Washington State Archives

Quil Ceda Village tax case underway in federal court

By Micheal Rios, Tulalip News

According to the Washington Department of Revenue, Tulalip’s Quil Ceda Village generates approximately $40 million in tax revenues each year, but none of these taxes go to Tulalip or the Village. Instead, the State and County collect 100% of the taxes, with the vast majority going to Olympia. The State and County do not share any of these tax revenues with Tulalip.

The Tulalip Tribes’ lawsuit challenging Washington State and Snohomish County’s authority to collect sales tax generated by businesses in Quil Ceda Village (QCV) has finally commenced. The bench trial, presided over by Judge Barbara Rothstein, is scheduled for 10-days and began on Monday, May 14, at the U.S. District Courthouse located in Seattle.

Moments prior to court going into session, Chairwoman Marie Zackuse stated, “The Tulalip Tribes are here today to present our case. This is about taxes generated in our own tribal municipality – built with our own resources. We are confident we have a strong case and look forward to a positive outcome.”

The U.S. federal government is Tulalip’s co-plaintiff in the legal battle against Snohomish County and Washington State. The United States claims the State and County’s imposition of taxes on commerce in Quil Ceda Village undermines tribal and federal interests, infringes on tribal self-governance, and violates the Indian Commerce Clause of the U.S. Constitution.

“The United States takes seriously the federal role in protecting tribal self-government, which has its foundation in federal statutes, treaties, and regulations,” said John C. Cruden, the Assistant U.S. Attorney General at the time the lawsuit was filed.

“The State of Washington and Snohomish County did not contribute in any significant respect to the development of Quil Ceda Village,” according to the United States complaint filed in Seattle. “Moreover, they provide no significant governmental services at the Village and they play no role in the Village’s ongoing operations.”

The State and County currently collect over $40 million in annual property, business and occupation and sales taxes on the on-reservation activities at Quil Ceda Village. Even though Tulalip has its own applicable tribal tax laws, State and County taxation, in effect, preclude Tulalip from imposing its own taxes and deprive the Tribe of the tax base needed to fund important governmental services.

During opening arguments, Tulalip’s legal team expressed that the evidence will show that Tulalip has done everything reasonable to build QCV into what it is today while working under the guidelines of the Tulalip Leasing Act and other federal statutes encouraging self-determination. Tulalip created an economic engine, only to have the tax-base they created be 100% appropriated by County and State governments.

Background

In 2001, the Bureau of Indian Affairs approved QCV’s status as a tribal municipality. Quil Ceda Village became the first tribal political subdivision in the nation established under the Indian Tribal Governmental Tax Status Act of 1982, and one of only two federal municipalities in the country, the other being Washington, D.C. As the first tribal city of its kind, Quil Ceda Village is an innovative model of tribal economic development.

The Tulalip Tribes, with support of the United States government, took what was once undeveloped land and engaged in master planning, invested in infrastructure, and created resources that benefit its tribal membership and the surrounding communities.

Quil Ceda Village is widely regarded as an economic powerhouse, located entirely on federal land held in trust by the United States for the benefit of the Tulalip Tribes. The Village contains the Tulalip Resort Casino, Walmart, Home Depot, Cabela’s, the 130 designer store Seattle Premium Outlets, and provides jobs for over 5,000 employees. QCV has fulfilled the vision of past tribal leaders who sought to create a destination marketplace on the Tulalip Reservation.

Be a witness to history

Tulalip filed suit against the State and County in 2015, seeking the right to claim the tax revenue generated at QCV. Three years later, the lawsuit is finally being heard and is open to the public. Over the 10-day federal court proceedings, Tulalip Tribes, represented by the Office of Reservation Attorney and the Seattle-based law firm of Kanji & Katzen, will seek authorization to exercise its sovereignty over the economy and tax-base, while asking the Court to instruct the County and State to cease collecting sales tax on economic activities within the boundaries of QCV.

Tulalip Tribes, et al., vs. the State of Washington, et al. is ongoing at the U.S. District Courthouse located at 700 Stewart St, Seattle, WA 98101. Tribal members who wish to show their support are encouraged to do so. The case is being heard by Judge Rothstein in room 16106 from 9:00a.m. to 5:00p.m.

