Washington State

Yakima Herald-Republic

May 30, 2003

Gregoire’s Right to Place Tribal Dispute in the Court Pipeline Rather than fault Attorney General Christine Gregoire for intervening in a dispute involving Yakama tribal utility charges, we applaud a government official for attempting to get some answers to ongoing jurisdictional questions on the reservation.

Gregoire has filed a formal complaint with the state Utilities and Transportation Commission. The complaint calls for the utilities to stop collecting the charge from reservation customers and to seek a judge’s opinion on the validity of the charge. The rate hike went into effect about six months ago after the Yakama Nation approved an ordinance requiring utility companies to pay 3 percent of reservation-based revenues in return for rights of way on reservation lands, which tribal officials say have either expired or were never granted.

The WUTC effectively ducked the issue by letting stand the companies’ request to impose the 3 percent charge on reservation customers as a tax rather than spread it among ratepayers statewide as a fee. Even the Yakama Nation disagrees with that interpretation.

Gregoire’s complaint is separate from a citizen lawsuit filed over the charges.

A Yakima County Superior Court judge is expected to rule sometime this month on a lawsuit brought by the Citizens Standup Committee of Toppenish, which contends the state lacks authority to rule on a tribal law affecting non-Indian reservation residents. The citizens group has long argued the Yakama Nation does not have jurisdiction of any kind over non-Indians within the exterior boundaries of the reservation.

But Gregoire’s action is more focused. “It’s fundamentally unfair to leave this at the doorstep of the ratepayers,” she said. We agree.
The utilities commission has up to 10 months from the filing to address the complaint, which Gregoire says will trigger a quasi-judicial proceeding that will produce a record that can be appealed through the courts.

She predicts the issue may eventually go all the way to the U.S. Supreme Court. We do not argue the merits of the charge and whether it’s a fee or tax and who should pay it. But we see the issue as but one more example of the thorny thicket of jurisdiction that must be resolved in the best interests of the Yakama Nation and non-Indian reservation dwellers. The nation rightly operates as a sovereign nation. But when the non-Indian issue is factored into jurisdiction within the exterior boundaries of a reservation, things get murky in several areas of dealings among the state, nation and non-Indian reservation residents.

Years ago, the state assumed jurisdiction on reservation lands in eight different areas of law, including school attendance and welfare. But it took a U.S. Supreme Court ruling to answer those questions.

t’s not unprecedented then to expect some up-to-date sorting out of jurisdictional issues, and if the courts are the only way to
accomplish that then so be it.

Gregoire’s action focuses on one of those issues that must be clarified for all concerned parties.

Blood Won’t Always Tell As Perks Make Tribal Membership Increasingly Desirable, Some Find Indian Heritage Not Enough to Get In

By Rob Carson,The News Tribune
February 17, 2002

George Sibbits can’t understand why the Puyallup Tribe of Indians won’t let him in.

He’s 100 percent American Indian and a full quarter Puyallup – more than many members. His grandmother was a Puyallup tribal elder, and, 12 years ago, his brother enrolled in the tribe with no problem.

But Sibbits has consistently been told no.

“You do not meet current requirements set forth in our constitution,” said a curt letter he received from the tribal enrollment office last month.

Deciding who gets in and who stays out has become a divisive and emotional issue, not only in the Puyallup Tribe, but in tribes across the country – particularly in those with profitable casinos.

“This is a very sensitive issue right now,” said John Weymer, a spokesman for the tribe. About 200 people apply for membership in the Puyallup Tribe each year, Weymer said, and about half of them are turned down.

Sibbits, whose 46 years have been one long string of disasters, never thought much about being an American Indian when he was growing up. But now he could use the perks of tribal membership: free medical care, job opportunities and legal assistance, not to mention the $200 monthly check every member gets from casino profits.

Sibbits says the rejection is personal, and when he talks about it he gets so worked up his hands tremble. “They’re trying to keep me out of it for some reason,” he says.

Tribal officials say there’s nothing personal about it.

Sibbits, like many others with Puyallup heritage, has run up against membership requirements that are tougher than they used to be. Growing profits from the tribe’s Emerald Queen Casino – estimated at about $4 million a month – have raised the stakes of membership.

