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.

 

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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.

Northwest tribal leaders fight for government to uphold treaties

Tulalip Tribes Chairman Mel Sheldon speaks at the rally.

Tulalip Tribes Chairman Mel Sheldon speaks at the rally. Photo courtesy Theresa Sheldon, Tulalip Tribes Board of Director.

 

 

Lummi Nation Chairman Tim Ballew II and other leaders rally in Washington, D.C., on Thursday, Nov. 5, 2015, to oppose the Gateway Pacific Terminal, which would export primarily coal and expand railways. Ballew says that the project would disregard treaty rights and harm the environment. Grace Toohey McClatchy

 

 

BY GRACE TOOHEY, Bellingham Herald

 

WASHINGTON – A proposed coal terminal and affiliated railway for Cherry Point, Wash., has sparked concern about treaty violations and environmental degradation for many Pacific Northwest tribal leaders, 10 of whom rallied together in Washington, D.C., on Thursday morning against what they said is government disregard for their treaties.

About a block from the White House, three Lummi Nation sisters crooned a song referencing the 1855 U.S. treaty with Pacific Northwest Native American tribes, reserving certain rights for their fishing, hunting and sacred grounds. “What about those promises? Fills my heart with sadness, I can’t do this on my own, we’ve got to come together and be strong,” the women sang.

But Tim Ballew II, chairman of the Lummi Nation, said those rights are in jeopardy.

“All the tribes are standing here today in solidarity to protect not just our reservation community but everybody’s community from the impacts that cannot be mitigated,” Ballew said, standing in front of leaders from the Tulalip, Swinomish, Quinault, Lower Elwha Klallam, Yakama, Hoopa Valley, Nooksack and Spokane nations and the president of United South and Eastern Tribes.

The proposed Gateway Pacific Terminal, a subsidy of SSA Marine, would act as a trading hub between landlocked domestic companies and markets in Asia, said Joe Ritzman, vice president of business development for SSA Marine. The deepwater terminal would handle up to 60 million tons of commodities, primarily coal, and the project would coincide with a railway expansion.

OUR CURRENT FOCUS IS THE IMPACT ON TREATY FISHING RIGHTS, AND IT’S THE GOVERNMENT’S RESPONSIBILITY TO UPHOLD THE TREATY. Tim Balew II, chairman of the Lummi Nation

But the project’s designated land includes burial sites for Lummi ancestors and artifacts, Ballew said, and the coastal development would harm age-old fishing traditions within the tribe.

“The location of the pier will take away fishing grounds and the increase in vessel traffic would impede access of our fishermen to fishing grounds throughout our usual and accustomed areas,” Ballew said.

Washington state, Whatcom County and the federal government are reviewing the environmental impacts of the proposed export terminal and associated rail expansion, expecting to release state-local and federal environmental impact statements in 2017. The U.S. Army Corps of Engineers, which is the federal review agency, is also inspecting Native American treaty rights at play.

“Our current focus is the impact on treaty fishing rights, and it’s the government’s responsibility to uphold the treaty,” Ballew said.

The Lummi Tribe, whose reservation is minutes from Cherry Point, entered the Treaty of Point Elliot more than 150 years ago, which ensured the sovereign nation right to “fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory.”

JoDe Goudy, chairman of the Yakama Nation, said his tribe has faced similar treaty battles in Oregon, most recently when the governor halted a proposed coal export plant near their sacred ground and Columbia River fisheries. But now that decision is under appeal, putting their treaty rights at stake again, Goudy said.

“The recognition from us collectively (is) that those reserved rights go hand in hand with our sustained existence as peoples,” Goudy said. “A direct attack on such things, in our hearts and minds, is a direct attack on our sustained existence.”

Not only would the Gateway Pacific Terminal affect the Lummi Nation, Goudy explained, but the proposed railways would transport coal by the Yakama Nation’s portion of the Columbia River.

“This issue affects all of us, we’re connected in ways that the U.S cannot even imagine,” said Tyson Johnson, council member of Nooksack Indian Tribe.

SSA Marine will wait until the state, county and federal environmental reports come out, Ritzman said. But with plans for mitigation strategies and a 75 percent natural buffer of the 1,500 acres for the project, Ritzman said he expects his company’s proposal to meet all state and federal environmental requirements and not impact the fisheries.

