must\...be construed**,** not according to the
> technical meaning of its words to learned lawyers, but in the sense
> they would be naturally understood by the Indians. (in US vs.
> Washington, 1974)

The Supreme Court has developed a set of rules, termed the **cannons of
construction**, to govern the interpretation of the treaties. The three
primary rules are:

\* Treaties are to be interpreted the way Indians would have understood
them.

\* Ambiguous expressions must be resolved in favor of the Indians.

\* Treaties must be liberally interpreted.

The Canons of Construction are particularly important in defining Tribal
entitlements to salmon. At Treaty times, tribal negotiators **reserved
the right to harvest salmon at traditional locations throughout their
ceded areas [from a Columbia/Snake River system which was fully
functional and productive.]{.underline} If the tribal Treaty negotiators
had perceived that they were bargaining to reserve "only a small
fraction" of the salmon available in 1855 -- the treaty negotiations
would have been much different, if they had occurred at all**. This
reservation of natural assets from a "fully functioning river system",
conditioned by the "fair share" provisions in [US v.
Washington]{.underline} and [US v. Oregon]{.underline}, defines the
tribal entitlement to salmon.

The Treaty signers, both tribal and non-tribal, were clear that the
Treaties were designed to care for the needs of the tribal peoples into
the future, without limit. Successive tribal leaders have reminded us of
this intent. **There is no date in time subsequent to 1855, nor level of
tribal consumption, nor subsequent decline in salmon productivity of the
rivers, that cuts off tribal Treaty entitlement -- short of the "fair
share from the fully functioning river system", perceived by the Treaty
signers.**

Finally, federal tribal trust responsibility includes, but is not
limited to, treaty obligations. Its central thrust recognizes a federal
duty to protect tribal lands, water, other resource assets, and the
native way of life from the intrusions of the majority society. Each
federal agency is bound by this trust responsibility, and must deal with
tribes according to the "most exacting fiduciary standards".

For these reasons, treaties, and federal tribal trust responsibilities,
set a high standard against which projects affecting resources and
activities protected by treaty must be evaluated.

> **9.2 Changes in Treaty-Protected Resource Assets and Activities of
> the Five Study**
>
> **Tribes from Treaty Times to the Present.**
>
> **9.2.1 Transfer of Tribal Assets in Treaty-Protected Lands to
> Non-Indians**

In the treaties negotiated between the five study tribes and the United
States in the mid-1800s, the tribes ceded more than 40 million acres of
land to the United States -- leaving themselves with approximately 12
million acres of Reserved lands -- together with rights to fish, hunt
and gather at traditional locations thoughout their ceded territories.

Today, the five study tribes own a total of 2.6 million acres of land
within their original Reservation boundaries -- only 22 percent of the
Reservation lands they reserved for themselves in the treaties with the
United States. The other 9.5 million acres of Reservation lands -
together with the wealth they produce - are no longer in the hands of
the tribes or their members. These lands have been primarily taken from
the tribes by force; by "survey errors" of Reservation boundaries,
seemingly always made in favor of non-Indian interest; by creation of
"new" law, including post-facto legislation and pseudo-treaties to
legalize prior illegal takings by non-Indians; and via subsequent laws
that facilitate the transfer of tribal wealth from Reservation lands
into non-Indian hands.

Particularly notable among these actions was the "steal" treaty with
some Nez Perces in 1863, with took away almost 7 million acres from the
Nez Perce Reservation, and the Dawes Severalty Act of 1887. The Dawes
Act (together with the earlier Slater Act in 1885, and the Burke Act of
1906) privatized tribal lands, allotted a limited measure of these lands
to each tribal member, and declared a substantial portion of Reservation
lands "surplus" to tribal needs. It also provided that whites could
purchase the tribal lands declared as "surplus", as well as tribal
allotments, following a waiting period eventually amounting to 20 years.
As a result of these and other actions, present tribal holdings of lands
within reservation boundaries are greatly reduced, save on the Warm
Springs Reservation; non-Indians usually hold the highest valued lands
within each Reservation; and on four of the five study tribe
Reservations, lands held by tribes or tribal members are interspersed in
a "checkerboard" with lands held by nonmembers - further exacerbating
difficulties associated with tribal Reservation resource protection and
economic development.

Table 39 profiles the scope of tribal land ownership from contact times
to the present. Estimates for the time of contact with whites consider
only "home territory", and do not include the far greater area across
which the ancestors of these tribes roamed. By "contact times",
authorities generally refer to the period from about 1780 through 1805
or a little later.

Table 39

[An Estimate of the Extent of Tribal "Own Lands" - Contact Times to the
Present]{.underline}

Shoshone/

[Benchmark]{.underline} [Nez Perce]{.underline} [Bannock]{.underline}
[Yakama]{.underline} [Umatilla]{.underline} [Warm Springs]{.underline}

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--in thousands of
acres\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Contact times. 15,000.0 \*\* 12,000.0 6,900.0 10,000.0

Retained Treaty lands -1855. 7,500.0 1,600.0 510.0 578.0

Land retained after boundary 245.0

"survey error" (Umatilla only)..

Retained after 1863 "steal 760.0

treaty" with Nez Perce.

(approx.)

Retained after Fort Bridger 2,000.0

Treaty of 1868.

Lands owned today - after

Dawes Act "surplusing" & 94.0 544.0 1,126.0 95.1 658.0

sales/ right-of-way takings/

and other losses.

: Percentage of Original 0.6% na 9.4% 1.4% 6.7%

Homeland now tribally

owned\*.

: Percent of Treaty Lands 1.2% 27.2% 70.4% 18.6% 100.0%

now tribally owned\*.

> \* Owned by the tribe, and/or by individual tribal members. Nez Perce
> percentage based
>
> on 1863 Treaty acreage.

\*\* We have found no quantitative estimate of the area roamed by the
Shoshone and

Bannock peoples, nor the peoples now resident on the Duck Valley
Reservation.

In sum, Table 39 shows that, since 1855, there has been a substantial
trend inside the boundaries of most Reservations to transfer tribal
wealth in Treaty-reserved assets into non-tribal hands. For the Nez
Perce, Treaty-reserved wealth in land has been almost wiped out. For the
Shoshone- Bannock at Fort Hall and the peoples of the Umatilla
Reservation, wealth has been drastically reduced. Substantial losses
have also been incurred within the boundaries of the Yakama Reservation.
In most instances, it has been the land that is most suitable for
economic activity that has been targeted and obtained by non-Indians.

> **9.2.2 Transfer of Treaty-Protected Tribal Assets of the Rivers to
> Non-Indians**

While transfer of tribal wealth in treaty-protected lands has had a
drastic impact on four of the five study tribes, it is an insufficient
indicator of the full seriousness of cumulative losses suffered by the
tribes. Virtually all bands now represented in the five study tribes
were originally "roaming" bands, to a greater or lesser extent. They
followed their traditional foods to their sources, harvesting each food
at its appropriate place and in its appropriate season. For four of the
five tribes, **salmon** was the most important food. For the
Shoshone-Bannock, salmon took an important place alongside the buffalo.
This fact is affirmed by both tribal spokespersons and outside experts
in the preceding narrative. For the few bands that did not roam, salmon
and other near resources provided a substantial basis for year-round
subsistence and trading.

The CRITFC tribes clearly understood their dependence on salmon - and in
the treaties they signed with the United States in 1855 and 1868, they
ceded vast amounts of land, **but were careful to reserve for their
continued use [all]{.underline} of their usual places where they were
accustomed to going to harvest their foods - [both inside and outside
their (new) Reservation boundaries]{.underline}**. Explicit in the
treaties of the Nez Perce, Yakama, Umatilla and Warm Springs:

> **Article 3: The exclusive right of taking fish in all streams, where
> running through or bordering said reservations, is further secured to
> said confederated tribes and bands of Indians, as [also the right of
> taking fish at usual and accustomed places]{.underline}, in common
> with the citizens of the Territory, and of erecting temporary
> buildings for curing them; together with the privilege of hunting,
> gathering roots and berries, and pasturing their horses and cattle
> upon open and unclaimed land.**

The Shoshone-Bannock peoples also sought to protect their access to the
traditional areas where they gathered their foods. The Fort Bridger
Treaty identifies these rights as follows:

> **Article 4: The Indians herein named\...shall have the right to hunt
> on the unoccupied lands of the United States so long as game may be
> found thereon, and as long as peace subsists among the whites and the
> Indians on the borders of the hunting districts**.

And [State of Idaho v Tinno]{.underline} states that these rights
include fishing.

Despite treaty protections, the food resources of the study tribes have
been devastated over ensuing years. In the years immediately following
the treaties, non-Indian encroachment into the reservations by force,
often legalized retroactively, made it impossible for the tribes to
retain exclusive jurisdiction over fishing, hunting and gathering
activities **within** Reservation boundaries. Outside the Reservation
boundaries, hostility, racist behavior and cultural encapsulation by
some whites, has made it difficult and sometimes dangerous for tribal
members to pursue their Treaty-protected fishing, hunting and gathering
activities. And in early times, settlers transformed camas grounds to
pig rooting areas, cut off tribal salmon runs with fish wheels and weirs
and fenced off areas from game - and from the tribal hunters and
gatherers who depended on these areas.

**Tribal losses of treaty-protected salmon resources** initially
resulted from the same causes as losses of land-based game, roots,
berries and plants - direct preemption by competing non-Indian
harvesters, and obstruction or denial of access to usual and accustomed
fishing places, which were often fenced off by non-Indian property
owners. With respect to fishing, most of these illegal acts were
eventually challenged, and struck down by federal courts. But these
preemptions of tribal fishing, which, year by year, effectively
separated the tribes from their treaty-protected assets in salmon,
continued into the 1970's, when the Boldt Decision in U.S. v.
Washington, and the following settlement in U.S. v. Oregon, reaffirmed
and provided some quantitative guidelines for tribal fishing rights. In
the interim, non-Indian preemptions continued to take tribal
Treaty-protected wealth from the river area, and tribal peoples suffered
greatly.

With each Court affirmation of tribal Treaty-guaranteed access to
fishing sites, the tribes looked forward to once again sustaining their
people with the salmon. Over time, they have discovered this is
increasingly difficult, if not impossible. For during the struggle to
reaffirm the Treaty right to fish, **the Columbia/Snake system was being
transformed - to produce electricity, irrigation for agriculture,
navigation services, and waste disposal - but not salmon**. Economists
term this "transformation of the production function" associated with
the river. Simply put, when the tribes went to reclaim the
salmon-related assets they had protected in their treaties, they found
these assets had largely disappeared - transformed by actions to produce
electricity, agricultural irrigation and navigation, primarily for the
benefit of their non-tribal neighbors. Because salmon and its values are
broadly distributed among tribal peoples[^491], such adverse impacts
resonate throughout the study tribes.

As each dam was constructed, the tribes objected, calling on the
government to reconsider - pointing out that these actions were contrary
to the treaties the United States had signed with them, and predicting
adverse consequences for their tribal peoples. These tribal objections
and concerns were ignored, given little weight, or actively opposed by
non-Indians.

Transformation of the rivers' production function, the associated
destruction of Treaty assets by non-Indian interest, and the resulting
transfer of the rivers' wealth from Treaty tribes to non-Indians, in
large part failed to honor the protections for the tribes contained in
the Treaties. River agencies assured the tribes that while risks to
salmon from dam construction and other river transformation activities
were not well understood, the agencies were confident that "risk to
salmon could be managed" and that technology could take care of the
salmon as other economic development proceeded along the river. In fact,
such assurances have been followed by the loss of the greatest part of
the salmon resources of the Columbia and Snake River systems.

Today, dominant agencies continue to examine and test "technological
breakthroughs" to protect salmon passing dams. But, in a 180 degree
reversal -- some of these same agencies now state they wish to "avoid
uncertainty" associated with salmon restorative actions - and advise
more technological manipulation, study and delay. The earlier "we can
manage risk to salmon as we go" stance by dominant agencies facilitated
transfer of river wealth from the tribes to non-Indians. Today, the same
agencies' "we don't want to act until we're more certain" stance
consolidates previous takings of tribal wealth - through delay and/or
preemption of rebalancing to restore the Columbia and Snake Rivers'
salmon-related wealth to tribal peoples.

Conversely, tribal leaders and experts conclude that substantial
restoration of the salmon producing capabilities of the Snake River
system cannot wait any longer.

Table 40 illustrates the losses in potential salmon harvests incurred by
the five tribes due to these cumulative actions and agency policies.
Today, most harvest for the four CRITFC tribes is taken below the lower
Snake River dams. Contact-times (1780's through early 1800's) and
treaty-times estimates (1855 for CRITFC tribes/ 1868 for
Shoshone-Bannocks) are for salmonids only. Treaty-time estimates differ
from "contact" estimates due to epidemic-driven declines in tribal
populations between the two periods. Estimates of per capita consumption
are assumed the same for the two periods. Tribal per capita consumption
may have declined somewhat by 1855, where some tribal members where
harassed by non-Indians - but there is no evidence that such a trend was
yet universal. Finally, as noted, due to data limitations, present-day
harvest estimates are considered jointly for the peoples of the Warm
Springs and the Umatilla Reservations. Estimates of present-day Tribal
harvest needs represent the mathematical product of early 1800's/1855
per capita harvest estimates for tribal members and present-day tribal
populations. Again, the reader is cautioned not to equate tribal harvest
at any point in time with Treaty entitlement.

Table 40

[A Comparison of Estimated Tribal Harvests from the Columbia/Snake
System]{.underline}

[Contact Times to the Present]{.underline}

> Shoshone/

[Benchmark]{.underline} [Nez Perce]{.underline} [Bannock]{.underline}
[Yakama]{.underline} [Umatilla]{.underline} [Warm Springs]{.underline}

\-\-\-\-\-\-\-\-\-\-\-\--harvest in thousands of
pounds\-\-\-\-\-\-\-\-\-\-\--

Estimated harvest in 2,800 2,500 5,600 3,500 3,400

Contact Times.

Percentage of fish in diet. 40% 28% 40% 38% 50%

Estimated Harvest at 1,600 1,300 2,400 1,600 1,000

Treaty Times.

Current tribal harvest.\* 160 1 1,100 \-\--77\-\--

Percentage Reduction from 90.0% 99.9% 54.0% 97.0%

Treaty-period harvest.

Present Harvest as a 9.4% 0.04% 14.3% 1.7%

Percentage of Present Need.

\*Current harvest estimates for the Nez Perce, Shoshone-Bannock and
Yakama peoples

include some catch of non-salmonid species. Shoshone Bannock estimates
include Sho-

Pai Duck Valley peoples.

\*\*Northwest Power Planning Council (1985) estimated potential annual
tribal catches of

salmon, pre-1800, for all system tribes, at approximately 42 million
pounds (p.44).

These data, along with other information in this report, have been
presented "tribe by tribe". This emphasizes the unique characteristics
and history of each tribal people. At the same time however, it masks
the considerable degree of intertribal cooperation that existed in
Treaty times, and continues to exist today among the CRITFC tribes --
and the adverse impacts that forced relocation to Reservations had on
many tribal families and communities.

> In our ancestors' time, we were all people of the river. We were known
> by the site of our village. We cooperated. We usually talked the same
> language. We intermarried, and had relatives in many different
> villages. In many ways, we were all one people.
>
> When the Reservations came, one part of a family was sometimes sent to
> one reservation, and another part to another -- just because we lived
> on different banks of a river.

(Eugene Greene, Sr. Confederated Tribes of the Warm Springs Reservation
of Oregon)

> **9.2.3 Cumulative Effects from the Taking of Wealth from Study
> Tribes**

A review of Tables 39 and 40 clearly shows that, cumulatively, from
Treaty times to the present day, the five Treaty tribes have seen key
Treaty assets destroyed, and much of their wealth taken from them - and
transferred to non-tribal residents of the region.

> Some non-Indians say; "All these things happened before I got here."
> But it was their forefathers who displaced the Indians - who raped our
> mothers and our daughters - who killed the children - and then forced
> us to go to different areas because of precious metals - because they
> wanted the water - because they wanted the forests. These are the ugly
> histories they say do not pertain to them - yet unfortunately some of
> us still carry the hurt and pain within our hearts.
>
> (Hobby Hevewah, Shoshone-Bannock Councilor, at Fort Hall, July 17,
> 1998)
>
> My heart cries for my people, cuz we are no more Indians. We have
> taken up all the white man's ways. If we were still Indians, we'd be
> living peacefully and happily the way we used to. All our horses are
> gone. No more cattle. All the pasture, the land, the hillsides, taken
> up by the farmers, by the white man. Our horses don't roam no more; we
> don't have no more horses of our own like we did at one time. Every
> inch of tillable ground is taken up. Where our houses used to be, they
> tear that down, and they put wheat in there or peas right on every
> inch of the ground. And they've taken down all of the fences, and
> they've plowed through there. These big farmers, they've got
> everything in the world. The (Indian) owners have nothing. And they've
> taken everything. Like I say, they've taken our land, they've taken
> our rivers, they've taken our fish. I don't know what more they want.
>
> (Carrie Sampson, CTUIR Elder, at Mission, October 13, 1982)
>
> When the United States began building power dams in the Pacific
> Northwest, construction crews ruined several burials in canyons along
> inland rivers, including the Snake River. Sometimes archaeologists
> working for the federal government raided Indian burials to preserve
> choice specimens for university collections before water from a new
> dam inundated the locations\.... The Yakama and their neighbors have
> faced a continued onslaught of ghouls, construction crews, and
> government agencies that disregard and discredit the spiritual beliefs
> of the Northwest Indians in reference to their dead. \...
>
> The reservation system of the United States destroyed the native
> standard of living and introduced a host of viruses and bacilli to the
> Indians living on the Yakama Reservation. The result was poverty, ill
> health and death among the Yakama people.
>
> (Clifford Trafzer, in, [Death Stalks the Yakama]{.underline}. Michigan
> St. U. Press, 1997)

This targeting of "anything of value in Indian hands" by non-Indians
continues today - where, for example, states attempt to appropriate
revenue from cigarette sales, gambling, and any other small areas of
hope on the bleak tribal economic landscape.

> If one theme stands clear in the economic and social matrix of the Nez
> Perce it is loss of land and the mining of the remaining land for
> anything of cash value.
>
> (Central Washington University, A Report to the US Minerals Management
> Service, 1991)
>
> **9.3 Present Circumstances of the Study Tribes**

The devastating present-day results from this progressive destruction of
tribal assets, and the associated taking of tribal wealth in lands,
waters and salmon, are displayed statistically in Table 41. Data for the
states of Washington, Oregon and Idaho are provided for comparison.

The reader is reminded that while such measures of relative wellbeing
are commonplace in the dominant non-tribal culture -- they do not always
"fit well" or "sit well" with tribal peoples. The following quote from
Nathan Jim, Sr., a Fish Commissioner from the Confederated Tribes of the
Warm Springs Reservation of Oregon, succinctly captures this tribal
concern.

> I don't much like this talk of unemployment and poverty. Before the
> white man came, we had no such thing as poverty. We lived off the
> land. We fished, we hunted, we gathered roots and berries. We worked
> hard all year round. We had no time for unemployment.
>
> Poverty came with the Reservations. We were forced to live away from
> our salmon and our other resources. Our poverty is our lack of our
> Indian resources. These resources are being destroyed by the white
> man. That's what's causing our poverty.[^492]

Whether discussed in tribal terms, or via standardized non-tribal
statistics -- the present severe difficulties of the tribes are
inescapable.

