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Inherent Sovereignty Declaration Sets Tone for Fed. Rec. Conference

Gale Courey ToensingLeaders and representatives of 29 indigenous nations that are not acknowledged by the federal government participated in a pipe ceremony and signing of a Declaration on the Exercise of Inherent Sovereignty and Cooperation on the first day of a conference called Who Decides You're Real? Fixing the Federal Recognition Process at Arizona State University. — Gale Courey Toensing
Leaders and representatives of 29 indigenous nations that are not acknowledged by the federal government participated in a pipe ceremony and signing of a Declaration on the Exercise of Inherent Sovereignty and Cooperation on the first day of a conference called Who Decides You’re Real? Fixing the Federal Recognition Process at Arizona State University.

Gale Courey Toensing, ICTMN, 1/27/14

A unique direct action took place on the first morning of a recent conference on federal recognition: The panel discussions stopped for almost two hours while everyone participated in a ceremony for the signing and witnessing of a declaration asserting the inherent sovereignty of indigenous nations.

The conference, called “Who Decides You’re Real? Fixing the Federal Recognition Process,” was held January 16-17 at Arizona State University’s Sandra Day O’Connor College of Law. Close to 200 tribal leaders and representatives of both federally recognized and “unrecognized” indigenous nations, attorneys and consultants specializing in the Federal Acknowledgement Process (FAP), and federal officials attended. The discussion focused on the challenges faced by unrecognized tribes under what everyone agrees is a “broken” federal recognition process and ways to fix it.

The conference took place in the midst of a reform effort by Assistant Secretary – Indian Affairs Kevin Washburn and other Bureau of Indian Affairs officials that has been called “the most dramatic, bold proposal made in the federal acknowledgment area in probably the last 20 years.”

“This conference is timely to talk about what those proposed changes are and also to help those people who are struggling through the system,” said Frank Ettawageshik, former chairman of the Little Traverse Band of Odawa Indians and co-chair of the conference with Rev. John Norwood, tribal councilman and Principal Justice of the Tribal Supreme Court of the Nanticoke Lenni-Lenape Tribal Nation.

Ettawageshik and Norwood conducted the pipe ceremony that accompanied the signing of five original copies of the Declaration on the Exercise of Inherent Sovereignty and Cooperation by 29 tribal leaders. The leaders brought with them resolutions from their councils authorizing the signing. Everyone else present then signed five copies of witness sheets.

The key idea, Ettawageshik said, is that federal recognition is about two sovereigns negotiating diplomatic relations. “The relationship between the federal government and an indigenous nation isn’t a one-way street. We need to recognize each other,’ he said. “But I’ve often pointed out that if we as tribes in the U.S. define ourselves as having to have federal recognition in order to be a member of this group then what we’ve done is abdicated our role as a sovereign, we’ve abdicated the role of deciding with whom we will have diplomatic relations. In other words, are we indigenous nations going to recognize each other? We need to be thinking that through. And one of the ways we do that is by signing accords or agreements or treaties with each other, which is acknowledging each other.”

That was the concept behind the Declaration on the Exercise of Inherent Sovereignty and Cooperation, which was Ettawageshik’s brainchild during conference planning sessions with Norwood and co-chairs Patty Ferguson-Bohnee, a citizen of the Pointe-au-Chien Indian Tribe and director of the Indian Legal Program at the College of Law and attorney Judy Shapiro.

“Conferences generally present a series of panels or talking heads one after the other talking about ideas. That’s an important exchange but there’s something to be said for talking about something and then doing it. That helps cement the ideas and gets you moving in their direction.”

The Declaration is written in the style of the Declaration on the Rights of Indigenous Peoples and other international documents with a series of statements “honoring,” “building,” “expressing,” “desiring,” and so on, to the final statement, which says, “[W]e pledge, affirm and proclaim: To work with each other to exercise our inherent sovereignty as governments, to protect individual and common human rights, and to seek social justice. The dust and spirits of our ancestors that make up our cultural and national roots are deep in the waters and soil of this land, nurtured by the gifts of Mother Earth. As we stand on this land, we drink together from the waters of knowledge, we breathe the air of freedom and wisdom, and we bask in the light of cooperation and compassion. We assert these for our children’s children and beyond. We carry many lessons from our ancestors, and we share in the collective wisdom and experiences that they have entrusted to us to provide for our coming generations.”

Special engraved pens were given to everyone to sign the Declaration and embossed copies of the document were distributed. The five original copies will be preserved in different parts of the country.

“We wanted to make a memorable event that people could participate in and remember,” Ettawageshik said. From all accounts, the organizers succeeded.

Developing A Taste For Geoduck In The Northwest

Michael Gifford, chef at Seattle's How To Cook A Wolf, shows off a geoduck he's preparing. | credit: Ashley Ahearn — Michael Gifford, chef at Seattle’s How To Cook A Wolf, shows off a geoduck he’s preparing. | credit: Ashley Ahearn

By Ashley Ahearn, OPB

The Locavore movement is thriving in the Northwest — with one big exception. When it comes to Puget Sound geoduck clams, the shellfish industry and local chefs are still trying to create a demand for them at home.

Geoduck clams from Washington state are prized in Asia, creating a lucrative market for the Puget Sound region’s tribal and commercial shellfish harvesters. But two months ago, China banned all shellfish imports from most of the West Coast after finding high levels of arsenic in a sample from Washington. The move has hit Washington hard, particularly the geoduck industry.