The controversy over membership criteria begs larger questions that have significant political, cultural and economic ramifications. Among them: What is an Indian tribe? And, beyond that, what is an Indian?

Previous definition

In years past, being an Indian was a simple matter of race. If a person had a certain percentage of tribal blood – usually one quarter – he was considered a member of that tribe. Below that amount, he was not.

Now, however, many tribes – including the Puyallups – have discarded blood quantum requirements in favor of social and political criteria.

“This whole blood quantum thing was invented by the federal government” said Robin Torner, the tribal chairman of the newly recognized Cowlitz Tribe, which has headquarters in Longview. “Blood quantum is a pit trap at the end of a dead-end road.”

The Cowlitz Tribe, which won federal recognition in January and claims between 1,500 and 2,000 members, does not require any minimum blood level.

Torner and many others in Indian country’s political mainstream say blood quantum requirements amount to slow-motion genocide. If the children of those who marry outside the tribe were disqualified, they say, the tribes would disappear.

“We’re not breeding dogs here,” Torner said. “Belonging to a tribe has got a lot more to do with than blood. It has to do with tribal affiliations, your heritage, who you live with and who you give your loyalties to.”

Lately, the federal government has tended to agree. In the 1974 U.S Supreme Court case, Morton v. Mancari, the justices ruled that, while there is a racial component to belonging to a tribe, the group identification is primarily political. The tribes themselves should decide who their members are, the court said.

“Since then,” said Bob Anderson, head of the Indian Law Center at the University of Washington School of Law, “the federal government has generally kept out of the mix in terms of determining membership criteria.”

Even so, most tribes continue to use a blood standard, although the requirements vary – from as low as one-sixteenth to as high as one-half.

The Nisqually Tribe requires members to have at least one-quarter Nisqually blood, according to Frankie McCloud, a member of the tribe’s enrollment committee. The Nisquallies are not heavily invested in gambling and have not experienced increased interest in membership, McCloud said.

The Nisqually membership has grown from about 400 in 1990 to about 600 now.

The Puyallup Tribe uses a different approach. It has no blood quantum requirement. But it does require proof of direct descent: That is, if either parent is a member, the children are eligible, too, regardless of how little “Indian” blood they have.

Those who argue that blood standards should be lowered, or done away with entirely, note that tribes, particularly those in the Puget Sound area, traditionally intermarried. There is no reason that still should not be the case, they say, even if tribal members intermarry with other races. The important factor, they say, is social cohesiveness, and that is something only a tribe can assess.

But the direct descent requirement leaves out people such as Sibbits. According to the Puyallup enrollment office, his grandmother never officially enrolled his mother. Under the new rules, that makes him ineligible. His brother was accepted because the tribe had looser requirements when he applied.

“Once the chain is broken, that’s the end of it,” said Weymer. “Once you’re out, you can’t get back in, and neither can your children.”

Sibbits finds that absurd, especially when he sees a growing number of tribal members with blue eyes and sandy hair collecting their monthly $200 checks from the casino. Furthermore, he says, the Bureau of Indian Affairs has told him his mother was enrolled.

He is unemployed and living in a car parked in a friend’s driveway. He lost his license because of a drunken-driving conviction and wants to use the tribes’ legal assistance to help him get his driver’s license back. “I can’t get a job if I can’t drive,” he said.

The Muckleshoot Indian Tribe, which runs the state’s most profitable casino and is ready to build another, has attracted many shirttail relatives and Indian wannabes, according to members. Like the Puyallups, the Muckleshoots have instituted rules that keep out those who have breaks in their membership.

Puget Sound tribes are so intermingled, said Muckleshoot attorney Rob Otsea, that many people are eligible for membership in more than one tribe. What brought the Muckleshoot policy about, he said, were opportunists who bounced from tribe to tribe, depending on where the benefits were best.

Now, Otsea said. “If you disenroll, you are prohibited from re-enrolling.”

The Muckleshoot Tribe was an amalgam of tribes to begin with, and neither the Puyallups nor the Nisquallies have any full-blooded members left, a situation that’s typical among all but the most isolated tribes. According to the Bureau of Indian Affairs, six of every 10 American Indians were full-blooded in 1980. Now, the ratio is just one in three.