Table 41

[Present Circumstances of the Five Study Tribes]{.underline}

Shoshone/ Warm [All Residents]{.underline}

[Indicator of Wellbeing]{.underline} [Nez Perce]{.underline}
[Bannock]{.underline} [Yakama]{.underline} [Umatilla]{.underline}
[Springs]{.underline} [Idaho]{.underline} [Oregon]{.underline}
[Wash.]{.underline}

Families in Poverty (%) 29.4 43.8 42.8 26.9 32.1 9.7 12.4 10.9

Unemployment (%) 19.8 26.5 23.4 20.4 19.3 6.1 6.2 5.7

:In winter (%) 62.0 80.0 73.0 21.0 45.0

Per Capita Income (\$'000) 8.7 4.6 5.7 7.9 4.3 11.5 14.9 13.4

Percent Who Can Speak 25.0 34-38 15.0 9.0 12.0 \-- \-- \--

their Tribal Language (%)

Ratio of Tribal Death Rate 1.7 2.3 1.9 1.2 1.6 \-- \-- \--

to Non-Tribal Death Rate.\*

\*Data is age-adjusted.

Even these stark data fail to capture the full seriousness of the
present circumstances of the peoples of the Nez Perce Tribe, the
Shoshone-Bannock Tribes, the Yakama Indian Nation, the Confederated
Tribes of the Umatilla Indian Reservation and the Confederated Tribes of
the Warm Springs Reservation. They are punctuated by premature death -
particularly from deprivation-related causes, that have led both tribal
and non-Tribal health service providers in the early 1990's to describe
tribal health circumstances as "poor", and as "alarmingly poor". Table
42 identifies death causes that are particularly adverse for the tribes,
relative to non-tribal neighbors. Tribal statistics are for slightly
larger Indian Health Service geographical units.

Table 42

[Ratio of Tribal to Non-Tribal Deaths per 100,000 Population, for Health
Areas Associated]{.underline}

[With Each Study Tribe - Selected Leading Causes of Tribal
Death]{.underline}

Shoshone/

[Cause of Death]{.underline} [Nez Perce]{.underline}
[Bannock]{.underline} [Yakama]{.underline} [Umatilla]{.underline} [Warm
Springs]{.underline}

Cirrhosis of the Liver \* 8.7 14.1 17.4 \*

Motor vehicle accidents 4.0 \* 4.4 \* 4.8

All Other Accidents 2.3 5.2 2.8 \* 3.9

Diabetes mellitus \* 5.9 \* \* \*

Cerebrovascular disorders 3.0 \* \* 3.1 \*

Pneumonia/ Influenza \* \* \* \* 5.3

Heart disease 0.9 2.8 1.5 1.0 1.2

Malignant Neoplasms 0.5 1.0 0.8 1.2 0.4

\*Comparative data not available in published form.

Too-high death rates for cirrhosis and accidental death are consistent
with Bachtold (1983), who links loss of foods, impoverishment, and loss
of meaningful activity, to tribal mistrust and despair - and with
Trafzer (1997), who hypothesizes that tribal mortality in recent times
is substantially linked to man-made pressures and events.

Central Washington University (1991) provides a useful encapsulation for
Nez Perce, that is also appropriate to the present circumstances of the
other impoverished study tribes.

> The personal suffering and tragic lives of many (Nez Perce) people are
> not revealed in the cold reports of tribal and federal governments. It
> can, however, be seen and felt in the towns and the countryside\--in
> the eyes of men and the despair of mothers with few or no options for
> change. When you can no longer do what your ancestors did; when your
> father or mother could not do these things either; when they or you
> found little meaning in and limited access to the ways of mainstream
> culture\--the power of 70 percent winter time unemployment, and 46
> percent of the population below the poverty level, is visible
> throughout the Nez Perce landscape.
>
> (Central Washington University, A Report to the US Minerals Management
> Service, 1991.)

Salmon has played a central role in the lives of the peoples of the
study tribes since time immemorial. Commentator after commentator
identifies salmon at the center of tribal culture and material
wellbeing - as do the tribes themselves. The CRITFC tribes took great
pains to specifically reserve their Treaty right to take salmon at their
"usual and accustomed places" in each of their treaties with the United
States - and the Shoshone-Bannock have also established off reservation
access to salmon, in their Treaty and in the courts.

Indians have consistently opposed subsequent transformations of the
Snake and Columbia rivers that have been adverse to the system's
capability to produce salmon.

Today, remnant salmon remain connected to the core of tribal material
and cultural life. Faced with bleak present circumstances, and severely
limited prospects for remedy, the tribal peoples still look first to the
salmon with hope of a better future.

> Traditional activities such as fishing, hunting and gathering roots,
> berries and medicinal plants build self-esteem for Nez Perce peoples -
> and this has the capacity to reduce the level of death by accident,
> violence and suicide affecting our people. When you engage in cultural
> activities you build pride. You are helped to understand "what it is
> to be a Nez Perce" - as opposed to trying to be someone who is not a
> Nez Perce. In this way, the salmon, the game, the roots, the berries
> and the plants are pillars of our world.
>
> (Leroy Seth, Nez Perce Elder, May 6, 1998)
>
> My specialty is psycho-social nursing. From my perspective, everything
> is tied together. Nothing is separate. The health of the (native) kids
> is impacted every day. We see kids come in who are grossly overweight,
> and they're laying the groundwork for the diabetes to come. The impact
> of the loss of the salmon, and the loss of the traditional grounds -
> the loss of the time with the elders to learn the ways and to feel as
> if you're part of the community, instead of feeling alienated, not
> only from their neighbors and their families but also from the bigger
> community of humans - has a devastating effect on the kids. I have
> moms come in here eighteen years old who have been pregnant two or
> three times, who use substances and who don't teach their children the
> old ways because they don't know them. They don't feed their kids the
> old foods because they don't have any idea what they are. So the loss
> of the food and the salmon is monumental - and its all tied together.
> Food is a really big part of the Yakama culture - as it is elsewhere.
> Anywhere you look in the world, food carries culture. So if you lose
> your foods, you lose part of your culture - and it has a devastating
> effect on the psyche. You also lose the social interaction. When you
> fish, you can spend time together - you share all the things that
> impact your life - and you plan together for the next year. Salmon is
> more important than just food.
>
> In sum, there's a huge connection between salmon and tribal health.
> Restoring salmon restores a way of life. It restores physical
> activity. It restores mental health. It improves nutrition and thus
> restores physical health. It restores a traditional food source, which
> as we know, isn't everything - but its a big deal. It allows families
> to share time together and build connections between family members.
> It passes on traditions that are being lost. If the salmon came back,
> these positive changes would start.
>
> (Chris Walsh, Psycho-Social Nursing Specialist, Yakama Indian Nation,
> August 13, 1998)
>
> Salmon are the centerpiece of our culture, religion, spirit, and
> indeed, our very existence.
>
> As Indians, we speak solely for the salmon. We have no hidden agenda.
> We do not make decisions to appease special interest groups. We do not
> bow to the will of powerful economic interests. Our people's desire is
> simple\--to preserve the fish, to preserve our way of life, now and
> for future generations.
>
> (Donald S. Sampson, Chair, CTUIR Board of Trustees, December 15, 1994)
>
> If the dams are maintained in place, I'm not so sure we will find
> justice. We must restore the fish so they can multiply and get back to
> aboriginal numbers. They say they'll do this and do that, but so far,
> its been a one way street of decline. There's been no justice there.
>
> (Hobby Hevewah, Shoshone-Bannock Councilor, at Fort Hall, July 17,
> 1998)
>
> **9.4 The Effect of the Lower Snake Dams on Study Tribes**

The four lower Snake River dams have significant, but not sole,
responsibility for the desperate present circumstances of study tribes.
Their construction has transformed the production function of the Snake
River, destroying Treaty-protected assets and taking wealth in salmon
away from study tribes, while increasing the wealth of non-Indians
through enhanced production of electricity, agricultural products,
transportation services and other associated benefits. These impacts on
Snake River salmon must be considered in context with the effects of
other system dams - together with adverse effects from pollution, water
diversion and other acts.

At the same time, creation of the four lower Snake reservoirs has
directly inundated approximately 140 river miles of Tribal usual and
accustomed areas - and these impacts can be considered the exclusive
responsibility of Ice Harbor, Lower Monumental, Little Goose and Lower
Granite dams.

> **9.4.1 Impacts of the Lower Snake Dams on Salmon**

Beaty et.al. (1999) begin with Northwest Power Planning Council
estimates of pre-contact salmon run sizes, and estimate cumulative
losses of salmon due to loss of habitat and passage mortality as each US
Army Corps of Engineers dam was constructed on the Columbia/Snake system
-- together with estimates of lost **potential** harvest returns
resulting from these actions[^493]. These loss figures, benchmarked for
the year each dam was constructed, estimate substantial damages from the
four lower Snake River dams -- which significantly exceed PATH recovery
estimates under any action alternative for these dams.

Information provided previously in this report shows that the tribe
farthest upriver - the Shoshone-Bannocks (and the Sho-Pai at Duck
Valley) - have lost virtually all of their 1855 period anadromous
harvest.

The Nez Perce Tribe has lost about 90 percent of their 1855 harvest, and
this number substantially underestimates percentage losses in the Snake
and Clearwater rivers, due to present-day Nez Perce participation in
Zone 6 mid-Columbia tribal fisheries.

Several Snake River tributaries that historically produced significant
salmon runs, including the Salmon, the Grande Ronde, and undamed
portions of the Clearwater system, are located below the absolute
anadromous fish barrier created by the three Hells Canyon dams.
Consequently, one could expect that, if Lower Snake dams had little or
no adverse effect on Snake River anadromous stocks, proportionate losses
to harvests by the Shoshone-Bannock, Duck Valley Sho-Pai and Nez Perce
tribes above the lower Snake dams would be much closer to losses
experienced by tribal fishers in the mid-Columbia - who have also
experienced substantial loss of traditional fisheries. Review of data
from Table 40 indicates this is not the case (Table 43).

Table 43

[Estimated Losses of Tribal Fishers - Ordered from Upstream to
Downstream]{.underline}

Present Harvest as Present Harvest as

[Tribal Group]{.underline} [Harvest Target Area]{.underline} [% of
Treaty Times]{.underline} [% of Present Needs]{.underline}

\-\-\-\-\-\-\-\-\-\-\-\--in percent\-\-\-\-\-\-\-\-\-\-\-\--

Shoshone-Bannock Above lower Snake dams. 0.1 0.04

Nez Perce Above lower Snake dams. 1.0 1.0

Below lower Snake dams. 9.0 8.4

Total above and below dams. 10.0 9.4

Yakima, CTUIR,

and Warm Springs Below lower Snake dams. 23.5 9.6

Consideration of this information leads to the following conclusions.

> \* Snake River anadromous stocks have been reduced significantly as a
> result of construction
>
> and operation of the four lower Snake River dams.
>
> \* Losses of Treaty-protected tribal harvest are almost 100 percent
> for the Shoshone-
>
> Bannocks and Duck Valley Sho-Pai's.
>
> \* The Nez Perce have lost virtually all of their traditional harvests
> above the lower Snake
>
> dams. This observation holds, even recognizing that the Nez Perce took
> some of their
>
> harvest from mid-Columbia sites in Treaty times. Considering harvest
> both above and
>
> below the four study dams, the Nez Perce have lost approximately 90
> percent of their
>
> 1855-level harvests.

\* It follows that the lower Snake dams have had a substantial adverse
effect on the upstream

Treaty fisheries of the Idaho tribes - even allowing for the presence of
other upstream dams

and salmon-adverse actions in the Snake River system.

\* Finally, adverse impacts from lower Snake dams on harvests of the
Yakama Indian Nation,

the Confederated Tribes of the Umatilla Indian Reservation, the
Confederated Tribes of the

Warm Springs and upon Nez Perce fishers downstream of the four dams have
also been

substantial - as these tribes harvest Snake River stocks as they swim
by. The impact of

these losses of mid-Columbia harvest will be the product of the absolute
losses incurred

and the proportional role that Snake River stocks play in total
fisheries along those reaches

of the Columbia River.

> **9.4.2 Inundation Effects on the Tribes from the Four Lower Snake
> Dams**

In addition to killing treaty salmon, the reservoirs created by the four
lower Snake River dams have directly inundated approximately 140 miles
of usual and accustomed living, fishing, hunting, gathering and
ceremonial areas of (at least) three of the study tribes. The cultural
resources approach of the tribes is holistic - and considers such things
as the Indian people themselves, their communities and lifeways, the
unique information of elders, clean air, clean water where salmon and
other fish prized for their traditional subsistence live, hunting and
gathering grounds, and other resources important to tribal life "all
together".

The home territory of ancestors of the Nez Perce extended from upriver,
through the lower Clearwater River in the vicinity of the present town
of Lewiston, Idaho, and down the lower Snake River to about the
confluence with the Palouse River on the north bank, and the confluence
with the Tucannon River on the south bank.

Some bands of the Walla Walla peoples, now part of the Confederated
Tribes of the Umatilla Indian Reservation (CTUIR), lived downstream of
the Tucannon River along the south bank of the Snake.

The Palouse people, who now reside within the Yakama Indian Nation and
the CTUIR, as well as on the Colville Reservation, originally lived at
the confluence of the Palouse and Snake Rivers, and downstream along the
north bank of the Snake.

These tribes often fished in common with each other and with most of
their neighbors, including the tribes that presently make up the
Confederated Tribes of the Warm Springs Reservation of Oregon. Other
bands of Indians that are now represented by present-day treaty tribes
may also have fished the lower Snake River - particularly as it neared
its confluence with the Columbia. Table 44 outlines only the primary
linkages between these study tribes, the home territories of their
ancestors in the lower Snake area, and their relationship to the four
reservoirs under study.

Table 44

[The Relationship Between Present Tribal Treaty-Based Entities and
Pre-Treaty Tribal]{.underline}

[Groups in the Lower Snake Reservoir Area]{.underline}

Original Tribal Groups Inundation by

[Present Organization]{.underline} [in Lower Snake
Territory]{.underline} [Lower Snake Reservoirs]{.underline}

Nez Perce Tribe Nez Perce Indians living along Lower Granite.

the Clearwater River, and Little Goose.

downstream along the lower Lower Monumental.

Snake to Palouse River (north

side) and Tucannon River

(south side).

Yakama Indian Nation Palouse peoples living at the Lower Monumental.

confluence of the Snake and Ice Harbor.

Palouse Rivers and downstream

along the north riverbank.

Possibly other bands near the

mouth of the Snake.

Confederated Tribes of Palouse peoples living at the Lower Monumental.

the Umatilla Indian confluence of the Snake and Ice Harbor.

Reservation Palouse Rivers, and downstream

along the north riverbank.

Walla Walla peoples living from

the mouth of the Tucannon

River downstream along the

south bank of the Snake River.

Preliminary work suggests that there are between 600 and 700 sites of
particular tribal material and cultural significance associated with the
four lower Snake dams. This number may eventually prove to be an
underestimate. In the words of CTUIR cultural protection staff:

> When the CTUIR look at Ice Harbor and Lower Monumental reservoirs,
> they see a system of cultural resources that is entirely out of
> balance. The river is a lake, much of the land where their ancestors
> lived their daily lives is under the water, and the salmon have great
> difficulty in their migrations. The current situation is unacceptable.

Further, construction of the four lower Snake dams involved purchase of
individual Indian allotments by the US Army Corps of Engineers along the
river corridor from a number of Indians and others. During the
preparation of this report, several tribal respondents have stated that
they consider the process associated with said purchases unfair, and
against tribal interest.

Finally, transformation of the lower Snake River from "free flowing" to
a series of reservoirs has also facilitated permitted discharge of
potentially dangerous toxins into lower Snake waters. This raises
serious concern, in the tribal view, regarding threats to water purity,
to the anadromous fish and other creatures that depend upon that water,
and for persons, tribal and non-tribal, who may also depend on said
water, fish and game.

> **10.0 Assessment of Tribal Impacts on the Nez Perce,
> Shoshone-Bannock, Yakama,**
>
> **Umatilla and Warm Springs Tribes from Lower Snake River Dams**
>
> **10.1 Project Alternatives Considered in this Analysis**

Original identification of project alternatives by the agencies
associated with this report was broad, and has been discussed elsewhere.
As studies progressed, it became clear that PATH, the biologist group
charged with estimating impacts on salmon and steelhead for each project
alternative, would only develop quantitative impact estimates for Snake
River spring/summer chinook, for fall chinook, and for steelhead - for
three project general alternatives. These alternatives estimate the
impact of changes at four lower Snake River dams: Ice Harbor, Little
Goose, Lower Monumental and Lower Granite. The alternatives are
generally defined as:

**Alternative A1 (Base Case):** Configuration and operation of lower
Snake dams as they

are today. Columbia and Snake rivers salmon flow augmentation as
described in the

1995 Biological Opinion.

**Alternative A2 (Transportation):** The four lower Snake dams remain.
Structural

changes at dams and flow augmentation changes - as defined in other work
groups - are

made to enhance salmon survival over dams and in reservoirs.

**Alternative A3 (Draw Down):** Parts of each dam are removed to
facilitate drawing

the lower Snake River down to near natural river flow conditions - so
that salmon and

steelhead would not be blocked by the structures or impeded by
reservoirs. Under A3,

present levels of fish flow augmentation would be retained.

> **10.2 Criteria for Assessment of Impacts from Project Alternatives on
> Study Tribes**
>
> **10.2.1 General Assessment Criteria**

This tribal assessment focuses on whether or not each project
alternative makes significant progress toward meeting the following
responsibilities:

1.  **Meet obligations under Tribal Treaties, or under tribal trust
    responsibility**. In

> particular, this assessment will focus on the tribal treaty right "of
> taking fish at usual and
>
> accustomed places", or at traditional fisheries and fishing areas more
> generally, and on
>
> tribal sites of material and cultural significance.

2\. **Meet Distributive Justice Standards, defined by EPA's
Environmental Justice (EJ)**

**Guidelines, as:**

> "The fair treatment and meaningful involvement of all people
> regardless of race, color, national origin, or income with respect to
> the development, implementation, and enforcement of environmental
> laws, regulations and policies. Fair treatment means that no group of
> people, including racial, ethnic, or socioeconomic group should bear a
> disproportionate share of the negative environmental consequences from
> industrial, municipal and commercial operations or the execution of
> federal, state, local, and tribal programs and policies."

These overarching considerations have both been discussed earlier in our
report. Because the lower Snake dams are responsible for some, but not
all, of the adverse circumstances experienced by the study tribes, our
assessment here considers both **explicit project effects** from the
three project alternatives posed, and the role of each project
alternative with respect to **cumulative effects** experienced by the
tribes from progressive transformation of the lower Snake River from
producing salmon to producing hydroelectric power, water for irrigation,
barge transportation and related purposes. We follow the EPA EJ
guidelines in defining cumulative effects as:

> "the incremental impact(s) of the action when added to other past,
> present, and reasonably
>
> foreseeable future actions."
>
> **10.2.2 Benchmark Criteria for Assessing Impacts on Salmon and
> Steelhead**
>
> **10.2.2.1 Contribution to Reestablishment of Tribal Treaty Fishery
> Assets**

Each project alternative, A1, A2, and A3, will first be evaluated
according to a common tribal benchmark -- **substantial recovery of
treaty-protected Snake River salmon and steelhead production
capabilities and harvests from the cumulatively depressed levels that
have damaged the tribes through much of the twentieth century**.

