Tribal Fishery Opposes Washington Coal Terminal

Tribal treaty fishing rights give Washington tribes the opportunity to weigh in on, and even block, projects that could impact their fishing grounds.(Ashley Ahearn/KUOW Photo)
Tribal treaty fishing rights give Washington tribes the opportunity to weigh in on, and even block, projects that could impact their fishing grounds.(Ashley Ahearn/KUOW Photo)

December 11, 2013 Here&Now

About a quarter of all the coal the U.S. exports goes to Asian markets. To meet the demand, there are plans to build what would be the largest coal terminal in North America at a place called Cherry Point in the far northwestern corner of Washington state.

But there’s a hitch. The waters surrounding Cherry Point support a fishing industry worth millions of dollars. It’s also a sacred place for the Lummi tribe, whose reservation is nearby. And thanks to a landmark legal decision in the 1970s, tribes have the right to weigh in on — and even stop — projects that could affect their fishing grounds.

From the Here & Now Contributors Network, Ashley Ahearn of KUOW reports.

Reporter

Ashley Ahearn, environment reporter for KUOW and part of the regional multimedia collaborative project EarthFix.

 

Follow link to listen to Transcript

JEREMY HOBSON, HOST:

It’s HERE AND NOW.

Coal prices are at the highest levels in months thanks to strong demand from Asian markets like China. And to help meet that demand, there are plans to build a huge new coal terminal in Washington State, at a place called Cherry Point. But the waters surrounding Cherry Point support a fishing industry that’s worth millions of dollars, and it’s a sacred place for the Lummi tribe, which has the right to weigh in on or put a stop to projects that could affect their fishing grounds.

From the HERE AND NOW Contributors Network, KUOW’s Ashley Ahearn reports.

ASHLEY AHEARN, BYLINE: Jay Julius and his crew pull crab pots up out of the deep blue waters near Cherry Point. From massive buckets on deck comes the clack and rustle of delicious Dungeness crabs in futile attempts at escape. We’re about 15 miles south of the Canadian border.

JAY JULIUS COUNCILMEMBER, LUMMI TRIBAL COUNCIL: That’s not bad.

AHEARN: Jay Julius is a member of the Lummi tribal council. His ancestors have fished these waters, just like he does now, for thousands of years. One out of every 10 Lummi tribal members has a fishing license, and the Lummi tribal fishery is worth $15 million annually.

COUNCIL: So now we’re entering the proposed area for the coal port. As you can see, the buoys start.

AHEARN: Dozens upon dozens of crab pots buoys dot the waters around us, like a brightly colored obstacle course as we approach Cherry Point.

COUNCIL: We see buoys up there.

AHEARN: If the Gateway Pacific Terminal is built, it could draw more than 450 ships per year to take the coal to Asia. Those ships would travel through this area of Cherry Point. The tribe is worried that its shellfish, salmon and halibut fishery will suffer.

COUNCIL: What does that mean to our treaty right to fish? This will be no more.

AHEARN: That treaty right to fish could play a major role in the review process for the Gateway Pacific Terminal and the two other coal terminals under consideration in the Northwest. In the mid-1800s, tribes in this region signed treaties with the federal government, seeding millions of acres of their land. But the tribal leaders of the time did a very smart thing, says Tim Brewer. He’s a lawyer with the Tulalip tribe.

TIM BREWER: What they insisted on was reserving the right to continue to fish in their usual and accustomed fishing areas. Extremely important part of the treaty.

AHEARN: Those treaty rights weren’t enforced in Washington until a momentous court decision in 1970s known as the Boldt Decision. It forced the state to follow up on the treaty promise of fishing rights that were made to the tribes more than a century before. Brewer says the phrase, usual and accustomed fishing areas, has implications for development projects, like coal terminals.

BREWER: If a project is going to impair access to a fishing ground and that impairment is significant, that project cannot move forward without violating the treaty right.

AHEARN: And in recent decades, tribes have flexed to those treaty muscles. The Lummi stopped a fish farm that was planned for the water’s off of Lummi island in the mid-’90s. The tribe argued that constructing the floating net pens would block tribal access to their usual and accustomed fishing grounds.

BREWER: And in that case, the Corps of Engineers denied that permit on that basis. There was no agreement that was bled to be worked out there.

AHEARN: But in other situations, agreements had been made.

DWIGHT JONES: My name is Dwight Jones. We’re at L.A. Bay Marina.

AHEARN: Jones is the general manager of the marina. Behind where he’s standing, Seattle’s Space Needle pierces the downtown skyline in the distance.