And that has the industry turning to local chefs to help boost demand close to home.

Local chef Michael Gifford remembers his first experience with geoduck clams. He got his first taste at a sushi restaurant soon after he moved to Seattle from New Jersey.

“I was like, wow, I’ve never seen this before. It’s really unique. We’re very fortunate here to have this product,” Gifford says.

These days Gifford is the chef at the Seattle restaurant How To Cook A Wolf, where geoduck clams make regular appearances on the menu. He extolled the virtues of the region’s largest clam recently while preparing geoduck crudo, or in the raw.

“This is going to get a little raunchy. As you can see the geoduck is a very phallic looking animal,” he said, standing in the stainless steel kitchen as two large clams sat on a shelf nearby, their foot-long siphons draping down.

“So what we do is we bring them in, let them relax a little bit, let them go down and get out to its natural length,” Gifford quips. These necks can stretch to a meter in length.

Gifford is ready to remove the skin from a geoduck’s neck. Credit: Ashley Ahearn.

Gifford places the clams into boiling water, then into ice water to “shock them.” This process makes it easy to remove the outer skin of the geoduck.

When these filter-feeders are burrowed in the sand and mud of Puget Sound, their outer skin gathers more arsenic and other trace metals than does the rest of their body. The Washington Department of Health confirmed this in December, when it went back and tested more than 50 geoduck clams after China instituted its ban. The skin of every single clam had amounts of arsenic that exceed levels that China has deemed safe for human consumption.

The clams’ other body tissue types — those found in the neck, the mantle and the gut ball — were OK in all but one sample tested by the Washington state agency.

Bill Dewey is with Shelton, Wash.-based Taylor Shellfish Farms, which bills itself as the largest producer of geoducks in the United States. He says the company has had more testing done on several different kinds of shellfish it sells, including geoduck. The levels of metals are all very low, but they’re there.

“You will see arsenic, cadmium, selenium, all sorts of different metals some good for you some not good for you in all your shellfish,” Dewey says.

The Washington Department of Health rigorously tests shellfish for biotoxins and bacteria that can make people sick immediately. But it doesn’t regularly test for metals. Past tests from the DOH have shown metals in shellfish at levels below public health concerns. As with all seafood, it’s a question of how much shellfish you eat.

As Michael Gifford slices pearly strips of flesh off of the neck of a geoduck clam, it’s hard to think of anything other than the next step in his recipe.

He’s finely mincing Fresno chili peppers and celery. Then he smears a green stripe of avocado puree onto the plate. Finally, Gifford arranges the silken white, paper-thin strips of geoduck in ruffles.

“So then, the real fun. We’ll dress it with some nice olive oil. Little bit of lemon. We use fleur de sel, a very nice sea salt,“ Gifford says. “It’s not full of brine, but you’re getting that hint of the ocean.”

For centuries native Americans harvested geoducks from the tideflats of Puget Sound. (The word “geoduck” comes from the Nisqually word “gweduc,” meaning “dig deep.”) These were the biggest clams to be found — weighing as much as 16 pounds or more. Northwest Indians ate them fresh or smoked. By the late 1800s the region’s white settlers came to consider them a delicacy. But by the mid-20th century geoducks had all but disappeared from area beaches. To prevent the clams from becoming extinct, the government made it illegal to sell geoduck clams in restaurants and markets.

In the 1970s scuba divers discovered that geoduck clams hadn’t actually been harvested to extinction. They were bountiful in the deeper waters of Puget Sound. But by then, few Northwesterners had an interest in dinning on them in area restaurants. But the story took a different turn in Asia. An intense marketing campaign popularized them in Asia — especially among the newly rich Chinese — causing the price to soar. They’re an especially popular delicacy around the lunar New Year (aka Chinese New Year), which takes place this year on Jan. 31.

A geoduck crudo prepared by chef Michael Gifford. Credit: Ashley Ahearn

Though the clams are popular abroad, local markets are still growing. Bill Dewey says for the past decade or so, Taylor Shellfish has been actively promoting geoduck to restaurants around the Northwest. There are now close to 20 restaurants in Seattle with geoduck on the menu.

Geoduck can sell for close to $100 per pound in China, while Seattle restaurants pay around $20 per pound. The domestic market isn’t making up for the industry’s losses abroad.

Read: How To Cook A Geoduck

Dewey says his company has had to cut back. “We did our best through the holidays to keep people employed, but ultimately it’s gone on long enough that we’ve had to lay some people off,” Dewey says. Taylor has laid off 14 people and estimates its losses at upwards of $1 million.

The Chinese ban is affecting others, too. Divers with the Suquamish and other tribes have been out of work for weeks, losing thousands of dollars every day. The Department of Natural Resources is out close to $1 million in revenue from geoduck harvested on state lands.

Dewey says he’s optimistic that China might lift the ban soon.

For now, geoduck may be a tough sell for most Northwest diners. But if more chefs like Michael Gifford have their way with this quirky clam, the future might look a little more delicious.

Katie Campbell contributed to this report. Toni Tabora-Roberts produced this story for the web.

NCAI’s State of Tribal Nations Address Set for Jan. 30

Source: Native News Online

WASHINGTON – Each year, the President of the National Congress of American Indians presents the State of Indian Nations address to members of Congress, government officials, tribal leaders and citizens, and the American public. The speech outlines the goals of tribal leaders, the opportunities for success and advancement of Native peoples, and priorities to advance our nation-to-nation relationship with the United States.