By 2080, a 1986 congressional study predicts, only three of every 100 American Indians will be full-blooded.

As blood levels thin, the number of people who call themselves American Indian is steadily rising. In 1960 there were fewer than 400 Puyallups. Now there are more than 2,600. Nationally, the Indian population has more than tripled since 1970, to 2.5 million. In the 2000 census, an additional 1.6 million people said they were American Indian in combination with other races, for a total of 4.1 million.

Membership disputes

Recent disputes in Indian country over membership mostly have to do with sharing profits and entitlements, says Gabriel Landry, a Puyallup tribal member and former council member.

Some Indians are in favor of keeping a blood quantum requirement because it naturally limits the number of people eligible to enroll, he said.

“Their view is that the more people you have, the smaller the pieces become when you start dividing up the pie,” Landry said. “They think the more tribal members we have, the smaller my share is going to be.”

When the benefits of membership rise in value, such sentiments tend to increase. In Minnesota’s Shakopee Mdewakanton Sioux Tribe, for example, approximately 100 members who collect gambling payments of about $400,000 each per year have for years been fighting off a court battle being waged by more distant relatives.

The other point of view, Landry said, is more inclusive: “It’s that the larger our numbers, the greater our strength is going to be, and the better things are going to be for everyone.”

Landry personally favors the more inclusive approach. “The greater numbers you have, the more power and authority you have in the surrounding community,” he said. “If the Puyallup Tribe had a population of 100,000 people, what do you think its power would be?”

The risk, though, is that once tribal members become visually indistinguishable from the mainstream, other Americans will become even more resentful of the treaty rights that give them economic advantages – like fishing rights and casinos.

That could have serious political ramifications, said Anderson. The less distinctive a tribe is, either racially or culturally, the more precarious its status as a sovereign nation. “That’s where the pressure comes in to keep blood quantum,” Anderson said. “But on the other hand, you can’t keep marrying your relatives.”

Fighting for enrollment

Sibbits refuses to give up on his quest to enroll in the Puyallup Tribe, even though there appears to be nothing he can do about it. He wants to sue, but the only place he could take his complaint is tribal court.

And, three weeks ago, his struggle became more difficult. The house he was living in burned down, and with it went the file of birth records and enrollment documents he’s been collecting.

If he were only accepted into the tribe, Sibbits says, he could pull his life back together. He wants the benefits, but, he quickly adds, that’s not the only reason he wants in.

“I don’t know a whole lot about the Indian traditions,” he said. “I want to learn about that.”

When he was growing up, he said, “Indian didn’t matter to me.” Now, he says, “I’d kind of like to be an Indian again. I just want to be part of the tribe. I want to be proud of my ancestors.”

Staff writer Rob Carson covers tribal affairs and diversity issues. Reach him at 253-597-8693.

SIDEBAR: Feds, not tribe, first required enrollment

Much of the controversy surrounding membership in the Puyallup Tribe stems from the federal enrollment of 1929.

Indian agents told the Puyallup people they all had to enroll to be counted as members. Most did, but some – nobody knows how many – distrusted the process and refused to participate.

The question, in later years, became whether the descendants of those who did not enroll in 1929 should be allowed into the tribe.

“There are two points of view,” said tribal member Gabriel Landry, “and this has been real controversial. One is that these ancestors knew they had to enroll, and they chose not to. They should not be entitled to enroll now.

“The other view is, the fact that they chose not to enroll is just an indication that they didn’t trust the federal government, and, had they understood the consequences, they probably would have enrolled.”

On a few occasions, the tribe has voted to open enrollment to these descendants using “adoption ordinances.” Adoptions were allowed in the 1960s, when there were fewer than 400 members and the tribe wanted to build numbers for political strength. Adoptions stopped shortly before the 1990 Land Claims Settlement, which, among other benefits, guaranteed a payment of $20,000 to every member of the tribe, which by then had grown to 1,545.

Adoptions were opened again in the 1990s, but closed in 1995, the year before the Emerald Queen Casino opened.

Rob Carson, The News Tribune

SIDEBAR: Who is an Indian?

