interesting article- politicians worst fear coming to pass

Tribes seek greater clout
Based on 1855 treaty, Tulalips assert rights to plants, environment

By Krista J. Kapralos and Eric Stevick
Herald Writers © 2006 The Daily Herald Co.

See the full text of the Treaty of Point Elliott.

The key points of contention on the Treaty of Point Elliott.


Tulalip Tribal elder Ray Moses keeps the stories his ancestors gave to him.

He tells how the whale pushes the reluctant salmon back into the rivers, how the beaver tried to woo the field mouse.

Moses, 75, saves these old stories, passes them on.

In his pocket he keeps another story. It too is from the past, but this, he explains, is also the future.

It is a folded, dog-eared copy of the Treaty of Point Elliott. He takes it out, holds it up in the sunlight, waves it at passersby.

"People don't know that we have these rights. They need to know this."

To the treaty tribes - today's Tulalip, Stillaguamish, Lummi, Swinomish and others - the 1855 pact signed by Mukilteo's shore tells everyone what belongs to them forever.

People still debate the treaty's Indian fishing rights and fight over property lines. They argue with tribal police over their authority, and over whether non-Indians can build docks in Tulalip Bay.

Photo Gallery

Page 1 of the Treaty of Point Elliott from 1855 (National Archives an... [ view gallery ]


The tribes are taking the next step.

Now, they say the 151-year-old treaty guarantees their world patent rights on native trees, flowers, shrubs and even weeds - the DNA of every plant that naturally grows here.

If that's true, the tribes could gain trademark control over all future use of native plants.

Tribal permission would be needed for pharmaceutical companies and other businesses to use the plants to make medicine, cosmetics or even herbal tea.

The tribes already have put the case before the United Nations.

The U.N. Council on Human Rights is writing a document promoting tribal rights to indigenous intellectual property.

The treaty tribes also are pushing for more control of the environment.

They've filed the first in a series of lawsuits intended to win a greater stake in managing Western Washington's environment. They call it the Habitat Claim.

They sued the state in August for control over the region's culverts, which carry runoff along and under roads. Control over the culverts is crucial to keeping pollution out of creeks, streams and rivers.

Their reasoning, the tribes say, is simple.

Tribal culture requires healthy salmon runs, thriving forests and water that is free from pollution. Unless there are strict environmental regulations, they believe their salmon-centered culture could be lost within a generation.

"Economic survival is different than cultural survival," said Terry Williams, a Tulalip tribal leader on environmental issues. "If you survive economically only to find that you can no longer practice your culture, that's devastating.

"We're trying to figure out how we're going to survive the 21st century."

A living treaty

The Treaty of Point Elliott is among the most important documents in the founding of the state.

In January 1855, Indians pulled canoe after canoe onto the shore at Mukilteo.

There were about 2,300 Indians from Western Washington ready to meet white settlers and federal delegates.

Within the limits of the Chinook jargon they negotiated the future of a new nation, and of tribes who had lived there since before they recorded time.

There are 100 signatures on the treaty. Eighty-two, those belonging to Indians, are simple X marks.

The federal men demanded land. They wanted to move every Indian in the region to one area and take ownership of what amounts to about a fifth of what is now Washington state.

The tribes insisted that they be able to keep their way of life. They wanted to continue fishing, hunting and gathering roots and berries at all of their usual places.

In 1955, when Tulalip elder Ruth Sehome Shelton was nearly 100, she retold the story she heard as a girl.

The group was gathered near the beach. Federal negotiator and Washington Territory governor Isaac Stevens was speaking.

A tribal leader, whose name is lost, asked how long the treaty would last.

"Will it be for as long as the water flows in the rivers ... will that be ours, and will it be for as long as the sun travels from whence it comes until it returns to the west?"

Stevens nodded and then sat down.

Settlers and federal officials believed the Indians would assimilate into white society.

"The good part of the story is, in spite of all the atrocities and hoodwinking that went on, that the tribes survived and their culture exists," said David Dilgard, a regional historian with Everett Public Library.

Today, he added, "150 years after the document was signed, you have guys in suits on retainer saying, 'Let's take a closer look at this.'"