President Barack Obama and his administration met with the tribal leaders and many more Thursday afternoon as a part of the White House Tribal Nations Conference.

“I credit the current administration for every year building on our efforts to help us rebuild our nations and I encourage them to continue that,” Ballew said. “We really want them to give this issue its due respect. It’s a human rights issue, it’s a treaty rights issue, and we need our sacred sites protected.”

Read more here: http://www.bellinghamherald.com/news/local/article43286049.html#storylink=cpy

 

State Again Tries to Deny Tribal Treaty Rights

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Source: Northwest Treaty Tribes

 

Once again denying tribal treaty-reserved fishing rights – and the many federal court rulings that have consistently upheld those rights – the state of Washington is appealing its latest defeat in a case brought by western Washington tribes in 2001 to force repair of hundreds of salmon-blocking culverts under state roads.

Oral arguments for the appeal will be heard tomorrow, October 16 in the Ninth Circuit Court of Appeals in Seattle. The appeal stems from a 2013 ruling by Judge Ricardo Martinez, who issued a permanent injunction requiring the state to repair more than 800 state-owned fish-blocking culverts over the next 15 years. Also at issue is a 2007 decision in favor of the tribes in which Martinez ruled the state’s obligation to fix culverts stems from the treaty right to take fish. The tribes, state, and federal government tried for several years to settle the case, but were unable to reach agreement.

“Our treaty-reserved right to harvest salmon includes the right to have those salmon protected so that they are available for harvest, not only by the tribes, but by everyone,” said Lorraine Loomis, chair of the Northwest Indian Fisheries Commission. “Our treaty rights are at risk because we are losing salmon habitat faster than it can be restored. Without habitat, we have no fish. If we have no fish, we have lost our treaty right, and our culture and economies will be destroyed.”

Tribes reserved the right to harvest salmon in treaties with the United States government more than 150 years ago, in exchange for which the tribes ceded the vast majority of their homeland to allow non-Indian settlement. The treaty fishing right was upheld in U.S. v. Washington, the 1974 ruling that recognized the tribal right to half of the harvestable salmon returning to state waters and established the tribes as co-managers of the resource with the state.

In great part due to loss of habitat, salmon populations have rapidly and continually declined for the past several decades. As a result, both Indian and non-Indian fishermen have suffered from greatly reduced harvests. “We all stand to lose if we cannot protect the salmon’s habitat,” said Loomis. “We were disappointed by the state’s choice to appeal the district court’s decision, especially when restoring salmon benefits Indians and non-Indians alike.”

Blocking culverts deny salmon access to over a thousand miles of good habitat in western Washington streams, affecting the fish in all stages of their life cycle and reducing the number of adult salmon returning to the state by hundreds of thousands of fish. State agencies have consistently told the Legislature that fixing problem culverts is a scientifically sound, cost effective method for increasing natural salmon production. Even so, the state’s sluggish rate of culvert repair meant it would have taken more than 100 years to fix known blocking culverts even as salmon populations continued to decline throughout western Washington.

The injunction forces the state to accelerate the pace of repairs to blocking culverts. Over the past two years, the state agencies have been cooperative in working with the tribes, Loomis said. The Washington Department of Fish and Wildlife, State Parks and Department of Natural Resources have made good progress toward correcting the existing fish blocking culverts, which the injunction requires be fixed by next year. The Washington Department of Transportation is responsible for the majority of failing culverts, which the injunction requires be corrected by 2030. WSDOT’s correction rate is still far too slow, but the Tribes are encouraged by the agency’s recent efforts to re-prioritize funding to bolster culvert corrections and the state Legislature’s increased funding to the agency. Repairs will be funded through the state’s separate transportation budget and will not come at the expense of education or other social services.

The 20 treaty Indian tribes in western Washington always prefer to collaborate rather than litigate to restore and protect salmon and their habitat, Loomis said. “But the state’s unwillingness to work together and solve the problems of these salmon-blocking culverts in a timely manner left us with no alternative except the courts. We hope the Ninth Circuit will fully uphold the district court ruling and that we can move beyond litigation to work cooperatively with the State to protect the salmon resource,” she said.