Tribal fishing of these stocks was guaranteed by the treaties of 1855
and 1868, between the tribes and the United States. Subsequent
transformation of the lower Snake River to benefit electricity,
irrigated agriculture, and river navigation interests has almost
eradicated these stocks, contrary to the treaty-guarantees provided. The
Treaty tribes consider that reestablishment of these tribal fishing
opportunities is the only acceptable treaty remedy. Columbia River
Intertribal Fish Commission (1995) has established performance goals by
which to assess "fully fishable" stock levels on the Snake River system
(Table 45). Taken in total, these salmon recovery goals suggest an
all-species recovery figure of 11.3 million pounds of salmon, inclusive
of spawning escapement requirements and tribal harvest, for the Snake
River. These recovery goals are conditioned by judgements concerning
'feasible recovery", related to upstream Snake River dams. The Beaty et
al. (1999) model[^494] estimates annual all-species salmon mortalities
from the four lower Snake River dams alone of between 8.4 and 14.3
million pounds -- or between 243 million and 410 million pounds of
losses since they were constructed.

Table 45

[Tribal Goals for Recovery of Selected Treaty-Based Runs of
Salmonids]{.underline}

[in the Snake River System]{.underline}

Spring Summer Fall

[System Component]{.underline} [Chinook]{.underline}
[Chinook]{.underline} [Chinook]{.underline} [Sockeye]{.underline}
[Coho]{.underline} [Steelhead]{.underline}

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--in thousands of
salmon\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Snake River mainstem. 18.3

Tucannon River 3.0 2.0 2.2

Clearwater River 60.0 50.0 50.0 14.0 93.0

Grande Ronde River 16.0 10.0 2.5 3.5 27.5

Salmon River 128.0 60.2 44.5 192.9

Imnaha River 5.7 3.0 4.3

Totals - Selected Species 212.7 110.2 83.3 47.0 17.5 236.2

Source: Columbia River Intertribal Fish Commission, 1995.
**Wy-Kan-Ush-Mi Wa-Kish-Wit:**

**Spirit of the Salmon**. **The Anadromous Fish Restoration Plan of the
Nez Perce,**

**Umatilla, Warm Springs and Yakama Tribes**. Volume II - Subbasin
Plans.

Each project alternative will be evaluated with respect to its
contribution to these treaty-based recovery goals. This evaluation will
include assessment of impacts respecting tribal harvest, associated
opportunities for treaty fishing activities -- and implications for
tribal material wellbeing, health, and culture. An assessment by the
tribes concerning the "significance" of impact gains or losses incurred
is also presented.

> **10.2.2.2 Contribution to Diminishing Risk of Treaty Fisheries
> Extinction**

Snake River salmon stocks are in adverse condition, and several have
been "listed" as threatened and/or endangered. Such listing reemphasizes
the need for strong remedial action before these stocks become extinct.
Work by Nehlsen, Williams and Lichatowich (1991)[^495] , and present
listing actions, indicate that such endangerment of Pacific salmonids is
continuing.

This extreme level of risk to subject Snake River stocks is the joint
product of "their present threatened and endangered condition", and "the
length of time over which this condition is projected to continue".
Tribal leaders and experts conclude that **the continuation of Snake
River salmonid stocks as "listed species" perpetuates the likelihood
that, given normal variations in abundance, these stocks may eventually
become extinct. Conversely, if Snake River salmon stocks can be
"delisted" quickly, risk of extinction will be lessened.** This provides
an important risk-adverse distinction between lower Snake River project
alternatives. Consequently, **rapidity of delisting** will be considered
as an additional measure to distinguish between the risks that
alternative project actions pose for salmon and for the tribes.

> **10.2.3 Criteria for Assessing Impacts on Usual and Accustomed Tribal
> Living**
>
> **Areas and Sites Within the Boundaries of the Four Reservoirs**

Project impacts on the tribes in the area of the dams and reservoirs
themselves will be direct. Principally, they will entail destruction,
inundation and/or restoration of areas and sites where peoples from the
study tribes lived; fished, hunted, and gathered roots, berries and
plants; conducted important ceremonies; died and were buried. In some
instances, construction of the dams entailed the taking of allotted
lands from Indian peoples living along the river.

The effects of each project alternative on the material and cultural
circumstances of the tribes within this "project area" will be generally
discussed. Little in the way of specific assessment of impacts has been
done, and significantly more work on "project area tribal impacts" will
be required once a preferred project alternative has been selected. A
preliminary outline of the scope and potential cost of such work is
included in this report.

> **10.2.4 Reduction of the Pain and Suffering of Tribal Peoples**

This report has documented the unacceptably high rates of poverty,
unemployment and death presently suffered by peoples of the study tribes
-- and the cumulative linkage between these conditions and destruction
of the salmon and other Treaty-protected resources. Tribal leaders point
out that **tribal suffering is continuing in each future year that
salmon recovery does not occur.** Their conclusion, and that of this
report, is that if the federal government continues to "study" recovery,
but does not immediately institute actual measures that have a strong
probability of facilitating substantial salmon recovery in the Snake
River, **tribal suffering and death will continue**. In this context,
the Tribes assert that they have no interest in NMFS salmon recovery
benchmarks that are set 100 years into the future -- and no such
benchmarks are utilized in this report.

> **10.3 Estimates of Salmon Run Sizes and Tribal Harvests Under Each
> Alternative**

PATH-based effects of each alternative action on total Snake River wild
salmon run size are presented in Table 46. Initially, the A-Fish Team
developed estimates for spring/summer chinook based on evaluation of
PATH results by eminent Independent Experts. Subsequently, the National
Marine Fisheries Service (NMFS) directed its economic consultants to
revise their analysis, and base estimates on PATH results prior to
Independent Expert evaluation. This NMFS directive does not change the
rank order of Alternative actions at lower Snake, but makes A1 and A2
look somewhat better, compared to Independent Expert conclusions.

CRITFC biologists conclude that this NMFS directive represents a
"retreat from best science". Consequently, the estimates in Table 46 are
based on the Independent Expert assessment of PATH findings. Alternative
A3 estimates are based on a three year implementation period -- and
differ little from data based on an eight year implementation period.

The recovery forecasts in Table 46 are from Radke and Davis (1999),
consultants to the A-Fish Team, not from CRITFC. Should further peer
review identify required adjustments, the estimates presented here will
change. These data may overestimate for two reasons. First, PATH
analysis was built from a present-day status quo -- which failed to
incorporate any relevent long term negative trends in Columbia/Snake
stock sizes[^496]. Second, the Radke and Davis analysis uses "Year 0"
stock starting point assumptions that likely exceed PATH's "present
conditions" by approximately 34 percent for spring/summer chinook, and
43 percent for fall chinook.

Table 46

[Estimates of Snake River Wild Salmon Recovery -- Lower Snake River Dam
Alternatives]{.underline}

Project [Spring/Summer Chinook .]{.underline} [Fall Chinook
.]{.underline} [Summer Steelhead .]{.underline}

[Year .]{.underline} [A1 .]{.underline} [A2 .]{.underline} [A3
.]{.underline} [A1 .]{.underline} [A2 .]{.underline} [A3 .]{.underline}
[A1 .]{.underline} [A2 .]{.underline} [A3 .]{.underline}

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--recovery run size in thousands of wild
adult salmon\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

0 11.7 11.7 11.7 2.0 2.0 2.0 21.2 21.2 21.2

5 15.4 14.9 15.2 3.6 3.6 2.2 23.6 23.3 23.5

10 21.7 20.3 21.3 5.5 5.5 8.0 27.2 26.4 27.0

15 27.5 26.0 31.8 6.4 6.4 26.7 29.9 29.2 31.9

20 31.6 30.5 42.6 7.0 7.0 39.3 31.5 31.0 35.9

25 30.2 28.5 47.2 7.2 7.2 42.0 31.0 30.3 37.4

30 31.3 29.0 49.5 7.2 7.2 43.3 31.5 30.5 38.0

50 32.3 29.2 54.5 7.1 7.1 43.5 31.9 30.6 39.5

Source: DREW Anadromous Fish Team, September 24, 1999.

The Anadromous Fish Team also calculated total salmon stock size for
each alternative under a scenario that incorporated estimated hatchery
operations. Total stock estimates, for both wild and hatchery fish are
displayed in Table 47.

Table 47

[Estimates of Snake River Wild Salmon Stock Recovery with Hatchery
Supplementation]{.underline}

\-[Three Lower Snake River Dam Alternatives]{.underline}-

Project [Spring/Summer Chinook]{.underline} [Fall Chinook .]{.underline}
[Summer Steelhead .]{.underline}

[Year]{.underline} [A1 .]{.underline} [A2 .]{.underline} [A3
.]{.underline} [A1 .]{.underline} [A2 .]{.underline} [A3 .]{.underline}
[A1 .]{.underline} [A2 .]{.underline} [A3 .]{.underline}

\-\-\-\-\--recovery run size in thousands of wild and hatchery adult
salmon\-\-\-\-\--

0 19.7 19.7 19.7 7.9 7.9 7.9 126.8 126.8 126.8

5 20.0 19.6 21.1 6.9 6.9 8.0 107.5 108.0 113.7

10 28.3 26.7 33.7 13.5 13.5 28.7 126.6 125.1 159.4

15 46.3 43.8 62.0 16.7 16.7 152.2 197.7 188.4 246.3

20 55.6 54.1 87.5 18.4 18.4 200.7 215.4 207.9 303.0

25 53.9 51.4 96.6 19.1 19.1 206.9 214.2 205.3 315.1

30 55.5 51.8 100.8 19.0 19.0 211.6 214.8 203.8 319.8

50 57.3 52.4 110.8 21.4 21.4 217.3 222.1 207.8 332.9

Source: DREW Anadromous Fish Team, September 24, 1999.

Estimates of tribal harvest under each alternative have also been
provided by the DREW Anadromous Fish Team. These estimates are
displayed, by alternative, for wild salmon in Table 48, and for wild and
hatchery salmon combined in Table 49.

Table 48

[Estimates of Tribal Wild Salmon Harvest of Snake River Stocks After
Salmon]{.underline}

[Restoration Actions at the Four Lower Snake River Dams]{.underline}

Project [Spring/Summer Chinook.]{.underline} [Fall Chinook]{.underline}
[Summer Steelhead .]{.underline}

[Year.]{.underline} [A1 .]{.underline} [A2 .]{.underline} [A3
.]{.underline} [A1 .]{.underline} [A2 .]{.underline} [A3 .]{.underline}
[A1 .]{.underline} [A2 .]{.underline} [A3 .]{.underline}

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--numbers of wild
adult salmon\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

0 533 533 533 466 466 466 1,529 1,529 1,529

5 721 723 667 571 571 353 1,821 1,799 1,811

10 1,401 1,332 1,359 880 880 1,289 2,235 2,169 2,218

15 2,166 1,921 2,854 1,026 1,026 4,288 2,603 2,539 2,778

20 2,703 2,500 5,689 1,118 1,118 6,323 2,903 2,857 3,308

25 2,593 2,285 6,851 1,158 1,158 6,769 10,867 10,595 13,082

30 2,721 2,296 7,429 1,149 1,149 6,970 11,009 10,671 13,310

50 3,102 2,400 8,689 1,126 1,126 6,994 11,151 10,720 13,836

Source: DREW Anadromous Fish Team, September 24, 1999.

Table 49

[Estimates of Tribal Wild and Hatchery Salmon Harvest of Snake River
Stocks After]{.underline}

[Salmon Restoration Actions at the Four Lower Snake River
Dams]{.underline}

Project [Spring/Summer Chinook]{.underline} [Fall Chinook .]{.underline}
[Summer Steelhead .]{.underline}

[Year.]{.underline} [A1 .]{.underline} [A2 .]{.underline} [A3
.]{.underline} [A1 .]{.underline} [A2 .]{.underline} [A3 .]{.underline}
[A1 .]{.underline} [A2 .]{.underline} [A3 .]{.underline}

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--numbers of wild and hatchery
adult salmon\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

0 1,026 1,026 1,026 1,893 1,893 1,893 30,087 30,087 30,087

5 940 951 929 1,094 1,094 1,265 25,386 25,573 27,160

10 1,826 1,757 2,144 2,158 2,158 4,604 32,040 31,758 41,920

15 3,647 3,242 5,570 2,662 2,662 24,417 53,398 50,729 67,648

20 4,759 4,432 11,682 2,946 2,946 32,332 62,106 59,789 89,296

25 4,623 4,125 14,009 3,062 3,062 33,311 74,979 71,858 110,373

30. 4,825 4,101 15,138 3,045 3,045 34,066 75,186 71,321 111,940

50 5,511 4,297 17,662 3,408 3,408 34,976 77,723 72,740 116,518

Source: DREW Anadromous Fish Team, September 24, 1999.

Finally, PATH-based tribal harvest recovery estimates are converted into
pounds, assuming average weights of 20.1 pounds per salmon for spring
and summer Chinook, 19.1 pounds per salmon for fall Chinook, and 8.5
pounds per fish for Steelhead. Results for the 30 year and 50 year
benchmarks are displayed in Tables 50 and 51.

Table 50

[Estimated Tribal Harvest of Snake River Stocks in Pounds Following
Restorative Action]{.underline}

> [At the Four Lower Snake Dams, By Species]{.underline}

Project [Spring/Summer Chinook.]{.underline} [Fall Chinook
.]{.underline} [Summer Steelhead .]{.underline}

[Year .]{.underline} [A1 .]{.underline} [A2 .]{.underline} [A3
.]{.underline} [A1 .]{.underline} [A2 .]{.underline} [A3 .]{.underline}
[A1 .]{.underline} [A2 .]{.underline} [A3 .]{.underline}

> \-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--thousands of pounds
> of salmon\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

**Wild Salmon and Steelhead Only:**

0 10.7 10.7 10.7 8.9 8.9 8.9 13.0 13.0 13.0

10 28.2 26.8 27.2 16.8 16.8 24.6 19.0 18.4 18.9

30 54.7 46.1 149.3 21.9 21.9 133.1 93.6 90.7 113.1

50 62.4 48.2 174.6 21.5 21.5 133.6 94.8 91.1 117.6

**Wild + Hatchery Salmon and Steelhead:**

0 20.6 20.6 20.6 36.2 36.2 36.2 255.7 255.7 255.7

10 36.7 35.3 43.1 41.2 41.2 87.9 272.3 269.9 356.3

30 97.0 82.4 304.2 58.2 58.2 650.7 639.1 606.2 951.5

50 110.8 86.4 355.0 65.1 65.1 668.0 660.6 618.3 990.4

\*Developed from data provided by PATH and the DREW Anadromous Fish
Team.

> Table 51
>
> [Estimated Tribal Harvest of Snake River Stocks in Pounds Following
> Restorative Action]{.underline}
>
> [At the Four Lower Snake Dams -- All Species Taken
> Together]{.underline}
>
> [Project Year]{.underline} [Wild Salmon .]{.underline} [Wild +
> Hatchery Salmon]{.underline}
>
> [A1 .]{.underline} [A2 .]{.underline} [A3 .]{.underline} [A1
> .]{.underline} [A2 .]{.underline} [A3 .]{.underline}

\-\-\-\-\-\-\-\-\-\-\-\-\-\--in thousands of
pounds\-\-\-\-\-\-\-\-\-\-\-\-\-\--

30 170.2 158.7 395.5 794.3 746.8 1,906.4

50 178.7 160.8 425.8 836.5 769.8 2,013.4

\*Developed from data provided by PATH and the DREW Anadromous Fish
Team.

Considering these data, several conclusions are apparent.

1.  A2, the alternative that maximizes retrofiting of lower Snake River
    dams, is the poorest of the three alternatives considered. It offers
    lower salmon and steelhead stock levels than even A1, the
    approximate status quo alternative. From a biological perspective,
    it is unlikely to meet salmon recovery objectives within any
    reasonable timeframe. A2 provides only marginal recovery of tribal
    harvest, and offers little relief to the long term damages and
    associated suffering incurred by tribal peoples.

2.  A1, the "status quo" NMFS Biological Opinion option, is little
    better. As with A2, it

> offers limited hope of salmon recovery within a timeframe that
> reasonably addresses the
>
> ongoing suffering of the Treaty tribes. At the 30 year benchmark, it
> would support
>
> only 7 percent more tribal harvest on wild Snake River stocks than
> would A2, and about
>
> 6 percent more tribal harvest on hatchery and wild stocks taken
> together. These are very
>
> small improvements from presently impaired harvest levels.

3.  A3, the drawdown alternative, would produce 2.4 times more tribal
    harvest of Snake River wild salmon and steelhead stocks, compared to
    Alternative A1 (2.6 times more harvest compared to A2). A3 is also
    significantly more likely to reach biological recovery goals for
    salmon within a reasonable time period. By Year 50, estimated A3
    tribal Snake River harvests increase by 1.7 million pounds --
    increasing current diminished tribal harvests from all
    Columbia/Snake system steelhead stocks (Table 40) by 2.3 times.

> Given the recovery estimates of PATH and DREW's Anadromous Fish Team,
> the A3
>
> alternative falls significantly short of meeting either CRITFC's total
> recovery goals for
>
> Snake River stocks, or the estimated damages done to Treaty-protected
> tribal salmon by
>
> the Snake River dams in prior years.
>
> However, of the alternatives considered in this Corps of Engineers
> process, A3 is the only
>
> Action that would signal a substantive change in the cumulative
> destruction of Snake
>
> River salmon, and redirect river actions toward significant
> improvement of the cultural
>
> and material circumstances of the tribes -- with attendant reductions
> in the pain, suffering
>
> and mortalities suffered by tribal peoples.

**10.4 Assessment of Tribal Impacts Associated with Tribally Important
Riverside**

**Areas from Lower Snake River Project Alternatives**

The lower Snake River corridor - from Ice Harbor Dam upstream to
slightly above Lewiston, Idaho on the Snake River, and for approximately
four miles upriver on the Clearwater River from its confluence with the
Snake - represents approximately 150 miles of ceded tribal river-bottom
lands. Here, the ancestors of the Nez Perce Tribe, Confederated Tribes
of the Umatilla Indian Reservation and the Yakama Indian Nation lived,
and conducted the full range of harvest, social and spiritual activities
associated with their lifeways. The Nez Perce Tribe consider that upper
riverside sections inundated by Lower Granite reservoir were alienated
from the Nez Perce by actions of the United States and some Indians
leading to the "steal treaty" of 1863 - and that this area should, in
fact, be considered as part of the Nez Perce Reservation.

Tribal members continued to live along these river sections, practice
their Treaty- protected fishing, hunting and gathering activities,
conduct cultural and spiritual ceremonies, and bury their dead at usual
and accustomed places, until construction of the four lower Snake dams
and filling of their reservoirs progressively eliminated living tribal
peoples from these areas, starting in the mid 1950's. Villages important
to the tribes existed, particularly at the mouth of tributary rivers,
such as the Tucannon, and the Palouse. Preliminary work has identified
between 600 and 700 important tribal cultural sites in the areas
affected by the four dams and reservoirs - and this is considered by the
tribes to be an underestimate, for the tribes lived and traveled
[throughout]{.underline} the referent river corridor.

Tribal members coexist with their rivers and streams, with the lands
that surround them, with the other creatures who share them, and with
their ancestors who rest in the lands. The rivers and streams are
considered part of the land, and part of the people who live there. Many
tribal commentators have described the river waters as "the blood that
flows through the veins of our mother the Earth to give us life". Tribal
peoples view the waters of the river and certain important resources
such as the salmon as important elements of their religion - and hold
them sacred. These relationships have been described as "pillars of
tribal culture", which provide substantial comfort to tribal members,
particularly during the adverse impacts that tribes have endured from
contact times to the present.