“We are witnessing history in the making as the two-week hearing for our federal city, Quil Ceda Village, is underway to preempt Washington State sales taxes within our sovereign lands,” said former Board of Director Theresa Sheldon. “It’s important to acknowledge that it has taken decades of work for us to get to this point. The efforts of so many past tribal leaders and QCV employees helped carry this vision forward.”

An Indian Education for All

By Matt Remle

Matt Remle (blue shirt) with Denny Hurtado and Michael Vendiola from the Office of Native Education providing testimony to the Marysville School Board to adopt the STI curriculum. Photo by: Tulalip News/ Brandi N. Montreuil

The Washington State legislature has introduced a bill requiring Northwest tribal history, culture, and government to be taught in the common schools.

Washington SB 5433 is an amendment to the 2005 House Bill 1495. H.B. 1495 “encouraged” Washington State school districts to teach Northwest tribal history, culture, and government. The Since Time Immemorial tribalsovereignty curriculum (STI) grew out of H.B. 1495 and was developed in partnership with the 29 tribes in WA State and the State’s Office of Native Education.

Since its passage, only two school districts in the state have adopted STI as core, or mandated, curriculum. The Marysville school district located just north of Seattle and whose school boundaries include the Tulalip tribes became the most recent to do so.

State law makers are now seeking to have the curriculum required in the State’s schools with the introduction of S.B. 5433.

S.B. 5433 states:

“The legislature recognizes the need to reaffirm the state’s commitment to educating the citizens of our state, particularly the youth who are our future leaders, about tribal history, culture, treaty rights, contemporary tribal and state government institutions and relations and the contribution of Indian nations to the state of Washington. The legislature recognizes that this goal has yet to be achieved in most of our state’s schools and districts. As a result, Indian students may not find the school curriculum, especially Washington state history curriculum, relevant to their lives or experiences. In addition, many students may remain uninformed about the experiences, contributions, and perspectives of their tribal neighbors, fellow citizens, and classmates. The legislature finds that more widespread use of the Since Time Immemorial curriculum developed by the office of the superintendent of public instruction and available free of charge to schools would contribute greatly towards helping improve school’s history curriculum and improve the experiences Indian students have in our schools. Accordingly, the legislature finds that merely encouraging education regarding Washington’s tribal history, culture, and government is not sufficient, and hereby declares its intent that such education be mandatory in Washington’s common schools.”

If passed, Washington State would become the second state to mandate the teaching of tribal sovereignty curriculum. Montana is currently the only state to mandate Indian education for all state schools when it passed House Bill 528— the Indian Education for All Act, in 1999.

Matt Remle (Lakota) works for the Office of Indian Education in the Marysville/Tulalip school district and was on the curriculum committee that helped pass the districts requirement to teach the Since Time Immemorial tribal sovereignty curriculum in the Marysville schools.

Native Leaders Appointed to Positions in Education, Environment, Justice in Washington State

Richard Walker, Indian Country Today

Three prominent Native American Washingtonians have been appointed to key positions in education, environmental protection, and the judiciary.

On December 15, Gov. Jay Inslee announced his appointment of Raquel Montoya-Lewis, Isleta Pueblo/Laguna Pueblo, to the Whatcom County Superior Court. She will be the only Native American Superior Court judge in Washington state when she takes office in January.

That day, Inslee also announced his appointment of Lower Elwha Klallam Tribe Vice Chairman Russell Hepfer to the Puget Sound Partnership’s Leadership Council. The Partnership is a state agency charged with mobilizing community, regional, and state efforts to restore the health of Puget Sound.

And in November, the state Office of the Superintendent of Public Instruction hired Michael Vendiola, communications director of the Swinomish Tribe, as program supervisor for the Office of Native Education.

Montoya-Lewis is chief judge for the Nooksack Tribe and the Upper Skagit Tribe, and is an associate professor at Western Washington University. She is also an appellate court judge for the Nisqually Tribe Court of Appeals and the Northwest Intertribal Court System and previously for the Nooksack Tribal Court of Appeals. She is former chief judge of the Lummi Nation Court.