Changing definitions of “Indian” have caused confusion in the courts, in Congress and sometimes among tribes themselves. Here are various definitions used in different arenas.

Ethnology: More than one-half Indian blood.

Federal law: Varies – sometimes “anyone of Indian descent,” but sometimes a specific blood percentage is cited, most often one-quarter. Also “anyone who has been accepted as a member of a federally recognized Indian tribe.”

The courts: Generally a two-part test: An individual must have some Indian blood and be recognized by an Indian community as an Indian. The Supreme Court ruled in 1974 that Indian tribes are primarily political, not racial groups.

U.S. Census Bureau: Includes anyone who identifies himself as an Indian.

The Bureau of Indian Affairs: Generally, a member of a recognized tribe who is at least one-quarter Indian.

Individual tribes: Criteria vary from tribe to tribe. Some have adoption provisions that allow members with no Indian blood; others require as little as one-sixteenth or as much as one-half. In some tribes, anyone who can trace his or her lineage to the original tribal roll can be a member, regardless of blood percentage.

© The News Tribune

Indian-Non-Indian Conflicts

Conflicts between Indian tribes and non-Indians that live on or near Indian land are cropping up all over the country. Here are a few examples in Western Washington:

The Swinomish Tribe is facing opposition from Skagit County over a proposal to develop a 1,200-slip marina on the reservation. The county maintains that the project will keep it from preserving farmland.

The Samish Tribe, a landless tribe in Anacortes, is facing a battle from homeowners near Campbell Lake who don’t want to see the Samish build housing and other tribal buildings on an 80-acre site near the Fidalgo Island lake.

The Shoalwater Bay Tribe’s plan to build a commercial housing and light industrial project on land along Interstate 5 near Vancouver is opposed by Clark County.

The Lummi Tribe is in litigation with non-Indian homeowners on the reservation over bulkheads on the homeowners’ Puget Sound properties. The Lummi say the bulkheads damage the tideland environment.

And there is a dispute over tribal efforts to tax the homeowners for their access to reservation drinking water.

Tribal Charters Would Require Changing Laws

Bob Mottram, News Tribune Outdoors Writer
August 29, 2001

It’s taken 27 years since the Boldt Indian fishing-rights ruling in federal court for this idea to surface, but it’s on the table now:

Two treaty Indian tribes – the Tulalip and the Quileute – have told the Washington Department of Fish and Wildlife they’d like to establish charterboat fisheries in which the catch of the non-Indian recreational fishermen who fish aboard tribal boats would count against the tribal share of the salmon harvest.

U.S. District Judge George Boldt of Tacoma ruled in 1974 that Washington treaty tribes were entitled to more than half the harvestable salmon and steelhead. The amount was modified on appeal, to half. Boldt also ruled that the tribes may co-manage fisheries with the state.

The tribal proposals conceivably could mean that non-Indians fishing aboard tribal boats might have different seasons, perhaps longer ones, than those fishing aboard other boats, and might operate under different bag and possession limits.

But here’s one problem. State law prohibits non-Indians from participating in a treaty-Indian fishery. The law is consistent with a portion of the Boldt ruling which addressed who may assist a tribal member in the exercise of the treaty-Indian fishing right.

So, the department tentatively plans to seek a change in that law during the next legislative session. Josh Weiss, the department’s legislative and legal coordinator, says the federal court ruling also would need to be modified.

Alternatively, the tribes say they’d like to operate charter boats that share in the non-Indian portion of the harvest, but without the department-issued charterboat licenses whose availability is blocked right now by a license moratorium.

Indian Nation stops Issuing Fishing Permits for Lake Quinault

By Jenny Lynn Zappala, Daily World Writer
May 19, 2001

LAKE QUINAULT – The Quinault Indian Nation has stopped issuing fishing permits for Lake Quinault, say Quinault area residents who met with tribal officials earlier this week.

Hotels and grocery stores near the lake report business is evaporating and hopeful fisherman are upset.

The good news: the annual Lions Club Fishing Derby on June 2 will go forward as planned.

“People are disappointed,” said Betty Miller, president of the Lake Quinault Community Action Forum. “We’re very concerned about it because it’s really cutting our business down and this is our big time of year. It’s really kind of disturbing and I’m not sure what can be done about it.”