Opposition then and now

Before the Treaty of Point Elliott was even ratified, settlers and Indians began disputing its words.

Indians argued among themselves, claiming people who weren't chiefs were among those who signed the treaty. Settlers had trouble getting Indians out of the way of railroads, logging outfits and farms.

Fishing, then as now, caused many clashes. After the state created fishing seasons, Indians were allowed to fish out of season, using weirs and special types of nets.

A century ago - in 1906 - three white fishermen did as the Indians could, and cast nets in Steamboat Slough between Everett and Marysville. That act changed state law, and for a time handed the treaty rights over to everyone.

By the 1960s and 1970s, Indians - who still relied on salmon for survival - were barred from fishing at many of their customary spots. State fisheries officers arrested Indians for illegal fishing. The Indians insisted that the Treaty of Point Elliott granted them the right to fish within their traditional areas.

"I came out to fish right out here," Tulalip Tribes Chairman Stan Jones, 80, said, nodding toward Tulalip Bay. "State fisheries would try to chase us back up the river."

They decided to fight in court.

"We knew we couldn't lose anymore because we had hardly anything," Jones said.

In 1974, U.S. District Court Judge George Boldt, a Montana-born sportsman, ruled that the treaty guaranteed the tribes half of all salmon and steelhead harvests.

State officials were shocked.

Tulalip tribal member Ray Fryberg said he'd heard about the treaty from his grandparents. "They were trying to teach me what would become very valuable," he said.

Boldt showed him its power.

"I didn't understand it at the time, but later it started to reveal itself to me."

The habitat claim

Boldt's decision opened new conflict between the tribes and the state as each side tried to determine what the ruling actually meant.

In 1980, U.S. District Court Judge William Orrick, in a case known as "Boldt II," declared that Boldt's ruling implied that the tribes have the right to a habitat that sustains the fish that are the lifeblood of their culture.

Orrick's ruling gave the tribes jurisdiction over much of the environment.

The state appealed. Two years later, the ruling was overturned by the 9th Circuit Court of Appeals in San Francisco.

Since then, the tribes have tried to find common ground with the state, only to see the environment continue to erode, said Williams, the Tulalips' environmental leader.

The tribes say they've got to use their treaty rights now to push the Habitat Claim, even if it means costly court battles. It would let them sue anyone who pollutes the region's environment.

The culvert lawsuit could cost taxpayers millions and infringe on property rights, said Barb Lindsay, director of One Nation United, a Redmond-based property rights advocacy group.

"This can affect every man, woman and child in the state of Washington where there is a culvert," she said.

The state hopes to delay the case, set for trial in March, to prepare a stronger defense, said Tom Fitzsimmons, chief of staff to Gov. Chris Gregoire.

The tribes say they aren't looking for money. Instead, they want to have more say in how the environment is managed.

The treaty is a powerful weapon, Tulalip Tribes' attorney Mason Morisset said - it's the "shotgun behind the door."

Intellectual rights

Williams also sees a link between the survival of native plants and advancements in the biotech industry.

The tribes must safeguard the species, all genetic blueprints within them and the secrets they may hold.

The tribes never ceded ownership of those resources in the Treaty of Point Elliott, Williams argues.

If the tribes have their way, Williams said, the future could hold virtual borders through which the plants - and their genetic codes - could not pass without tribal permission.

"We not only have a property right to the plant, but also an intellectual property right to the use of the plant," Williams said.

"Any breakdown of that plant to look at what generates medicinal purposes of that plant in the genes, that's our right as well."

The Tribes already are cultivating native plants in locked reservation greenhouses.

Tribal elders are recording their knowledge of herbal medicine for a database, available only to certain tribal members. Outsiders will never see it, tribal leaders say.

Williams' quest to safeguard the tribes' traditional knowledge has taken him from Geneva, Switzerland, to Rio de Janeiro, Brazil, lobbying for United Nations support.

Global edicts, including the 1992 Convention on Biological Diversity and the U.N.'s Declaration for the Rights of Indigenous Peoples, support tribal ownership of intellectual property, such as ancient healing methods.

Williams' work has captured the interest of the World Intellectual Property Rights Organization, another branch of the U.N. Williams says the organization has asked him to develop a pilot project for protecting tribal knowledge.

