William Fisher has published “The Culverts Opinion and the Need for a Broader Property-Based Construct” in the Journal of Environmental Law and Litigation (Oregon). Here is a copy of the Culverts Opinion. Here is an excerpt:
The question becomes: Do treaties involve an affirmative duty for states to protect fish habitat and ensure quality fish runs? As discussed herein, a federal court has answered this question narrowly, yet affirmatively, failing to employ a property-based construct that encompasses all the rights reserved under the tribal treaties. Therefore, although the courts have recognized the existence of a duty, they have not yet recognized its entire scope.
Many theories have been advanced for how courts should interpret a state’s duties to protect fish habitat. Generally, treaty-invoked duties are analyzed under a contract-law paradigm. This is not erroneous, as treaties are said to be “contract[s] between sovereign nations.” However, when courts look at treaties only as contracts, they are missing one major aspect of tribal treaties: property rights. Not only are tribal treaties contracts between sovereigns, they are also deeds of property. Therefore, the bodies of law that are invoked by the formation of a tribal treaty include both contract law and property law. However, despite the promising answers property law provides for treaty interpretation, many judges have shown discomfort at the idea of applying property-based constructs to interpret states’ and tribes’ duties and rights under such treaties. Some feel that the formalistic rules of property law do not contain enough elasticity to be molded within the Indian law context. For example, when the Ninth Circuit used a property-law analogy to enforce tribes’ rights to take fish from the Columbia River, Judge Kennedy concurred in the holding but objected to the court’s use of this analogy, arguing that it was not an exact fit. What Judge Kennedy failed to recognize was that courts can and should apply the basic models of a property-based construct to analyze treaty rights, even where every jot and tittle may not line up. Refusing to do so is to turn a blind eye to the fact that treaties are deeds of property, and as such, invoke the rules of property law.