The State of Indian Nations address will occur the following morning after President Barack Obama delivers his State of the Union address before both chambers of Congress.

NCAI President Brian Cladoosby will deliver the State of Indian Nations live from the Knight Studios at the Newseum in Washington, DC.

Brian Cladoosby serves as the 21st President of NCAI. In October 2013 at NCAI’s 71st Annual Convention, he was elected to serve his first term as President of the organization. He is currently the President of the Association of Washington Tribes and has previously served as an Area Vice President on the NCAI Board. Brian Cladoosby has served on the Swinomish Indian Senate, the governing body of the Swinomish Indian Tribal Community, since 1985. He has served as the Chairman of the Swinomish Indian Senate since 1997.

Immediately following, Senator Jon Tester (D-MT) will provide a Congressional Response. The floor will then be opened up to questions from press, the live audience, and those watching

WHAT:

2014 State of Indian Nations address

Delivered by President Brian Cladoosby

WHEN:

Thursday, January 30th

EVENT SCHEDULE

9:30am – Doors Open

10:15am – Doors Close

10:20am – Invocation

10:30am – State of Indian Nations

11:00am – Congressional Response

11:15am – Question & Answer Session

11:45am – Closing Remarks

WHERE:

Knight Studios

Newseum

Washington, DC

*Use the C Street Entrance

Federal Recognition Process: A Culture of Neglect

Gale Courey Toensing, ICTMN

The Shinnecock Indian Nation was petitioner number 4 on the Bureau of Indian Affairs’ list of tribes seeking federal recognition in 1978 soon after the agency established the seven criteria for recognition.

Thirty-two years and $33 million later in June 2010, the BIA acknowledged the Shinnecock Nation as an American Indian tribe with a government-to-government relationship with the United States’ and whose members are eligible to receive health, education, housing and other services provided to federally recognized tribes – services the federal government is obligated to provide as a debt owed to the Indigenous Peoples in exchange for the loss of their lands.

Three or four days after receiving federal recognition, the tribe got another letter from the BIA, Lance Gumbs, former Shinnecock council chairman, said. “It was an internal memo from inside the Office of Federal Acknowledgement and this memo said the Shinnecock Tribe is indeed a tribe and they should be recognized expeditiously in this process,” Gumbs said. “And that letter was dated from 1979.”

The Shinnecock Nation’s experience in the BIA’s Federal Acknowledgement Process (FAP) is not unique; it’s typical of a process that’s been described as broken, long, expensive, burdensome, intrusive, unfair, arbitrary and capricious, less than transparent, unpredictable, and subject to undue political influence and manipulation. It reflects a culture of neglect on the part of the federal government, indigenous leaders and others involved in recognition efforts say.

On January 16 and 17 close to 200 tribal leaders and representatives of both federally recognized and “unrecognized” indigenous nations, attorneys and consultants specializing in the FAP, and federal officials gathered at Arizona State University’s Sandra Day O’Connor College of Law for a unique conference called “Who Decides You’re Real? Fixing the Federal Recognition Process.”

“The recognition process is a broken system that needs to be reformed,” Brian Cladoosby, chairman of the Swinomish Indian Tribal Community and newly elected president of the National Congress of American Indians (NCAI), said in his opening remarks at the conference. Cladoosby said he told Interior Secretary Sally Jewell recently to fix the broken process. “I said, ‘Take the 19th and 20th century rules and regulations that are paternalistic and fit them for the Natives that we have today,’” he said. The federal acknowledgment process is critically important, Cladoosby said. “Put simply, federal acknowledgment empowers tribes to govern and provide the services and stability their people need in order to preserve their culture. The failure to acknowledge a historical tribe is a failure of the trust responsibility and contributes to the destruction of tribal culture.”

The conference focused on the challenges faced by unrecognized tribes and covered all aspects of federal recognition, including its history, the administrative process, current issues, and proposed new rules and regulations that would reform the process – a discussion presented by the BIA’s Deputy Assistant Secretary Larry Roberts. Several tribal leaders, like Gumbs, and tribal representatives told their tribes’ stories.

The BIA’s own numbers tell its story. Since 1978 when the FAP was established 356 “groups” have sought federal acknowledgment. Of that number, 269 have not submitted documented petitions. Of the 87 that have submitted documented petitions, the agency has resolved 55 and 19 have been resolved by Congress or other means.

“Resolved” doesn’t mean the groups were given federal acknowledgment. Of the 55 resolved, 17 were acknowledged and 34 were denied. The remaining four had their status “clarified” by other means.

Although the number of unrecognized tribes was not pinned down at the conference, the Government Accountability Office identified approximately 400 non-federally recognized tribes in a study it conducted in 2012 on federal funding for unrecognized tribes. The study found that 26 non-federally recognized tribes received funding from 24 federal programs during fiscal years 2007 through 2010. Most of the 26 non-federally recognized tribes were eligible to receive this funding either because of their status as nonprofit organizations or state-recognized tribes.