JONES: L.A. Bay Marina is the largest privately owned and operated marina on the West Coast. We have about 1,250 slips.

AHEARN: The marina was built in 1991 after a decade of environmental review and haggling with the Muckleshoot tribe. The marina is within the tribe’s treaty fishing area.

JONES: It was contentious, I guess, would be the right word.

AHEARN: Could they have stopped this project from being built?

JONES: Oh, absolutely. Absolutely they could’ve stopped it.

AHEARN: But they didn’t. Instead, the tribe negotiated a settlement. The owners of L.A. Bay Marina paid the Muckleshoot more than a million dollars upfront. And for the next hundred years, they will give the tribe eight percent of their gross annual revenue.

JONES: Anybody in business can tell you that eight percent of your gross revenue is a huge number. It really affects your viability as a business, so…

AHEARN: What would you say to companies that are trying to build a coal terminal?

(LAUGHTER)

JONES: I’d say good luck. It’s a long road, and there will be a lot of cost and the chances are, the tribes will make it – will probably negotiate a settlement that works well for them and will be – not be cheap.

AHEARN: SSA Marine and Pacific International Terminals, the companies that want to build the terminal at Cherry Point, have lawyers and staff members trying to negotiate a deal with the Lummi. But Jay Julias, a Lummi councilmember, laughs when I asked him how he feels about the company’s efforts to make inroads with the tribe.

COUNCIL: I say they’re funny, but I think they’re quite disgusting. The way they’re trying to infiltrate our nation, contaminate it, use people – it’s nothing new.

AHEARN: SSA Marine declined repeated requests to be interviewed for this story. But they emailed a statement. It says: We sincerely respect the Lummi way of life and the importance of fishing to the tribe. We continue to believe we can come to an understanding with the Lummi nation regarding the Gateway Pacific Terminal project. For HERE AND NOW, I’m Ashley Ahearn in Seattle. Transcript provided by NPR, Copyright NPR.

Unlikely Alliances: Treaty conflicts and environmental cooperation between Native American and rural White communities

 

Idle No More and Building Bridges Through Native Sovereignty

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By Zoltan Grossman as seen on Unsettling America

“The natural resources we all depend upon must be protected for future generations….to bring us to a place where there is a quality of life, and where Indians and non-Indians are to understand one another and work together.”  — Billy Frank, Jr. (Nisqually)

In the 2010s, new “unlikely alliances” of Native peoples and their rural white neighbors are standing strong against fossil fuel and mining projects. In the Great Plains, grassroots coalitions of Native peoples and white ranchers and farmers (including the aptly named “Cowboy and Indian Alliance”) are blocking the Keystone XL oil pipeline and coal mining. In the Pacific Northwest, Native nations are using their treaties against plans for coal and oil terminals, partly because shipping and burning fossil fuels threatens their treaty fishery. In the Great Lakes, Bad River Ojibwe are leading the fight to stop metallic mining, drawing on past anti-mining alliances of Ojibwe and white fishers. In the Maritimes, Mi’kmaq and Maliseet are confronting shale gas fracking, joined by non-Native neighbors.

The Idle No More movement similarly connects First Nations’ sovereignty to the protection of the Earth for all people—Native and non-Native alike. Idle No More co-founder Sylvia McAdam states, “Indigenous sovereignty is all about protecting the land, the water, the animals, and all the environment we share.” Gyasi Ross observes that Idle No More “is about protecting the Earth for all people from the carnivorous and capitalistic spirit that wants to exploit and extract every last bit of resources from the land…. It’s not a Native thing or a white thing, it’s an Indigenous worldview thing. It’s a ‘protect the Earth’ thing.”

A debate around Idle No More discusses how the movement can reach the non-Native public. In any alliance, the same question always arises at the intersection of unity and autonomy. Should the so-called “minority” partners in the alliance set aside their own distinct issues in order to build bridges to the “majority” over common-ground concerns, such as protecting the Earth? Should Native leadership, for example, not as strongly assert treaty rights and tribal sovereignty to avoid alienating potential allies among their white neighbors? Conventional wisdom says that we should all “get along” for the greater good, and that different peoples should only talk about “universalist” similarities that unite them, not “particularist” differences that separate them.

In my both my activism and academic studies, I’ve often wrestled with this question, and spoken with many Native and non-Native activists and scholars who also deal with it. Based on their stories and experiences, I’ve concluded that the conventional wisdom is largely bullshit. Emphasizing unity over diversity can actually be harmful to building deep, lasting alliances between Native and non-Native communities. History shows the opposite to be true: the stronger that Native peoples assert their nationhood, the stronger their alliances with non-Indian neighbors.