Hard Work Leads To Recovery of Summer Chum

By Lorraine Loomis, Chair, Northwest Indian Fisheries Commission

 

Hood Canal/Eastern Strait of Juan de Fuca summer chum is the only threatened salmon population in western Washington showing clear signs of recovery.

It’s thanks to a 20-year cooperative effort by state and tribal salmon co-managers, conservation groups, local governments and federal agencies that is balancing the key ingredients needed for recovery: harvest, hatcheries and habitat.

Summer chum were listed as threatened under the Endangered Species Act in 1999 along with Puget Sound chinook and Lake Ozette sockeye. Puget Sound steelhead joined the list in 2007.

The program’s success comes from a core principle that salmon recovery must address all factors affecting natural production. For far too long the federal government’s main response to protect ESA-listed salmon has been to cut harvest. Meanwhile, the primary threat to wild salmon and their recovery – ongoing loss and damage of their habitat – continues to be ignored.

Past overharvest and poor ocean conditions combined with degraded habitat to spark the steep decline of summer chum that began in Hood Canal streams in the late ’70s. By the early 1990s, fewer than a thousand summer chum were returning from a population that once numbered 70,000 or more.

The tribal and state co-managers responded with strong harvest management actions beginning in 1992. Fisheries impacting summer chum were reduced, relocated and delayed to protect the returning fish.

But it didn’t stop there. Working with federal agencies and conservation groups, tribal and state salmon co-managers began hatchery supplementation programs to boost populations of summer chum.

A portion of the wild run returning to the Big Quilcene River was moved to a federal fish hatchery and spawned, with the offspring released to rebuild the remaining run. Four years later, about 10,000 adult summer chum returned to the river.

Since then, additional hatchery supplementation efforts have led to summer chum becoming re-established in most of its historic range. To protect summer chum genetics, supplementation programs were limited to three generations, or 12 years. Some programs met their goals and were ended earlier.

Habitat protection and restoration was the third key to bringing back summer chum. Projects such as dike removals, protecting and restoring instream habitat, planting streamside trees and removing invasive plants have all contributed to the effort’s success. Nearly 700 acres of estuary and an equal amount of upland stream habitat have been improved to support the recovery effort.

More work is planned and ongoing in streams, estuaries, and the nearshore throughout the area

Balancing harvest, hatcheries and habitat is the key to salmon recovery. Equally as important is the need for monitoring and evaluation to apply lessons learned and improve effectiveness.

Cooperation is the third essential ingredient. Only by working together can we hope to meet the challenges of salmon recovery. If we are ever going to recover Puget Sound chinook and steelhead, we will need to use the same approach we are using to save Hood Canal summer chum.

Despite the best efforts of fisheries managers to restore summer chum, they remain vulnerable to climate change and ongoing development. Because they arrive in streams to spawn during the late summer months, they are especially threatened by low flows like those we are seeing during this year’s record-breaking drought, which is far from over.

Ongoing loss of habitat and a number of other factors still must be fully addressed before summer chum can be removed from the ESA list. There’s still a ways to go, but at least we are on the right path.

How will we know when we have recovered summer chum? When they are once again abundant enough to support sustainable harvest. To the tribes, that is the true measure of salmon recovery and the commitment to fulfill the promises of the treaties we signed with the U.S. government.

Department of Justice Announces Program to Enhance Tribal Access to National Crime Information Databases

Department of Justice Tribal Access Program (TAP) Will Improve the Exchange of Critical Data

Department of the Interior Companion Program to Provide Name-Based Emergency Background Checks for Child Placement

 

Source: United States Department of Justice

 

The Department of Justice is launching an initial phase of the Tribal Access Program for National Crime Information (TAP) to provide federally-recognized tribes access to national crime information databases for both civil and criminal purposes.  TAP will allow tribes to more effectively serve and protect their communities by ensuring the exchange of critical data.

This initial phase of TAP was announced today in a meeting with tribes held during the 2015 Department of Justice/FBI Criminal Justice Information Services (CJIS) Division Tribal Conference in Tulsa, Oklahoma.