The Quinault Nation controls fishing on the lake and prizes the blueback sockeye salmon that spawn in the lake.

Pearl Capoeman – Baller, president of the Quinault Indian Nation, told The Daily World Thursday the Nation would issue a statement explaining the closure, but none had been received as of Friday afternoon.

The Quinaults announced the closure to Lake Quinault representatives – including Miller – at a meeting last week.

According to Miller, the Quinaults were concerned that non – tribal people were fishing for blueback salmon, which can only be harvested by tribal members. She wasn’t aware of any evidence to support the Quinaults’ contention.

“They are saying people are taking the sockeye and it’s depleting their supply,” Miller said.

Miller said the forum will work with Quinaults to prevent a similar situation next year.

Meanwhile, business owners are breaking the news to disappointed fishermen. The Amanda Park Mercantile told a handful of fishermen Friday morning and they were upset, said employee Cathy Swanson of Neilton.

“We have people coming from Seattle, Tacoma and Aberdeen thinking they are going to get their license and bam, no fishing,” Swanson said. The Quinaults “didn’t take the common courtesy to notify anybody. The people who come up are so upset they’re not coming back. They’ve ruined the business for the summer and maybe for longer. Some people are pretty disgusted.”

The Amanda Park Mercantile has lost about a fourth of its business this week, she added.

“It is devastating up here,” she said. “This area depends on summer traffic. You make your year – round business in the summer and then you put your money in the bank to sustain you all winter.”

The Lake Quinault Inn, an eight – room hotel that caters to fishermen, was nearly empty this week because of the closure, said Vicki Shepard, 45, a clerk at the Inn and lifelong area resident. Shepard added that she doesn’t recall there ever being a lake closure before now.

Ed Backholm, owner of the Lake Quinault Resort and a fisherman, sympathizes with the upset fishermen, but also respects the Quinaults’ right to close the lake.

“It is their lake and we have to abide by the rules,” Backholm said. “I also can’t fish and I love to fish this lake. I guess it’s a question of respecting the honor system that is in place. This is a quality watershed. We need to support the process of keeping it healthy. The Quinault Indian Nation and the tourism industry need to work together and we are certainly willing to do so.”

Backholm said he wasn’t aware of any incidents of salmon poaching.

He said several fish habitat consultants employed by the Quinaults have been staying at his resort and conducting tests on the sockeye run at the lake.

Meantime, the frustration and hotel cancellations continue. Rainforest Resort Village reported cancellations this weekend and Memorial Day weekend, said Donna Johnson, 23, an employee. Even Johnson, a lifelong resident, plans to spend her summer weekends somewhere else.

“We just bought a boat this year after having a junker one all set out to go fishing, and what do you know,” she said.

“I’ve fished out there all my life ever since I could hold a fishing pole. Without fishing, it’s just a dead spot.”


Conflicts between Indian tribes and non-Indians that live on or near Indian land are cropping up all over the country. Here are a few examples in Western Washington:

The Swinomish Tribe is facing opposition from Skagit County over a proposal to develop a 1,200-slip marina on the reservation. The county maintains that the project will keep it from preserving farmland.

The Samish Tribe, a landless tribe in Anacortes, is facing a battle from homeowners near Campbell Lake who don’t want to see the Samish build housing and other tribal buildings on an 80-acre site near the Fidalgo Island lake.

The Shoalwater Bay Tribe’s plan to build a commercial housing and light industrial project on land along Interstate 5 near Vancouver is opposed by Clark County.

The Lummi Tribe is in litigation with non-Indian homeowners on the reservation over bulkheads on the homeowners’ Puget Sound properties. The Lummi say the bulkheads damage the tideland environment.

And there is a dispute over tribal efforts to tax the homeowners for their access to reservation drinking water.

U.S. Attorney Weighs in on Alcohol Ban: Bars in Toppenish, Wapato OK Despite Tribe’s Rule

By Florangela Davila, Seattle Times Staff Reporter
March 31, 2001

One year after the Yakama Indian Nation proposed banning all liquor sales within its reservation, the U.S. attorney in Spokane has asserted that certain areas on the reservation could likely continue to sell alcohol because they are in non-Indian communities.