Montoya-Lewis serves on the federal Advisory Committee on Juvenile Justice and was appointed by Inslee’s predecessor to the state’s Partnership Council on Juvenile Justice. She has a J.D. and a master’s in social work from the University of Washington and a B.A. from the University of New Mexico.

“Raquel’s 15 years of experience as a judge will be well appreciated on the Superior Court,” Inslee said in his announcement. “She is wise and has a strong commitment to service and to promoting justice. I know she will serve the community and the court exceptionally well.”

Earlier in her career, Montoya-Lewis taught legal research and writing at the University of New Mexico, represented Indian country governments as an attorney at Williams, Janov & Cooney, and served as a law clerk to New Mexico Supreme Court Justice Pamela B. Minzner.

Bellingham City Council member Roxanne Murphy, Nooksack, who is also assistant to the general manager of the Nooksack Tribe, wrote a letter to Inslee encouraging Montoya-Lewis’s appointment.

“She has handled some of our most complex cultural, political and societal issues and managed these cases with the utmost care, intelligence, timeliness and fairness,” Murphy wrote.

Murphy, the first Native American elected to the Bellingham City Council, added that Montoya-Lewis’ appointment would create another important role model.

“I still feel overwhelmed when I think about my campaign experiences and just how many people supported me [for City Council],” Murphy wrote. “This has meant so much to our tribes; to the City Council and our work; to the little girls on and off the [reservation] who tell me that they want to be on the Bellingham City Council; and to the general population that appreciates my ability to understand and work with so many walks of life.”

At the Puget Sound Partnership Leadership Council, Hepfer brings an indigenous perspective “as well as hands-on experience with the Elwha dam removal project and knowledge of what it takes to rebuild an ecosystem that welcomes salmon home,” Inslee said in his announcement. “His rich knowledge of the complex voices and issues involved in Puget Sound recovery work are a welcome addition to the Puget Sound Partnership’s Leadership Council.”

Hepfer’s term on the leadership council continues to June 25, 2018.

Hepfer’s career in natural resources began in 1995 as a water quality technician. He has served on the Northwest Indian Fisheries Commission for 18 years and on the Lower Elwha Klallam Tribal Council for 16 years, formerly as chairman and now as vice chairman.

Hepfer is the Lower Elwha Klallam Tribe’s delegate to the state Department of Social & Health Services’ Indian Policy Advisory Committee; and to the Coast Salish Gathering, an annual meeting of representatives from Coast Salish nations from the U.S. and Canada.

Sen. John McCoy, D-Tulalip, one of three Native Americans in the state legislature, said of the governor’s appointments, “I think these two are great appointments. I know the both of them will do a tremendous job.”

In a farewell column in the December edition of the Swinomish news magazine he edits, Vendiola wrote that in his new position in the state Office of Native Education, “I will get the chance to apply my academic and cultural skills to support Native education.”

Vendiola, Swinomish/Lummi, has been editor of qyuuqs, the Swinomish Tribe’s monthly news magazine, since November 2011. During his editorship, he expanded the magazine’s news coverage, elevated its graphic design and news presentation, and established features designed to improve the reader’s grasp of the Lushootseed language. He helped establish the communications department at the Swinomish Tribe.

In addition to serving as editor of qyuuqs, Vendiola has served as coordinator/activities adviser at Western Washington University since August 1998. He was director of student activities at Northwest Indian College from September 1995 to July 1998. He was recruitment and retention specialist at Skagit Valley College from August 1991 to August 1993. He also founded The Philomath Groove, a project that instills love of learning through the use of mixed media.

Vendiola earned a doctorate in educational leadership and policy studies in 2013 from the University of Washington. He earned a master’s degree in adult education administration in 1997 from Western Washington University. He earned a bachelor’s in American cultural studies in 1994 from Western Washington.