> **10.4.1 Alternative A1 - Present Operations with 1995 Biological
> Opinion**

The A1 Project Alternative maintains Lower Granite, Lower Monumental,
Little Goose and Ice Harbor dams in place, and operates them within fish
constraints established by NMFS's 1995 Biological Opinion. This
alternative continues the separation of some members of the Nez Perce,
CTUIR and Yakama Reservations from the grounds in which their ancestors
are buried along the lower Snake River stream-sides - and renders it
impossible to care for their graves[^497]. The four reservoirs preempt
150 miles of Treaty-protected tribal fishing, hunting, and harvesting of
roots, plants and berries at usual and accustomed stream-side locations.
They prevent the subject tribes from holding religious and cultural
ceremonies along these 150 miles of stream-side in the places the tribes
were accustomed to hold them - and filter the spiritual relationship
between the tribes, their ancestors and their spiritual places through
many feet of reservoir waters. Effectively, the dams and reservoirs
inundate most substantial aspects of cultural, material and spiritual
life along the lower Snake River for affected tribal peoples - and
separate the tribal peoples from them -- impairing the close bond
between these people and their lands.

The four lower Snake River dams were some of the last constructed in the
Columbia/Snake system. It is possible to gain some insight into the
magnitude of these inundations for tribal peoples by identifying that
the four dams have a combined estimated surface area of about 33,890
acres[^498], and comparing this acreage to the total areas still
retained by the Nez Perce, CTUIR and Yakama, from Table 39. Results are
displayed in Table 52.

Table 52

[A Comparison of Area Inundated by the Four Lower Snake Dams
with]{.underline}

[Remaining Tribal Ownership of Lands by the Nez Perce, CTUIR and
Yakama]{.underline}

Tribally 4 Reservoir Ratio of Reservoir Surface

[Tribe]{.underline} [Owned\*]{.underline} [Acreage]{.underline} [Area to
Tribal Acreage .]{.underline}

\-\-\-\-\-\-\--in acres\-\-\-\-\-- -in percent-

Nez Perce 108,000 33,890 31.4

CTUIR 158,000 33,890 21.4

Yakama 1,126,000 33,890 3.0

\*Owned by the tribe and/or by individual tribal members.

We conclude that continued inundation of reservoir areas under A1 has a
significant land-related adverse impact on tribal peoples of the Nez
Perce, CTUIR and Yakama Reservations.

> **10.4.2 Alternative A2: Maintenance of the Four Lower Snake Dams at
> the A1**
>
> **Standard, with Added Facilities to Transport Salmon by the Dams**

Operation of the four lower Snake River dams under A2 will have the same
inundation effects as for A1. We consequently conclude that Alternative
A2 inundates lands that are significant for the peoples of the Nez Perce
Tribe, the Confederated Tribes of the Umatilla Indian Reservation and
the Yakama Indian Nation. The nature of these losses of land for tribal
peoples are discussed in the preceding section and in other parts of
this report - and are incorporated here by reference.

> **10.4.3 Alternative A3: Permanent Drawdown of the lower Snake River
> Dams**

Alternative A3 would permanently drain the four Lower Snake Reservoirs,
returning flows to "near natural" conditions. This action would create
substantial land-based benefits for the peoples of the Nez Perce Tribe
and the Confederated Tribes of the Umatilla Reservation - and would also
significantly benefit members of the Yakama Indian Nation. It would
allow these tribal peoples to renew their close religious/spiritual
connection with 33,890 acres of lands where their ancestors lived and
are buried - and allow them to properly care for their grave sites. They
could return to more than 600-700 locations where they are accustomed to
live; fish; hunt; harvest plants, roots and berries; conduct cultural
and religious activities and ceremonies; and pursue other aspects of
their normal traditional lives. The area that would be unflooded is
almost one-third as large as all lands that remain under Nez Perce
ownership - and fully one-fifth as large as lands remaining under CTUIR
ownership. So A3 offers substantial opportunity to improve the ongoing
cultural and material lives of these tribal peoples.

Save for the disputed area under Lower Granite reservoir, these
inundated lands lie outside formal Reservation boundaries. The magnitude
of benefits associated with renewed tribal access under A3 would be
principally conditioned by four factors:

1\. **Treaty-based required tribal access to Usual and Accustomed
fishing places**.

> This requirement has been discussed extensively in the foregoing
> document. No further elaboration is provided here.

2\. **Treaty rights of the tribes to hunt and gather on off-Reservation
ceded public lands**.

> Tribal treaty rights to hunt and to gather roots, plants and berries
> off-reservation are conditioned by the availability of public lands.
> If "uncovered lands" of the lower Snake River remain in the public
> domain, benefits for the tribes will be extensive. If uncovered lands
> are converted to non-Indian private ownership benefits to tribal
> peoples will be diminished.

3\. **Taking of tribal lands prior to construction of lower Snake River
dams and reservoirs.**

> In order to construct the dams and reservoirs of the lower Snake
> River, the federal government obtained a number of individual
> allotments held by tribal peoples. Authority for such Indian
> allotments originated with the Dawes Act of 1887. If the lower Snake
> lands are uncovered, and these lands returned to individual tribal
> allottees, or to the tribes in general, tribal benefits will be
> significant. If these lands are utilized for other federal or
> non-tribal private purposes, potential tribal benefits would be
> reduced or eliminated. Further, action to convert lands taken from
> tribal allotees during the dam construction process to private
> non-tribal ownership might represent an inappropriate "conversion by
> process" of tribal lands.

4.  **Deed Uncovered Lands to the Tribes as Compensation for
    Treaty-related damages.**

> Tribal leaders assert that the federal government should deed lower
> Snake River lands uncovered under A3-Drawdown to the tribes -- as
> in-part compensation for tribal losses incurred due to these dams over
> the approximately 40-year period of their operation - and/or as
> compensation for some of the other adverse actions detailed in this
> report. Such a deed of uncovered reservoir lands would substantially
> increase tribal benefits associated with drawdown, and assist tribal
> cultural and material recovery.

Impacts associated with land-based effects on study tribes from the A1,
A2 and A3 lower Snake River alternatives are summarized in Table 53

Table 53

[Tribal Flooding Impacts from Lower Snake River A1, A2 and A3 Project
Alternatives]{.underline}

**A1** **A2** **A3**

[Impact]{.underline} [Dams Remain+Biop.]{.underline} [Dams+Added Fish
Passage]{.underline} [Reservoirs Gone/Breach Dams]{.underline}

Fishing Access to many salmon Would reestablish usual and

sites. fishing sites preempted. Same as A1. accustomed fishing locations

Some alternative sites along 150 miles of river.

available (principally,

non-salmon).

Hunting/ 33,890 acres flooded. 33,890 acres flooded. Up to 33,890 acres
restored for

gathering tribal Treaty-based hunting and

areas. gathering of roots, berries and

plants.

Tribal Eliminated 33,890 Same as A1. Would add land-based tribal

land base. acres from tribal use. opportunities up to one-third

the size of present Nez Perce

land holdings, or, up to one-

fifth the size of present CTUIR

land holdings.

Cultural Floods more than 600- Would enable tribal peoples to

activities. 700 locations where Same as A1. reestablish contact and use
of

cultural activities over 600-700 usual and

occurred. accustomed locations.

Religious/ Floods numerous tribal Would reunite tribal peoples

Spiritual. graves. Involved violation with the land, the river and

and stealing of the bodies Same as A1. the creatures of the lower

of some ancestors. Snake. Would allow tribes to

Separates tribal peoples care for the graves of loved

from their land, their rivers, ones. Would recover sacred

and their sacred and and ceremonial places.

ceremonial places.

> **10.5 Cumulative Impacts from Lower Snake River Project
> Alternatives**

This section summarizes the trend over time of federal and other
non-Indian actions and policies identified in this report, the
cumulative effects of such actions and policies on the study tribes, and
the role that each Project Alternative for the four lower Snake River
dams would play with respect to such actions, policies and cumulative
effects. Working from the information supplied in this report, we pay
particular attention to four indicator areas: **cumulative effects on
distribution of wealth between tribal and non-tribal peoples**;
**effects on material wellbeing and health; effects on tribal culture
and spiritual wellbeing;** and **cumulative effects on tribal
self-sufficiency, self-control and self-empowerment**.

> **10.5.1 Cumulative Effects on Distribution of Wealth**

The cumulative effects on distribution of wealth from dominant policies
and actions in the Snake and mid-Columbia river regions are clear cut.
Put simply, from treaty times to the present, non-Indians have followed
a steady policy of appropriating for themselves virtually every tribal
asset that was perceived to be of value - including assets reserved by
the tribes in their treaties with the United States.

In the mid and late 1800's, these appropriations were achieved by
application of force and violence: by non-Indians coming onto tribal
Reservation lands and resisting any attempts to remove them; by
harassing, threatening and exerting physical injury and outrage upon
Indians who attempted to leave the Reservations to visit their
Treaty-guaranteed off-reservation harvest locations; and by building
weirs downstream of tribal harvest sites, that blocked passage of the
salmon to these further upriver tribal locations. As the twentieth
century progressed, harassing actions have diminished - although they
have not disappeared in the present day[^499].

Following enactment of the Treaties in the mid-1800's, transfer of
wealth from tribal to non-tribal hands was further facilitated by "laws
(and agreements) of convenience". These "laws of convenience" took
advantage of the disempowered status of treaty tribes, or ignored the
tribes altogether. Some of these initiatives, such as the "steal treaty"
with some Nez Perces in 1863, retroactively legalized previous "land
grabs" of tribal treaty assets. Other actions, such as "tribal land
surplusing" provisions in the Dawes Act of 1887, taking of tribal lands
for railways and other right-of-ways, and substantial "surveying errors"
in determining reservation boundaries (always with the effect of
transferring tribal lands to non-Indians), acted to strip further
valuable tribal Treaty assets away from the study tribes.

The Dawes Act also established and "legalized" a procedure which,
whatever its intent, has over the years facilitated conversion of vast
acreages of tribal Treaty land and its associated wealth to non-Indian
ownership.

Only the peoples of the Warm Springs Reservation have been able to
effectively resist these efforts to take tribal lands.

The four dams of the lower Snake River were built in the mid-twentieth
century, and played no direct part in the actions cited above. However,
these (largely) prior actions initiated and maintained a conversion of
wealth from tribal into non-tribal hands by federal and associated
dominant entities, which continues to the present day. **Construction
and operation of the four lower Snake River dams [have]{.underline}
played a significant role in continuing this cumulative taking of tribal
treaty assets from the tribes, and in converting them to non-tribal
hands, from the mid-twentieth century to the present**.

A principal manner in which tribal treaty wealth has been taken in the
twentieth century is by **transforming the production function of the
river**. From construction of the earliest dams in the Columbia and
Snake system through to the present, dams have changed what the lands
and waters of the Columbia/Snake basin produce. This transformation has
substantially increased production of hydroelectric energy, irrigated
crops and associated infrastructures - but substantially reduced, and
sometimes eliminated treaty-protected salmon resources; and inundated
tribal sacred and ceremonial places and usual and accustomed harvesting
and gathering locations, that have been at the core of tribal existence
since earliest times.

Early actions by non-Indians to secure tribal lands and other assets,
construction of hydroelectric facilities other actions in the first half
of the twentieth century, and subsequent construction of the lower Snake
River dams, have each played their role in sustaining this policy,
cumulatively stripping Tribal assets from tribal hands, and in
consequence, reducing tribal wealth.

Tribal and non-tribal peoples usually do not agree on exactly how to
describe or measure the value of a salmon, or of other treaty-protected
resources. However, Indians and non-Indians do agree that **the wealth
that can be produced from the river and stream-side lands of the Snake
River corridor is of [high value]{.underline}**. From an economic
perspective, it is the struggle over what should be produced by the
resources of the Snake River, and over how this production should be
shared, that has characterized conflict between the tribes and other
entities on the river.

In this debate, the Treaty tribes have suffered substantial net losses -
and the sustaining guarantees provided by the United States in the
Treaties, and affirmed in subsequent court decisions, have usually been
ignored and/or overridden. This has resulted, over time, in a cumulative
injustice - the conversion of Treaty and other legally protected assets
away from the tribes, to benefit non-Tribal peoples of the region.

Prior evidence in this report, by the PATH Scientific Review Panel
(1998)[^500], and from DREW's Anadromous Fish Team, identify that
selection of Project Alternative A1 (Status Quo with Biop.) will
continue the cumulative trends and policies that have impoverished the
tribes - through continued inundation of tribal Usual and Accustomed
areas along the river -- and by offering low probabilities of salmon
recovery and delisting for at least another 48 years.

Selection of A2 (Status Quo + Added Fish Passage Facilities) also fails
to remedy inundation of tribal lands and resources along the lower Snake
River corridor, and indicates salmon recovery results which are inferior
to A1. Consequently, A2 will also continue cumulative policies

detrimental to the tribes - for at least another half century with
respect to salmon, and indefinitely with respect to flooding of tribal
stream side areas and resources.

Exacerbating these conclusions is the fact that the "salmon recovery"
estimates presented in PATH Scientific Review Panel (1998) refer to
"delisting" of spring/summer chinook, **not to reestablishment of
significant salmon harvests for the Treaty tribes**. In fact,
examination of data from PATH and DREW suggests that reestablishment of
substantial tribal fisheries is unlikely under either A1 or A2 on any
schedule that will provide meaningful relief for the tribes.

Consequently, under either of these two alternatives, one can expect
continued cumulative net transfers of wealth potentially associated with
the study area, from tribal to non-tribal hands.

Selection of Alternative A3 (Dam Breaching and Reservoir Drawdown to
Natural River) would have an opposite cumulative effects impact from A1
and A2. It would remove the reservoirs presently covering important
tribal usual and accustomed locations along approximately 150 miles of
lower Snake riverside, and which currently prevent tribal fishing,
hunting and gathering at traditional locations. Data from PATH
Scientific Review Panel (1998) indicate that under A3, the probability
of delisting salmon approaches 80 percent by the 48 year benchmark. DREW
analysis of that PATH data also suggests an enhanced level of tribal
fishing. From a cumulative impacts perspective, selection of A3 would
reverse an almost century and one-half long trend to cumulatively strip
tribes of their valued assets, even where such assets were
treaty-protected - and move toward "rebalancing" of wealth distributions
between the tribes and non-tribal peoples of the study area.

> **10.5.2 Cumulative Effects on Tribal Health and Material Wellbeing**

Summary comparison of the cumulative effects of project alternatives on
tribal health and material wellbeing is foreshadowed in the previous
report section. Data on pre-treaty health and material circumstances of
the subject tribes in the early to mid 1800's is limited - and their
lifestyle, and that of non-Indian neighbors, did not much resemble
lifestyles of today. But we do know that the tribes generally had ample
resources for sustenance and trading - that for the most part, they
lived stable peaceful lives - and that their command over the material
and spiritual elements that secured their lifeways left them satisfied
at family, societal and individual levels.

Epidemics of "white man's diseases" cut a huge swathe through the lives
of tribal members - yet those who survived were still in control of
their lands and other resources, and the ability to access and utilize
them. Hence, they controlled the basic elements of their lifestyle.

While the tribes ceded vast amounts of land to the United States in
their treaties, they were careful to retain for themselves the key
elements by which they had always survived - the salmon, and the waters
that sustained them; access to the lands over which they hunted; and the
lands where they gathered roots, plants and berries. Tribal
off-reservation hunting and gathering was to be limited to public lands,
which could arguably have been expected to diminish in scope over time.
No such limitation was agreed to in the Treaties, or in other
discussions between the tribes and non-Indians, with respect to tribal
fishing rights - and consequently, over time, fishing rights, always a
central element of survival for the tribes, has come to have greater and
greater relative importance.

Our report documents the cumulative erosion of tribal control of and
access to key land elements required for their survival - and of the
salmon and other food resources upon which they have always depended.
Loss of salmon is also severe because today\'s tribes are isolated on
distant reservations, where fishing provides one of the few potential
activities where tribes posses a measure of comparative advantage in the
modern highly competitive world.

Today, as a result of these losses, tribal families endure poverty at
between two and four times the rates reported for non-tribal neighbors.
Unemployment reaches as high as 80 percent in winter months. Tribal
peoples have life expectancies far lower than for residents of Idaho,
Washington and Oregon as a whole, and are dying at rates that are
between 20 percent and 130 percent higher than for non-tribal neighbors,
depending on the tribe considered. Deaths associated with risky behavior
and poor diet are particularly noticeable. For example, tribal rates of
accidental death in motor vehicles exceed those for non-tribal neighbors
by 4 times or more. In general, the death profile for the tribes is
consistent with socio-psychological predictors where peoples are
progressively deprived of their basic means for providing their own
foods, assuring their safety, and maintaining sufficient control over
their own lives.

As we have noted earlier, much of this cumulative decline occurred
before construction and operation of the four lower Snake River dams -
and should not be directly related to them. But the four lower Snake
dams represent important recent elements in this long line of actions -
the cumulative effect of which has been extreme impoverishment and
elevated levels of death for tribal peoples.

It follows from the information and discussion in this report that
Alternative A1 (Status Quo with Biop) will continue the policies of the
past. The four dams will continue to flood important tribal usual and
accustomed activity areas and deny the tribes Treaty-protected harvests
of salmon. In so doing, they will also continue to play a significant
role in exerting the adverse pressures that cumulatively and
increasingly threaten tribal subsistence, economic wellbeing and health.

As also noted earlier, Alternative A2 (Status Quo + Added Fish Passage
Facilities) is reportedly more adverse for the tribes than A1. It also
continues the inundation of 33,890 acres of tribal Usual and Accustomed
area, and is more adverse for salmon. Its selection would therefore
somewhat increase the adverse cumulative pressures resulting in tribal
poverty, unemployment, ill health and death, over those to be expected
if A1 is selected.

Selection of Alternative A3 (Dam Breaching with Drawdown to Natural
River) would signal a directional change in the cumulative actions that
have adversely affected the tribes over the past 140 years. It would
restore access and opportunity for tribal members to their usual and
accustomed locations throughout the 150 miles of inundated stream-side.
It would also begin to restore the salmon - and eventually enable
significant harvesting for tribal subsistence and/or economic purposes.
Such actions may not result in immediate improvements to tribal material
wellbeing and health - but over future years, as the salmon stocks
became stronger, so to would the health and economic wellbeing of tribal
members. These improvements would occur cumulatively over time, just as
the prior string of adverse effects imposed on the tribes and on the
river occurred cumulatively. Evidence cited in this report also
indicates that these improvements would be broadly distributed among
tribal peoples.

> **10.5.3 Cumulative Effects on Tribal Culture and Spiritual
> Wellbeing**

When tribal respondents are asked about their survival, if the salmon is
lost, they inevitably answer first in spiritual or religious terms. They
tell us that the spirit of the salmon and the spirit of the tribal
peoples are one. Sometimes they describe the river water and the salmon
as *sacrament*. They are careful to always place spiritual concerns
first, before even material subsistence, in discussing the salmon.

This report provides extensive information on loss of tribal resources
and activity opportunities. It also provides information concerning
inundation of cultural sites along the lower Snake River. It is
impossible to reduce religion or spirituality to an equation, or a
numeric table. Yet, as noted, this spiritual/religious linkage with the
salmon is evident in many statements from tribal respondents.

It is our perception that the linkage between tribal
spirituality/religion and the salmon may not be much affected when
salmon stocks are healthy and considered changes to stock size are
relatively discreet. When the existence of salmon stocks are
*threatened* or *endangered*, however, tribal commentary indicates that
this threatens and endangers the spiritual and religious base of the
peoples of the referent tribes as well.

Cumulatively over time, adverse impacts have reduced salmon abundances
in the Snake River, until today, several key species are *endangered*.
In this way, it may be fairly concluded that, today, a core element of
tribal spiritual/religious belief and practice is also *endangered*.

While the four lower Snake dams contributed only their own discrete
share of the total decline of Snake River salmon stocks, their impact on
*endangerment* of salmon stocks, and on tribal religious practices and
beliefs may be far more significant. Occurring relatively recently in
the chain of events adverse to salmon and the tribes, both tribal
perspective and review of PATH Scientific Review Panel (1998) suggests
that these four dams may be the "straws that are breaking the salmon's
back" for Snake River anadromous stocks -- and in so doing, beaking the
tribes' backs as well..