In a letter released this week, U.S. Attorney James Shively said taverns and other businesses that sell alcohol in the Yakima County cities of Toppenish and Wapato, where Indians make up a minority of the population, would likely be exempted from the tribal ban because they qualify as non-Indian communities.

Shively had been asked by Yakama Indian leaders and the state Attorney General’s Office to clarify whether a 19th-century federal statute banning alcohol in “Indian country” could be applied to the entire 1.2 million-acre Yakama Reservation in south-central Washington.

Tavern owners and their customers in those cities were relieved.

“It had been a daily conversation: Would we be ticketed? Would we be in business? Now we’ll be able to stay open,” said Bruce Fish, a bartender at Little John’s, a tavern in Toppenish.

But there are eight other businesses on the reservation, according to Yakama leaders, which will have to cease alcohol sales.

The Spur Tavern in Harrah could be one of them. And owner Gary Betschart, who just renewed his state liquor license, said he believes he is being unfairly singled out. Tiny Harrah, population 542, is also incorporated and also largely non-Indian, he pointed out.

“I don’t believe the tribe has a right to obstruct my business on my private land,” he said. “We’re exactly the same as them (Toppenish and Wapato). The last chapter of all of this hasn’t yet been written.”

A spokeswoman for the state Liquor Control Board said her agency would “sit back and wait” to see whether the Yakamas would take action on businesses not exempted by the U.S. attorney.

That would mean the Yakamas would have to pursue criminal action against those businesses – a matter the tribe said it would take up during its council meeting later. Shively said his office would not take any action until then.

Last April, the Yakamas decided to fight alcoholism by banning liquor sales on their reservation. Since then, tavern and store owners doing businesses on the reservation, as well as state authorities, have been unclear about how far the ban extends.

The situation is complex: The reservation is a patchwork of tribal and nontribal lands. Federal law defines what “Indian country” is, but not what would comprise a non-Indian community within a reservation.

And while federal statutes prohibit alcohol sales, they have never been enforced in recent memory.

Alcohol sales apparently began on the reservation in 1953 despite the federal law and the tribe’s own treaty prohibiting alcohol.

Forty-seven businesses sell alcohol within the reservation boundaries; 44 are owned by nonmembers of the tribe. The majority of the businesses are in incorporated cities that fall within the boundaries of the reservation.

Tribal leaders say the reservation has a 34 percent higher rate of motor-vehicle fatalities than the national average, a teen suicide rate that is five times higher, and a 500 percent greater rate of fetal alcohol syndrome in infants. The ban was an attempt to control a chronic problem, leaders said.

But while leaders said they were disappointed that Shively hadn’t concluded the entire reservation could be dry, they said they regard his interpretation “as a net gain in the tribe’s battle against alcohol abuse.”

“In truth, it will result in the closure of some of the worst establishments,” said Jack Fiander, a tribal-council member.

Ever since the tribe proposed the ban, Fiander said, state liquor authorities have increased their enforcement on the reservation. There have been more citations for businesses over-serving alcohol and serving minors, he said.

Tribes’Role in Water-use, Land Policies Challenged

By Rebecca Cook of The Associated Press
March 19, 2001

A feud over road culverts holds implications for treaties and fishing rights

OLYMPIA — Challenged by tribes to fix state road culverts for the benefit of salmon, Washington state has responded, in effect, “You first.”

The state last week filed the first legal parry in a case that has sweeping implications for how much say tribes have in the state’s land- and water-use policies.

In January, 20 Puget Sound tribes went to court to force the state to fix about 500 culverts on state roads that impede migrating fish, such as salmon. The state’s timeline for fixing all the culverts is 20 to 30 years; the tribes want it done in five years.

The culvert proceeding is part of a case known as the Boldt decision that established tribal rights to half the state salmon harvest, based on treaties signed more than a century ago. The tribes want the U.S. District Court in Seattle to make the state protect salmon habitat so that tribes can get their fair share.

The state goes on the attack in the 22-page response, demanding that the court order tribes and the federal government also to fix bad culverts. The federal government is the plaintiff in the lawsuit.