Common plants, such as fireweed, are well known to the state's tribes. The Snohomish used infusions of fireweed to cure sore throats, and the Skokomish used it to fight tuberculosis.

Western red cedar bark provided tribes clothing and hats; the Lummi chewed the buds to soothe sore lungs and calm nausea.

The ancient remedies that are widely known now are only a fraction of the cures tribal elders remember. Pharmaceutical companies are only aware of about 50 of more than 150 plants that tribal members still use, Williams said.

Some have asked the tribes to share their knowledge, he said, but the tribes have declined.

While the treaty reserves tribal rights to hunt and gather roots and berries on "open and unclaimed" land, the state isn't sure what that means, said Fronda Woods, a lawyer in the state Attorney General's office.

"Does that mean cedar bark?" she said. "Mushrooms? What about the commercial timber harvest?"

A changing tradition

Many of the world's indigenous tribes don't traditionally recognize ownership of the Earth or its resources.

That's changing.

There is a growing belief that if tribes don't claim ownership, someone else will, and their cultures will suffer, said Rudolph Ryser, a member of the Cowlitz tribe and director of the Center for World Indigenous Studies.

The center is an independent nonprofit think tank based in Olympia.

To protect their genetic resources, tribes must develop a law and get federal support to enforce it, Ryser said.

The Suquamish and Quileute tribes have already developed such laws, Ryser said.

The National Cancer Institute routinely enters into agreements with foreign governments and indigenous groups to ensure that the native population benefits from any drugs developed from natural resources found where they live.

In New Zealand, for example, the native Maoris also say their 1840 treaty with the British government reserves their ownership of genetic resources.

That treaty and the Treaty of Point Elliott were signed before scientists started seriously studying nature in a way that led to modern genetics.

Charles Darwin's "The Origin of Species" was printed in 1859. Gregor Mendel, working with mice and pea plants, presented his paper on inherited traits in 1865.

"The only way to protect and preserve wild plants and animals is to leave them in the care of indigenous communities that have cultures directly connected to the continuity of those things," he said.

The tribes and medical researchers should be concerned, said Gordon Cragg, a chemist and prominent cancer researcher.

If tribes gain official ownership of genetic resources, they should be prepared to make agreements with scientists to allow the resources to be studied.

"If there are proper agreements, they stand to benefit," said Cragg, who just retired from his post as head of the Natural Products Branch of the National Cancer Institute in Maryland.

"If they just sit on this and say, 'We won't collaborate at all,' then they don't gain anything, and the cancer patients or diabetes patients don't gain anything either."

Cragg's department travels the world hunting down plant samples for medical studies. In 1960, it collected bark from the Pacific yew found on the Olympic Peninsula - bark that scientists developed into Taxol, a powerful drug used to treat ovarian, breast and some lung cancers.

If a tribe stopped scientists from taking that bark, Cragg said, it could have meant death for untold numbers of women men and children with cancer.

Battle for the beaches

The treaty also causes headaches for non-Indians living on the Tulalip Reservation, including Tom Mitchell and his wife, Patricia Johansen-Mitchell.

From their home overlooking Mission Beach, they spot the tops of gray whales returning each spring to feast on ghost shrimp.

At night, they hear the whales' sonorous weeshhhh in the water. The next day, if the tide's low, they see muddy craters left behind by hungry whales.

"It's always a big deal when they arrive," said Mitchell, president of the Marysville-Tulalip Community Association, a group of non-Indians who own land or live on leased land on the reservation.

Johansen-Mitchell's parents owned the land on which they live, and built their home more than 40 years ago.

It's an idyllic spot, but these days, the Mitchells and about 400 other nontribal families are embroiled in property disputes with the tribes over who owns the tidelands.

The tribes say the Treaty of Point Elliott gives them jurisdiction over the beaches.

Last March, they passed tidelands management policies that restrict development along the shoreline, and they banned new docks, stairs, bulkheads and other structures.

Non-Indian landowners produce deeds, some a century old, that describe their property to the low water mark: they believe their deeds give them ownership of the beachfront.