EPA to Develop Federal Clean Water Standards for Washington, if State Won’t

Courtesy Environmental Protection AgencyThe U.S. Environmental Protection Agency will issue water quality rules to uphold certain levels of fish consumption. — Courtesy Environmental Protection Agency
The U.S. Environmental Protection Agency will issue water quality rules to uphold certain levels of fish consumption.

Terri Hansen, Indian Country Today

The U.S. Environmental Protection Agency (EPA) has told the State of Washington it intends to step in to develop a federal plan for the state’s human health water quality criteria as the state did not finalize a plan by year’s end, a deadline EPA gave the state last April.

The EPA’s rulemaking process, in part tied to the human fish consumption rate, will overlap the state’s potential timeline but preserves the EPA’s ability to propose a rule in case the state does not act in a timely manner, EPA regional administrator Dennis McLerran wrote to Department of Ecology head Maia Bellon on December 18.

Under the federal Clean Water Act, the state must adopt standards that ensure rivers and major bodies of water are clean enough to support fish that are safe for humans to eat. Washington’s current standard assumes people eat just 6.5 grams of fish a day, or about one filet a month.

Tribal leaders with the Northwest Indian Fisheries Commission, which represents 20 western Washington tribes, met with the EPA’s McLerran in September seeking to step in and set new water-quality rules for the state, after sending Washington Gov. Jay Inslee a letter expressing dissatisfaction with his proposed draft rule change last July.

Inslee’s draft rule would raise the fish consumption rate to 175 grams a day to protect people who eat one serving of fish per day, a figure that tribal leaders accept. But it has taken the state two years to work out the new draft rule in a political push-pull between business interests and human health advocates, which have each missed their own deadlines in the process.

Tribal leaders say they are also “deeply concerned” about a proposal privately advanced by Inslee that would allow a tenfold increase in allowable cancer risk under the law. The EPA letter asks Washington to explain why a change in the state’s long-standing cancer risk protection level is necessary.

The state’s draft rule is now expected in January, but since the EPA believes it can complete a proposed federal rule by August 2015, the state is looking at a limited time period in which to finalize its rulemaking process.

If not, the EPA is prepared to move forward with rulemaking that McLerran wrote considers the best science, and includes an assessment of downstream water protection, environmental justice, federal trust responsibility, and tribal treaty rights.

Fight Over Gaming Terminals Goes to 9th Cir.

By JUNE WILLIAM, Courthouse News Service

(CN) – The Tulalip Tribes tried to persuade the 9th Circuit last week that Washington State is violating a gaming compact by providing more favorable terms to another tribe.
The Tulalip claims Washington allows the Spokane Tribe to lease lottery terminals at better rates, contrary to a “most favored tribe guarantee saying if the state gives more favorable terms to another tribe, the Tulalip is also entitled to those terms.
The state regulates tribes’ operations of player terminals for a tribal lottery system under a Tribal-State Gaming Compact. The Tulalip can operate 975 terminals but may increase the amount up to 4,000 by purchasing allocation rights from any Washington tribe in the compact. The procedure is known as a terminal allocation plan, or TAP.
In 2007, the Spokane Tribe joined other tribes in the gaming compact. The state allowed the tribe to make payments into an inter-tribal fund to obtain additional terminals if it couldn’t secure the machines under the TAP procedure because “few, if any” machines were available for lease, according to court documents.
The Tulalip claimed the state gave the Spokane more favorable terms by allowing the tribe an additional way to obtain terminals and petitioned to have the same opportunity by amending its compact. After the state refused, the Tulalip filed a federal complaint in 2012 saying the state breached the compact and asking for an injunction amending the agreement.
In 2013, U.S. District Judge Richard Jones granted summary judgment to the state, saying the Tulalip wanted to “cherry-pick” the benefits of the inter-tribal fund provision .
According to the ruling, the Spokane were required to use “reasonable efforts” to obtain the machines from other tribes and must agree to limit their operations to fewer total machines than other tribes.
“The State has never agreed to the select portions that plaintiff wishes to cherry-pick out of the Inter-Tribal Fund provision without the corresponding limitations,” Jones wrote.
On Thursday, the Tulalip asked a three-judge panel to reverse the lower court’s decision.
Lisa Koop, representing the Tulalip, said the tribe’s “most favored” status required Washington to offer them the same benefits as the Spokane.
U.S. Circuit Judge Richard Tallman immediately asked Koop to respond to the district court’s finding that the tribe “cherry-picked” the most beneficial portions of the Spokane agreement without accepting the “inter-related conditions.”
“That’s simply false,” Koop responded.
She said the state wrongly concluded the Tulalip would have to “take everything” the Spokane were offered.
“Some of the terms are specific to the Spokane tribe,” she argued.
“The state basically said we’ll give you the same deal as the Spokane Tribe, but you didn’t want that because it contains a restriction on the maximum number of machines that would reduce the number of machines that you have,” Tallman countered.
“You’d like access to the tribal fund but you’d also like to not have the numerical restrictions that go with it, right?” U.S. Circuit Judge M. Margaret McKeown asked.
The state, represented by Assistant Attorney General Callie Castillo, argued that Tulalip’s most favored nation clause says that if the state ever permits an allocation of player terminals to a tribe which is greater or on more favorable terms then Tulalip is entitled to those same terms.
“Nothing in Tulalip’s compact permits it to obtain more favorable terms than those obtained by any other Washington tribe,” Castillo said.
McKeown asked if other tribes could make Tulalip’s “most favored” argument to ask for the inter-tribal fund plan.
Castillo said “every other tribe in the state of Washington” could claim they were entitled to the same deal.
“Tulalip is only entitled to the same terms as Spokane,” she said.
Castillo summed up her argument, saying the court should reject Tulalip’s attempt to “rewrite the compact into something the state has not agreed to with any other tribe.”

