State still obstinate on tribal rights; fix culverts to save salmon, now

The money, time and effort spent denying tribes their rights could be far better spent on salmon recovery.



By  Lorraine Loomis, Special to The Seattle Times

THE state of Washington should end its long, failed history of denying tribal, treaty-reserved fishing rights and halt its appeal of a federal court ruling requiring repair of hundreds of salmon-blocking culverts under state roads.

Instead, the state should embrace the court’s ruling, roll up its sleeves and work with tribes to end the spiral to extinction in which the salmon and all of us are trapped.

The money, time and effort spent denying tribes their rights could be far better spent on salmon recovery. More salmon would mean more fishing, more jobs and healthier economies for everyone.

The appeal stems from Judge Ricardo Martinez’s 2013 ruling that failed state culverts violate tribal treaty rights because they reduce the number of salmon available for tribal harvest. Martinez gave the state 15 years to reopen 90 percent of the habitat blocked by its culverts in Western Washington. More than 800 state culverts thwart salmon access to more than 1,000 miles of good habitat and harm salmon at every stage of their life cycle. The state has been fixing them so slowly it would need more than 100 years to finish the job.

Lorraine Loomis, a Swinomish tribal member, is chair of the Northwest Indian Fisheries Commission and fisheries manager for the Swinish Tribe.
Lorraine Loomis, a Swinomish tribal member, is chair of the Northwest Indian Fisheries Commission and fisheries manager for the Swinish Tribe.

The U.S. government filed this case in 2001 on behalf of the tribes. It is a sub-proceeding of the U.S. v. Washington litigation that led to the landmark 1974 ruling by Judge George Boldt. His decision upheld tribal, treaty-reserved rights and established the tribes as co-managers of the resource with the state of Washington.

Martinez ruled that our treaty-reserved right to harvest salmon also includes the right to have those salmon protected so they are available for harvest.

Our right is meaningless if there are no fish to harvest because their habitat has been destroyed. Today, we are losing the battle for salmon recovery because habitat is being lost faster than it can be restored.

The state argues that the treaties do not explicitly prohibit barrier culverts. But treaty rights don’t depend on fine print, they depend on what our ancestors were told and understood when the treaties were signed. They would never have understood or agreed that they were signing away the ability of salmon to get upstream.

The state claims that fixing its culverts is a waste because there are other barriers on the same streams and other habitat problems that need attention. But state biologists testified that passage barriers must be removed if salmon are to recover. State culverts are often located on the lower reaches of the rivers, and are the key to restoring whole watersheds.


Other road owners are doing their part. Under state law, timberland owners will fix all their barriers by this fall. Hundreds of other culverts have also been fixed. The state’s “you first” approach would mean no progress at all.

The state argues that a tribal victory would open a floodgate of litigation from the tribes on any state action that could harm fisheries.

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


A culvert’s waters lead to Mosquito Lake near Deming, in 2007. (Alan Berner/The Seattle Times)
A culvert’s waters lead to Mosquito Lake near Deming, in 2007. (Alan Berner/The Seattle Times)


During the Fish Wars of the 1960s and ’70s, tribal fishermen were arrested, beaten and jailed for exercising treaty-reserved rights. The beatings and arrests may have stopped, but the state has never stopped challenging tribal treaty rights, even though they have been upheld consistently by the courts.

Reserving the right to fish so that we can feed our families and preserve our culture was one of the tribes’ few conditions when we agreed to give up nearly all of the land that is today Western Washington. The treaties our ancestors signed have no expiration date and no escape clauses.

 We have upheld our promise and have honored the treaties. The state of Washington should do the same.
Lorraine Loomis, a Swinomish tribal member, is chair of the Northwest Indian Fisheries Commission and fisheries manager for the Swinomish Tribe.

Washington Tribe’s Whale Hunt Proposal Gets First Look From Regulators

A gray whale breaching in the Pacific Ocean.Courtesey of NOAA
A gray whale breaching in the Pacific Ocean.
Courtesey of NOAA


by David Steves OPB


Washington’s Makah Indian tribe wants to resume its traditional practice of whale hunting.

The first step in winning federal approval came Friday, when NOAA Fisheries issued a draft environmental impact statement analyzing the tribe’s request.

The Makah tribe drew international criticism from animal rights groups in 1999 when it hunted a gray whale off Washington’s Olympic Peninsula. It was the tribe’s first whale hunt in more than 70 years.

The Makah have cited the ceremonial and subsistence nature of whale hunting, which it negotiated as a right preserved under its 1855 treaty with the U.S. government.

On their website the Makah tribe says whaling and whales are central to their culture.

“The event of a whale hunt requires rituals and ceremonies which are deeply spiritual. Makah whaling (is) the subject and inspiration of Tribal songs, dances, designs, and basketry.” the tribe says. “For the Makah Tribe, whale hunting provides a purpose and a discipline which benefits their entire community.”