“Federal criminal databases hold critical information that can solve crimes, and keep police officers and communities safe,” said Deputy Attorney General Sally Quillian Yates.  “The Tribal Access Program is a step forward to providing tribes the access they need to protect their communities, keep guns from falling into the wrong hands, assist victims and prevent domestic and sexual violence.  Empowering tribal law enforcement with information strengthens public safety and is a key element in our ongoing strategy to build safe and healthy communities in Indian country. ”

“The FBI is pleased to participate in this initiative,” said Executive Assistant Director Amy Hess of the FBI’s Science and Technology Branch.  “This will be a positive step for the tribal agencies to receive valuable criminal information and also for those same tribal agencies to submit criminal information at the national level.  Through this partnership, information becomes richer and communities can become safer.”

TAP will support tribes in analyzing their needs for national crime information and help provide appropriate solutions, including a-state-of-the-art biometric/biographic computer workstation with capabilities to process finger and palm prints, take mugshots and submit records to national databases, as well as the ability to access CJIS systems for criminal and civil purposes through the Department of Justice.  TAP will also provide specialized training and assistance for participating tribes.

While in the Tribal Law and Order Act of 2010 Congress required the Attorney General to ensure that tribal officials that meet applicable requirements be permitted access to national crime information databases, the ability of tribes to fully participate in national criminal justice information sharing via state networks has been dependent upon various regulations, statutes and policies of the states in which a tribe’s land is located.  Therefore, improving access for tribal law enforcement to federal criminal information databases has been a departmental focus for several years.  In 2010, the department instituted two pilot projects, one biometric and one biographic, to improve informational access for tribes.  The biographic pilot continues to serve more than 20 tribal law enforcement agencies.

Departments of Justice and Interior Working Group

In 2014, the Departments of Justice and the Interior (DOI) formed a working group to assess the impact of the pilots and identify long-term sustainable solutions that address both criminal and civil needs of tribes.  The outcome of this collaboration was the TAP, as well as an additional program announced today by the DOI’s Bureau of Indian Affairs (BIA) that provides tribes with national crime information prior to making child placement decisions in emergency circumstances.  Under the BIA program, social service agencies of federally recognized tribes will be able to view criminal history information  accessed through BIA’s Office of Justice Services who will conduct name-based checks in situations where parents are unable to care for their children.

“Giving tribal government programs access to national crime databases through DOJ’s Tribal Access Program for National Crime Information is a tremendous step forward towards increasing public safety in Indian Country,” said Assistant Secretary Kevin K. Washburn for Indian Affairs at the Department of the Interior.  “The Bureau of Indian Affairs Office of Justice Services’ Purpose Code X program provides a much-needed tool for tribal social service agencies when they must find safe homes to place children during temporary emergency situations.”

In the initial phase of the TAP program, the biometric/biographic workstations will be deployed to up to 10 federally-recognized tribes who will provide user feedback.  This phase will focus on assisting tribes that have law enforcement agencies, while in the future the department will seek to address needs of the remaining tribes and find a long-term solution.  The department will continue to work with Congress for additional funding to more broadly deploy the program.

The Department of Justice’s Chief Information Officer manages TAP.

“It is our hope that TAP can minimize the national crime information gap and drive a deeper and more meaningful collaboration between the federal, state, local and tribal criminal justice communities,” said Chief Information Officer Joseph F. Klimavicz for the department.

For more information on TAP, visit www.justice.gov/tribal/tribal-access-program-tap.

For more information about the Justice Department’s work on tribal justice and public safety issues, visit:  www.justice.gov/tribal.

For more information about the Department of the Interior Bureau of Indian Affairs, visit www.indianaffairs.gov/

As salmon vanish in the dry Pacific Northwest, so does Native heritage

By Darryl Fears, Washington Post 

 

Young salmon called "smolts" are loaded into a floating net suspended on a barge at Mare Island, Calif. (Rich Pedroncelli/AP)

Young salmon called “smolts” are loaded into a floating net suspended on a barge at Mare Island, Calif. (Rich Pedroncelli/AP)

 

As a drought tightens its grip on the Pacific Northwest, burning away mountain snow and warming rivers, state officials and Native American tribes are becoming increasingly worried that one of the region’s most precious resources — wild salmon — might disappear.

Native Americans, who for centuries have relied on salmon for food and ceremonial rituals, say the area’s five species of salmon have been declining for years, but the current threat is worse than anything they have seen.