It's a battle that has both sides, and their lawyers, researching the treaty.

"The tidelands are just the first and most visible effort we think the tribe is going to implement as they attempt to gain greater and greater control of the reservation," Mitchell said.

He predicts the tribes will assert jurisdiction over uplands property along creeks and sloughs.

Tribal leaders say the beaches are reserved for the tribes, and that bulkheads and docks destroy the tidelands' delicate ecosystem. They have yet to enforce the new shoreline policies, but property owners are bracing for court.

'There's no indication that they're about to start implementing it," Mitchell said. "That may be simply because they recognize they may not get away with it."

Remembering the treaty

Last year, 150 years after the treaty was signed, local historians invited Indian leaders to once again paddle to Mukilteo and pull their canoes onto the beach.

The federal delegation that brokered the treaty expected the tribes to eventually disappear.

"That's the irony," said John Collier of the Mukilteo Historical Society. "The Point Elliott Treaty has emerged as a symbol among Native Americans to keep their cultural identity, as well as a living document with real political and economic influence in the 21st century."

Jones, the Tulalip Tribes chairman who's been alive more than half as long as the treaty, puts it simply.

"The treaty is as strong now as it's ever been."

I think you should change the title of your post to:

"Lawyers' Fondest Dreams Come True As Tribal Assertions and Entrenched Interests Dig In"

Subtitle: "New Page Turned in Age-Old Story of Suspicion and Treachery While Salmon and Steelhard Populations Dwindle."

Sub-Sub Title: "Shiites" versus "Sunnis" in Good Old Americanski. Possible connection between roadside bombings and Dupont spinners.


It just gets too goddam depressing.........

otter

any action, by any group, that draws attention to the devastation 'we' have inflicted on our one and only environment and all things that depend on its health, is a very good thing. more power to'um.

Washington native Americans want to take over the stewardship of the environment? Ya, they have done a bang up job so far (note the sarcasm). This is a joke, it's about money pure and simple.

bradly640, please point to some specific examples of screwups on the part of the NAs in WA. thanks.

Nets, nets and more nets.

I thought you would just go for the obvious and tell him to drive through a reservation some time and just take a look around.. (sarcastic, gross generalization here) They choose not to manage something as simple as a lawnmower for the most part let alone a timber harvest plan or environmental impact studies..

Unfortunately it seems that the wealth that is generated by the natives resources, in the spirit of enhancing the lives of all natives, actually only benefits a select few, while the majority continue to live in near poverty.

Sounds an awful lot like a general description of life in the the gool old U.S. of A.

nets???? these folks were guaranteed a portion of the fish take. they have it in writing whether or not anyone in todays life space likes it or not.

take care of your lawnmower??? ever driven through the SE, pick a state any state, and check out the debris piles in front of all of those homes occupied by white folk!

try again with something concrete this time, if you choose too.

Gt how is that portion figured out? Who checks them? When you've got the answers to those two questions, hit me up with a PM. An no, I haven't driven throught the Southeast, I lived there for 8 years. In the backwoods of North Carolina. Poverty, alcoholism, mental illness and drug abuse are prevelant in poverty stricken areas. For all races GT. Just like the Southest. And Granite Falls, Forks, Abderdeen (Pick your own boys) and any other depressed area back home. But you didn't use one of them for an example did you? You took it away from home, to a place where those "white folks" couldn't defend themselves any better than the people you thought you were helping. What does that have to do with the state of the Native Reservations anyway. Doublespeak is what it is. Read the message GT. We are with the Native Americans. We love them as fellow men and women. We want to know why they are living in poverty also. The house always wins GT. Someone is getting rich. They are not. And if these great people cannot take care of each other , how can they take care of our resources. What are the real intentions of their leaders? I cannnot answer that. Neither does anyone have to answer me in return. I can ask the question though. I have that right just as the gentleman did above. And lastly, neither I nor the 78 PMS and E-Mails in support of me and my brethren this week will be made to feel guilty or ignorant for questioning the accountability of the less than 2% of the general population of the great state of Washington that is steward to 50% of the entire damn salmon and steelhead resource. I don't remember reading about any tribe fishing out of diesal powered Purse Seiners in 1855. They do today. Is that a literal interpretation of the treaties? Does it matter how they do it? The methods used today are far more deadly than the methods used 100 years ago. Accountability and restraint are crucial on their end in conjuction with many issues on our end to maybe and I say maybe stop the downward spiral. No matter who many treaties where signed 100 years ago. We can look at their methods, their beliefs, their practices, their vision of the future. Just as they check us. Just as we are now checking ourselves in a critical and true manner. Pack the liberal defense at all costs crap. This is about our fish--- we love them just as they do. The Native Americans and us are co-stewards. That is our right also. We are the other 50%. Don't forget that brother. Neither I nor many, many flyfishermen and women will ever forget that. No matter how hard "folks" like you try to make this issue something it isn't. It is and never has been an attack on any race of people. It is a small piece of the pie of accountability. For all of us. That's all. We are not racists, stereotypers, rednecks or right wingers. We are good people who ask good tough questions you can't ask and demand answers. That isn't a crime it is a right. Nice try GT. Who's next? Coach