State recognition didn’t help two Connecticut tribes – the Schaghticoke Tribal Nation (STN) or the Eastern Pequot Tribal Nations (EPTN) – hold on to their status as federally recognized tribes. Ruth Torres, an STN citizen, described the campaign of political influence that ultimately resulted in the unprecedented reversal of both tribes’ federal acknowledgment. She talked about a cluster of events in May 2005 that worked in concert toward reversal of the tribe’s federal status: an appeal of the Final Determination by then Connecticut Attorney General Richard Blumenthal (now a senator), the hostility toward the tribe expressed by residents at a town meeting in Kent where the tribe has a 400 acre reservation – all that remains of approximately 2,500 acres set aside for the tribe in 1736 – and a House Committee hearing called “Betting on Transparency: Toward Fairness and Integrity in the Interior Department’s Tribal Recognition Process” that featured some of the most zealous opponents to federal recognition, Indian gaming and Indian country in general in politics.

“Betting, it was called,” Torres pointed out. “Now tell me, what do you think was the motivation for the political influence exerted on the FAP?” Federal recognition gives tribes the right to conduct Class III gaming, but contrary to popular belief, STN, like the majority of other tribes, filed its petition years before the Indian Gaming Regulatory Act (IGRA) was enacted in 1988, Torres said. The IGRA launched Indian gaming on the path to becoming the $27 billion industry that it is today, but along with its success came a backlash of political opposition that effectively put the brakes on federal recognition.

STN had been in the FAP process since 1981 and by the mid-1990s it became clear – just as it did to the Shinnecock Indian Nation, Torres said – that the tribe needed a financial backer and it entered into a casino deal with Fred DeLuca, owner of the Subway chain, and a group called Eastlanders. The investors spent around $22 million on the process, Torres said. Nonetheless, the political opponents were successful in overturning the tribe’s recognition and even in influencing a federal judge who denied the tribe’s appeal of the reversal in part because he said he believed federal decision makers who said they were not influenced by the frenzy of political pressure that was brought to bear upon them.

The Pointe-au-Chien Indian Tribe’s story is one of the saddest tales of federal government neglect and bureaucratic rigidity.

In 2008, the Bush administration issued proposed negative findings to both the Pointe-au-Chien Indian Tribe and the Biloxi, Chitimacha Confederation of Muskogees, Inc. (BCCM). Members of both tribes are descendants of the historical Biloxi, Chitimacha, Choctaw and other tribes and subgroups.

Pointe-au-Chien proved it had been identified as an American Indian “entity” since 1900, the Bush Interior Department said, but it hadn’t submitted a membership list or demonstrated that it was a distinct community or had political entity before 1830.

Pointe-au-Chien is a traditional community whose members survive on sustenance fishing and hunting in their coastal Louisiana territory. But the tribe’s land has been washing away for decades in the erosion of thousands of square miles of coastal wetlands. The erosion is caused by salty water from the Gulf of Mexico flowing into the fresh water marshes because levees built for navigation along the Mississippi River since the beginning of the 20th century prevent mud and silt from cyclically rebuilding the marshes and coastal bottom. Add to that environmental disaster the devastation wreaked on the Louisiana coast by Hurricane Katrina in 2005 and BP’s Deepwater Horizon oil spill in 2010.

The tribe notified the Coast Guard that it’s sacred sites were in danger from the oil and needed protection, Patty Ferguson-Bohnee, a Pointe-au-Chien tribal member and director of the Indian Legal Clinic at Arizona State University, said. “At one point in the process, the federal government said, ‘We cannot consult with you because you’re not a federally recognized tribe,’” Ferguson-Bohnee said. Even when the remains of Pointe au Chien ancestors were found, the tribe could not access them for reburial because it lacks federal acknowledgment. The tribe also lacks the means to hire experts to bolster its petition for recognition. And without drastic wetlands restoration efforts by the federal government the tribe’s remaining lands continue to disappear.

For Gumbs, the federal recognition process “consumed all of my adult life – 32 years,” he said. “When we started this process [in 1978] it should have been a relatively fair and equitable process. Instead it turned into a test of strategy and will. We went from playing checkers to playing chess…We had to think of the next three moves, four moves that we were going to make in response to how they [the Office of Federal Acknowledgement] were treating us. They had a complete disregard for the criteria [for federal acknowledgment] as they were written and they would change the rules right in mid-stream.”

You can’t have tribes stuck in the process for 30 years, Cladoosby said. “That’s just unacceptable. No one should have to wait 30 years to be told that the federal government is going to recognize them. The process is broken. It needs to be fixed.”

UN Special Rapporteur Meets with Leonard Peltier in Prison

Leonard Peltier has been in prison for 37 years

Levi Rickert, Native News Online

COLEMAN, FLORIDA – On Friday January 24, 2014, United Nations Special Rapporteur, Professor James Anaya visited United States Penitentiary Coleman 1 in Florida, to meet with American Indian political prisoner Leonard Peltier. Professor Anaya was accompanied by Leonard “Lenny ” Foster, member of the Board of Directors of the International Indian Treaty Council (IITC), Supervisor of the Navajo Nations Correction Project, and Spiritual Advisor to Mr. Peltier for nearly 30 years.

The historic, nearly four hour meeting began around 9 am. While the discussion Friday morning was meant to focus on executive clemency for Leonard Peltier, the conversation touched on many subjects, as Mr. Peltier was eager to hear the Special Rapporteur’s perspective on the worldwide condition of indigenous peoples.

In a trial that is widely recognized as a miscarriage of justice, Leonard Peltier was convicted in 1977, in connection with a shootout with US Government forces, where two Federal Bureau of Investigation agents and one young Indian man lost their lives. Every piece of evidence to convict Mr. Peltier has been since proven false.