“I grew up always having salmon,” said Lorraine Loomis, fisheries director for the Swinomish Indian Tribal Community, whose culture is so intertwined with the migrating fish that they’re called the “People of the Salmon.” Salmon feasts once marked every phase of life on the reservation north of Seattle — naming ceremonies, weddings, funerals, memorials to the dead. Now they are few, she said.

“We’re very worried,” said N. Kathryn Brigham, chair of the Columbia River Inter-Tribal Fish Commission in Portland, Ore., which helps manage fisheries for the Yakama Nation and the Warm Springs, Nez Perce and the Umatilla tribes in Oregon, Washington and Idaho.

An estimated quarter-million salmon, more than half of the spring spawning run up the Columbia River, perished, probably because of a disease that thrives in warm water and causes gill rot, officials said. Normally cool streams in the river basin are 13 degrees warmer than the 60 degrees preferred by salmon, Brigham said.

 

The carcass of a Chinook salmon, an apparent victim of high water temperature, is shown on the bank of the Clackamas River in Oregon. Oregon wildlife officials are restricting fishing on most of the state’s rivers in an unprecedented effort to aid fish populations dying off from high water temperatures as the state suffers ongoing drought conditions. (Reuters/Rick Swart/Oregon Department of Fish and Wildlife)

The carcass of a Chinook salmon, an apparent victim of high water temperature, is shown on the bank of the Clackamas River in Oregon. Oregon wildlife officials are restricting fishing on most of the state’s rivers in an unprecedented effort to aid fish populations dying off from high water temperatures as the state suffers ongoing drought conditions. (Reuters/Rick Swart/Oregon Department of Fish and Wildlife)

 

Salmon in the Northwest come in a variety — chinook, pink, coho, sockeye and chum — and that diversity has helped them survive for eons. When they hatch, some babies stay in place to eat and grow before migrating to the Pacific Ocean. Others swim to the ocean right away.

Adults stay in the Pacific for three to seven years before returning to streams where they hatched by swimming through Puget Sound in Washington or up the Columbia River, which runs from Alberta, Canada, to Oregon.

But as the climate warms, more salmon are starting to move farther north to Canada, experts say. Swimming to cooler waters in the north signals a major shift in behavior for the fish, and public officials are watching the trend with dread.

In addition to their significance to Native American communities, the salmon are worth more than $1 billion annually to each state’s sport fishing and tourism industries, which support tens of thousands of jobs.

Oregon and Washington officials recently closed dozens of recreational and commercial fishing spots. The U.S. Fish and Wildlife Service trucked 160,000 salmon 100 miles from a hatchery in central Oregon to a cooler part of the Columbia River.

As more fish vanish, the Swinomish, whose reservation skirts five bays, rely on handouts from the state and tribal councils. They accept 5,000 to 10,000 pieces per year to freeze, Loomis said.

“There’s just no water,” she said. “The glaciers are almost gone. The snow in the mountains is not good.” Even if salmon survive, but in tiny, remnant populations, “we won’t be able to sustain ourselves.”

 

Commercial fisherman Les Clark pulls a sockeye or blueback salmon from his net while fishing on the Columbia River near Skamania, Wash. More than a quarter million sockeye salmon returning from the ocean to spawn are either dead or dying in the Columbia River and its tributaries. (Gordon King/Yakima Herald-Republic via AP)

Commercial fisherman Les Clark pulls a sockeye or blueback salmon from his net while fishing on the Columbia River near Skamania, Wash. More than a quarter million sockeye salmon returning from the ocean to spawn are either dead or dying in the Columbia River and its tributaries. (Gordon King/Yakima Herald-Republic via AP)

 

Possible extinction

 

Off the coast of Oregon, wild chinook salmon are gathering for a fall spawning run up the Columbia, but experts say there’s a good chance many will never arrive to lay eggs in the streams and brooks where they hatched several years ago.

Besides facing long-standing hurdles such as dams, the fish now will encounter a large patch of warming water. U.S. Fish and Wildlife Service biologist Rich Johnson said the cooler ocean water probably will signal to the salmon that it’s okay to migrate up the warmer Columbia.