There is a probability of between 50% and 65% that selection of
Alternative A1 will not result in recovery of Snake River salmon to
"delisting" levels for at least 48 years. It is therefore concluded that
selection of A1 continues the significant endangerment of these stocks -
and **significantly endangers a central element of spiritual/religious
practice and belief** **for the Snake River tribes**.

As noted previously, selection of Alternative A2 will result in more
adverse impacts on salmon than for A1. Consequently, A2 is also more
threatening to tribal spiritual/religious practices and beliefs than is
A1.

Selection of Alternative A3 poses an almost 80% probability of recovery
of referent salmon stocks to delisting levels within 48 years. Such
removal of the stocks from endangered status would also remove the
danger of substantial adverse impacts on religion and culture of the
Snake River tribes - and restore to health one of their essential
religious materials - the salmon.

> **10.5.4 Cumulative Effects on Tribal Self-Sufficiency, Self-Control
> and**
>
> **Self-Empowerment**

Economic commentators have identified tribal self-sufficiency as a key
required element to enhance tribal wellbeing[^501]. Bachtold (cited in
prior sections of this report) has identified an adequate level of
control over one's economic, social and psychological environment as
essential for individual and communal health. Representatives of the
Columbia/Snake study tribes have been consistent over the past several
decades in reporting that Columbia Basin dams were killing salmon - and
in opposing the progressive eradication of the salmon resources of the
Snake and Columbia rivers and their tributaries. **At no time, from
construction of earliest dams to the present, has their advice been
sufficiently credited and acted upon by dominant hydroelectric
authoritie**s. This disempowerment of the tribes is of continuing
concern. Tribal commentators, in talking about tribal benefits from
renewal of the salmon, again and again emphasize the need for greater
consideration of tribal knowledge and recommendations in regional
decision-making affecting survival of the salmon.

Throughout the process of examining alternatives at the four lower Snake
River dams, the study tribes have been consistent in advising that only
Alternative A3 (breaching of the dams and permanent drawdown to natural
river) offers a substantial step toward salmon recovery. More recently,
the findings of PATH Scientific Review Panel (1998) concur. Viewing the
cumulative process of decision-making with respect to dams and salmon in
the basin, selection of Alternatives A1 and A2 would continue to
disregard tribal knowledge and advice concerning survival of the salmon
-- and with them, the Tribal Treaties. Conversely, selection of
Alternative A3 would mark a rebalancing in favor of significant
consideration of knowledge and recommendations provided by the tribes -
and a feeling of re-empowerment regarding conservation and management of
salmon among the tribes themselves.

> **10.5.5 A Summary of Cumulative Impacts of Lower Snake Dams on the
> Study**
>
> **Tribes**

Our findings with respect to cumulative impacts on the study tribes from
project alternatives considered for the four lower Snake River dams are
displayed in Table 54.

Table 54

[Summary of Cumulative Tribal Impacts from Lower Snake River A1, A2 and
A3 Alternatives]{.underline}

**A1 A2 A3**

[Impact]{.underline} [Dams Remain+Biop.]{.underline} [Dams+Added Fish
Passage]{.underline} [Reservoirs Gone/Breach Dams]{.underline}

Wealth Non-tribal interests Begins rebalancing of the

distribution. continue to accumulate river's production function.

wealth. Tribes Some wealth transfers from

continue to lose -Same as A1, but slightly non-Indian interests back to

valuable assets - more adverse. - the tribes begin, as stream

particularly Treaty sides are unflooded and

assets associated salmon harvests increase

with the salmon. by 1.7 million pounds.

Tribal health Will continue to Will begin to reverse

and material preempt tribal cumulative conditions with

wellbeing. subsistence and respect to tribal nutrition and

economic activity. -Same as A1, but slightly health. Will have a
positive

Will continue more adverse. - effect, over time, on tribal

adverse effects on poverty. Will improve, on a

tribal nutrition, broad basis, tribal subsistence,

self-perceptions and where appropriate, tribal

and health. economies.

Spiritual/ Continues to Will restore salmon to the

religious endanger the salmon, point where they are no

wellbeing. one of the key longer endangered. This will

elements that -Same as A1, but slightly generate major benefits for

provide religious, more adverse. - key elements of tribal religion

spiritual and cultural and spirituality - which will

definition for the be removed from

peoples of the study endangerment as well.

tribes.

Tribal Continues to ignore Credits tribal Treaties and

empower- the Treaties -- and the knowledge. Would encourage

ment. knowledge and feelings of empowerment

recommendations of - Same as A1. - and self-worth among

tribal peoples tribal peoples.

concerning survival

of Snake River salmon.

Disempowers the tribes.

> **10.6 Overall Summary Assessment of Lower Snake River Project
> Alternatives**

Finally, we apply our findings from previous sections of this report to
answer two overriding questions.

-   Does each alternative, A1, A2 and A3 comply with tribal Treaty and
    tribal trust obligations?

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-   Does each alternative, A1, A2 and A3 comply with EPA's environmental
    justice criteria?

**10.6.1 Tribal Treaty and Trust Obligations**

Extensive discussion in this report identifies that the salmon are
"pillars of the tribal world". Salmon stand at the center of tribal
culture, have strong linkage to tribal subsistence capabilities and
health, and have significant spiritual meaning for the tribes. To this
end, the study tribes each carefully preserved their right to fish for
salmon in perpetuity -- and the United States guaranteed those rights --
in the treaties made between them in the mid-1800's.

Table 43 identifies that, today, despite Treaty guarantees, the salmon
that were to provide the cornerstone for tribal material and cultural
survival are almost eliminated. In the farthermost upriver areas salmon
now reach, tribal harvests approximate one tenth of one percent of
harvests in treaty times. Immediately above the four lower Snake River
dams, Nez Perce salmon harvests stand at only one percent of treaty
levels. Below the lower Snake River dams, in Zone 6 on the Columbia
River, tribal harvests of all salmonid stocks today amount to less than
ten percent of tribal needs.

Initially, these losses of tribal salmon harvests were most often
associated with direct action by non-Indian interests competing with
tribal fishers or denying tribal access to the usual and accustomed
fishing locations guaranteed in the tribal Treaties. Over the past three
quarters of a century, the primary cause of loss of tribal salmon has
been transformation of the production function of the river -- to
produce substantial amounts of electricity, to irrigate agriculture, to
facilitate water-borne commercial transportation, to better enable
harvesting of forests, and to receive increasing amounts of waste.

Construction of dams has played the leading role in this transformation.
In virtually all cases, tribal opposition to dam construction, and
tribal concern over adverse effects on Treaty salmon, was ignored, or
given negligible weight. Some proponents of dam construction recognized
that effects on Treaty salmon were uncertain, but assured the tribes
that modern technology would be able to effectively mitigate against
adverse effects. The Treaty harvest information presented in this report
identifies that such mitigation efforts have failed.

The four lower Snake River dams do not have sole responsibility for the
devastation of tribal Treaty harvests. But they have played a
significant role, and this role continues through inundation of spawning
areas and via passage losses in each present year. Beaty, Yuen, Meyer
and Matylewich (1999) estimate the contribution of these four dams to
losses of tribal Treaty salmon harvest at between 8.4 and 14.3 million
pounds annually, benchmarked to their period of construction.

PATH, and its panel of independent experts, estimate that most of the
beneficial effects on salmon from the three lower Snake River
alternatives considered here (A1: Status Quo/ A2: Status Quo + Improved
Transportation/ A3: Dam Breaching) will occur within 30 years (Table
51). Expected impacts on tribal harvests of salmon and steelhead are
summarized by alternative at the 30 year benchmark in Table 55.
Probability of removing wild spring/summer chinook salmon from the
Endangered Species List is at the 48 year benchmark. Estimates of
increased tribal harvests relate to present-day catch estimates from
Table 40.

Table 55

[Summary of Impacts on Total Treaty Harvests of Salmon and Steelhead
from]{.underline}

[Alternative Actions Affecting Lower Snake River -- After 30
Years]{.underline}

Improved Total Probability of Delisting

[Project Alternative]{.underline} [Tribal Harvest]{.underline} [Wild
Spring/Summer Chinook]{.underline}

\--'000 lbs.\-- -in percent-

A1: Status Quo 482 35-42

A2: Status Quo + Transportation 434 30-40

A3: Dam Breaching 1,594 80

The historical record indicates that agencies have been too optimistic
concerning their ability to protect and recover Columbia/Snake system
salmon. Considering that historic tendency, PATH's failure to
specifically incorporate adverse stock trend data under status quo
conditions in their model, and the small improvements forecast by PATH
for A1 and A2 relative to A3, there also appears to be a significant
risk that, over time, tribal Treaty-protected salmon stocks could become
extinct if either A1 or A2 are selected as the preferred action.

**We conclude that only selection Alternative A3 -- breaching the lower
Snake River dams -- offers the Treaty tribes a reasonable prospect for
significant reversal of losses to Treaty-guaranteed salmon and steelhead
harvests, and for substantial relief from the risk of extinction of
Treaty-protected stocks.**

**10.6.2 Environmental Justice for the Tribes**

EPA's Environmental Justice (EJ) criteria require assessment of whether
project actions, and associated cumulative effects, have impacted tribes
and other identifiable groups of citizens more or less equally, when
compared to affected citizens as a whole (Section 2.1.1.5). The EPA
guidance poses two key questions to be addressed in Environmental
Justice assessments[^502].

-   Does the potentially affected community include minority or
    low-income populations?

-   Are the environmental impacts likely to fall disproportionately on
    minority and/or low income members of the community and/or tribal
    resources?

The response to EPA's first question is self-evident. **The five study
tribes, by definition, include cultural minorities**.

To assess whether the study tribes have/would be disproportionately
affected by impacts from lower Snake River project alternatives, we
select four generalized Environmental Justice (EJ) assessment factors
relevant to tribal analysis, and identified by EPA[^503]. We then
utilize findings from this report to assess alternative effects for each
factor (Table 56). Since impacts from Alternatives A1 and A2 are little
different, we summarize their impacts together, and then summarize
impacts from Alternative A3.

Table 56

[Summary of Environmental Justice Effects for the Tribes]{.underline}

[from Lower Snake River Project Alternatives]{.underline}

[EJ Factors .]{.underline} [Relative Effects on the Tribes
.]{.underline}

**Alternative A1 (Status Quo)/ Alternative A2 (Status Quo +
Transportation):**

Income Level/ **:**Tribal families are impoverished and unemployed at
3-4 times levels of

Health. Washington/Oregon/Idaho residents as a whole (Table 41).
Winter-time

tribal unemployment reaches as high as 80 percent.

**:**Tribal members are dying at from 20 percent to 130 percent higher
rates

than non-Indian residents.

**:** Recent analyses describe tribal health and health care access as
"poor".

**:** Implementation of A1 or A2 would have no substantial effect in

remedying these cumulative adverse conditions -- and if recovery

estimates are too optimistic, could make them worse.

Life-support **:** Extensive information in this report places salmon at
the center of the

Resources. study tribes' cultural, spiritual and material world. Table
43 identifies

that salmon guaranteed to the tribes by Treaty has almost entirely been

lost. Tribal spokespersons and health experts cited throughout this
report

have identified the devastating effect these losses have had on tribal

culture, health and material wellbeing.

**:** Beaty, et.al (1999) identify lower Snake River dams have
contributed

substantially to destruction of these life-support resources.

**:** Selection of A1 or A2 would not significantly change these
cumulative

conditions -- and the pain, suffering and premature deaths of tribal
peoples

would continue for decades.

Economic base. **:** The cumulative effects of dam construction have
transferred potential

wealth produced in the river basin from the salmon on which the tribes

depend to electricity production, irrigation of agriculture, water
transport

services and waste disposal, these latter primarily benefiting
non-Indians.

These transfers have been a significant contributor to gross poverty,

income and health disparities between the tribes and non-Indian
neighbors.

**:** Selection of A1 or A2 would continue these conditions and
disparities.

Inconsistent **:** Historically, agencies asserted confidence that they
could manage

Standards. uncertainty concerning adverse impacts on salmon during
construction of

the dams that facilitated wealth transfers from the tribes to
non-Indians.

Some of the same agencies now claim to be risk adverse, when

considering more substantial remedial action which would recover salmon

and result in some measure of rebalancing of wealth to improve the

circumstances of tribal peoples.

Cont'd. on p. 234.......

Table 56 Cont'd.

[Summary of Environmental Justice Effects for the Tribes]{.underline}

[From Lower Snake River Project Alternatives]{.underline}

[EJ Factors .]{.underline} [Relative Effects on the Tribes
.]{.underline}

**Alternative A3 (Dam Breaching):**

Income Level/ **:** A3 will not be sufficient to fully restore tribal
harvests to the levels obtained

Health before the lower Snake River dams were built. But A3 is the only
option

that will **substantially** improve opportunities for tribal fishing --
adding 1.6

million pounds to tribal harvests within 30 years. Tribal spokespersons
and

experts cited in this report inform us that as salmon recovery occurs,
tribal

health would improve, tribal incomes would increase, and the cultures of

the five tribes would be strengthened.

**:** Cumulatively, as salmon recovery progressed, A3 could be expected
to

significantly reduce the differences between tribal and non-Indian
material

wellbeing, cited in Table 41, and elsewhere in this report.

Life-support **:** Despite severe damage to most stocks, salmon and
water remain the central

Resources. elements of tribal cultural, spiritual and material survival.
Today, beset by a

narrow on-Reservation resource base, and still coping with racial
prejudice

and limited opportunity off-Reservation, the tribes continue to first
look to

the salmon as they seek to build a more secure future.

**:** Selection of A3 would significantly reverse a 144 year post-Treaty

cumulative trend that, to date, has resulted in endangerment of the
salmon,

> and consequently, endangerment of tribal peoples - while peoples as a
> whole in the region have prospered.

Economic base. **:** Selection of A3 would provide significant
restoration for salmon. The tribes

have harvested and processed salmon from pre-contact times, and possess
an

economic comparative advantage respecting such activities. A3 would
allow

significantly more tribal harvesting and processing; would facilitate

extended distribution of salmon as food through extended families and to

elders; and would expand the fundamental economic base for tribal

wellbeing.

**:** The positive economic effects discussed here would be expected,
over time,

to significantly reduce the differentials in poverty and unemployment
levels

between tribal members and their non-Indian neighbors.

Inconsistent **:** Selection of A3 would reverse more than a century of
cumulative regional

Standards. takings of the Treaty-protected resources of the tribes --
and provide a step

toward more equitable sharing of potential wealth from the
Columbia/Snake

river basin between tribal and non-tribal peoples.

This report concludes that the study tribes have been unduly and
adversely affected as hydroelectric construction and operation,
including that at the four Lower Snake dams, has proceeded. Further,
tribal peoples they have not benefited commensurately with citizens of
the region as a whole, as new wealth from the transformed river have
been produced and distributed. Selection of either Alternative A1 or A2
would do little or nothing to correct these cumulative inequities.
Alternatively, **selection of Alternative A3 would provide a significant
start to remedy of the Environmental Injustices that the four lower
Snake River dams have vested on the tribes.**

**10.6.3 Final Conclusions Concerning Treaty/Trust Obligations and
Environmental**

**Justice**

Conclusions from the preceding two sections are summarized in Table 57.

Table 57

[Comparison of Lower Snake River Project Alternatives with Respect to
Tribal Treaty]{.underline}

[Obligations and Environmental Justice]{.underline}

**A1** **A2** **A3**

Dams Retained + A1 + Added Dams Breached/

[Evaluative Criteria]{.underline} [Biological Opinion]{.underline} [Fish
Passage]{.underline} [Reservoirs Gone]{.underline}

Meets tribal Treaty & No No Yes

trust responsibilities.

Meets Environmental No No Yes

Justice criteria.

> **10.7 Mitigation Associated with the Four Lower Snake Dams**

The study tribes identify that **complete restoration of their salmon
runs is the single most necessary step in mitigating the cumulative
damages they have suffered**. Of the project alternatives considered
here, only Alternative A3, which would breach the four Lower Snake River
dams, offers such potential.

> **10.7.1 Mitigation Under Alternatives A1 and A2**

As already identified, PATH results identify that neither Alternative A1
nor A2, both of which involve continued operation of the lower Snake
River dams, can provide adequate mitigation of tribal salmon losses.
This said, there are (at least) three elements of unfinished business
with respect to the dams which need to be addressed.

\* Some tribal respondents complain that they were subjected to
"inappropriate practices" and

"broken promises" by persons acting on behalf of the United States,
during and subsequent to

land acquisition and construction associated with the four lower Snake
River dams and their

reservoirs.

> An independent audit of these complaints should be conducted - and if
> they are found to be
>
> substantive, appropriate mitigative action should be initiated.
>
> \* Construction of the four lower Snake River reservoirs has enabled
> temperature-related
>
> adverse discharge into section(s) of the Snake "River**"** that would
> not have been permitted,
>
> had the river section retained its undammed status. Preliminary
> findings from cooperative
>
> study by EPA and the CRITFC tribes also suggest that discharges of
> toxins may be resulting
>
> in deleterious effects on the health of tribal members and other fish
> eaters.
>
> A careful assessment of these emerging data, and the effect that
> discharges into lower Snake River reservoir pools may have on such
> pollutant loadings, is required. Should such assessment identify risks
> for tribal health - appropriate remedial mitigation, both with respect
> to pollution pretreatment and control, and regarding water quality
> standards for receiving waters, should be undertaken.

\* Present operating conditions at the four lower Snake River dams are
creating adverse water

> quality conditions for the survival of anadromous fish. These adverse
> conditions have been identified by CRITFC and other scientists. CRITFC
> staff have developed a mitigative proposal in this regard, and it is
> presently under review by EPA.
>
> Following EPA review, and concurrence with the Treaty tribes, these
> mitigative measures should be implemented under either Alternative A1
> or A2.
>
> **10.7.2 Mitigation Under Alternative A3 - Breach of the Lower Snake
> River Dams**

Alternative A3 represents a substantial step toward recovery of Snake
River salmon stocks. At the same time, uncovering a substantial area
that has been under flood waters for four decades will require careful
mitigative efforts to protect and assist in the recovery of this
streamside system. In this respect, we recommend the following.

> \* The United States should convey the river side lands uncovered
> under Alternative A3 to

tribal ownership and control.

> This would provide in-part mitigation/compensation for the extensive
> and cumulative damages to tribal treaty and trust resources, and the
> takings of wealth from tribal peoples, caused by the four dams in
> earlier years. It would also maximize protection of ongoing tribal
> Treaty rights, and of tribal spiritual and cultural areas along the
> lower Snake River.

\* There are at least 600 to 700 sites of particular spiritual,
religious and material importance to

> the tribes of the present-day Nez Perce, Umatilla and Yakama
> Reservations, that are presently flooded by the four lower Snake River
> dams. Uncovering this area would provide substantial opportunity for
> these tribes - but would also require particular care, so that burial
> sites, other sacred areas and areas important to the tribes material
> and cultural wellbeing would not be damaged or violated.
>
> Action to manage, protect and restore these important Treaty and
> cultural properties should by led by the tribes. (See also the
> preceding recommendation concerning disposition of unflooded lands.)
> Such mitigation should involve two stages.
>
> : Development of a Tribal Management and Protection Plan with respect
> to uncovered
>
> tribal cultural properties along the river. The elements of such a
> Plan are identified in two appendices to this report, starting on page
> 250 - one developed by Nez Perce staff for the upper segment of the
> affected streamside, and one developed by CTUIR staff for the lower
> streamside segment. These appendices envision a five year planning
> period, during which tribal cultural properties in the subject area
> would be more fully identified - and a related implementation plan to
> protect and restore them developed. Estimated budget requirements for
> these tribally led planning activities are also provided in the two
> appendices.