Professor Anaya is currently serving his second term as the United Nations Special Rapporteur on the Rights of Indigenous People. In September 2012, following a series of consultation sessions with Indigenous Peoples throughout the United States, the Special Rapporteur produced a “ Country Report on the Situation of Indigenous Peoples In the United States of America” (A/HRC/21/47/Ad)].

In the report, Professor Anaya called for freedom for Leonard Peltier, and stated: “Pleas for presidential consideration of clemency…have not borne fruit. This further depletes the already diminished faith in the criminal justice system felt by many indigenous peoples…”

The effort to engage the United Nations Special Rapporteur in the struggle to address justice for Mr. Peltier began in 2008, during a discussion between Lenny Foster and Alberto Salomando, former attorney for the IITC. Following the visit Lenny Foster stated: ‘The visit today by U.N. Special Rapporteur James Anaya to Leonard Peltier in prison is very significant and historic for us. We thank him for working..to make this possible. This will support efforts for Executive Clemency for Leonard Peltier and promote reconciliation and justice in this case.”

Leonard Peltier said Friday “if the Constitutional violations that took place in my trial are allowed to stand, it will set precedence for future trials, and jeopardize the freedom and constitutional rights of all Americans.”

Also in attendance of the meeting Friday were: David Hill, Director of the International Leonard Peltier Defense Committee (ILPDC), Peter Clark, ILPDC Chapter Coordinator and Unoccupyabq.org member.

David Hill stated “that Americans can no longer afford to tolerate this miscarriage of justice and we shall make every effort to bring these judicial violations to the attention of all Americans, as well as internationally.”

NCAI President Commits To Strengthening Partnership With Boys And Girls Clubs Of America

Source: NCAI Press Release

WASHINGTON, DC – Swinomish Tribal Chairman and President of the National Congress of American Indians (NCAI) Brian Cladoosby had the chance to meet with the Boys and Girls Clubs of America and members of the Tulalip Tribe to discuss the importance of supporting Native youth through positive youth development programs. The Boys & Girls Clubs in Indian Country serves over 85,000 Native youth in over 200 clubs nationwide in Indian country. After the meeting with Tulalip Tribe – the 6th Tribal Club – and Tulalip Chairman Mel Sheldon, President Cladoosby said:

“What an inspiration to see the incredible work of the Boys and Girls Clubs! There is nothing more important than supporting young people and encouraging them to make positive decisions. I am excited to continue working with the Clubs on bringing education, career, and healthy living choices to Native youth and the children of all communities.”

Providing opportunities for the next generation is the greatest responsibility of this generation. With that duty in mind, President Cladoosby has focused on education and Native youth in his first months at NCAI. He and the organization are committed to strengthening the partnership between NCAI and the Boys and Girls Clubs.

Boys & Girls Clubs in Indian Country began over 20 years ago and has grown dramatically ever since. Under the leadership of Brian Yazzie, the National Director of Native American Services for Boys & Girls Clubs of America, Boys & Girls Clubs offer multiple programs specific to tribal communities. These programs include the On the T.R.A.I.L. (Together Raising Awareness for Indian Life) to Diabetes Prevention Program which provides youth with tools to prevent type 2 diabetes through self-esteem and prevention activities. The T.R.A.I.L program has served nearly 12,000 Native youth in 85 tribal communities. Robbie Callaway, of FirstPic, Inc. who was instrumental in beginning the Boys & Girls Clubs in Indian Country initiative stated:

“President Cladoosby and NCAI’s support for Boys & Girls Clubs in Indian Country has the ability to help increase opportunities for Native youth across the country and create sustainable programs throughout Native communities.”

NCAI has a long history of working hand in hand with the Boys and Girls Clubs of America, including the passage of a resolution in 2004 endorsing a permanent endowment for the Boys and Girls Clubs for their work in Indian Country. FirstPic, Inc. has worked with Boys & Girls Clubs of America and NCAI throughout this initiative to implement high quality programming for Native youth. Executive Director Jacqueline Pata sits on the Native American Advisory Council for the Clubs and has made the partnership between NCAI and the Boys and Girls Clubs a priority for the organization.

Fishing in common in usual and accustomed areas

Celebrating Indian fishing and treaty rights 40 years after the Boldt decision

Early Tulalip beach seining photos courtesy of the Tulalip Hibulb Cultural Center Museum.

By Andrew Gobin, Tulalip News

A landmark case for Washington Indians and treaty fishing rights, the Boldt decision continues to have far reaching implications for tribes across the United States. For Washington tribes, the Boldt decision settled a conflict that began with the signing of the treaties. It upheld the tribe’s reserved right to fish, hunt, gather, and take shellfish as they always had. The crux of the Supreme Court case was the interpretation of the treaty, specifically the terms “in common with the citizens of the territory,” and “at usual and accustomed grounds and stations.”

The Boldt decision, or U.S. v. Washington as the legal case title reads, was heard in the 9^th District Appellate court in 1973, decided in 1974 by Judge George H. Boldt. The decision was later affirmed in the United States Supreme Court. The interpretation of the terms “in common” and “usual and accustomed areas” (U&A) is paramount to understanding questions of whether Indians have the right to fish off of the reservation and whether Indians are guaranteed an allocation of the available fish.

The case stemmed from the fish wars, in which tribal fishermen were arrested and injunctions were filed limiting tribal fisheries. At the time, as soon as state fisheries were open, fishermen took all of the available salmon resource before they reached tribes’ harvestable waters. One crucial interpretation in the Boldt decision was the definition of “in common,” a legal term that means, in equal parts.

