----- Original Message -----
To: Carlson, John
Sent: Tuesday, September 04, 2007 11:06 AM
Subject: Culvert Ruling (brief overview)
This lawsuit will impact every man,
woman, and child in Washington State. WA tribes are
attempting to gain "environmental servitude" rights over all
public and private activities that influence water quality and, in turn, their
salmon and steelhead runs. Their goal in this Culvert case is to extract
hundreds of millions of dollars from state and local taxpayers by suing over
lack of stream flow and poor water quality in culverts throughout the
state. This essentially amounts to blackmail through the equivalent of
'permit fees' being paid to tribes. That's where private landowners come in
because anywhere water stands on private property - - even if only for a few
weeks a year - - the tribes want to extract compensation. Agriculture is
their primary target, after local governments. Farmers can't meet the
water quality standards required for fish when they have animals and crops to
raise. The tribes have been attempting to get this sort of 'permit
authority' over the use of public and private lands ever since the Boldt
Decision was handed down in the mid-1970s. They lost their first attempt in
Boldt II when the 9th Circuit ruled that giving tribes this sort of "sweeping
power" over land use would have "disastrous economic consequences" for the
----- Original Message -----
From: Carlson, John
To: Barb Lindsay
Sent: Tuesday, September 04, 2007 10:26 AM
Subject: RE: Culvert Ruling (possible interview)
OK, now tell me how I can sell it to the producer. Give me a 30-second pitch.
Sent: Tuesday, September 04, 2007 9:10 AM
To: Carlson, John
Subject: Re: Culvert Ruling (possible interview)
I'd love to explain this egregious ruling to your listeners! The State and Tribes are now in negotiations again, but private landowners don't have a seat at the bargaining table. We faced this exact same situation with Shellfish/Tidelands case until the 9th Circuit allowed us to intervene & defend our private property rights. My cell phone number is 206-660-3085, but maybe you'd prefer to do the interview on a land line? Our tel. number here in
Los Angeles County( ) is 818-707-0619. Let me know the best date and time for you? I am open this week and next, except this afternoon because I must take Vic to chemotherapy for his lung cancer which has spread to his right kidney. His next treatment is Monday, Sept. 10th at 9:00am. We remain hopeful these treatments will put him into 'remission' again. We are moving back to Westlake Village next Summer and can hardly wait! Let me know more about your interview idea, OK? Thanks so much for thinking of this! Best Wishes, Barb for One Nation United (ONU) Bellevue
----- Original Message -----
From: Carlson, John
To: Barb Lindsay
Sent: Monday, September 03, 2007 4:48 PM
Subject: RE: Tribal Culvert Ruling (Judge ignored Sherrill decision by U.S. Supreme Court)
Most people hear about this and think it's just an arcane legal issue for local government. Do you think you can shake people out of that perception if we have you on the show to talk about it?
Subject: Culvert ruling (Judge ignored Sherrill decision by U.S. Supreme Court)
Culvert ruling backs tribes
Times staff reporter Seattle
In a landmark decision more than 30 years in the making, a federal judge Wednesday ruled the state can't build or maintain road culverts that hurt fish passage or diminish fish populations because that violates tribal treaty rights to fish.
The case has broad implications to spur the pace and increase the cost of state culvert repairs already under way around
Western Washington. The ruling by District Judge Ricardo S. Martinez, expected to be appealed, could also lead tribes to seek other habitat protections. U.S.
"This could be very big," said Mason Morisset, an attorney representing tribes in the case. "If it stands, you will see tribes assert themselves on a broad range of activities to protect the habitat. Whether it's clearing wetlands or building roads and developments ... , if we can show you are going to have a net loss of habitat, that is a treaty rights violation."
The judge posed no remedy in the decision; that's a step that will begin next week. Fixing more culverts faster is sure to be on the table. And that is going to be expensive.
"I'm not going to use the 'B' word, but it's millions of dollars," said Fronda Woods, assistant attorney general for the state of Washington, the defendant in the case.
The case pertains to fish habitat everywhere north of the
Columbia Riverand west of the Cascade crest, affecting the treaty rights of about 20 tribes that brought the suit.
No state agency faces a bigger potential bill than the Department of Transportation, with about 800 culverts in
Western Washingtonto fix.
"I have great concern from a budget perspective," said Paula Hammond, interim transportation secretary.
The agency has already spent $40 million identifying and fixing problem culverts since 1991 and intends to spend $69 million more over the next 12 years. Now it looks like that won't be enough.
"It's likely hundreds of millions of dollars of corrections that would need to be made,"
said. "We don't have those kinds of funds, and you have to weigh this against the costs for maintaining and preserving our existing infrastructure." Hammond
The ruling didn't speak to culverts built and maintained by local governments, raising questions about broader implications of the decision.
asked. "Think about a stream as it crosses a city street and a county road and a state highway as it makes its way to Hammond Puget Sound.
"It doesn't solve the problem unless you correct the whole corridor, and if we can't afford it at the state level, the local agencies certainly can't,"
For tribes, the ruling was a long-awaited culmination of the original Boldt decision,
U.S.vs. . In that case, tribes sought not only affirmation of their treaty right to fish in their usual and accustomed places, but protection of habitat to ensure that fish would always be there to catch. Washington
The first part of the case was decided in 1974, affirming tribes' treaty right to half the catch.
But the habitat questions raised in the case have been wending their way through the courts ever since.
"Oh boy, this is a celebration day," said Billy Frank Jr., a Nisqually elder and chairman of the Northwest Indian Fisheries Commission, formed to implement the Boldt decision.
"All of the things we had when we signed the treaty is slowly disappearing," Frank said. "If the fish aren't here, what is the treaty all about? What is the thing we signed in good faith, the peace treaty in 1854? What is the meaning of all that? In our time, and for our children and grandchildren and for their children yet unborn, this is what it means: that we have to have our fish here."
That doesn't mean turning the clock back: "I don't think anyone is saying they are going to close down I-5," Frank said. "In order for us all to live together, we are not turning the lights off.
"But we have to do a better job at what we are doing. We have to have the leadership and the guts to make it happen, and we haven't had the political will for salmon in this state," Frank said. "We need the political will to bring the salmon back and have a home when they get here."
The Herald - Everett,
- HYPERLINK "https://www.HeraldNet.com"www.HeraldNet.com Wash.
Published: Sunday, October 22, 2006
Tribes seek greater clout
Based on 1855 treaty, Tulalips assert rights to plants, environment
By Krista J. Kapralos and Eric Stevick
Herald Writers C 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
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
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
"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,
"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
There were about 2,300 Indians from
Western Washingtonready 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
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
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
"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
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
Sloughbetween 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
"I came out to fish right out here," Tulalip Tribes Chairman Stan Jones, 80,
said, nodding toward
. "State fisheries would try to chase us Tulalip Bay
back up the river."
They decided to fight in court.
"We knew we couldn't lose anymore because we had hardly anything," Jones
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
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
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'
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
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
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
The treaty is a powerful weapon, Tulalip Tribes' attorney Mason Morisset
said - it's the "shotgun behind the door."
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
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
Geneva, Switzerland, to , lobbying for United Rio de Janeiro, Brazil
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
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
Some have asked the tribes to share their knowledge, he said, but the tribes
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
A changing tradition
Many of the world's indigenous tribes don't traditionally recognize
ownership of the Earth or its resources.
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
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
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
"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
"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
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
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
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
"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
'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 federal delegation that brokered the treaty expected the tribes to
"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:firstname.lastname@example.org"email@example.com.
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