: Implementation of tribally-led action for the long term management,
protection and

restoration of tribal cultural properties along the lower Snake River
streamside would

follow, when the Tribal Management and Protection Plan was completed.

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CULTURAL PROTECTION APPENDICES

[^1]: US Water Resource Council, 1983. **Economic and Environmental
    Principles and**

    **Guidelines for Water and Related Land Resources Implementation
    Studies.** Washington,

    D.C.: Superintendent of Documents.

[^2]: DREW consists of group of economists and other professionals
    representing the US Army

    Corps of Engineers, Bonneville Power Administration, Northwest Power
    Planning Council,

    National Marine Fisheries Service, U.S. Environmental Protection
    Agency, Columbia River

    Intertribal Fish Commission, Shoshone-Bannock Tribes and other
    potentially affected

    agencies/interests.

[^3]: US Water Resources Council, 1983. **Supra** at v.

[^4]: Supra at 10-11.

[^5]: Supra at 103-104.

[^6]: US Army Corps of Engineers, Bonneville Power Administration and US
    Bureau of

    Reclamation, 1995. **Columbia River System Operation Review: Final
    Environmental**

    **Impact Statement**. Main Report. Portland, p. 2-21.

[^7]: US Water Resources Council, 1983. **Supra** at 11.

[^8]: Supra at 12.

[^9]: President Clinton,1994. **Memorandum to Heads of Departments and
    Agencies**. April 29.

[^10]: The Secretary of the Interior, 1993. **Order No. 3175**. November
    8.

[^11]: Ballard, Joe N., Lieutenant General, USA Commanding. US Army
    Corps of Engineers (Civil

    Works). **Memorandum for Commanders, Major Subordinate Commands and
    District**

    **Commands: Policy Guidance Letter No. 57, Indian Sovereignty and
    Government-to-**

    **Government Relations with Indian Tribes**. CECW-AG. February 18,
    1998.

[^12]: Garcia, Terry D., 1998. U.S. Department of Commerce, Office of
    The Assistant Secretary for

    Oceans and Atmosphere. **Letter**, to Ted Strong, Executive
    Director, Columbia River Inter-

    Tribal Fish Commission, July 21.

[^13]: US Environmental Protection Agency, 1997. **Interim Final
    Guidance for Incorporating**

    **Environmental Justice Concerns in EPA's NEPA Compliance
    Analysis**. Washington, D.C.:

    Office of Federal Activities, September 30.

[^14]: Supra at 4.

[^15]: Supra at 5.

[^16]: Supra.

[^17]: Supra at 15.

[^18]: US Environmental Protection Agency, 1998. **Reviewing for
    Environmental Justice: EIS &**

    **Permitting Resources Guide**. EPA Region 10 - Environmental
    Justice Office, p. 2.

[^19]: United States v. Washington. 1974. United States District Court,
    Western District of

    Washington. Reprint from 384 F.Supp. 312; 459 F.Supp. 1020; 476
    F.Supp. 1405; and 626

    F.Supp. 1405. St. Paul, Minn. West Publishing Co., pp. 330-331.

[^20]: This perspective was sustained by the Court as early as 1905,
    when they stated: "This court

    will construe a treaty with Indians as they understood it and as
    justice and reason demand."

    (United States v. Winans, 198 US 371, 1905).

[^21]: Cohen, Felix S., **Handbook of Federal Indian Law**. 1982
    Edition, p. 222.

[^22]: **Webster's Third New International Dictionary**, 1971. G. & C.
    Merriam Co., 2435.

[^23]: White, Richard, 1991. **"Its Your Misfortune and None of My Own";
    A New History of the**

    **American West**. Norman, Okla.: University of Oklahoma Press, pp.
    89-91.

[^24]: Supra at 93.

[^25]: Pee-o-pee-mox-a-mox, Proceedings at the Council held at Camp
    Stevens, Walla Walla Valley,

    June 2, 1855, in, Edward G. Swindell, 1942. **Report on the Source,
    Nature and Extent of the**

    **Fishing, Hunting and Miscellaneous Related Rights of Certain
    Indian Tribes in**

    **Washington and Oregon, Together with Affidavits Showing Locations
    of a Number of**

    **Usual and Accustomed Fishing Grounds and Stations**. US Department
    of the Interior, Office

    of Indian Affairs, Los Angeles, p. 410.

[^26]: Owhi, Proceedings at the Council held at Camp Stevens, Walla
    Walla Valley, June 7, 1855, in,

    Edward G. Swindell, 1942. **Supra** at 431-432.

[^27]: Looking Glass, Proceedings at the Council held at Camp Stevens,
    Walla Walla Valley, June 9,

    1855, in, Edward R. Swindell, 1942. **Supra** at 445-446.

[^28]: Young Chief, Proceedings at the Council Held at Camp Stevens,
    Walla Walla Valley, June 7,

    1855, in, Edward G. Swindell, 1942. **Supra** at 438-439.

[^29]: Stevens, Isaac, 1854. **Report of the Commissioner of Indian
    Affairs, 1854**. p. 246.

[^30]: Stevens, Isaac. Proceedings at the Council held at Camp Stevens,
    Walla Walla Valley, June 4,

    1855, in, Edward G. Swindell, 1942. **Supra** at 417.

[^31]: Stevens, Isaac. Proceedings at the Council held at Camp Stevens,
    Walla Walla Valley, June 5,

    1855, in, Edward G. Swindell, 1942. **Supra** at 419.

[^32]: Supra at 420.

[^33]: Swindell, Edward G., 1942. **Supra** at 471-472.

[^34]: Treaty of the Nez Perces, 1863. In Article 8.

[^35]: Fort Bridger Treaty, July 3, 1868. Article 4.

[^36]: State of Idaho v Tinno, 94 Idaho (1972).

[^37]: For discussion of such decisions, see, for example: Columbia
    River Inter-Tribal Fish

    Commission, 1985. **A Compilation of Indian Treaty Fishing Rights
    Cases**. Portland./ and,

    Cohen, Fay G., 1986. **Treaties on Trial: The Continuing Controversy
    over Northwest**

    **Indian Fishing Rights**. Seattle: University of Washington Press.

[^38]: Delbert Frank, Sr., at Warm Springs, October 6, 1982, in, Meyer
    Resources, 1983. **The**

    **Importance of Salmon and Steelhead of the Columbia River to the
    Confederated Tribes of**

    **the Colville, Nez Perce, Umatilla, Warm Springs and Yakima Indian
    Reservations - with**

    **Particular Reference to Dams of the Mid-Columbia Area**. A Report
    to the US Bureau of

    Indian Affairs. Davis, CA., p. 30.

[^39]: Wood, Mary C., 1995. "Fulfilling the Executive's Trust
    Responsibility Toward the Native

    Nations on Environmental Issues: A Partial Critique of the Clinton
    Administration's Promises

    and Performance", in, **Environmental Law**. Vol. 25, No. 3, pp.
    742-743.

[^40]: Supra at 744.

[^41]: Strong, Ted, 1992. Executive Director, Columbia River
    Inter-Tribal Fish Commission.

    **Hearings before the Columbia River Fisheries Task Force**.
    Portland, October 28.

[^42]: Confederated Tribes of the Umatilla Indian Reservation, 1995.
    **Identification of Trust**

    **Resources: System Operation Review**. Department of Natural
    Resources, April 27, pp. 7-8.

[^43]: Sue, Derald Wing and David Sue, 1990. **Counseling the Culturally
    Different: Theory and**

    **Practice**. New York: John Wiley & Sons, pp. 8-9.

[^44]: Supra at 6.

[^45]: Supra at 7.

[^46]: Supra at 11.

[^47]: Supra at 22.

[^48]: Supra at 22-23.

[^49]: Ridington, Robin, 1990. **Little Bit Know Something**. Vancouver:
    Douglas & McIntyre, pp.

    xv-xvi.

[^50]: Parker, Patricia L. and Thomas E. King. **Guidelines for
    Evaluating and Documenting**

    **Traditional Cultural Properties**. U.S. National Park Service.
    National Register Bulletin 38,

    pp. 1.

[^51]: Chambers, Erve, 1985. **Applied Anthropology**. Inglewood Cliffs,
    N.J.: Prentice Hall, p. 4.

[^52]: Forlines, David. Personal communication, in, Central Washington
    University, 1991. **Potential**

    **Effects of OCS Oil and Gas Exploration and Development on Pacific
    Northwest Indian**

    **Tribes: Final Technical Report**. US Department of the Interior,
    Minerals Management

    Service OCS Study MMS 91-0056, p. 20.

[^53]: Harp, Karen. Personal communication, in, Central Washington
    University, 1991. **Supra** at 116.

[^54]: Fienup-Riordan, A. **Navarin Basin Sociological Systems
    Analysis**. US Minerals Management

    Service. Alaska OCS Socioeconomic Program Technical Report No. 70,
    pp. 23-24.

[^55]: Ridington, Robin, 1990. **Supra** at xvii.

[^56]: United States of America et al. v State of Washington et al.
    (Dec. 20, 1994) [Memorandum]{.underline}

    [Opinion and Order]{.underline}. No. CV 9213, Sub-proceeding No.
    89-3, pp. 50-52.

[^57]: Chief Meninock (a Yakama Tribal Chief), in, Columbia River
    Inter-Tribal Fish Commission,

    1994\. **A Fish Consumption Survey of the Umatilla, Nez Perce,
    Yakama, and Warm**

    **Springs Tribes of the Columbia River Basin**. Technical Report
    94-3. Introduction.

[^58]: Antone Minthorn. Personal communication, in, Meyer Resources,
    1983. **Supra** at 38.

[^59]: Alan Pinkham. Personal communication, in, Meyer Resources, 1983.
    **Supra** at 41-42.

[^60]: Delbert Frank, Sr. Personal communication, in, Meyer Resources,
    1983. **Supra** at 53.

[^61]: Hunn, Eugene S., 1990. **Nch'i-Wana; "The Big River":
    Mid-Columbia Indians and their**

    **Land**. Seattle: University of Washington Press, p. 78.

[^62]: Supra at 81.

[^63]: Ridington, Robin, 1990. **Supra** at xvii.

[^64]: Conservation International, Ecotrust and Pacific GIS, 1995. **The
    Rain Forests of Home: An**

    **Atlas of People and Place: Part 1 - Natural Forests and Native
    Languages of the Coastal**

    **Temperate Rain Forest**. Portland. p. i.

[^65]: Maslow, A.H., 1968. **Toward a Psychology of Being**. Princeton,
    N.J.: Nostrand.

[^66]: Bachtold, L.M., 1982. "Destruction of Indian Fisheries and
    Impacts on Indian Peoples", in,

    Meyer-Zangri Associates, **The Historic and Economic Value of Salmon
    and Steelhead to**

    **Treaty Fisheries in 14 River Systems in Washington, Oregon and
    Idaho**. Vol. 1. A Report

    to the US Bureau of Indian Affairs. Davis, CA., pp. 17-21.

[^67]: Meyer, Philip A., 1998. **Niihau: Present Circumstances and
    Future Requirements in an**

    **Evolving Hawaiian Community**. Niihau, HI: Hoomana Ia Iesu Church,
    pp. 147-151.

[^68]: United States of America et al. v State of Washington et al.
    (Dec. 20, 1994). **Supra**.

[^69]: US Bureau of the Census, 1991. **Poverty in the United States.**
    Current Population Reports

    Series P-60, No. 181, p. A-7.

[^70]: Supra at vii.

[^71]: See for example, US Bureau of the Census, 1990. **Special Tribal
    Run from the 1990 Census**;

    US Bureau of Indian Affairs, 1991. **Indian Service Population and
    Labor Force Estimates**.

[^72]: US Bureau of the Census, 1990. **Census of Population and
    Housing - Summary Social,**

    **Economic and Housing Characteristics - Washington.** CPH-5-49, p.
    B-15.

[^73]: Trafzer, Clifford E., 1997. **Death Stalks the Yakama:
    Epidemiological Transitions and**

    **Mortality on the Yakama Indian Reservation, 1888-1964**. East
    Lansing, Michigan:

    Michigan State University Press, pp. 1-9.

[^74]: Sampson, Donald G., Chairman, CTUIR Board of Trustees, 1994.
    **CTUIR's Comments on**

    **the System Operation Review Draft Environmental Impact
    Statement**. Memorandum to

    Bonneville Power Administration et al., December 15, p. 13.

[^75]: Pearce, David W., 1992. **The MIT Dictionary of Modern
    Economics**. Cambridge, Mass.: The

    MIT Press, p. 18.

[^76]: Supra at 18-19.

[^77]: Supra at 460.

[^78]: Hazel Miller, 1982. Personal communication, in, Meyer Resources,
    1983. **Supra** at 29.

[^79]: Alan Moody, 1982. Personal communication, in, Meyer Resources,
    1983. **Supra** at 29.

[^80]: Delbert Frank, Sr., 1982. Personal communication, in, Meyer
    Resources, 1983. **Supra** at 30.

[^81]: Scott, Anthony, 1999. "Comments on Final Tribal Circumstances
    Draft, May 10", **Memorandum** to P. Meyer,

    July 12, p. 6.

[^82]: Leading economic experts on discounting have identified that
    where a positive interest rate is

    required, a real rate approximating 2 percent may be more
    appropriate - and that the GAO and

    CBO sensitize such a rate by also discounting at 0 and 4 percent.
    They also point out that

    discounting is not likely to be useful where intergenerational
    fairness is an issue. (See special

    issue on discounting, in, **Journal of Environmental Economics and
    Management**, 18, 1990.)

    Intergenerational fairness is a central concern of the referent
    Tribes.

    For a further applied discussion of technical issues associated with
    discounting, see: Meyer,

    Philip A., Richard Lichtkoppler, Robert A. Hamilton, David Harpman,
    Charles L. Borda and

    Paula M. Engel, 1995. **Elwha River Restoration Project: Economic
    Analysis: Final**

    **Technical Report**. A Report to The National Park Service, The US
    Bureau of Reclamation and

    the Lower Elwha S'Klallam Tribe. Davis, CA, pp. 1- 10.

[^83]: Pearce, David W., 1992. **Supra** at 446.

[^84]: Webster's Third New International Dictionary, 1971. Chicago. p.
    1186.

[^85]: Pearce, David W., 1992. **Supra** at 447.

[^86]: Griswold, Gillet, 1954. **Aboriginal Patterns of Trade Between
    the Columbia Basin and the**

    **Northern Plains**. Masters Thesis, Montana State University, pp.
    29-32.

[^87]: Hazel Miller, 1982, in, Meyer Resources, Inc. **Supra** at 38.

[^88]: Antone Minthorn, 1982, in, Meyer Resources, Inc. **Supra** at 38.

[^89]: i.e. US Army Corps of Engineers, Bonneville Power Administration
    and US Bureau of

    Reclamation, 1995. **Supra**.

[^90]: While Tribal hunting and gathering sites will also be potentially
    affected by the Lower Snake

    River Project, consideration of fishing linkages are considered
    sufficient to determine "which

    Tribes will be affected" as the four lower Snake River reservoirs
    are drawn down.

[^91]: Hewes, quoted in, Walker, Deward E., 1967. **Mutual
    Cross-Utilization of Economic**

    **Resources in the Plateau: An Example from Aboriginal Nez Perce
    Fishing Practices**.

    Washington State University Laboratory of Anthropology. Report of
    Investigations No. 41.

    Pullman, WA., pp. 13-14.

[^92]: Chalfant, quoted in, Lane & Lane Associates and D. Nash, 1981a.
    **The Clearwater River**

    **Indian Fisheries and Lewiston Dam**. Report to the US Bureau of
    Indian Affairs, p. 10.

[^93]: Lane & Lane Associates and D. Nash, 1981a. **Supra** at 61.

[^94]: Chalfant, in, Lane & Lane Associates and D. Nash, 1981. **Supra**
    at 11.

[^95]: Murphy, Robert F. and Y. Murphy, 1986. "Northern Shoshone and
    Bannock", in, **Handbook**

    **of North American Indians: Great Basin**. Volume 11. Washington,
    D.C: The Smithsonian

    Institution, p. 286.

[^96]: Supra at 285.

[^97]: Lane & Lane Associates and D. Nash. 1981a. **Supra** at 9.

[^98]: Supra at 12-27.

[^99]: This general statement also applies to the present day
    Shoshone-Bannock treaty tribes.

[^100]: Kappler, C.J. (ed), 1972. **Indian Treaties: 1778-1883**. New
    York: Interland Publishing, pp.

    694, 698 and 714.

[^101]: Slickpoo, Allen P., Sr. and Deward Walker. **Noon Nee-Me-Poo:
    Culture and History of the**

    **Nez Perces**. Nez Perce Tribe, p. 29.

[^102]: Walker, Deward E., 1967. **Mutual Cross-Utilization of Economic
    Resources in the**

    **Plateau: An Example from Aboriginal Nez Perce Fishing Practices**.
    Pullman: Washington

    State University, Laboratory of Anthropology, Report of
    Investigations No. 41, p. 1.

[^103]: Supra.

[^104]: Slickpoo, Allen P., Sr. and Deward Walker. **Supra** at 29-30.

[^105]: Walker, Deward E., 1967. **Supra** at 24-26.

[^106]: United States Indian Claims Commission, 1967. **The Nez Perce
    Tribe of Indians v. The**

    **United States of America**. Findings of Fact, Preliminary
    Statement. Docket No. 175, March

    21, p 96.

[^107]: Supra.

[^108]: Lane & Lane Associates and D. Nash, 1981a. **Supra** at 71.

[^109]: Slickpoo, Allen P. and Deward Walker. **Supra** at 30.

[^110]: Hewes, Gordon W., 1947. **Aboriginal Use of Fishery Resources in
    Northwestern North**

    **America**. Phd. Dissertation. Berkeley: University of California,
    p. 213. Hewes' pre-contact

    estimates of salmon consumption are approximately based on the
    period up to 1780.

[^111]: Supra at 214.

[^112]: Supra.

[^113]: Craig, Joseph A. and Robert Hacker, 1940. **The History and
    Development of the Fisheries**

    **of the Columbia River**. Washington, D.C: US Bureau of Fisheries,
    Bulletin No. 32, p. 142.

[^114]: Hewes, Gordon W., 1947. **Supra** at 223-227.

[^115]: Walker, Deward E., 1967. **Supra** at 19.

[^116]: Swindell, Edward G., 1942. **Supra** at 165.

[^117]: Walker, Deward E., 1967. **Supra** at 25.

[^118]: "Mooney", in, Lane & Lane and D. Nash, 1981a. **Supra** at 44.

[^119]: Lane & Lane Associates and D. Nash, 1981a. **Supra** at 79.

[^120]: Recall Note 69.

[^121]: Griswold, Gillett, 1954. **Supra** at 63.

[^122]: Slickpoo, Allen P. and D. Walker. **Supra** at 31-32.

[^123]: Trafzer, Clifford E., 1997. **Supra** at 71-72.

[^124]: James, Caroline, 1996. **Nez Perce Women in Transition:
    1877-1990**. Moscow, Idaho:

    University of Idaho Press, p.6.

[^125]: Bachtold, L.M., 1982. **Supra** at 19.

[^126]: For further discussion of these dealings, see for example,
    Slickpoo, Allen P. and Deward

    Walker. **Supra** at 77-78.

[^127]: Supra at 144-147.

[^128]: Peterson, Keith C., 1995. **River of Life, Channel of Death:
    Fish and Dams on the Lower**

    **Snake**. Lewiston: Confluence Press. p. 63.

[^129]: In, Slickpoo, Allen P. and D. Walker. **Supra** at 149.