Washington State Official Joins Northwest Tribes in Urging Oil Train Regulation

Associated PressThis derailment and explosion of a train carrying Bakken crude in Lac-Mégantic, Quebec, Canada in July 2013, killed 47 people. Northwest tribes and the State of Washington say, 'No thanks.' — Associated Press
This derailment and explosion of a train carrying Bakken crude in Lac-Mégantic, Quebec, Canada in July 2013, killed 47 people. Northwest tribes and the State of Washington say, ‘No thanks.’

Indian Country Today

Washington State’s rail system is aging, and that combined with the flammability of Bakken crude oil spell danger for ecosystems and people, a top official and 10 tribes said in a Seattle Time sop-ed on November 20.

The Quinault have spoken out numerous times against such rail transport, a practice with potentially tragic consequences as evidenced by the July 2013 explosion in Lac Megantic Quebec, that killed at least 47 people.

The Quinault as well as Washington State Commissioner of Public Lands Peter Goldmark, issued a joint statement in conjunction with the op-ed piece. Tribes, Goldmark noted, are rightfully at the forefront of this debate.

“Tribal leaders bring unique perspective and concern about threats to our treasured landscapes,” Goldmark said in the statement issued jointly with the 10 tribes. “It’s an honor to join them in this important message about the growth of oil train traffic in our state and the threat it poses to public safety, environmental sustainability, and our quality of life.”

Swinomish Tribe Chairman Brian Cladoosby said it was time to move away from the Northwest’s “pollution-based economy” in general and oil trains in particular.

“We are the first peoples of this great region, and it is our responsibility to ensure that our ancestral fishing, hunting and gathering grounds are not reduced to a glorified highway for industry,” said Cladoosby, who is also president of the National Congress of American Indians (NCAI), in the statement posted at the website of the Washington State Department of Natural Resources. “Our great teacher, Billy Frank, Jr., taught us that we are the voices of the Salish Sea and salmon, and we must speak to protect them. If we cannot restore the health of the region from past and present pollution, how can we possibly think we can restore and pay for the impact of this new and unknown resource?”

Besides Cladoosby, Goldmark and Quinault Nation President Fawn Sharp, the statement was signed by Lummi Nation Chairman Tim Ballew II; Confederated Tribes of the Colville Reservation Jim Boyd; Cowlitz Indian Tribe Chairman William B. Iyall; Hoh Indian Tribe Chairwoman Maria Lopez; Squaxin Island Tribe Chairman David Lopeman; Quileute Tribe Chairman Charles Woodruff; Tulalip Tribes Chairman Herman Williams Sr., and Gary Burke, chairman of the board of trustees of the Confederated Tribes of the Umatilla Indian Reservation.

