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Confederated Tribes of the Umatilla Indian Reservation v. Alexander

Citation: 8 ELR 20090
No. No. 74-991, 440 F. Supp. 553/10 ERC 2068/(D. Or., 11/10/1977) Judgment for plaintiffs, injunction lifted

In a declaratory judgment, the court finds that Indian fishing rights along Catherine Creek, guaranteed by an 1855 treaty, will be illegally nullified by a flood-control dam proposed by the Army Corps of Engineers. Rejecting the government's argument that no treaty fishing rights exists on the relevant segment of Catherine Creek, the court finds that the fishing rights therein, notwithstanding different language in the treaty, are the same as those provided by other northwest Indian treaties. The flooding caused by the dam will deprive the Indians of these rights. Congress may nullify treaty rights, but it must do so by express and specific action. Such specific nullification has not occurred in this case and will not be inferred from a general project authorization. Since the construction of the dam, and hence the actual taking of the fishing rights, will not occur for several years, the court expects the Corps to seek proper congressional authority for the project, and an injunction is not necessary.

A previous decision in this case, 6 ELR 20484, enjoined expenditure of the remaining unappropriated funds for the project on the grounds that the appropriations were made prior to the filing of a final environmental impact statement.

Counsel for Plaintiffs
Douglas R. Nash
P.O. Box 1539, Pendleton OR 97801
(503) 276-8336

Dennis J. Whittlesey
Casey, Lane & Mittendorf
815 Connecticut Ave., Washington DC 20006
(202) 785-4949

Daniel H. Israel
Native American Rights Fund
1506 Broadway, Boulder CO 80302
(303) 447-8760

Counsel for Defendants
Sidney I. Lezak, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney
P.O. Box 71, Portland OR 97207
(503) 221-2101