[^130]: Lileblad, Sven, 1972. **The Idaho Indians in Transition:
    1805-1960**. Pocatello: A Special

    Publication of the Idaho State University Museum, p. 27.

[^131]: L.V. McWhorter, quoted in, Evans, Steven R., 1996. **Voice of
    the Old Wolf: Lucullus Virgil**

    **McWhorter and the Nez Perce Indians**. Pullman: Washington State
    Univ. Press, p. 175.

[^132]: Beckham, Steven D., 1998. "History Since 1846", in, **Handbook
    of North American**

    **Indians: Plateau**. Vol.12. Washington, D.C.: The Smithsonian
    Institution, p. 156.

[^133]: Supra at 27-28.

[^134]: Hunn, Eugene S., 1990. **Supra** at 278.

[^135]: Slickpoo, Allen P. Sr., and D. Walker. **Supra** at 219.

[^136]: Supra at 220.

[^137]: Beckham, 1998. **Supra** at 166.

[^138]: Slickpoo, Allen P. Sr., and D. Walker. **Supra** at 225.

[^139]: Supra at 226.

[^140]: This figure includes land reserved in trust, tribally owned land
    and Nez Perce allotted land.

[^141]: White, Richard, 1991, p. 237.

[^142]: Lane & Lane Associates and D. Nash, 1981a. **Supra** at 51.

[^143]: Supra.

[^144]: See, Cohen, Fay G., 1986. **Treaties on Trial: The Continuing
    Controversy over Northwest**

    **Indian Fishing Rights**. Seattle: University of Washington Press,
    pp. 54-60.

[^145]: The Independent Scientific Group, 1996. **Return to the River:
    Restoration of Salmonid**

    **Fishes in the Columbia River Ecosystem**. A Report to the
    Northwest Power Planning

    Council, p. 353.

[^146]: Bonneville Power Administration, US Army Corps of Engineers and
    US Department of the

    Interior, 1995. **Columbia River System Operation Review: Final
    Environmental Impact**

    **Statement**. Appendix O: Economic and Social Impact, p. 3-23.

[^147]: Supra at 355.

[^148]: Recall pp. 55-62. .

[^149]: Peterson, Keith C., 1995. **Supra** at 108-109.

[^150]: Supra at 109.

[^151]: Supra at 110.

[^152]: Supra.

[^153]: Supra at 112-113.

[^154]: Supra at 117.

[^155]: PATH Scientific Review Panel, 1998. **Conclusions and
    Recommendations from the PATH**

    **Weight of Evidence Workshop**. September 8-10. Vancouver, Canada.

[^156]: See, Blumm, Michael C., M.A. Schloessler and R.C. Beckwith,
    1997. "Beyond the Parity

    Promise: Struggling to Save Columbia River Salmon in the
    mid-1990's", in, **Environmental**

    **Law**. 27:21, p. 23.

[^157]: Hunn, Eugene S., 1990. **Supra** at 27-32.

[^158]: Trafzer, Clifford E., 1997. **Supra** at 3.

[^159]: Supra at 3-6.

[^160]: Nez Perce Tribal Administration.

[^161]: Nez Perce Office of Legal Counsel, 1999.

[^162]: Central Washington University, 1991. **Potential Effects of OCS
    Oil and Gas Exploration**

    **and Development on Pacific Northwest Indian Tribes: Final
    Technical Report**. US

    Minerals Management Service OCS Study MMS-91-0056, pp. 256-257.

[^163]: Blumm, Michael C., M.A. Schloessler and R.C. Beckwith, 1997.
    **Supra** at 23-24.

[^164]: Meyer Resources, 1983. **Supra** at 72.

[^165]: Blumm, Michael C., M.A. Schloessler and R.C. Beckwith, 1997.
    **Supra** at 28.

[^166]: Based on data from the Nez Perce Department of Fishery
    Management, and assuming an

    average size per Chinook of 18 pounds.

[^167]: Henry Penney, in, Meyer Resources, Inc., 1983. **Supra** at 45.

[^168]: Nez Perce Tribe, 1997. **Nez Perce Tribe Overall Economic
    Development Plan: 1997-1998**.

    pp. 18-27.

[^169]: Supra at D-1.

[^170]: Developed from information in: Nez Perce Executive Committee,
    1997. **State Challenges**

    **Nez Perce Gaming**. Office of Legal Counsel, Lapwai, Idaho, p. 1.

[^171]: Supra at 3.

[^172]: More recently, Nee Poo Health Center.

[^173]: US Indian Health Service, 1994b. **American Indian and Alaska
    Native Mortality: Idaho,**

    **Oregon and Washington, 1989-1991**, p. 24.

[^174]: Supra at 56.

[^175]: At Note 66.

[^176]: At Note 73.

[^177]: The Nez Perce expert group included: Leroy Seth, Nez Perce Elder
    and Patient Advocate;

    Vanda Osborn, Nez Perce Community Health Director; Karen Carter,
    Director, Nee-Me-Poo

    Health Clinic; Julie Keller, Dietitian; Susie Ellenwood, Maternal
    Child Health Nurse; and

    Irene Kipp, Community Health Educator.

[^178]: Julie Keller, Nez Perce Dietitian. **Personal communication** at
    Lapwai, May 6, 1998.

[^179]: Leroy Seth, Nez Perce Elder and Health Advocate. **Personal
    communication** at Lapwai,

    May 6, 1998.

[^180]: A Nez Perce woman during the Health Group meeting at Lapwai on
    May 6, 1998.

[^181]: Leroy Seth, **Supra**.

[^182]: Nez Perce Health Group, **Personal communication** at Lapwai.
    May 6, 1998.

[^183]: Central Washington University, 1991. **Supra** at 258.

[^184]: US Bureau of the Census, 1990 CP-2-1A, p. 38.

[^185]: Murphy, Robert F. and Y. Murphy, 1986. **Supra** at 284.

[^186]: Supra at 284-285.

[^187]: Supra at 285.

[^188]: Supra at 286.

[^189]: e.g.. Albers, Patricia C., J. Lowry and G. Smoak, 1998. **The
    Rivers and Fisheries of the**

    **Shoshone-Bannock Peoples**. University of Utah: American West
    Center, pp. 5, 70.

[^190]: In adopting this convention, our present report reserves
    commentary on any broader issues that

    may be associated with Shoshone-Bannock traditional harvest areas.

[^191]: Liljeblad, Sven, 1972. **The Idaho Indians in Transition:
    1805-1960**. Pocatello: Idaho State

    University Museum. p. 18.

[^192]: O'Neil, Floyd A., A. Freedman and G.E. Smoak, 1995. **The Land
    Use Practices and**

    **Patterns of the Shoshone-Bannock Tribes 1804-1870**. Mimeo.
    September 21. pp. 1-3.

[^193]: Albers, Patricia C., J. Lowry and G. Smoak, 1998. **Supra** at
    55.

[^194]: Supra at 55-59.

[^195]: Supra at 59.

[^196]: **Supra** at 56-58.

[^197]: **Supra** at 59-61.

[^198]: The Camas Prairie referred to in this quotation is an important
    resource for all "lower" and

    "middle" Snake Shoshone and Bannock Indians. It is different from,
    and south of, the "Camas

    Prairie" referred to in earlier discussion of Nez Perce seasonal
    rounds.

[^199]: Hewes, Gordon W., 1947. **Supra** at 227.

[^200]: Walker, Deward E., 1967. **Supra** at 19.

[^201]: Hewes, Gordon W., 1947. **Supra** at 227.

[^202]: Murphy, Robert F. and Y. Murphy, 1986. **Supra** at 289.

[^203]: Clemmer, Richard O. and Omer C. Stewart, 1986. "Treaties,
    Reservations, and Claims", in,

    **Handbook of North American Indians: Great Basin**. Vol. 11.
    Washington, D.C: The

    Smithsonian Institution, p. 531.

[^204]: Leland, Joy, 1986. "Population", in, **The Handbook of North
    American Indians: Great**

    **Basin.** Vol. 11, Washington, D.C: The Smithsonian Institution, p.
    609.

[^205]: Supra at 612.

[^206]: Recalling previous discussion, this figure would be
    substantially higher for Shoshone-

    Bannock "fish eaters", and lower for Shoshone-Bannock's spending
    less time along the

    "salmon rivers".

[^207]: Albers, Patricia C., J. Lowry and G. Smoak, 1998. **Supra** at
    19-20.

[^208]: Recall Section 2.1.5.1.

[^209]: Liljeblad, Sven, 1972. **Supra** at 20-21.

[^210]: Supra at 23.

[^211]: Supra at 30.

[^212]: Supra at 32-33.

[^213]: Supra at 31.

[^214]: Supra at 34.

[^215]: Supra at 37.

[^216]: Clemmer, Richard O. and O.C. Stewart, 1986. **Supra** at 531.

[^217]: Albers, Patricia C., J. Lowry and G. Smoak, 1998. **Supra** at
    114-115.

[^218]: This conclusion respecting the symmetry of "to hunt" and "to
    fish" in Shoshone and Bannock

    languages was stated by the Court in [State of Idaho v.
    Tinno]{.underline} , Supreme Court of Idaho, 1970.

[^219]: Fort Hall Business Council, 1998. Preamble to **Fishery
    Management Notice**. Various dates.

[^220]: Testimony by Echohawk, before the U.S. House Committee on
    Interior and Insular Affairs,

    Subcommittee on Mines and Mining, November 22, 1980, in, Johnson,
    Edward C., 1986.

    "Issues: The Indian Perspective", in, **Handbook of North American
    Indians: Great Basin**.

    Vol. 11. Washington, D.C: The Smithsonian Institution, p. 593.

[^221]: Liljeblad, Sven, 1972. **Supra** at 34.

[^222]: Albers, Patricia, J. Lowry and G. Smoak, 1998. **Supra** at
    116-117.

[^223]: Liljeblad, Sven, 1973. **Supra** at 35.

[^224]: Murphy, Robert F. and Y. Murphy, 1986. **Supra** at 303.

[^225]: The term "White squatters" refers to the fact that the area that
    is now Pocatello was originally

    part of the Fort Hall reservation, under the Bridger Treaty.

[^226]: Albers, Patricia C., J. Lowry and G. Smoak, 1999. **Supra** at
    125.

[^227]: Clemmer, Richard O. and O.C. Stewart, 1986. Supra at pp.
    539-541.

[^228]: Murphy, Robert F. and Y. Murphy, 1986. **Supra** at 303.

[^229]: In 1968, the Indian Claims Commission awarded the Eastern
    Shoshone and Northern

    Shoshone-Bannock \$15.7 million in compensation for lands taken in
    southeastern Idaho and

    Utah. This did not include takings on the Boise River, or on Camas
    Prairie.

[^230]: Clemmer, Richard O. and O.C. Stewart, 1986. **Supra** at 543.

[^231]: Clemmer, Richard O. and O.C. Stewart, 1986. **Supra** at
    530-531.

[^232]: Liljeblad, Sven, 1972. **Supra** at 71.

[^233]: Albers, Patricia C., J. Lowry and G. Smoak, 1998. **Supra** at
    220-222.

[^234]: Columbia Basin Fish and Wildlife Authority, 1990. **Integrated
    System Plan for Salmon and**

    **Steelhead Production in the Columbia River Basin**. Portland, pp.
    25-121.

[^235]: Hobby Hevewah, Shoshone-Bannock Councilor, at Fort Hall, July
    17, 1998. **Personal**

    **communication**.

[^236]: Supra.

[^237]: Supra.

[^238]: Leland, Joy, 1986. **Supra** at 609.

[^239]: Knack, Martha C., 1986. "Indian Economies, 1950-1980", in,
    **Handbook of North American**

    **Indians: Great Basin**. Vol. 11. Washington, D.C: The Smithsonian
    Institution, pp. 575-576.

[^240]: Shoshone-Bannock Tribes. 1998.

[^241]: US Bureau of the Census, 1990. CP-2-1a, p. 5.

[^242]: Office of Legal Counsel, Shoshone-Bannock Tribes. Personal
    communication, 1998.

[^243]: Liljeblad, Sven, 1972. **Supra** at 52.

[^244]: Pacific Northwest River Basins Commission, 1974. **Anatomy of a
    River**. Portland, p. 85.

[^245]: See Table 4.

[^246]: Shoshone-Bannock Department of Fisheries, 1998. **Draft 1998
    Shoshone-Bannock Tribes**

    **Anadromous Fish Recovery and Management Plan**. May 15.

[^247]: Arnold Appenay, Shoshone-Bannock Council Member, in, Palmer,
    Tim, 1991. **The Snake**

    **River: Window to the West**. Washington, D.C: Island Press, p. 42.

[^248]: TERO Office. Shoshone-Bannock Tribe. June, 1998.

[^249]: Office of Legal Counsel. Shoshone-Bannock Tribe.

[^250]: US Bureau of the Census, 1990. 1990 CP-2-1A, pp. 58 & 84.

[^251]: US Bureau of Indian Affairs, 1995. **Indian Service Population
    and Labor Force Estimates**.

    p.14.

[^252]: US Indian Health Service, 1994b. **Supra** at 24.

[^253]: Supra at 46.

[^254]: Shoshone-Bannock Tribes, 1997. **Community Needs Assessment**.
    Health and Human

    Services Department, in collaboration with Centers for Disease
    Control (CDC).

[^255]: Supra at 1.

[^256]: Allison Blacksmith, Nutritionist. Fort Hall Tribal Clinic.
    **Personal communication**. July 16,

    1998\.

[^257]: Supra.

[^258]: Jim Cutler, Director of Tribal Health. Shoshone-Bannock Tribes.
    **Personal communication**.

    July 16, 1998.

[^259]: Hobby Hevewah. **Supra**.

[^260]: Allison Blacksmith. **Supra**.

[^261]: US Bureau of the Census, 1990. CP-1-1A, p. 34.

[^262]: Supra at 33.

[^263]: Yakama is the present spelling utilized by the Yakama Indian
    Nation. In earlier written

    references, [Yakima]{.underline} was the spelling most often used.

[^264]: Confederated Tribes and Bands of the Yakima Indian Nation, 1977.
    **The Land of The**

    **Yakimas**. Toppenish, p. 10.

[^265]: Selam, Leroy B., 1975. **The Yakima Indians: Study and Analysis
    of the Yakima Water**

    **Rights**. Masters Thesis. Oregon State University. Corvallis,
    p.23.

[^266]: Lane & Lane and D. Nash, 1981a. **Supra** at 21.

[^267]: Excerpted from "The Way It Was: Anaku Iwacha, Yakima Indian
    Legends", in, Schuster,

    Helen H., 1990. **The Yakima**. New York: Chelsea House Publishers,
    p. 13.

[^268]: Schuster, Helen H., 1990. **Supra** at 19.

[^269]: Robert Jim, 1972, in, Schuster, Helen H., 1990. **Supra** at p.
    21.

[^270]: Schuster, Helen H., 1990. **Supra** at 21.

[^271]: Martin Hannigan, Chairman, Yakima Tribal Council, **Letter**, to
    K.R.L. Simmons, Yakima

    Tribal Attorney, Billings Montana. August 9, 1949.

[^272]: Tom Eli, at Toppenish, October 22, 1982. **Oral Testimony**, in,
    Meyer Resources, 1983.

    **Supra** at 39-40.

[^273]: Aguilar, Florence L., 1995. Yakama Indian Nation, Cultural
    Resources Program.

    **Memorandum** to Johnson Meninick. May 29.

[^274]: Schuster, Helen H., 1975. **Yakima Indian Traditionalism: A
    Study in Continuity and**

    **Change**. Phd. Dissertation. University of Washington, Seattle,
    pp. 69-70.

[^275]: See also, Smith, Courtland L., 1979. **Salmon Fishers of the
    Columbia**. Corvallis: Oregon

    State University Press, pp. 6-7.

[^276]: Hewes, Gordon W., 1947. **Supra** at 237.

[^277]: Walker, Deward E., 1967. **Supra** at 19.

[^278]: Supra.

[^279]: Schuster, Helen H. **The Yakimas: A Critical Bibliography**.
    American Indian Bibliographical

    Series. Bloomington, Indiana: Indiana University Press, p. 22.

[^280]: Supra.

[^281]: Selam, Leroy B. **Supra** at 30.

[^282]: McWhorter, Lucullus V., 1913. **The Crime Against the Yakimas**.
    Yakima: Republic Print,

    p\. 5.

[^283]: Fitch, James B., 1974. **Economic Development in a Minority
    Enclave: The Case of the**

    **Yakima Indian Nation, Washington**. Phd. Dissertation. Stanford
    University, p. 75.

[^284]: Lane & Lane Associates and D. Nash, 1981b. **The White Salmon
    River Indian Fisheries**

    **and Condit Dam**. A Report to the US Bureau of Indian Affairs,
    Portland, p. 68.

[^285]: Recall Note 69.

[^286]: Schuster, Helen H., 1990. **Supra** at 16.

[^287]: Relander, Click, 1962. **Strangers on the Land**. Yakima, WA:
    Franklin Press, p. 5.

[^288]: Confederated Tribes and Bands of the Yakima Indian Nation, 1977.
    **Supra** at 3.

[^289]: Trafzer, Clifford E., 1997. **Supra** at 23-24.

[^290]: Supra at 71-72.

[^291]: Selam, Leroy B., 1975. **Supra** at 23-24.

[^292]: Bachtold, L.M., 1982. **Supra** at 19.

[^293]: Confederated Tribes and Bands of the Yakima Indian Nation, 1977.
    **Supra** at 5-8.

[^294]: Chief Kamiakin, 1854, in, Yakima Indian Nation, 1978. **1855
    Yakima Treaty Chronicles**,

    p.4.

[^295]: Selam, Leroy B., 1974. **Supra** at 25-26.

[^296]: Pambrun, Andrew D., 1855. Interpreter at the Walla Walla Treaty
    Council, in, Yakima Indian

    Nation, 1978. **1855 Yakima Treaty Chronicles**. p. 17.

[^297]: Supra.

[^298]: Confederated Tribes and Bands of the Yakima Indian Nation, 1977.
    **Supra** at 10.

[^299]: Yakima Indian Nation, 1978. **Supra** at 23.

[^300]: Yakima Indian Nation, 1977. **Supra** at 18-19.

[^301]: Relander, Click, 1962. **Supra** at 6.

[^302]: Schuster, Helen H., 1990. **Supra** at 81-83.

[^303]: Supra at 84.

[^304]: For a further discussion of shady practices with respect to
    diversion of Yakama water, see, for

    example: McWhorter, Lucullus, L., 1913. **Supra** at 5-14.

[^305]: For example: [Brendale]{.underline} v. [Yakima Indian
    Nation]{.underline}, 106 L.Ed 2d 343 (1989); and [Duro]{.underline}
    v. [Reina]{.underline},

    109 L.Ed. 2nd 693 (1990).

[^306]: "Checkerboarding" describes the random dispersal of Yakama
    (trust and fee) and non-Yakama

    land holdings within the reservation.

[^307]: Schuster, Helen H., 1990. **Supra** at 83-84.

[^308]: Supra at 84-87.

[^309]: Northwest Power Planning Council, 1982. **Letter to the People
    of the Pacific Northwest**, in,

    Draft Fish and Wildlife Program. Portland.

[^310]: Watson Totus, 1952, in, a **Presentation on Behalf of the Yakima
    Tribe**, to the U.S. Senate

    Sub-Committee on Civil Functions of the Army, May 12. Printed
    Hearings, pp. 434-435.

[^311]: Rudy Saluskin, at Toppenish, October 22, 1982; in, Meyer
    Resources, 1983. **Supra** at 60-61.