“The tribes have violated their duty to the state by failing to inventory and correct their own road-related fish passage barriers,” the state says in court papers. It says the same thing about the U.S. government.

“Based on our information at this point, they have at least as many blocking culverts as the state does,” Assistant State Attorney General Robert Costello said. “The federal government in our view is lagging behind the state.”

Phillip Katzen, the Seattle lawyer representing 10 of the tribes, said reservations in Washington have few culverts, and even fewer that block salmon. As for the U.S. government, he agreed there are many problem culverts on federal land but said that doesn’t let Washington state off the hook.

“The state doesn’t seem to deny they have a lot of culverts that are killing a lot of fish,” Katzen said. “It’s a little disingenuous to be pointing the finger at us.”

The state also argues that treaties don’t mention habitat, and they don’t give tribes the right to tell the state how to spend its money. Gov. Gary Locke has requested $40 million in this two-year budget cycle to start fixing culverts, but in this tight budget year there’s no guarantee the money will be granted. By some state estimates it would cost $112 million to repair all the culverts.

“Fixing culverts in every watershed won’t necessarily bring back the fish,” Costello said. “We want to spend money where it will do the most good.”

Katzen said the courts have recognized habitat protection as an implied part of the treaties establishing fishing rights.

“If the right to take fish is to be given meaning, there’s got to be some ability to protect the supply of fish against state destruction,” Katzen said. “If there are no fish, there is no right.”

The next likely step is for the tribes to respond to the state’s counterclaim with an answer of their own. Then the U.S. District Court in Seattle will begin scheduling court proceedings.

At stake in this sub-proceeding of a nearly 30-year-old court decision is the delicate balance between state and tribal authority when it comes to salmon recovery.

“The larger issue is really the question of what is the role of any of the treaties, and the treaty tribes, in land use and water use and natural resource decision-making,” Costello said.

Court: FOIA Applies to Indian Tribes

By Anne Gearan, Associated Press Writer
March 5, 2001

WASHINGTON (AP) – Indian tribes cannot claim that correspondence with the federal government is exempt from the federal Freedom of Information Act, the Supreme Court ruled Monday.

The tribes and the federal government had argued that seven documents were protected under an exemption to the sunshine law.

The unanimous ruling is a blow to tribes that hoped to stop opponents in a water rights dispute from seeing records passed between the tribes and the federal Bureau of Indian Affairs.

Four tribes claimed that because of the special advocacy and caretaker relationship between Indian tribes and the Bureau of Indian Affairs, the records were protected in much the same way that correspondence between lawyers and clients is protected.

“All of this boils down to requesting that we read an ‘Indian trust’ exemption into the statute, a reading that is out of the question,” Justice David H. Souter wrote for the nine-member court.

The Freedom of Information Act, or FOIA, allows reporters and other outsiders to get unclassified government records that officials would not otherwise release.

Souter noted that although there are exemptions to the law, they are meant to be applied narrowly. He rejected the government’s comparison of the tribes to government contractors, whose correspondence is sometimes protected under the FOIA exemption.

The court said it recognizes the value of “frank communication” between the government and tribes for whom it holds trust funds, but said unlike contractors, a tribe’s communication with the government is meant to advance its own interests.

The case pitted the tribes against a group of organizations and interest groups seeking the same scarce water from the Klamath River Basin along the California-Oregon border. Several organizations representing the news business also argued the records should become public.

The federal Bureau of Reclamation administers the Klamath Irrigation Project, which uses water from the Klamath River Basin to irrigate over 200,000 acres in Klamath County, Ore., and two counties in northern California.

The bureau is part of the Department of the Interior, as is the Bureau of Indian Affairs, which regularly corresponded with various Indian tribes in the Klamath Basin about their water rights.

In 1996, a group of Klamath Project irrigators filed a series of FOIA requests seeking access to all communications between the Bureau of Indian Affairs and the tribes regarding water issues.

The agency released some documents but refused to release seven of them. At issue was whether those documents should be considered “interagency or intra-agency” communications that are exempt from public release under FOIA.

The case is U.S. Department of Interior v. Klamath Water Users Protective Association, 99-1871.