Together they urged policy makers to take up critical regulatory issues surrounding the increased traffic of oil trains throughout the state of Washington.

Tribal Fishing Rights Cases Hit the 9th Circuit

By June Williams, Courthouse News Service

SEATTLE (CN) – Native American tribes fighting over fishing rights in Washington asked the 9th Circuit to intervene in separate proceedings last week.
The cases stems from a 1974 injunction by U.S. District Judge George Hugo Bolt in U.S. v. Washington that affirmed certain tribal fishing rights the state had been denying.
Among numerous subproceedings, the Tulalip back in 2005 requested a permanent injunction to prevent the Suquamish from fishing in waters outside their usual and accustomed, or U & A, grounds, an area determined by the 9th Circuit in 1990. The Suquamish were accused in that case of fishing on the east side of Puget Sound, in violation of court order.
U.S. District Judge Ricardo Martinez last year clarified “the geographic scope” of the Suquamish fishing grounds in Bolt’s decision. He said Bolt “relied heavily” on the reports of anthropologist Dr. Barbara Lane, who testified about various tribes’ traditional fishing areas in the 1974 case.
Martinez said it was “nearly certain” Bolt intended to include Possession Sound and waters at the mouth of the Snohomish River in the Suquamish U & A.
“On the other hand, there is an absence of evidence in her [Lane’s] report regarding Suquamish fishing in the waters on the eastern side of Whidbey Island such as Skagit Bay, Saratoga Passage and its connecting bays Penn Cove and Holmes Harbor, and Port Susan,” the July 29, 2013, ruling says. “Therefore the court finds that Judge Boldt did not intend to include these areas in the Suquamish U&A.”
The Tulalip appealed the decision to the 9th Circuit. After a three-judge panel’s Aug. 8 hearing in the Tulalip dispute, it heard the appeal by the Quileute and Quinault tribes of a similar decision by favoring the Makah tribe.
The Makah filed their Bolt subproceeding in 2009 to determine the boundaries of U & A fishing areas for the Quileute and Quinault tribes. The Ho tribe opposed the Makah’s motion as an interested party. In the complaint, the Makah argued the tribes intend to harvest Pacific whiting outside their traditional fishing grounds, which would affect the Makah’s catch. Pacific whiting travel from south to north, so the Quileute and Quinault would harvest the fish before the Makah.
Martinez let the case to proceed to trial by granting the Makah partial summary judgment last year. The Quileute and Quinault objected, arguing they waived sovereign immunity in the 1974 case only for determining their fishing rights in Washington. They claimed the court did not have authority over waters outside the 3-mile limit from the shore.
Martinez found that “incorrect” on July 8, 2013, saying the court’s jurisdiction extends to all treaty-based fishing and not limited to Washington waters.
The Quinault and Quileute’s claims of sovereign immunity also failed.
“The tribes came to Court in 1970 asking the court to determine and enforce their treaty rights, and they subjected themselves to the court’s jurisdiction for all purposes relating to the exercise of their treaty rights,” he wrote. “The Quinault and Quileute objections to the Makah motion for partial summary judgment on jurisdiction are thus without merit.”
Ho intervened in the appeals by both tribes.
With the 9th Circuit hearing the Tulalip case first Wednesday, Mason Morisset, representing the Tulalip, said Judge Bolt never “called out the specific waters we’re dealing with here.”
The lower court erred in finding the Suquamish regularly fished the east side of Whidbey Island in the past, he added.
Although the Suquamish fishing grounds extended north to Canad’s Fraser River, the tribe “would have to go out of their way” to fish on eastern Whidbey Island, Morisset said.