[^312]: i.e. Note 301.

[^313]: Dave SoHappy, at Toppenish, October 21, 1982; in, Meyer
    Resources, 1983. **Supra** at 69.

[^314]: Tom Eli, at Celilo, October 28, 1982; in, Meyer Resources, 1983.
    **Supra** at 67.

[^315]: Bill Yallup, at Toppenish, October 3, 1997. **Personal
    communication**.

[^316]: Meyer Resources, 1983. **Supra** at 71-72.

[^317]: Warner Jim, at Celilo, October 28, 1982; in, Meyer Resources,
    1983. **Supra** at 58.

[^318]: Warner Jim on behalf of an identified Yakama woman at Celilo,
    October 28, 1982: in, Meyer

    Resources, 1983. **Supra** at 58. The woman was afraid to identify
    herself because on the

    previous day a car had stopped on Hwy. 84 and a man had shot at her
    and her daughters as

    they fished on the Columbia River.

[^319]: Unidentified Yakama woman, at Celilo, October 28, 1982: in,
    Meyer Resources, 1983. **Supra**

    at 68-69. This is the same woman referred to in the previous
    citation.

[^320]: Othus, P.M., 1954. US Army Corps of Engineers. Statement to a
    Yakima Indian Tribal

    Committee during compensation discussions associated with
    construction of the Dalles Dam.

    **Meeting** Minutes. Portland, Oregon, April 22, 1954, pp. 18-20.

[^321]: Tom Eli, at Celilo, October 29, 1982; in, Meyer Resources, 1983.
    **Supra** at 62.

[^322]: Fitch, James B., 1974. **Economic Development in a Minority
    Enclave: The Case of the**

    **Yakima Indian Nation, Washington**. Phd. Dissertation. Stanford
    University, p. 93.

[^323]: Supra at 153-154.

[^324]: Meyer Resources, 1983. **Supra** at 27-28.

[^325]: Lane & Lane and D. Nash, 1981a. **Supra** at 9.

[^326]: Supra.

[^327]: At Note 300.

[^328]: Mary Chapman, at Toppenish, October 22, 1982; in, Meyer
    Resources, 1983. **Supra** at 57.

[^329]: Johnson Meninick, at Toppenish, July 22, 1998. **Personal
    communication**.

[^330]: Also recall discussion in Section 4.4.8.

[^331]: See Note 288.

[^332]: Trafzer, Clifford E., 1997. **Supra** at 40.

[^333]: At Note 291.

[^334]: Trafzer, Clifford E., 1997. **Supra** at 41.

[^335]: At Note 280.

[^336]: Trafzer, Clifford E., 1997. **Supra** at 70.

[^337]: Supra at 2-3.

[^338]: Supra at 71.

[^339]: Supra at 75.

[^340]: Supra at 51.

[^341]: Supra at 57.

[^342]: Supra at 51-52.

[^343]: Supra at 57.

[^344]: Supra at 153.

[^345]: Bachtold, L.M., 1982. **Supra** 31-33.

[^346]: Recall Table 17.

[^347]: Yakama Indian Nation, 1993. **Yakima Indian Reservation Forest
    Management Plan: 1993**

    **to 2002**. with US Bureau of Indian Affairs, p. VII-3.

[^348]: Supra at VII-5.

[^349]: Meyer Resources, 1983. **Supra** at 26-27.

[^350]: Yakama Indian Nation, 1996. **1996 OEDP Report**. Toppenish, p.
    8.

[^351]: Supra.

[^352]: Washington State Department of Health, 1992. **People of
    Color**. Center for Health Statistics.

    Olympia, p. 51.

[^353]: Supra at 61-64.

[^354]: American Indian Health Care Association, 1993a. **Northwest Area
    American Indian Health**

    **Status and Policy Assessment Project: State of Washington
    Report**. Saint Paul, p. 47.

[^355]: Supra at x.

[^356]: Washington State Department of Health, 1992. **Supra** at 4;
    American Indian Health Care

    Association, 1993. **Supra** at ix-x, 22-23, 54.

[^357]: The Yakima Service Unit serves Klickitat, Lewis, Skamania and
    Yakima counties.

[^358]: US Indian Health Service, 1994b. **Supra** at 136.

[^359]: Supra at 213.

[^360]: Monicka Franz, Yakama Tribal Nutritionist. Personal
    communication at Toppenish. August

    13, 1998.

[^361]: Vivian George, Yakama Indian Nation. Personal communication at
    Toppenish, August 13,

    1998\.

[^362]: Chris Walsh, Psycho-Social Nursing Specialist. Yakama Indian
    Nation. Personal

    communication at Toppenish, August 13, 1998.

[^363]: Columbia River Inter-Tribal Fish Commission, 1994. **A Fish
    Consumption Survey of the**

    **Umatilla, Nez Perce, Yakama, and Warm Springs Tribes of the
    Columbia River Basin**.

    Technical Report 94-3.

[^364]: Harris, Stuart G. and Barbara L. Harper, 1997. "A Native
    American Exposure Scenario", in,

    **Risk Analysis**. Vol. 17, No. 6, pp. 789-795.

[^365]: US Bureau of the Census. 1990 CP-2-1A. **Supra** at 44.

[^366]: Kappler, C.J. (ed.) 1972. **Indian Treaties: 1778-1883**. New
    York: Interland Publishing, p.694.

[^367]: Suphan, Robert J., **The Socio-Political Organization and Land
    Use Patterns of the**

    **Umatilla, Walla Walla and Cayuse Indians**. MA dissertation.
    Columbia University, pp.

    128-134.

[^368]: Supra at 145-149.

[^369]: Supra at 135-144.

[^370]: At Note 98.

[^371]: Meyer Resources, 1995. **Assessment of the Effect on Trust
    Resources of the Confederated**

    **Tribes of the Umatilla Indian Reservation from Alternative System
    Operating Strategies**

    **(SOS) for Columbia/Snake River Flows**. A Report to the
    Confederated Tribes of the

    Umatilla Indian Reservation. Davis, CA, p. v.

[^372]: Mary Lawyer, on the Umatilla Reservation, October 13, 1982; in,
    Meyer Resources, 1983.

    **Supra** at 37.

[^373]: Antone Minthorn, on the Umatilla Reservation, October 13, 1982;
    in, Meyer Resources, 1983.

    **Supra** at 38.

[^374]: Carrie Sampson, on the Umatilla Reservation, October 13, 1982;
    in, Meyer Resources, 1983.

    **Supra** at 42.

[^375]: Note 110.

[^376]: Hewes, Gordon W., 1947. **Supra** at 227.

[^377]: Hunn, Eugene S., 1990. **Supra** at 148.

[^378]: Walker, Deward E., 1967. **Supra** at 19.

[^379]: Swindell, Edward G., 1942. **Supra** at 165.

[^380]: Confederated Tribes of the Umatilla Indian Reservation, 1979.
    **Tribal History**. Mission, p.2.

[^381]: Lane & Lane and Nash, D., 1981c. **Indian Fishing and the Walla
    Walla River System**. A

    Report to the US Bureau of Indian Affairs. p. 52.

[^382]: Note 69.

[^383]: Suphan. **Supra** at 75-76.

[^384]: Confederated Tribes of the Umatilla Indian Reservation, 1979.
    **Supra** at 7.

[^385]: Confederated Tribes of the Umatilla Indian Reservation, 1996.
    **The Comprehensive Plan**. pp.

    11-14.

[^386]: Hunn, Eugene S., 1990. **Supra** at 27-32.

[^387]: Note 380.

[^388]: Note 66.

[^389]: Confederated Tribes of the Umatilla Indian Reservation, 1996.
    **Supra** at 17.

[^390]: Supra at 18.

[^391]: Statement of the CTUIR, in, Meyer Resources, 1995. **Supra** at
    2.

[^392]: Confederated Tribes of the Umatilla Indian Reservation, 1995.
    **Identification of Trust**

    **Resources: System Operation Review**. Department of Natural
    Resources, April 27. pp. 6-7.

[^393]: United States of America, et al. [v.]{.underline} [State of
    Washington, et al.]{.underline} United States District Court,

    Western Washington District. No. CV 9213, Sub-proceeding No. 89-3.
    "Memorandum

    Opinion and Order", pp. 23-24.

[^394]: Confederated Tribes of the Umatilla Indian Reservation, 1996.
    **Supra** at 19.

[^395]: Supra.

[^396]: Oliphant, Orin J., "Encroachments of Cattlemen on Indian
    Reservations in the Pacific

    Northwest, 1870-1890", in, **Agricultural History**. pp. 43-44.

[^397]: Supra at 44.

[^398]: Kennedy, James B., 1977. **The Umatilla Indian Reservation,
    1855-1875: Factors**

    **Contributing to a Diminished Land Resource Base**. Phd.
    dissertation. Oregon State

    University, pp. 77-78.

[^399]: Supra at 84.

[^400]: Supra at 83.

[^401]: Supra at 86-89.

[^402]: Supra at 108-110.

[^403]: Hunn, Eugene S., **Supra** at 279.

[^404]: Kennedy, James B., 1977. **Supra** at 79.

[^405]: Lane & Lane and D. Nash, 1981c. **Supra** at 54-55.

[^406]: Smith, Courtland, 1979. **Supra** at 16.

[^407]: Supra at 35-36.

[^408]: Su**pra** at 91-100.

[^409]: Northwest Power Planning Council, 1986. **1987 Columbia River
    Basin Fish and Wildlife**

    **Program**. Appendix E.

[^410]: Bonneville Power Administration, U.S. Army Corps of Engineers,
    Bureau of Reclamation,

    1994\. **Columbia River System Operation Review: Draft Environmental
    Impact**

    **Statement**. Appendix C-1; Anadromous Fish. DOE/EIS-0170, p. 2.2.

[^411]: Denny Williams, at Mission, October 13, 1982; in, Meyer
    Resources, 1983. **Supra** at 60.

[^412]: Meyer Resources, 1983. **Supra** at 71-72.

[^413]: Carrie Sampson, at Mission, October 13, 1982; in, Meyer
    Resources, 1983. **Supra** at 62.

[^414]: At Note 98.

[^415]: Supra.

[^416]: Dickson, Catherine, 1998. **Cultural Resource Protection
    Associated with Lower Snake**

    **Drawdown**. A Report to the Columbia River Inter-Tribal Fish
    Commission. Pendleton,

    Oregon: Confederated Tribes of the Umatilla Indian Reservation,
    Department of Natural

    Resources, Cultural Resources Protection Program, pp. 1-2.

[^417]: Supra at 2-3.

[^418]: CTUIR Cultural Protection staff. 1995.

[^419]: Also refer to Section 4.8.

[^420]: Hunn, Eugene S., 1990. **Supra** at 27-32.

[^421]: At Note 380.

[^422]: Note 159.

[^423]: At Note 66.

[^424]: Debbie Croswell, Public Information Officer. Confederated Tribes
    of the Umatilla Indian

    Reservation. **Personal communication**. August 3, 1998.

[^425]: US Indian Health Service, 1994b. **Supra** at 75.

[^426]: Hunn, Eugene S., 1990. **Supra** at 283.

[^427]: American Indian Health Care Association, 1993b. **Northwest Area
    American Indian Health**

    **Status and Policy Assessment Project: State of Oregon Report**.
    Saint Paul, Minn., pp. ix-x.

[^428]: Confederated Tribes of the Umatilla Indian Reservation, 1996.
    **Supra** at 24.

[^429]: Hunn, Eugene S., 1990. **Supra** at 61.

[^430]: Supra at 78.

[^431]: Supra at 81.

[^432]: Ridington, Robin, 1990. **Supra** at xvii.

[^433]: Hunn, Eugene S., 1990. **Supra** at 64-65.

[^434]: US Bureau of the Census. **1990 CP-2-1A**. p. 43.

[^435]: Confederated Tribes of the Warm Springs Reservation of Oregon,
    1984. **The People of the**

    **Warm Springs**. p. 15.

[^436]: Supra at 15-17.

[^437]: Supra at 17-20.

[^438]: Hunn, Eugene S., and David H. French, 1998. "Western Columbia
    River Sahaptins", in,

    **Handbook of North American Indians: Plateau. Supra** at 391.

[^439]: Confederated Tribes of the Warm Springs Reservation of Oregon,
    1984. **Supra** at 37-39.

[^440]: Stowell, Cynthia D., 1987. **Faces of a Reservation: A Portrait
    of the Warm Springs Indian**

    **Reservation**. Oregon Historical Society Press, p. 128.

[^441]: Lane and Lane Associates and D. Nash, 1981d. **Willow Creek
    Anadromous Fish and Indian**

    **Fishing**. A Report to the US Bureau of Indian Affairs, p. 31.

[^442]: Hewes, Gordon W., 1947. **Supra** at 227.

[^443]: Supra.

[^444]: Walker, Deward E., 1967. **Supra** at 19.

[^445]: Swindell, Edward G., 1942. **Supra** at 165.

[^446]: Lane & Lane and D. Nash, 1981b. **Supra** at 68.

[^447]: Stowell, Cynthia D., 1987. **Supra** at xi.

[^448]: Hunn, Eugene S. **Supra** at 27-32.

[^449]: William Chinook, in, Stowell, Cynthia D. **Supra** at 121.

[^450]: Confederated Tribes of the Warm Springs Reservation of Oregon,
    1984. **Supra** at 23-24.

[^451]: Supra at 24.

[^452]: Stowell, Cynthia D., 1987. **Supra** at 109.

[^453]: Confederated Tribes of the Warm Springs Reservation of Oregon,
    1984. **Supra** at 26.

[^454]: Confederated Tribes of the Warm Springs Reservation of Oregon,
    1984. **Supra** at 34.

[^455]: Supra at 37.

[^456]: Supra at 37-39.

[^457]: Stowell, Cynthia D. **Supra** at 126.

[^458]: Supra.

[^459]: Supra at 135-136.

[^460]: Supra at 136.

[^461]: Harold Culpus, October 6, 1982. Personal communication at Warm
    Springs, in, Meyer

    Resources, 1983. **Supra** at 40-41.

[^462]: Delbert Frank Sr., Tribal Chairperson, at Warm Springs, October
    6, 1982. Personal

    communication, in, Meyer Resources, 1983. **Supra** at 70-71.

[^463]: Linton Winishut, at Warm Springs, October 6, 1982. Personal
    communication, in, Meyer

    Resources, 1983. **Supra** at 78-79.

[^464]: Hunn, Eugene S., 1990. **Supra** at 27-32.

[^465]: Stowell, Cynthia D., 1987. **Supra** at 132.

[^466]: Supra at 174.

[^467]: Note 66.

[^468]: Note 73.

[^469]: Recall prior Section 7.10.2.

[^470]: Stowell, Cynthia D., 1987. **Supra** at 179-180.

[^471]: Delbert Frank Sr., Warms Spring Chairman, at Warm Springs,
    October 6, 1982, in, Meyer

    Resources, 1983. **Supra** at 30.

[^472]: Confederated Tribes of the Warm Springs Indian Reservation,
    Department of Vital Statistics.

[^473]: White, Robert H., 1990. **Tribal Assets: The Rebirth of Native
    America**. New York: Henry

    Holt and Co., p. 187.

[^474]: Meyer Resources, 1983. **Supra** at 24-25.

[^475]: White, Robert H., 1990. **Supra**.

[^476]: Supra.

[^477]: Supra at 211.

[^478]: Note 66.

[^479]: Note 73.

[^480]: US Indian Health Service, 1994b. **Supra** at 75.

[^481]: White, Robert H., 1990. **Supra** at 242.

[^482]: US Indian Health Service, 1994b. **Supra** at 105.

[^483]: Stowell, Cynthia D., 1987. **Supra** at 163-164.

[^484]: A tribal discussion was held on October 1, 1998 at Warm Springs,
    with Mrs. Janice Clements,

    Chair of the Warm Springs Health Committee, Mr. Stanley Simtustus,
    Chair of the Warm

    Springs Fish and Wildlife Committee, Ramona Baez and Mini Yahtin
    (Health Committee),

    Terry Courtney Jr. and Harold Blackwolf (Fish and Wildlife
    Committee), and Willy Fuentes,

    General Manager for Human Services at Warms Springs.

[^485]: Supra.

[^486]: Janice Clements. Chair of the Warm Springs Health Committee.
    **Personal communication** at

    Warm Springs, October 1, 1998.

[^487]: Terry Courtney Jr., Warm Springs Fish and Wildlife Committee
    Member. **Personal**

    **communication** at Warm Springs, October 1, 1998.

[^488]: Willy Fuentes, Human Services General Manager, Confederated
    Tribes of the Warm Springs

    Reservation of Oregon. **Personal communication**. October 1, 1998.

[^489]: US Bureau of the Census. 1990 CP 2-1A, p. 43.

[^490]: Stowell, Cynthia D., 1987. **Supra** at 186.

[^491]: i.e. Lane & Lane Associates and D. Nash, 1981c. **Supra** at
    49ff.

[^492]: Nathan Jim, Sr., 1999. Warm Springs Commissioner to the Columbia
    River InterTribal Fish

    Commission. **Personal communication**. CRITFC Tribal Study Session
    on Tribal Impacts

    from Drawdown of Lower Snake River dams. March 10.

[^493]: Beaty, Roy E., Henry J. Yuen, Philip A. Meyer and Michael A.
    Matylewich, 1999.

    **Cumulative Impacts on the Peoples of the Nez Perce, Yakama,
    Umatilla and Warm**

    **Springs Indian Reservations from Construction and Operation of US
    Army Corps of**

    **Engineers' Dams in the Columbia River Basin Upstream of Bonneville
    Dam, Inclusive**.

    Columbia River Intertribal Fish Commission. A Report to the
    Administration for Native

    Americans.

[^494]: At Note 493.

[^495]: Nehlsen, Willa, J.E. Williams and J.A. Lichatowich, 1991.
    "Pacific Salmon at the Crossroads:

    Stocks at Risk from California, Oregon, Idaho and Washington", in,
    **Fisheries** 16:2. pp. 4-21.

[^496]: For a discussion of adverse trends potentially leading to
    extinction for some Snake River stocks, see for example,

    Monday, Phillip R., 1999. **Status and Expected Time to Extinction
    for Snake River Spring and Summer**

    **Chinook Stocks: The Doomsday Clock and Salmon Recovery Index
    Models Applied to the Snake River**

    **Basin.** A Report to Trout Unlimited. Portland, Oregon.

[^497]: Some graves were relocated outside the influence of the
    reservoirs when the dams were built.

    Tribal cultural protection experts report that many tribal graves
    remain under reservoir waters.

[^498]: US Army Corps of Engineers, 1994. **Columbia River Salmon
    Mitigation Analysis System**

    **Configuration Study, Phase 1: Lower Snake Reservoir Drawdown Draft
    Technical**

    **Report**. Appendix A. Walla Walla.

[^499]: Greenfeld and Smith (1999, p.iii) identifies that violence
    against Native Americans occurs at more than twice

    the rate affecting other Americans -- and that the violator is more
    likely to be of a different race, than for other

    ethnic subgroups.

[^500]: PATH Scientific Review Panel, 1998. **Supra.**

[^501]: For example, see: Task Force Seven, 1976. **Report on
    Reservation and Resource**

    **Development and Protection.** Final Report to the American Indian
    Policy Review

    Commission, Washington, D.C. , p. 128; and; White, Robert H., 1990.
    **Tribal Assets: The**

    **Rebirth of Native America**. New York: Henry Holt & Company.

[^502]: US Environmental Protection Agency, 1998. **Guidance for
    Incorporating Environmental Justice Concerns in**

    **EPA's NEPA Compliance Analyses**. Washington, D.C. April, pp.
    28-29.

[^503]: **Supra** at pp. 21-24.