Unlikely Alliances

Since the 1970s, unlikely alliances have joined Native communities with their rural white neighbors (some of whom had been their worst enemies) to protect their common lands and waters. These unique convergences have confronted mines, dams, logging, power lines, nuclear waste, military projects, and other threats. My main education has been as an activist in unlikely alliances in South Dakota and Wisconsin. As a geography grad student I later studied them in other states (such as Montana, Nevada, Oregon, and Washington) where they took different paths from treaty conflict to environmental cooperation, and had varying degrees of success.

* In South Dakota in the late 1970s, Lakota communities and white ranchers were often at odds over water rights and the tribal claim to the sacred Black Hills. Yet despite the intense Indian-white conflicts, the two groups came together against coal and uranium mining, which would endanger the groundwater. The Native activists and conservative-looking ranchers formed the Black Hills Alliance (where I began my activism 35 years ago) to halt the mining plans, and later formed the Cowboy and Indian Alliance (or CIA), which has since worked to stop a bombing range, coal trains, and oil pipeline.

* In roughly the same era of the 1960s and ‘70s, a fishing rights conflict had torn apart Washington State. The federal courts recognized treaty rights in 1974, and by the 1980s the tribes began to use treaties as a legal tool to protect and restore fish habitat. The result was State-Tribal “co-management,” recognizing that the tribes have a seat at the table on natural resource issues outside the reservations. The Nisqually Tribe, for instance, is today recognized in its watershed as the lead entity in creating salmon habitat management plans for private farm owners, and state and federal agencies. The watershed is healing because the Tribe is beginning to decolonize its historic lands.

* Another treaty confrontation erupted in northern Wisconsin in the late 1980s, when crowds of white sportsmen gathered to protest Ojibwe treaty rights to spear fish. Even as the racist harassment and violence raged, tribes presented their sovereignty as a legal obstacles to mining plans, and formed alliances such as the Midwest Treaty Network. Instead of continuing to argue over the fish, some white fishing groups began to cooperate with tribes to protect the fish, and won victories against the world’s largest mining companies. After witnessing the fishing war, seeing the 2003 defeat of the Crandon mine gave us some real hope.

In each of these cases, Native peoples and their rural white neighbors found common cause to defend their mutual place, and unexpectedly came together to protect their environment and economy from an outside threat, and a common enemy. They knew that if they continued to fight over resources, there may not be any left to fight over. Some rural whites began to see Native treaties and sovereignty as better protectors of common ground than their own governments. Racial prejudice is still alive and well in these regions, but the organized racist groups are weaker because they have lost many of their followers to these alliances.

Cooperation growing from conflict

It would make logical sense that the greatest cooperation would develop in the areas with the least prior conflict. Yet a recurring irony is that cooperation more easily developed in areas where tribes had most strongly asserted their rights, and the white backlash had been the most intense. Treaty claims in the short run caused conflict, but in the long run educated whites about tribal cultures and legal powers, and strengthened the commitment of both communities to value the resources. A common “sense of place” extended beyond the immediate threat, and redefined their idea of “home” to include their neighbors. As Mole Lake Ojibwe elder Frances Van Zile said, “This is my home; when it’s your home you try to take as good care of it as how can, including all the people in it.”

These alliances challenge the idea that “particularism” (such as Native identity) is always in contradiction to “universalism” (such as environmental protection). The assertion of Indigenous political strength does *not* weaken the idea of joining with non-Natives to defend the land, and can even strengthen it. The stories of these alliances may identify ways to weave together the assertion of differences between cultures with the goal of finding common-ground similarities between them. (I’m perhaps drawn to this hope because of my own Hungarian background, with a Jewish father whose family was decimated by genocide, and a Catholic mother whose family valued its cultural identity, and my attempts to navigate between the fear and celebration of ethnic pride.)

Alliances based on “universalist” similarities tend to fail without respecting “particularist” differences. The idea of “why can’t we all just get along” (like “United We Stand”) is often used to suppress marginalized voices, asking them to sideline their demands. This overemphasis on unity makes alliances more vulnerable, since authorities may try to divide them by meeting the demands of the (relatively advantaged) white members. A few alliances (such as against low-level military flights) floundered because the white “allies” declared victory and went home, and did not keep up the fight to also win the demands of their Native neighbors. “Unity” is not enough when it is a unity of unequal partners; Native leadership needs to always be involved in the decision-making process.