The Makah are seeking to hunt gray whales from the eastern North Pacific stock, which is fully recovered from the impact of historic whaling in the Pacific. The gray whale was removed from the list of threatened and endangered species in 1994. The eastern North Pacific population is estimated to number about 20,000 whales.

NOAA Fisheries has proposed several options. One would allow the tribe to take up to five whales per year. Another would continue a prohibition against hunting gray whales.

“This is the first step in a public process of considering this request that could eventually lead to authorization for the tribe to hunt gray whales,” said Donna Darm, associate deputy regional administrator for NOAA Fisheries’ West Coast Region. “This is the public’s opportunity to look at the alternatives we’ve developed, and let us know if we have fully and completely analyzed the impacts.”

The draft analysis and additional information is available online. The public can submit comments over the next 90 days.

“Being Frank” Eating Fish Shouldn’t Be Risky

By Lorraine Loomis, Chair, Northwest Indian Fisheries Commission

Gov. Jay Inslee wants to change the cancer risk rate used to set state water quality standards from one in one million to one in 100,000. That is unacceptable to the treaty Indian tribes in western Washington. We refuse to accept this tenfold increase in the risk of getting cancer from known cancer-causing toxins, and you should, too.

The cancer risk rate, along with the fish consumption rate, are key factors in determining how clean our waters must be to protect our health. The more fish we eat, the cleaner the waters must be.

Water quality standards are supposed to protect those who need protection the most: children, women of childbearing age, Indians, Asian and Pacific Islanders, sport fishermen, and anyone else who eats local fish and shellfish. When the most vulnerable among us is protected, so is everyone else.

The federal Clean Water Act requires that states develop water quality standards to ensure our waters are clean enough to provide healthy fish that are safe for us to eat. But the state has been operating under outdated and inadequate water quality standards developed more than 20 years ago, and has missed every deadline since then for updating the standards as required by federal law. The state admits that its current water quality standards don’t adequately protect any of us.

Under his plan, Inslee would correctly increase the fish consumption rate from a ridiculously low 6.5 grams per day (about one bite) to 175 grams per day, the same protective rate as Oregon’s. But he would effectively cancel out that improvement by decreasing our protection under the cancer risk rate.

Further complicating matters, Inslee ties development of the new state water quality standards to a $12 million statewide toxics reduction program that will require legislative approval. That is unlikely given the $2 billion state budget shortfall.

Inslee’s proposal would also require the Legislature to grant the Department of Ecology more authority to regulate toxic chemicals. That is also highly unlikely given the Legislature’s historic reluctance to grant Ecology more power to control chemicals in our environment.

The plan also calls for revising standards for 167 chemicals that the Clean Water Act requires states to monitor in our lakes, rivers and marine waters. But standards for 58 of those – including cancer-causing chemicals like dioxins and PCBs – will stay the same.

At its core, Inslee’s plan does more to preserve the status quo than result in any real improvement to our water quality standards. It is a political solution to a human health issue. The concept of a larger toxics reduction program to tackle pollutants at the source is a good one, but it is not an acceptable substitute for strong water quality rules. We should have both.

We know that Inslee and previous governors have struggled with updating the state’s water quality rules for decades because of complaints by industry that new water quality rules could increase their cost of doing business. But an economy built on pollution cannot be sustained.

Fortunately, at the request of the tribes, the U.S. Environmental Protection Agency has said it will step in to develop new standards this year if the state is unable.

EPA Regional Administrator Dennis McLerran announced in December that the agency will keep a close eye on the progress – or lack of progress – of the state’s effort to update our water quality standards. The agency has begun a rulemaking process in parallel with the state effort now under way. If the state develops standards acceptable to EPA, the agency will pause and work with the state to finalize the new standards. If the state is unable, EPA will continue its process and adopt new standards for the state.

This promise by EPA Administrator Gina McCarthy and Regional Administrator McLerran demonstrates true leadership. They clearly recognize the federal government’s trust responsibility to protect the health and treaty rights of the tribes, which also benefits everyone else who lives here.

We appreciate EPA’s willingness to protect the integrity of our state’s environment and water-based resources that are central to human health and treaty rights. We hope the state will step up before EPA has to step in to make sure our water quality standards protect all of us.

For more information visit

Native tribes from Canada, U.S. sign treaty to restore bison to Great Plains


Matthew Brown, The Associated Press

BILLINGS, Mon. — Native tribes from the U.S. and Canada signed a treaty Tuesday establishing an inter-tribal alliance to restore bison to areas of the Rocky Mountains and Great Plains where millions of the animals once roamed.

Leaders of about a dozen tribes from Montana and Alberta signed the pact during a daylong ceremony on Montana’s Blackfeet Reservation, organizers said.