“In this case, there’s no evidence that the Suquamish went out of their way,” he said.
Judge Consuelo Callahan asked Morisset about the findings by an anthropologist that the Suquamish “traveled widely in the Puget Sound area.”
Morisett said this was true of “all the tribes,” and “it’s not evidence to make a general statement.”
The Suquamish may have traveled to the eastern parts of Whidbey Island and done some fishing, “but that doesn’t rise to the level of a usual and accustomed fishing place,” the attorney added.
Though Morisset called it “very telling” that the Suquamish did not contest Judge Bolt’s definition of their territory for 30 years, Callahan said “that doesn’t negate that they may have a right to do it.”
Howard Arnett, representing the Suquamish, said the tribe regularly fished in East Puget Sound based on historical reports.
“The testimony is clear,” he said. “They went there often. They went there frequently and they fished along the way – enough to establish that the entire area is a U & A.”
The Quileute, Quinault and Ho tribes dispute the finding they waived sovereign immunity, their attorney, Lauren King, said. The tribes agreed to court determination of fishing rights only in Washington State waters, she added.
With Callahan asking why the court shouldn’t “rule here that if you’re in for a penny then you’re in for a pound,” King said it would contravene Supreme Court precedent. “The Supreme Court said if you’re in for a penny, you’re in for a penny,” King said.
Callahan countered that “every single one” of the fishing rights cases involved interpretation of the same treaty.
King did not get far with her explanation that the tribes waived sovereign immunity only for one part of the treaty involving Washington fishing rights.
“If it involved all things in the treaty, we’d be here talking about hunting, about making war on other tribes,” King said.
But Callahan said the tribes’ approach seems to be “we waive sovereign immunity piece by piece until we don’t like what a court does.”
The Makah, represented by Marc Slonim, repeated their position that sovereign immunity was not an issue.
“Sovereign immunity is not a defense as to how an issue will get decided,” Slonim said.
He argued that the determination of the Quileute and Quinault traditional fishing grounds is “no different” from all of the other tribal determinations under the original U.S. v Washington case.
Callahan asked if the subject matter of this case was “inextricably linked” with U.S. v Washington.
“Absolutely,” Slonim replied.
The heart of the original case was the determination of usual and accustomed fishing grounds, the attorney added.
“You have to know where usual and accustomed fishing grounds are to adjudicate the treaty rights,” Slonim said. “The United States has said explicitly that the place these issues should be resolved is in U.S. v. Washington.”
Washington Assistant Attorney General Joseph Panesko also weighed in on the tribes
claim of sovereign immunity, saying it was “patently false” to claim the state has no regulatory authority over the waters in dispute.
He called the tribes “disingenuous” for claiming they never waived immunity over the waters. He said if they succeed in arguing Judge Bolt’s decision doesn’t affect the ocean waters, the state wouldn’t be bound by an injunction in the case.
“The state would be cleared to start regulating all tribal harvests of crab and a few other resources that the state does manage beyond the three mile line,” Panesko said. “The state could require regulatory permits, impose excise taxes on fish that tribal members bring in from beyond that 3-mile line – ”
Laughter broke out in the courtroom as Callahan translated.
“You’re saying be careful what you ask for,” she said.
Judges Jay Bybee and Richard Paez joined on the panel.