Earlier this year, clusters of dead and dying sockeye salmon were discovered in Oregon’s Lower Deschutes River, a Columbia tributary. Officials counted at least 100 fish but speculated that scavengers ate dozens more.

Scientists fear the chinook will suffer the sockeye’s fate. Die-offs mean that fewer eggs will hatch and hatchlings might not survive the warm water.

“The bleakest, most dire outcome is if this drought is sustained for a couple more years like California,” said Greg McMillan, science and conservation director for Oregon’s Deschutes River Alliance. Some populations “could go extinct,” he said.

But wild salmon have an array of survival tools. The species do not all migrate at the same time, and their hatchlings do not all behave the same. Some remain in shallow streams two years after hatching, while others head for the Pacific.

Tribal Labor Sovereignty Act moves forward after markup session

capitol hill, congress

By Kim Morrison, World Casino News

H.R.511 gains momentum as members of the House Committee on Education and the Workforce attend the July 22, 2015 markup session which was packed with members of the National Indian Gaming Association in Washington, D.C., for a legislative summit.

The Act which exempts tribes and their casinos from the National Labor Relations Act (NLRA), the Tribal Labor Sovereignty Act was passed on Wednesday at the short markup session on Capitol Hill.

According to the Chairman of the Committee, Rep. John Kline (R-Minnesota) who introduced the bill, “it’s not about big business versus big labor and it’s not about Republican versus Democrat.”

Kline went on to add that “the bill we are considering today is about whether Native Americans should be free to govern employee-employer relations in a way they determine is best for their workplace.”

In what Rep. Todd Rokita (R-Indiana) described as a “bipartisan, commonsense proposal that will provide legal certainty to the Native American community,” the Act would exempt tribes and their casinos from the National Labor Relations Act (NLRA), and prohibit the National Labor Relations Board from asserting jurisdiction at those businesses.

Rokita also went on to state that the Act would give authority back to tribal leaders and end the National Labor Review Board’s (NLRB) overreach, and restore the standard that was in place long before the National Labor Relations Board made the misguided decision to change course. An amendment in the nature of a substitute to clarify that tribal governments are also exempt from the NLRA, was offered by Rokita.

Opposition to the Sovereignty Act was voiced by the only Democrats present, Rep. Mark Pocan (D-Wisconsin), Rep. Joe Courtney (D-Connecticut) and Rep. Ruben Hinojosa (D-Texas), who accused Republicans and their allies of using tribal sovereignty as a smokescreen to attack the NLRB.

Representative Pocan accused proponents of the bill, such as the U.S. Chamber of Commerce, of endorsing the bill in an attempt to help destroy the NLRB rather than support for the sovereignty of the tribes.

The three also noted that most employees of tribal casinos are non-Indians and argued that the bill will degrade labor standards Indian Country.

Although it hasn’t been taken up by the full Senate, on June 10th the Senate Indian Affairs Committee approved S.248, its version of the bill which is gaining traction among lawmakers from both parties.

At that legislative summit which opened Tuesday on Capitol Hill (hosted by the National Indian Gaming Association (NIGA)), Sen. Heidi Heitkamp (D-North Dakota) stressed that every conversation about gaming should begin by stating that gaming is not something that the federal government authorized you to do, but a sovereign right.

She added that, “If the Indian Gaming Regulatory Act went away tomorrow, you would still be able to conduct gaming,”

Exemption from the NLRA has been sought after by the tribes ever since a 2004 ruling in which the NLRB asserted jurisdiction over Indian Country for the first time in decades, but efforts to address the issue ran into serious opposition from Democrats and their labor union allies at that time.

Since that 2004 ruling, tribes have won support from key Democrats by pitching the issue as one of parity with other governments, and with Republicans in control of the House and Senate, the bill has moved quickly in the 114th Congress.

The bill would resolve uncertainties like the one that arose in early June when the NLRB declined to assert jurisdiction at the WinStar World Casino and Resort, a casino owned by the Chickasaw Nation of Oklahoma, citing the tribe’s treaty-protected right to self-governance.

Less than a week later, the 6th Circuit Court of Appeals backed the NLRB’s jurisdiction over the Little River Casino and Resort, a casino owned by the Little River Band of Ottawa Indians in Michigan, and three weeks later, expressing serious doubts about the application of the NLRA in Indian Country, the same court rejected the treaty claims of the Saginaw Chippewa Tribe, also in Michigan.

