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.
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
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."
Reporter Krista J. Kapralos: 425-339-3422 or HYPERLINK
"mailto:kkapralos@heraldnet.com"kkapralos@heraldnet.com.
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