Supreme Court
Appeals Court Ruling

Another Potential Lightning Boldt

by Lynda V. Mapes, Seattle Times Staff Reporter
January 17, 2001

Twenty tribes have filed a federal lawsuit that could be as far reaching in its effect on fisheries as the Boldt decision of 1974.

That landmark court decision established the tribes’ right to at least half the catch based on treaties signed with the U.S. government more than 100 years ago. The other half goes to nontribal fishermen.

The lawsuit was filed against the state of Washington in U.S. District Court in Seattle over culverts that block fish passage.

The suit has everyone from the governor to the attorney general and the governor’s top salmon adviser worried.

At the very least, the legal action could compel the state to spend hundreds of millions of dollars to repair state highway culverts that affect fish runs for Western Washington tribes – a tall order in a state strapped for highway funds.

But the impact could potentially be far greater. At its most potent, the case could establish a broader state duty to address any state-authorized activity that hurts salmon survival, from water use to timber practices and development.

In a memorandum from tribal attorneys to a mediator attempting to fend off the suit last September, the tribes made it clear their goal was not just getting culverts fixed, but also “to have the treaty right to protect fish habitat acknowledged by the state of Washington.”

Gov. Gary Locke and Attorney General Christine Gregoire issued a joint statement yesterday decrying the lawsuit.

“We are aware this case has potential significance beyond the culvert issue,” Locke and Gregoire wrote in their statement. “A favorable ruling for the tribes could impose a duty that may affect other public roadways, public facilities and lands and even the regulation of land use and water.”

Locke has requested $40 million for repair in the coming two-year budget to begin work on nearly 2,400 culverts statewide. State officials have identified the culverts as needing repair or replacement during the next 20 years for the benefit of fish.

“We are disappointed that the tribes feel litigation is necessary to bring about the improvements we all strive for,” Locke and Gregoire said. “Litigation will serve to siphon valuable time, money and energy away from the vital task of saving salmon.”

The suit would require the state to identify the culverts within 18 months of a court ruling. Those culverts – it’s not clear how many – would have to be repaired within five years, and maintained in perpetuity. Further, no new culverts that harm fish passage could be built.

The repairs are expensive, averaging $250,000 per culvert, according to Paul Wagner, biology- program manager for the state Department of Transportation.

Culverts are built and maintained by a range of state agencies, as well as local governments. State agencies are in various stages of identifying, designing, funding and making repairs to culverts that block or impair fish passage.

Improperly built or maintained culverts can block fish in a number of ways. If the culvert is too steep, water will rush through in a current too fast for salmon to fight. Other culverts have too little water for salmon to swim.

Some culverts are too high above the streambed for even the hardiest salmon to jump into.

Rep. Jim Buck, R-Joyce, chairman of the House Republican Caucus, said the suit has damaged relationships. “I feel sad about this lawsuit. We were making a good-faith effort to put aside the animosity between Indians and non-Indians and this one just shoots that out of the saddle.”

Curt Smitch, the governor’s top salmon aide, said the suit, if successful, could require the state to consult with tribes on virtually any land use that affects their ability to make a “moderate living” from salmon fishing.

“We don’t believe this is about culverts. We think it’s about what duty we have under the treaty to provide the tribes authority over any activity that would impact the environment,” Smitch said.

“We see this as Boldt II, not a culvert lawsuit.”

The lawsuit is potentially a more powerful tool than the Endangered Species Act (ESA) for a couple of key reasons.

First, it could affect streams and rivers everywhere in Washington with a state highway culvert that affects runs for Western Washington tribes. The ESA only protects streams that are home to fish listed for protection.

Second, the ESA only requires fish runs to be restored to the point that they are no longer on the brink of extinction.

The lawsuit seeks to restore habitat to the point it supports enough salmon to successfully sustain commercial, cultural and subsistence fishing.

Tribal leaders say they were pushed to file the suit by a catastrophic collapse of fish runs.

Today tribes are catching no more fish than they were before federal Judge George Boldt’s 1974 decision establishing their right to half the catch in rivers.

“The tribes have lost everything they gained in the Boldt decision,” said Phil Katzen, Seattle attorney for the tribes.