Columbia River Tribes, Gorge Commission back Warm Springs Tribes in Thornburgh Resort court dispute

SALEM, Ore. (KTVZ) -- The Oregon Court of Appeals on March 1 received two amicus curiae (friend of the court) briefs, asserting that the state Land Use Board of Appeals discounted indigenous expertise and erred in its conclusion earlier this year regarding how Tribes invoke and use Treaty rights in land use proceedings.

The two briefs were submitted in support of the Confederated Tribes of the Warm Springs Reservation of Oregon’s request of the court to return the January 12 LUBA decision to address issues that the Warm Springs Tribe raised in connection with the proposed modification approved by Deschutes County commissioners of Thornburgh Resort’s Fish and Wildlife Mitigation Plan.

The two briefs include:

The Confederated Tribes and Bands of the Yakama Nation, the Confederated Tribes of the Umatilla Indian Reservation and the Nez Perce Tribe

In their brief, the Tribes state that the LUBA decision discounts the value of indigenous enterprise in local land use planning and decision-making, failing to give equal weight to traditional ecological knowledge. They say that the conclusions reached by indigenous expertise are distinct from those found in Western science, and both are legitimate in their own right.

They write, “Presently, Deschutes County employs a top-down approach that marginalizes indigenous communities by dismissing their cultural traditions as groundless while simultaneously imposing external values, policies, and actions upon native communities, landscapes, and treaty resources. Not only does this disregard decades of Tribal-Federal-State collaborative management, it also discounts indigenous expertise.”

Columbia River Gorge Commission

Pulling from its nearly 40 years consulting with and working with the four Columbia River Treaty Tribes, which include the Confederated Tribes of the Warm Springs Reservation, the Gorge Commission shared how it developed appropriate treaty rights protection policies for the Columbia River Gorge National Scenic Area.

The Gorge Commission notes that the National Scenic Area standards do not distinguish between science that has been peer reviewed and published and tribal indigenous knowledge. The tribes have impressed upon the Gorge Commission that their knowledge and practice of their treaty-reserved rights are cultural traditions passed from generation to generation and are thus themselves a part of the treaty right itself.

In its brief, the Gorge Commission says, “LUBA erred in concluding that the Confederated Tribes of the Warm Springs Reservation did not preserve its treaty rights issue because it did not express certain specific arguments before Deschutes County.”

WHY:

The 1855 Treaty with the Tribes of Middle Oregon is federal law and guarantees the Warm Springs Tribe the right to take fish throughout the Columbia River basin and its tributaries, including the Deschutes Basin. It also requires that there is a harvestable population available to the Confederated Tribes of Warm Springs.

In its filing to the State Court on January 26, the Warm Springs Tribe asserts that its 1855 Treaty rights and Indigenous knowledge concerning its oversight of Deschutes Basin waters and treaty-protected native fisheries was overlooked and marginalized in the public process to approve the 2022 Fish & Wildlife Mitigation Plan.

The brief further describes how the decisional process was controlled by the Thornburgh Resort in a way that ensured the Board of Deschutes County Commissioners did not meaningfully engage with the Tribe’s expert information about the Deschutes Basin fish resources, which are protected by its 1855 Treaty. It also explains how the Land Use Board of Appeals followed suit by failing to recognize the Tribe’s scientific and indigenous expertise and to engage in any meaningful way with the Tribe’s evidence.

Robert A. Brunoe, Secretary Treasurer/CEO of the Confederated Tribes of Warm Springs, said:

“We extend our appreciation to our relatives at the Confederated Tribes and Bands of the Yakama Nation, the Confederated Tribes of the Umatilla Indian Reservation, the Nez Perce Tribe and the Columbia River Gorge Commission for supporting our request for the State Court to return the January 12 decision to the Land Use Board of Appeals.

"Their briefs speak testament to the long-standing, productive partnership Columbia River Basin Treaty Tribes have enjoyed with parties such as the Columbia River Gorge Commission in demonstrating that tribal expertise and collaboration remain essential to the future of the Deschutes Basin, and that we have Treaty-protected oversight of the region’s natural resources.”

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The Confederated Tribes of the Warm Springs Reservation of Oregon is a federally recognized, sovereign Indian tribe occupying the Warm Springs Reservation, which was reserved for its exclusive benefit by an 1855 Treaty with the United States. The Reservation stretches from the summit of the Cascade Mountains to the cliffs of the Deschutes River in Central Oregon.