Early Tulalip beach seining photo courtesy of the Tulalip Hibulb Cultural Center Museum.

This was not the first look at what the treaty meant by “in common with the citizens of the territory.” Judge Boldt cited U.S. v. Winans, a case from 1905 settling a dispute between then Yakima Nation (now Yakama Nation) and a private company that was operating a fish wheel on the Columbia River on private deeded land. They built fences intended to exclude access by Yakima Indians in an effort to optimize their business. The lower courts decided that deeded land could exclude Indians from exercising their rights in their U&A, a decision that was overturned by the Supreme Court, upholding the Yakama’s treaty. Similarly, Boldt decided on that precedent that the right of a tribe to take fish in their respective U&A, which was secured to them through various treaties, meant they had a right to do so off of the reservation. For this case, “in common” meant equal access and opportunity.

Nearly 70 years later, when the Boldt decision was filed, the fishing industry had grown immensely on a global scale thanks to advancing technology. State fisheries were harvesting salmon in the ocean where tribes had no claim to U&A. Tribal fisheries were then closed under the guise of preserving the salmon runs, though state fisheries continued on inland waters. Judge Boldt reexamined the term “in common with the citizens of the territory.”

Boldt broke down this phrase, defining the territory as it would have been defined at the time of the treaty, meaning the Washington Territory. He then looked at the term “in common,” which he defined not only as equal access and opportunity, but also as equal portion.

Finally, Boldt decided that that State had a responsibility to ensure the tribes’ allocation was met, meaning that the salmon resource had to be kept at healthy levels to ensure there was enough to go around. From his interpretations he drafted what is commonly referred to as the blue book, which outlined what fish allocations and management of the salmon resource would look like. Basically, Washington tribes share amongst them half of the available salmon resource for the state, each tribe receiving different allocations of salmon based on U&A.

The implications from the Boldt decision are still prominent in Federal Indian Law, especially in Washington State. Recently there have been cases that address similar treaty rights as they pertain to harvesting of shellfish, hunting, and gathering of roots, berries, and plants. The most influential issues in the state currently that are built off of the foundations laid in the Boldt decision deal with protecting salmon habitat, which are the Culvert Case and the State’s Fish Consumption Rate.

‘Got Land?’ From T-Shirts to Teach-Ins, Idle No More Calls for Day of Action

Courtesy Tenelle Starr/Via Metronews.caTenelle Starr, a Grade 8 student at Balcarres Community School, wears her, "Got Land? Thank an Indian," sweatshirt. Starr and other students wearing sweaters bearing that slogan were initially instructed to wear them inside-out due to complaints. — Courtesy Tenelle Starr/Via Metronews.ca
Tenelle Starr, a Grade 8 student at Balcarres Community School, wears her, “Got Land? Thank an Indian,” sweatshirt. Starr and other students wearing sweaters bearing that slogan were initially instructed to wear them inside-out due to complaints.

Source: Indian Country Today Media Network

The grassroots Idle No More movement was already planning a national day of action across Canada for January 28 to teach people about the First Nations Education Act, which most Indigenous Peoples oppose. Now the organizers are exhorting everyone to dress for the occasion—in a “Got Land? Thank an Indian” t-shirt or sweatshirt.

Idle No More has scooped up 13-year-old Tenelle Starr, the eighth-grade student from Star Blanket First Nation who persuaded school officials to let her wear a hoodie with the words “Got Land?” on the front and “Thank an Indian” on the back.

Since that day, the shirt’s maker in Canada, Jeff Menard, has been swamped with orders. But now he might want to add another phone line. Idle No More is calling on everyone across Canada to don the slogan, which Menard sells on t-shirts and bibs in all sizes, in addition to hooded and non-hooded sweatshirts.

Menard has set up a website, Thank An Indian, to field and fulfill orders. The shirts, bibs and other items that he said are forthcoming are also showcased on his Facebook page of the same name. A portion of the proceeds will go to help the homeless.

Those wishing to buy the slogan south of the 49th Parallel can order at its U.S. source. The White Earth Land Recovery Project, part of the Native Harvest product line that is run by Ojibwe activist and author Winona LaDuke, has sold hoodies and t-shirts bearing the slogan for years. Menard has said he got the idea after seeing friends from the U.S. wearing similar shirts.

The message and the lesson have taken on new urgency as racist comments proliferated on Tenelle’s Facebook page to such a degree that it had to be taken down. But that has only solidified the teen’s determination to make a difference and to educate Canadians, which she said was her intial goal in wearing the shirt to school.

She received support, too, from Athabasca Chipewyan First Nation in Alberta, which invited her to the Neil Young concert in support of its efforts to quell development in the oil sands of the province. She attended the Saturday January 18 performance as an honorary guest, according to Idle No More’s website. Young is doing a series of concerts to raise funds for the Athabasca Chipewyan’s legal fight against industrial activity in the sands.

Tenelle “is now calling, along with the Idle No More movement, for people everywhere to don the shirt as an act of truth-telling and protest,” Idle No More said in a statement on January 17. “Now and up to a January 28 Day of Action, Tenelle and Idle No More and Defenders of the Land are encouraging people across the country to make the shirt and wear them to their schools, workplaces, or neighborhoods to spark conversations about Canada’s true record on Indigenous rights.”