well now coach, i didn't single out the NAs and try and pissintheirboots now did i! i didn't make the racist comment regarding their taking care of their property, did i!

yes they are co-managers in the protection and development of our wildlife, don't like it? tough!. 'co', is the operative term here. so they now have diesel trawlers, so what! does the white fisherman fish from a canoe? does the white fisherman employ the fishwheel? come on coach, it does not a whit of good to spit on people, myself included.

you see my challenging folks here as the 'liberal' raising a ruckus. did you look in your crystal ball to determine who and what i stand for?? coach, you are full of yourself tonight, too bad.

i asked some time ago where the hell the 'co' was when WDFW was holding their planning meetings for steelhead. in PA there were exactly 3 of us who showed up and asked questions. so the 'co' doesn't seem to give a damn now do they.

Emotion comes out in a discussion when level thinking is in the right and there is no sensible retort. My tone and writing reflect my thought process. Calm, confident in my beliefs and open-minded. Nobody is questioning the right to 50 % of the fish. This was signed as law, challanged and upheld in the courts. This doesn't bother anyone. We want to know how that number is realized. We want to know true intentions. We have seen different on both our side and theirs. That is concrete. My wife and I are co-stewards of the Duffield family money. She has a right to question me and I question her. We work together. As you read the piece above, you see the beginnings of a movement to pull away from cooperation. The plant issue makes this obvious. You still haven't told me how the final numbers that decide the 50% are come to. And we have a right to question the motives of the co-stewards. We are all concerned with the future of our wild fish. Nets do not discriminate. Seems to me they should just keep the hatchery fish in the concrete tanks for a couple more years and drop the nets right over them. Haul them away right there. Then keep the near-shore and rivers free of nets. For the wild fish. We know that will never happen though don't we? They have a right to question us. But GT, your defense of our co-stewards lead down a manipulative road to accusation. Ill-founded accusation. The young men above were simply giving their thoughts when asked. And to them they are concrete. So put the gasoline back in the shed and piss on the coals. Let's keep the blood temp down. It leads to ugly name calling and getting off of the subject. I have been taught by my peers on this site to take the high road at all times. This isn't about pre-concieved steorytypes. Or how much junk sits in front of people's houses in Georgia. That is emotion driven drivel. Gasline on the fire of nonsense. It is the issue of white working with Native American and vice versa. You cannot know and work with someone if you don't ask questions and begin to understand them. There is a minority of "folks" on this site who love to enflame things.
I don't see you in that group of politically correct gestapo. You were just as guilty of "crystal ballling" someone's belief system and projecting people's thoughts in the response above. I've done that myself a time or two and it happens. You can love me or hate me, but I (and as you will see many others) aren't going to blindly accept politically correct because it is popular or safe. I've promised the fish I wouldn't. I'll be in Seattle from December 14th to early January. I'd love to attend a fisheries meeting with you after some flyfishing. It wouldn't be my first. Coach

The Nooksack elk herd.

before i look to blame the 'other' guy, i always attempt to carefully review my own ability to deliver. so lets begin by reviewing our part of the co-management equation to ensure that 'we' are doing our level best to uphold our 50% of the equation.