The U.S. federal law that establishes the jurisdictional framework that governs Indian gaming, the Indian Gaming Regulatory Act (IGRA), has been a source of extensive controversy and litigation since it was passed in 1988.

State money to fix salmon-blocking culverts falls far short

State biologist Melissa Erkel looks at a culvert along the North Fork of Newaukum Creek near Enumclaw. (Ted S. Warren/AP)

State biologist Melissa Erkel looks at a culvert along the North Fork of Newaukum Creek near Enumclaw. (Ted S. Warren/AP)

By  PHUONG LE, The Associated Press

Washington state is under a federal court order to fix hundreds of barriers built under state roads and highways that block access for migrating salmon and thus interfere with Washington tribes’ treaty-backed right to catch fish.

But it’s not clear how the state is going to come up with the estimated $2.4 billion it will take to correct more than 825 culverts — concrete pipes or steel structures that allow streams to flow under state roads and highways.

The state has appealed the judge’s decision. But in the meantime, the Legislature last week approved millions to correct fish barriers statewide.

The 16-year transportation revenue bill includes $300 million for fish passage, dramatically more than in the past but far short of what the state estimates it needs. The House still needs to pass two Senate-approved bills to complete the transportation package.

“I would like to have seen us put more money toward that,” said Rep. Ed Orcutt, R-Kalama, ranking member of the House Transportation Committee. “We do need to be working on this. I think it’s a good start and I’m glad we’re doing it.”

Lawmakers have referred to this case as the other McCleary decision, which told the state to fix the way it pays for public schools.

“Ultimately it’s something we’re going to have to address; it’s just a question of timeline for when we’re going to get done,” Orcutt said.

The injunction issued by federal Judge Ricardo Martinez stems from the landmark 1974 Boldt decision, which affirmed the treaty rights of Northwest tribes to catch fish. The judge said fish-blocking culverts contribute to diminished fish runs.

“It is a treaty right. Tribes ceded the entire state of Washington to the federal government. In return, we asked that we have salmon forever,” said Brian Cladoosby, chairman of the Swinomish Indian Tribal Community.

He said he was disappointed with the state’s appeal and questioned how much money the state had spent in appealing the case that could have gone toward fixing the problem.

 The state Department of Transportation, which is responsible for correcting the largest number of culverts under the court order, has been working on fish passage for a number of decades, said Paul Wagner, the agency’s biology branch manager.

This year, the agency plans 13 fish-passage projects across the state. It also completed 13 such projects in each of the past two years.

But Wagner acknowledged that significantly more money will be needed to meet the terms of the injunction.

 Culverts can be a problem for fish in several ways. Stream flows running through a small pipe can be too fast, making it harder for fish to swim upstream to spawn or downstream to reach the ocean. Perched culverts also can be too elevated for fish to jump through.

“It’s a big, big problem,” said Julie Henning, state Department of Fish and Wildlife habitat division manager.

When culverts are removed or fixed, the benefits are immediate because it opens up miles of critical habitat upstream to fish, said Henning, who also co-chairs the state’s Fish Barrier Removal Board.

 That board, created by the Legislature last year, is working to coordinate with counties, private landowners, tribes, state agencies and others to get the most benefit out of projects to remove fish barriers and recover salmon runs.

“When you think about a fish swimming upstream, it goes through all these jurisdictions,” Henning said.

Counties, cities, forest owners and others have worked independently to remove fish barriers only to find that culverts elsewhere on the stream continue to block fish passage.

 On the North Fork of Newaukum Creek near Enumclaw one afternoon, Henning and Department of Fish and Wildlife fish biologist Melissa Erkel pointed out a project King County did several years ago to replace two aging pipes with a large box culvert that is wide enough to allow the stream to meander.

But less than a quarter-mile upstream, two culverts block access for fish.

Erkel said she has provided technical assistance to the private landowner, who plans this fall to replace them with a 35-foot span bridge to allow more water to pass under the private road.

“Fish passage is really important work. We’re not just doing it because of the lawsuit. It’s something that needs to be done,” Henning said.