But successful alliances can go beyond temporary “alliances of convenience” to building lasting connections. In Washington State, local tribal/non-tribal cooperation to restore salmon habitat provides a template for collaboration in response to climate change. The Tulalip Tribes, for example, are cooperating with dairy farmers to keep cattle waste out of the Snohomish watershed’s salmon streams, by converting it into biogas energy. Farmers who had battled tribes now benefit from tribal sustainable practices. The anthology we recently edited at The Evergreen State College, “Asserting Native Resilience”, tells some of these stories of local and regional collaboration for resilience.

Idle-No-MoreIdle No More and “Occupy”

With the rise of the Idle No More and Occupy movements, we have an unprecedented opportunity to grow this cooperation beyond local and regional levels, to national and global scales. Whether Occupy or Idle No More still draw huge crowds is beside the point, because they both have popularized powerful ideas that were not widely discussed even three years ago. The Occupy movement (despite its unfortunately inappropriate name) questions the concentration of wealth under capitalism, the economic system that has also occupied and exploited Native nations. Although a few protest camps (like in Albuquerque), changed their name to “(un)Occupy” to make this point, other camps rarely extended the discussion beyond class inequalities.

Idle No More deals with the flip side of the coin: how to make an understanding of colonization relevant to the majority struggling to live day-to-day under capitalism. Leanne Simpson* *sees Idle No More as “an opportunity for the environmental movement, for social-justice groups, and for mainstream Canadians to stand with us…. We have a lot of ideas about how to live gently within our territory in a way where we have separate jurisdictions and separate nations but over a shared territory. I think there’s a responsibility on the part of mainstream community and society to figure out a way of living more sustainably and extracting themselves from extractivist thinking.”

While the Occupy movement has questioned the unequal distribution of wealth in Western capitalism, Idle No More confronts the colonization of land and extraction of the resources that are the basis of that wealth. While thinking about fairly distributing the stuff, think about where the stuff comes from in the first place—as the spoils of empire. Idle No More’s seemingly “particularist” message actually advances the universalist goals of the global anti-capitalist movement. Our solutions should not aim for a more egalitarian society that continues to exploit the Earth, nor a more sustainable society that continues to exploit human beings—the world needs both social equality and ecological resilience. And both movements have common historical roots, because the class system and large-scale natural resources extraction both originated in Europe at roughly the same time.

Colonizing Europe

To witness the decolonization of Native lands is to see a small reversal in the process of European colonization that began centuries ago, within Europe itself. In her classic study *The Death of Nature: Women, Ecology, and the Scientific Revolution*, Carolyn Merchant documents how Western European elites suppressed the remnants of European indigenous knowledge, as a key element of colonizing villagers’ lands and resources in the 17thcentury. Merchant saw links between the mass executions of women healers (who used ancient herbal knowledge), the draining of wetlands, metallic mining, the restriction of villagers’ hunting, fishing, and gathering rights on lands they had held in common, and the division of the Commons into private plots.

This “enclosure of the Commons” sparked peasant rebellions and Robin Hood-style rebel movements. The Irish resisted English settler colonization, which was a testing ground for methods of control later used in Native America, against clan structures, collective lands, knowledge systems, and spiritual beliefs. In the meantime, the European encounter with more egalitarian Indigenous societies convinced some scholars (such as Jean-Jacques Rousseau and Lewis Henry Morgan) that class hierarchy was not the natural order, and they in turn influenced many of the social philosophers and rebels of the 19th century.

The elites’ promise of settling stolen Native land became a “safety valve” to defuse working-class unrest in Europe and the East Coast. But even at the height of the Indian Wars, a small minority of settlers sympathized with Native resistance, or opposed the forced removal of their Indigenous neighbors. Some Europeans and Africans attracted to freer Native societies even became kin to Native families. We never read these stories of Native/non-Native cooperation in history books, because they undercut the myth of colonization as an inevitable “Manifest Destiny.” But there were always better paths not followed.

Non-Native Responsibilities

The continued existence of Native nationhood today, as Audra Simpson points out, undermines the claims of settler colonial states to the land. Unlikely alliances can help chip away at the legitimacy of colonial structures, even among the settlers themselves. To stand in solidarity with Indigenous nations is not just to “support Native rights,” but to strike at the very underpinnings of the Western social order, and begin to free Native and non-Native peoples. As Harsha Walia writes, “I have been encouraged to think of human interconnectedness and kinship in building alliances with Indigenous communities… striving toward decolonization and walking together toward transformation requires us to challenge a dehumanizing social organization that perpetuates our isolation from each other and normalizes a lack of responsibility to one another and the Earth.”