It marks the first treaty among the tribes and First Nations since a series of agreements governing hunting rights in the 1800s. That was when their ancestors still roamed the border region hunting bison, also called buffalo.

The long-term aim of Tuesday’s “Buffalo Treaty” is to allow the free flow of the animals across the international border and restore the bison’s central role in the food, spirituality and economies of many American Indian tribes and First Nations — a Canadian synonym for native tribes.

Such a sweeping vision could take many years to realize, particularly in the face of potential opposition from the livestock industry. But supporters said they hope to begin immediately restoring a cultural tie with bison largely severed when the species was driven to near-extinction in the late 19th century.

“The idea is, hey, if you see buffalo in your everyday life, a whole bunch of things will come back to you,” said Leroy Little Bear, a member of southern Alberta Blood Tribe who helped lead the signing ceremony.

“Hunting practices, ceremonies, songs — those things revolved around the buffalo. Sacred societies used the buffalo as a totem. All of these things are going to be revised, revitalized, renewed with the presence of buffalo,” said Little Bear, a professor emeritus of Native American studies at the University of Lethbridge.

Bison numbered in the tens of millions across North America before the West was settled. By the 1880s, unchecked commercial hunting to feed the bison hide market reduced the population to about 325 animals in the U.S. and fewer than 1,000 in Canada, according to wildlife officials and bison trade groups in Canada. Around the same time, tribes were relocated to reservations and forced to end their nomadic traditions.

There are about 20,000 wild bison in North America today.

Ranchers and landowners near two Montana reservations over the past several years fought unsuccessfully against the relocation of dozens of Yellowstone National Park bison due to concerns about disease and bison competing with cattle for grass. The tribes involved — the Assiniboine and Sioux Tribes of the Fort Peck Reservation and the Assiniboine and Gros Ventre Tribes of the Fort Belknap Reservations — were among those signing Tuesday’s treaty.

Keith Aune, a bison expert with the Wildlife Conservation Society, said the agreement has parallels with the 1855 Lame Bull Treaty, a peace deal brokered by the U.S. government that established hunting rights tribes.

“They shared a common hunting ground, and that enabled them to live in the buffalo way,” Aune said. “We’re recreating history, but this time on (the tribes’) terms.”

The treaty signatories collectively control more than 6 million acres of prairie habitat in the U.S. and Canada, an area roughly the size of Vermont, according to Aune’s group.

Among the first sites eyed for bison reintroduction is along the Rocky Mountain Front, which includes Montana’s Blackfeet Reservation bordering Glacier National Park and several smaller First Nation reserves.

$58 Million Judgment Adds To Woes Of Cigarette Maker On Yakama Reservation

By Tom Banse, NW News Network

A federal judge in Eastern Washington has ruled a cigarette maker on the Yakama Indian Reservation owes $58 million in unpaid taxes and penalties.


King Mountain Tobacco grows a portion of the tobacco it manufactures into cigarettes on the Yakama reservation.
Credit King Mountain Tobacco


The privately owned tobacco company has tried — so far unsuccessfully — to assert a treaty right to trade tax free.

The U.S. Treasury Department went after King Mountain Tobacco Company for federal cigarette taxes unpaid since 2009. The cigarette factory is owned by a Yakama tribal member. The company’s lawyers and the tribal government insist the reservation-based business is not subject to federal or state taxes.

King Mountain attorney Randolph Barnhouse bases this position on a specific provision of the 1855 U.S. treaty with the Yakama Nation.

“They gave up 17,000 square miles of land and they gave up a lot of other things for the right to be left alone on the reservation and to bring their goods to market without regulation,” Barnhouse said. “There are only two treaties that I am aware of in the entire United States that have that ‘right to travel and trade’ provision in the treaty.”

“People sometimes don’t want to hear about the history and they say, ‘Well, history; that was a long time ago,'” Barnhouse added. “Treaties are important and the promises that we made as a nation are important. They are especially important to the people who are living it every day, the Yakama people.”

U.S. government attorneys argue that the tribal cigarette company’s interpretation of the treaty is overly broad. “If no express exemptive language can be found in the text, the analysis is over. The claim of exemption fails. That is the case here,” wrote Justice Department attorney Carl Hankla in one of his briefs.

Federal district court judge Rosanna Peterson agreed. Attorney Barnhouse said his next step will be to ask Judge Peterson to reconsider at least one aspect of her ruling. The cigarette maker could later appeal. In fact, two other cases pertaining to the company are already before the U.S. Ninth Circuit Court of Appeals.

Back story straight from Hollywood?

An FBI affidavit made public in connection with the federal tax case reads like a Hollywood movie, complete with a confidential informant, wire taps, undercover agents posing as wealthy wholesalers, a chartered aircraft for added impact and the presentation of a briefcase full of bundled $100 bills.