California Climate Activist Dumps $1M Into Washington State

By Austin Jenkins, NW News Network

California billionaire and climate activist Tom Steyer has dumped $1 million into Washington state.

File photo of California billionaire and climate activist Tom Steyer

Credit Stuart Isett / Fortune Brainstorm Green

The seven-figure contribution was made last week and became public Monday.

Steyer wants to help Democrats take control of the Washington Senate and $50,000 of Steyer’s money has already moved into a political action committee associated with Senate Democrats.

Steyer also spent heavily in Washington last year.

Recently, he had lunch with Democratic Governor Jay Inslee at the governor’s mansion. Inslee’s climate change agenda has been stymied by the mostly Republican coalition that controls the state Senate.

Enterovirus D68 confirmed in Snohomish County

Source: Snohomish Health District

September 19, 2014 – SNOHOMISH COUNTY, Wash. – The Centers for Disease Control and Prevention (CDC) has confirmed the presence of enterovirus D68 (EV-D68) in Washington state, including Snohomish and King Counties. The CDC testing confirmed that two children, one from Snohomish County and one from King County who had been hospitalized at Seattle Children’s Hospital has respiratory illness associated with EV-D68.

“The spread of EV-D68 reminds us how important it is to get back to basics: washing hands, covering coughs, & staying home when ill,” said Dr. Gary Goldbaum, MD, MPH, Director and Health Officer of the Snohomish Health District. “And although here is no vaccine for this virus, with flu season approaching, we also need to get vaccinated in order to protect all of us.”

The results of the testing also show that EV-D68 is not alone in causing serious respiratory illness. The tests indicated that a variety of common cold viruses that cause uncomplicated infections in most children can cause severe disease in asthmatics and those with underlying lung diseases.

Many people who get sick from EV-D68 have only mild symptoms, like runny nose or coughing with or without fever. Parents should be watchful for any signs of wheezing or worsening asthma and seek medical help promptly if breathing difficulty occurs. Children and adults with asthma should be sure to take their medications as prescribed and have an asthma control plan with their health care provider. They should contact their healthcare provider promptly if asthma symptoms worsen even after taking medication.

There is no specific treatment or vaccine for EV-D68 infections. Testing is done to determine when the virus is present in the community, but is not helpful for individual patients and is not needed or available in non-hospitalized cases.

For additional information on enterovirus D-68: http://www.cdc.gov/non-polio-enterovirus/about/ev-d68.html

Olympian: State’s failure to fix culverts violates treaty rights

Billy Frank Jr. stands on top of a culvert in 2008.

Source: Northwest Indian Fisheries Commission

The Olympian wrote an editorial urging the state to heed a federal injunction to fix fish-blocking culverts:

Imagine you are driving on the freeway, returning from a long trip, longing with all your heart just to be home. Suddenly you are forced to a complete stop because the freeway is broken and you are facing a 10-foot cliff. There’s no way forward, and as cars pile up behind you, no way back.

That’s pretty close to what a salmon experiences when, returning to its native stream from its long journey out to sea, it confronts an impassable culvert under a highway. Every cell in its body is consumed by the desire to go upstream; that is the life goal of every salmon. If it can’t go upstream to spawn, it can’t perpetuate its species.

According to the Washington Department of Transportation, there are 1,987 barriers to fish passage in the state highway system. As of 2013, 285 fish passage projects have unblocked 971 miles of potential upstream fish habitat. But a U. S. District Court injunction has mandated that 1,014 more be corrected by 2030.

Failing to correct culverts that block fish passage violates the treaty rights of tribes whose way of life depends on healthy salmon runs. Treaties are, by definition, the supreme law of the land. We like to think that the days of breaking treaties with Indian tribes are in the past, but the sad fact is we’re stilling doing it – and the result is the same as it has always been: broken treaties threaten the survival of tribal culture and livelihood, as well as the extinction of wild salmon.

Culvert repair is part of the state’s transportation budget – or would be, if the legislature could muster the political will to actually pass a transportation budget, which it has repeatedly failed to do. And even if and when a transportation budget is passed, there will be intense pressure to put the transportation needs of people ahead of the needs of fish and treaty rights.

The Washington Department of Transportation estimates the cost of complying with the federal court injunction – which applies only to tribes in Western Washington – at $2.4 billion, or $310 million per biennium. In the current biennium, they will spend $36 million. At this rate, it will take centuries, not decades, to complete this work.

Secretary of WSDOT Lynn Peterson wryly describes the federal court injunction as “Transportation’s McCleary decision,” a reference to the state Supreme Court order for the Legislature to fully fund public education, even if it means taking truly drastic action, such as closing down other state agencies. When a federal court orders the state to do something – in this case, obey treaties – the state surely ought to heed the injunction.

We understand the Legislature’s dilemma. Voters hate taxes. Legislators like to get re-elected. But when both state and federal courts rule that we’re not meeting our obligations to the next generation of children or of salmon, it ought to be a wake up call.

Both legislators and voters must recognize that it’s time to move beyond our own self-interest, and to do what’s right for our children, the tribes, and the salmon.