CBC News reported that Tenelle’s Facebook page was shut down at the suggestion of the Royal Canadian Mounted Police (RCMP), which briefly investigated some intensely negative and racist comments that were posted on the girl’s page after the school ruling.

“It was racist remarks with attempts to shadow it in opinion, but they were pretty forceful, pretty racist,” Sheldon Poitras, a member of the band council for the Star Blanket First Nation, and a friend of the family, said to CBC News. “The family was concerned about Tenelle’s safety.”

The family deactivated Tenelle’s Facebook account “on advice from RCMP,” CBC News reported, and the RCMP confirmed that it was investigating.

The message is a quip laden with historical accuracy that refers to the 1874 document known as Treaty 4, which Star Blanket First Nation is part of, in which 13 signatory nations of Saulteaux and Cree deeded the land to the settlers of what would become modern-day Canada.

Nevertheless, many continue to view the message as racist. Idle No More aims to debunk that notion as well as clarify the historical record. Tenelle has participated in Idle No More rallies with her mother as well, the group said.

“Everyone can wear the shirt,” said Tenelle in the Idle No More statement. “I think of it as a teaching tool that can help bring awareness to our treaty and land rights. The truth about Canada’s bad treatment of First Nations may make some people uncomfortable, but understanding it is the only way Canada will change and start respecting First Nations.”

Although Menard said that support has been streaming in from chiefs and others throughout Canada for both him and Tenelle, there has been negative feedback that shows there’s still a lot of misinformation to be dispelled, he told ICTMN.

“I’ve been getting hate messages, Tenelle has been getting hate messages,” Menard said in a phone interview on January 21, but reiterated that the slogan merely reflects historical fact. “If anybody learns their history they see that the Indians were here first.”

Indian Law and Order Commission: Shelving This Report – A Huge Mistake

Courtesy Sen. Barrasso's officePictured, from left, are: Troy Eid, Chairman of the Indian Law and Order Commission; Sen. John Barrasso, R-Wyo., Vice-Chair of the Senate Committee on Indian Affairs; Commissioner Affie Ellis, Navajo, of Wyoming; and Commissioner Tom Gede of California. — Courtesy Sen. Barrasso’s office
Pictured, from left, are: Troy Eid, Chairman of the Indian Law and Order Commission; Sen. John Barrasso, R-Wyo., Vice-Chair of the Senate Committee on Indian Affairs; Commissioner Affie Ellis, Navajo, of Wyoming; and Commissioner Tom Gede of California.

Tanya Lee, ICTMN

Radical, revolutionary, exceptional or just plain common sense are some of the terms used to describe “A Roadmap to Making Native America Safer,” the result of two years’ work by the nine-member Indian Law and Order Commission established by the Tribal Law and Order Act of 2010.

For more than 200 years Congress has consistently passed legislation that deeply erodes the authority of tribal justice systems. The TLOA began to reverse that trend by increasing tribal courts’ sentencing authority, and the Violence Against Women Act of 2013 again enhanced tribal judicial authority to some extent. The TLOA also called for the establishment of a commission to make recommendations as to how to improve public safety in Indian country in response to skyrocketing crime rates.

The commission presented its report in November, saying that it had “concluded that criminal jurisdiction in Indian country is an indefensible morass of complex, conflicting, and illogical commands, layered in over decades via congressional policies and court decisions and without the consent of tribal nations.” The report makes more than three-dozen recommendations about how to change things, some of them breathtaking.

The commissioners, all volunteers acting as private citizens, represented a spectrum of political views, yet easily reached consensus on some basic principles. Commissioner Tom Gede, a former California deputy attorney general and executive director of the Conference of Western Attorneys General, says, “What is really remarkable is that all the commissioners felt unanimously that the current system, which is in fact a multitude of systems in Indian country, does not serve the public safety of individual Indians and tribes very well and that tribes should be given the opportunity to engage their own justice systems and law enforcement systems free of the overarching control of other governments, subject, however, to the same constitutional constraints faced by all other governments in the United States.”

Local, that is, tribal control of law enforcement and the judiciary is the theme that runs through the report. The commission’s first recommendation is that Congress pass legislation allowing tribes simply to opt out of the current federal and/or state law enforcement and justice systems and replace them with their own systems. “There’s no certification process, no U.S. Department of Justice working group or pilot project. The [commission] emphatically rejected the approach…. We want Indian tribes to have the freedom to choose and to not have to go on their knees to Justice or BIA and say ‘Please tell us that we’re ready,'” says Commission Chairman Troy Eid, a former U.S. Attorney for the District of Colorado and currently on the faculty of two law schools.

This and all the other recommendations are based on extensive field hearings and comments from tribal members. “We struggled over these issues out in the field and in forums with sometimes 400 or 500 local people who were telling us what they thought. If there ever was a grassroots effort, this was it,” says Eid.

Commissioner Ted Quasula, Hualapai, has more than 40 years’ experience in law enforcement in Indian country. “Probably the most important part about putting the report together was getting the thoughts and the viewpoint and the position of all the tribal people that have firsthand information on what the problems are,” he says.

The one stipulation to the opt-out recommendation is that Congress establish a U.S. Court of Indian Appeals to which a defendant could appeal on the grounds that his 4th, 5th, 6th or 8th amendment rights under the U.S. Constitution had been violated. Such a court is also needed, says the report, “because it would establish a more consistent, uniform, and predictable body of case law dealing with civil rights issues and matters of Federal law interpretation arising in Indian country.”