how well are we doing: controlling runoff in urban areas to insure that pollutants we have contributing are filtered? treating all sewage to the highest level of purity before releasing the outflow? controlling urban and suburban sprawl to insure native soils are not covered so nature can help filter our runoffs? controlling the use of dangerous pesticides and other agricultural chemicals so they do not enter our water ways? allowing our streams to adopt their natural meander? pulling bulkworks, pilings and riprap from our saltwater shore fronts? bringing back the few and declining native spawning anadramous fishes to our rivers and streams? enforcing our laws and getting the snaggers off our waterways? getting the fish eating dams off of our rivers when they are contributing a pitance to the power grid? in understanding the detremental effect of continuous 'planting' of tank raised fishes? ......................................


the list can obviously take up more space than is probably permitted for a single post. but my point is simple, i have no high ground to stand on! so for me to cast stones at others, their beliefs and way of life, is simply not ok with me.

as co-managers should we engage in disucssions? well of course. we should also have some clear and defensable catch goals that everyone needs to live with. that would seem a great beginning point and something which needs to be put in place for the benefit of everyone.

First off I agreed completely with ya. But stones aren't being thrown GT. Just questions concerning their actions and efforts in conjunction with ours. Some of this stems from urban legend stuff. We get to throwing stones at each other at times. I've heard now of two elk heads lost. One was the Blue Mountain herd and now the Nooksack herd. I have no idea what the truth is about either. I'd like to know the truth. If we had true liason and co-stewardship we would be able to keep abreast of each other's activities. Maybe a fish and game spokesman or liason office for each and common interaction. Who knows? Development and the almighty dollar are the biggest enemies to our fish. We are reminded (and with good reason) often about our failures by our co-stewards. However when actions on their end are jacked up also, those that really care have a right to vent and question what they see without being called emotionally tinged words. Checks and balances work if they can be utilized without past suspicions and hatred thrown in. As soon as things get tough, the question asker or punk card puller is called anti-Native American. I think it is more pro-wild fish. Perception is a tricky thing. When I pull a year old torn-up net with dead fish in it like I have four times over the years, I wonder if the things I am told are true. When I see a couple hundred or so fish lying dead on the beach at the mouth of the Ballard Locks, I wonder what I can do. I'm told nothing. So are many others. They are as tired of that crap as they are of the state of Washington, dams, lumber, deveopmentect. The courts have decided stewardship percentages in Washington State. We don't have a problem with that. We have a problem with the actions of both them and us That's all. Tight lines Coach

Here is my personal take on the entire thing. This is all opinion and is only supported by my own nearsighted personal observations.

ANY group in society that is given free handouts eventually has a significant portion of their group become dependent upon them and lose their survival based drive to succeed and compete for money/food/education you name it.

This is pretty easily seen in the US caucasian culture with welfare programs, in the native american cultures on every reservation I have ever driven across, and all through Canada with their welfare system.

I dont blame the indians for their situation I think it is the system that is at fault. Free handouts are no help as a long term solution. They perpetuate themselves. Each generation seemingly learns from the prior one how to milk every dollar out of the system and it carries on down the line.

Lastly and most brutally;

The indian nations were unfortunately conquered. I do not know a conquered nation in history that has been given such accords and financial support as they have. I can totally agree that they have been taken advantage of many times. I also think that they are faced with the same problem that you and I and everyone else in the world faces which is adapting to change to survive in the competitive world of today. Changing your daily actions doesnt mean that you have to cast aside your history and heritage it just means that you may have to find a happy ground between the two to facilitate your financial success and the longevity of your traditions.

Apathy and laziness which is readily apparent from the lack of pride or whatever in a large portion of society is unfortunate. Facilitating that and making it a successful lifestyle through free handouts is far worse though in my mind.

to put this as simply as possible: when i have my 50% of the co-managed resource flying straight and true, i'll stop and look over the fence.

Coach,

You still crack me up!

". . . My tone and writing reflect my thought process. Calm, confident in my beliefs and open-minded. . . " You write like a drunk high on speed. Your writing is very entertaining, and I thank you for that, but I'm still waiting for it to make the first bit of sense.

Sincerely,

Salmo g.