By asserting their treaty rights and sovereignty, Indigenous nations are benefiting not only themselves, but also their treaty partners. Since Europeans in North America are more separated in time and place from their indigenous origins, they need to respectfully ally with Native nations to help find their own path to what it means to be a human being living on the Earth–without appropriating Native cultures. It is not the role of non-Natives to dissect Native cultures, but to study Native/non-Native relations, and white attitudes and policies. The responsibility of non-Natives is to help remove the barriers and obstacles to Native sovereignty in their own governments and communities.

Non-Native neighbors can begin to look to Native nations for models to make their own communities more socially just, more ecologically resilient, and more hopeful. As Red Cliff Ojibwe organizer Walt Bresette once told Wisconsin non-Natives fighting a proposed mine, “You can all love this land as much as we do.”

———

Zoltan Grossman is a Professor of Geography and Native Studies at The Evergreen State College in Olympia, Washington. He is a longtime community organizer, and was a co-founder of the Midwest Treaty Network in Wisconsin. His dissertation explored “Unlikely Alliances: Treaty Conflicts and Environmental Cooperation Between Rural Native and White Communities (University of Wisconsin Department of Geography, 2002). He is co-editor (with Alan Parker) of “Asserting Native Resilience: Pacific Rim Indigenous Nations Face the Climate Crisis” (Oregon State University Press, 2012).

Federal Court Upholds Tribal Treaty Rights in Culvert Case

Billy Frank
Billy Frank

Source: Northwest Indian Fisheries Commission, www.nwifc.org

OLYMPIA – The state of Washington must fix fish-blocking culverts under state-owned roads because they violate tribal treaty rights, federal Judge Ricardo Martinez ruled on Friday, March 29.

“This is a historic day,” said Billy Frank Jr., Nisqually tribal member and chairman of the Northwest Indian Fisheries Commission. “This ruling isn’t only good for the resource, but for all of us who live here. It will result in more salmon for everyone. This is a great victory for all who have worked so hard to recover wild salmon.”

Martinez issued a permanent injunction requiring the state to repair more than 600 state-owned fish-blocking culverts over the next 17 years to “ensure that the State will act expeditiously in correcting the barrier culverts which violate treaty promises.” Treaty Indian tribes filed the initial culvert case litigation in 2001. The tribes, the United States and the state spent several years trying to settle the case, but were unable to reach agreement.

Tribes reserved the right to harvest salmon in treaties with the United States government more than 150 years ago. That right was upheld in U.S. v. Washington, the 1974 ruling that recognized the tribal right to half of the harvestable salmon returning to state waters and established the tribes as co-managers of the resource with the state.

The injunction was necessary, Martinez ruled, because the state has reduced repair efforts in the past three years, resulting in a net increase of fish blocking culverts. At the current rate, repairs would never be completed, he ruled, because more culverts were becoming barriers to salmon than were being fixed.

“The salmon needs our help now,” Frank said. “Salmon habitat throughout the region continues to be damaged and destroyed faster than we can repair it, and the trend is not improving. This ruling is a step in the right direction.”

Blocking culverts deny salmon access to hundreds of miles of good habitat in western Washington streams, affecting the fish in all stages of their life cycle. State agencies told the Legislature in 1995 that fixing culverts was one of the most cost-effective strategies for restoring salmon habitat and increasing natural salmon production. In 1997 state agencies estimated that every dollar spent fixing culverts would generate four dollars worth of additional salmon production. Recent studies support the state’s findings.

In the ruling Martinez wrote that the state’s duty to fix the culverts does not arise from a “broad environmental servitude” by the state to the treaty tribes, but rather a “narrow and specific treaty-based duty that attaches when the state elects to block rather than bridge a salmon-bearing stream. . .”

“Judge Martinez’s ruling was clear,” Frank said. “Our treaty-reserved right to harvest salmon also includes the right to have those salmon protected so that they are available for harvest, not only by the tribes, but by everyone who lives here.”

Cost estimates provided by the state are higher than the actual repair costs shown in court, Martinez held. He noted that repairs would be funded through the state’s separate transportation budget and would not come at the expense of education or other social services. Costs will be spread out over a 17-year correction program. As highway projects go, the corrections are mostly small.

“The cost will be a small sliver of the State’s two-year $7 billion transportation budget,” Frank said.

The March 29 ruling follows an August 2007 summary judgment issued by Martinez in favor of the tribes, but did not include a remedy to fix the culverts. He encouraged the tribes and state to continue to try and resolve the issue outside of court, but those efforts were unsuccessful.

“We prefer to collaborate with the state to restore and protect salmon and their habitat,” Frank said. “However, the state’s unwillingness to work together and solve the problems of these salmon-blocking culverts in a timely manner left us with no alternative except the courts.”