The affidavit even includes what would be a requisite scene in a thriller in which the informant is suspected of being a cop and is challenged by the purported bad guys. According to the FBI transcript, King Mountain Tobacco owner Delbert Wheeler addressed the informant and said it did not matter if the man were a cop “because if you are and you mess with me, I will rip out your eyeball, then I will kill you. You understand you may shoot me but it doesn’t matter because in the end we will both go to the same place.”

The affidavit also places current Yakama Nation Tribal Council chairman JoDe Goudy at the meeting where, according to the government, extensive discussion of contraband cigarette trafficking and false reporting of sales happened. Goudy was identified as King Mountain’s sales manager at the time.

Neither Goudy nor Wheeler replied to interview requests on Friday. Heavily armed federal and state agents subsequently raided King Mountain Tobacco’s cigarette factory in White Swan, Washington. An indictment or case stemming from that 2011 raid remains under seal.

Barnhouse said the government’s treatment of his client “angers” him because he believes the U.S. is trying to put “these people out of business.”

Cigarette factories on the rez

King Mountain Tobacco is one of two cigarette manufacturing operations on tribal land in the Pacific Northwest. The other is Skookum Creek Tobacco Company, operated by the Squaxin Island Tribe near Shelton, Washington. The Squaxin Island enterprise has managed to avoid litigation.

One reason for that is because, unlike the Yakama Nation, the Squaxin Island Tribe reached a cigarette tax agreement with the State of Washington. Both cigarette factories import blended tobacco from the southeastern U.S. to process into their cigarettes. King Mountain has also harvested some tobacco from fields planted near its Yakima Valley manufacturing facility.

If the Yakama Nation were to succeed in winning tax-free status for its tobacco sales, it could gain a significant price advantage. The federal excise tax stands at just over $10 per carton of cigarettes. State escrow fund deposits impose a further $5.60 per carton expense.

On its website, King Mountain says it currently distributes cigarettes under its eponymous brand name in eleven states, including Washington, Oregon, Idaho and California. Delbert Wheeler started King Mountain Tobacco in 2005.

Klamath Tribes Historic Treaty Right Water Call

Native News Network

CHILOQUIN, OREGON – Yesterday, June 10, the Klamath Tribes delivered to the Oregon Water Resources Department a “call” requesting that the Department take action to enforce the Tribes’ water rights that have been determined in the Klamath Basin Adjudication.

Klamath Tribes

The Tribal Water Rights have been in litigation since 1975.


A “call” is a request that the Department’s Water master reduce illegal water uses and water uses whose priority date is junior to the calling party, until enough water becomes available to meet the party’s rights. Other calls are also expected from Irrigation Districts and others with senior water rights. These are the first such “calls” of their type in the Klamath Basin because prior to the Department’s recent order in the Adjudication determining the pre-1909 and federal and tribal rights in the Basin, Oregon Water Resources Department did not have a basis to enforce for or against junior or senior water rights.

The Klamath Tribes’ rights are based on the needs of plant, wildlife, and fish species the Tribes reserved the right to harvest in the Treaty of 1864, including fish in several rivers, lakes and marshes of the Upper Klamath Basin. The Tribes’ water rights have been affirmed in the courts to have a “time immemorial” priority date, and are the most senior in the Basin. The rights provide that specific quantities of water are to be maintained in stream to provide for fisheries and other treaty resources. Because the stream flows are currently lower than the Tribes’ rights, the Tribes have asked for illegal uses and junio ruses to be restricted until the flows are met.

Klamath Tribes Chairman Don Gentry explained

“Our water rights are essential to the protection of our Treaty resources. I think everyone knows the Tribes are committed to protecting our Treaty fisheries, and this is an important step in that direction. These are not rights granted to the Tribes by the state or the federal government; they are rights our ancestors reserved in the Treaty of 1864.”

The tribal water rights have been in litigation in the Adjudication since it began in 1975.

Most people in the Basin have long known that the Tribes’ senior water rights would one day be enforced, and there would be a transition from unregulated water use. Gentry observed

“Everyone has known this day was coming. It is unfortunate that more people did not join in our cooperative effort to resolve water issues without litigation and calls, but that was their choice. Currently this is the only path available to us to protect our resources.”

Water use in the Basin has not been closely monitored or measured in the past, so it is difficult to say specifically what the impacts of the call will be. But it seems safe to predict that enforcement of the Tribes’ rights will bring changes to Basin water management.

The call is partly due to the shortage of water resulting from the drought plaguing the Basin this year. The water supply is well below normal. Will Hatcher, Director of the Klamath Tribes Natural Resource Department and member of the of the Tribes’ Negotiating Team observed

“A drought emergency has been officially declared, and that provides some flexibility. But in the end, the Water master is required to allocate water according to the priority-date system.”

How long the call will remain in effect is difficult to predict because there has never been a call of this type in the Basin before. Also, the result depends in part on the weather and duration of the drought.