Commissioner Jefferson Keel, lieutenant governor of the Chickasaw Nation, retired U.S. Army officer and former president of the National Congress of American Indians, says, “This and the whole process of appointing a commission to look at the conditions of law enforcement and tribal law and order in Indian country is extremely important. The tribes across the country … can take it and really make some inroads in creating a legal level playing field.”

The question of what the tribes will do with the report brings up the question of how President Barack Obama, Congress and federal agencies such as the Departments of Justice and the Interior will respond. “Our hope,” says Quasula, “is that it doesn’t sit around and collect dust,” a concern expressed over and over again by the commissioners. “With tribal leadership taking charge, there will be change to the outrageous child abuse, domestic violence, violence against women statistics. They’re just unacceptable, totally unacceptable,” he says.

Commissioner Carole Goldberg, a justice of the Hualapai Tribe’s Court of Appeals and a professor at UCLA’s School of Law, is taking the lead in crafting an implementation plan, which will be “a distillation of recommendations of the commission’s report into a set of more specific actions. For example, there may be points where we need to specify whether a specific action would best be undertaken through seeking a solicitor’s opinion in the Interior Department or modifying a regulation. If there’s to be a statutory change, where in the federal code would that statutory change be most appropriately located,” she says.

Sen. Mark Begich, D-Alaska, says, “It is important that we now move to the next stage. I’ve asked the Senate Indian Affairs Committee to hold a hearing on the report, because I think it’s important for us not just to put this on a shelf and ignore it. There are some pretty important issues we should address here.”

Those issues include the need for base funding for tribal law enforcement, justice systems and detention facilities and for better cooperation between federal, state and tribal law enforcement. The report also recommends a requirement that federal agents turn up in tribal court when they are called, not a trivial issue, says Eid.

The unique situation in Alaska gets a chapter, as does juvenile justice, which Goldberg describes as “an urgent problem that needs to be remedied.” Those recommendations follow the principle of the Indian Child Welfare Act in putting young offenders – and the dollars to provide services – in the control of the tribe rather than of the federal and state justice systems ill-equipped to deal with them.

The report’s recommendations may look like a hard sell, but, Eid says, the report “is not to tell anyone what to do, but it’s also to say, ‘Local government works best; it’s the American way.’ It’s emphatically a better way to prevent crime…. It’s clear that many Native governments, even those with not a lot of means, want to and will sacrifice in order to put sovereignty into action through enforcing their own criminal laws.”

Eid says he thinks the movement toward local tribal control of law enforcement and justice systems is unstoppable. “I’m very optimistic,” he says.

The other members of the Indian Law and Order Commission are Affie Ellis, Navajo; former U.S. Rep. Stephanie Herseth-Sandlin; former U.S. Rep. Earl Ralph Pomeroy III; and Tulalip Tribal Court Chief Justice Theresa Pouley, Colville Confederated Tribes.

Group Calls For Expanding Killer Whale Habitat Protection

Cassandra Profita, OPB

An environmental group is calling for a major expansion in habitat protection for Puget Sound’s killer whales.

Research shows the endangered orcas that live in Puget Sound in the summer are venturing up and down the West Coast in the winter to forage for food. Scientists tracking these southern resident orcas have followed the whales as far north as Alaska and as far south as Monterey, Calif.

Given these findings, the Center for Biological Diversity says the whales need a lot more habitat protection than they have now. The group filed a petition Thursday with the National Marine Fisheries Service to expand protected habitat for the whales from Puget Sound to a large swath of ocean area off the coasts of Washington, Oregon and Northern California.

“They need to protect all of their habitat — not just where the whales hang out in the summer,” says Sarah Uhlemann of the Center for Biological Diversity.

Existing vs. proposed critical habitat.

Protected habitat for species listed under the Endangered Species Act, known as “critical habitat,” comes with restrictions on actions taken by the federal government that might threaten the species’ survival.

Uhlemann says those restrictions would apply to federal decisions on salmon fishing, port expansions and other coastal developments. That would mean any time the federal government decides to do anything -– say the Navy decides to practice some sonar or an agency is deciding whether to permit a port expansion — the government would have to fully consider environmental impacts.

“Not only on the whale but also on its habitat –- and if the impacts are too large they have to stop and mitigate, or lessen what those impacts are,” Uhlemann said.

Lynne Barre is a marine biologist and manager in Seattle with the National Oceanic and Atmospheric Administration. She said the federal government was already considering an expansion in habitat protections for southern resident orcas as its tagging research program has revealed more about where the whales are feeding.

“Our knowledge of their habitat in the ocean is increasing,” Barre said. “Gathering additional information about their coastal habitat was one of the priorities we identified when we listed the orcas for protection under the Endangered Species Act in 2005.”

The orcas face threats from a lack of available food because they primarily survive on salmon, Barre said. They also accumulate high levels of contaminants such as flame retardants, legacy pesticides and industrial pollutants that can impact their immune systems. Orcas are acoustic animals that use sound to communicate with each other and find prey, she said, so underwater noises from vessels and other activities pose another threat to the whales.

The existing critical habitat protections in Puget Sound require evaluations of the impacts to whales from pollution discharges, ship passage and construction activities such as pile-driving, Barre said. Federal regulators will have 90 days to decide whether to review the Center for Biological Diversity’s petition to expand the area where those kinds of protections apply.