Habitat Must Carry More Weight

“Being Frank”

By Lorraine Loomis, Chair, Northwest Indian Fisheries Commission

 

A heavy burden is easier to carry if everyone who shares in the load does their part to help support the weight.

It’s the same with salmon conservation.

We all value salmon and we all must share the burden to protect and restore this rapidly disappearing resource. We must spread the weight of the burden of conservation across harvest, hatcheries and habitat because these are the factors that most influence the health of the salmon resource.

While each is an equally important part of salmon management, harvest has historically shouldered most of the conservation load. Since the mid-1980s, harvest has been reduced by more than 80 percent to protect weak wild salmon stocks.

As the resource continues to decline, tribal and state fisheries are more regulated than ever before to sustain the resource, yet every day we are losing the fight for recovery. Salmon populations are declining because their habitat is disappearing faster than it can be restored.

Meanwhile, the hatcheries that were built to make up for fish lost because of damaged habitat are under increasingly heavy attack. Opponents want them all closed. They claim hatcheries produce genetically inferior fish that sometimes stray onto spawning grounds and pass along their genes to wild fish.

But if wild fish continue to disappear because of lost habitat, and hatcheries can no longer produce salmon for harvest, there won’t be any fishing for anyone.

Our treaty-reserved rights include the right to have fish available for harvest. We did not give up nearly all of the land in western Washington so that we can put our nets in the water and pull them up empty time after time.

State government budget shortfalls and the effects of climate change are making things worse.

Because of the ongoing loss of habitat, we are becoming more and more dependent on hatcheries to provide salmon for harvest. Today more than half of the salmon harvested in western Washington are hatchery fish.

Tribes are increasingly concerned about the ongoing reduction in funding for the Washington Department of Fish and Wildlife. In just the past six years alone, the department has cut more than $50 million from its budget, much of it from hatchery production. We don’t yet know how much funding the agency will receive for the next couple of years, but further cuts could lead to closure of some hatcheries and reduced production at others.

Tribes already are picking up the check more and more to keep salmon coming back for everyone who lives here. From taking over some state hatchery operations to buying fish food and donating cash and labor, tribes are working to keep up hatchery production. This is in addition to the 40 million salmon and steelhead that tribal hatcheries release annually.

Meanwhile, the added effects of climate change are causing more harm to salmon throughout their entire life cycle. A record low snowpack, low stream flows and increasing water temperatures, combined with the results of ongoing habitat loss and declining marine survival, are forcing tribal and state co-managers to implement some of the most restrictive fishing seasons ever seen.

Salmon are in a spiral to extinction today, along with our treaty-protected fishing rights. Something has to change. That “something” is the share of the conservation burden carried by habitat. Right now, the treaty tribes are doing most of the work to protect and restore salmon habitat.

The tribes and state operate safe, responsible hatchery programs that are guided by the best available science. We will need these hatcheries for as long as habitat continues to limit natural production from our watersheds.

If eliminating harvest was the solution to salmon recovery, we would have accomplished it a long time ago.  That is because habitat – more than any other factor – determines the health of the salmon resource.

We have lost more fish to disappearing habitat than have been or ever will be harvested. If we want more fish, we have to protect the habitat that both hatchery and wild salmon depend on.

We may not be able to do much to control climate change, but we can do a lot more to stop the loss and damage of salmon spawning and rearing habitat. Let’s start by enforcing laws already on the books to protect salmon habitat and stop the bleeding in our watersheds.

The burden of conservation must be better shared by habitat if we are going to recover salmon. Harvest and hatcheries have been carrying most of the weight for far too long.

 

 

 

Assistant Secretary Washburn Announces $2 million in Grants to Build the Capacity of Tribal Education Departments

Funds will enable tribes to plan for directly operating BIE-funded schools on their lands and improving student educational outcomes

 
Source: U.S. Department of the Interior
WASHINGTON, D.C. – Assistant Secretary – Indian Affairs Kevin K. Washburn today announced that grants ranging from $25,000 to $150,000 per fiscal year are available for federally recognized tribes and their education departments. The grants are designed to help tribes assume control of Bureau of Indian Education (BIE)-funded schools in their communities, promote tribal education capacity, and provide academically rigorous and culturally appropriate education to Indian students on their reservations and trust lands.
 
Eligible tribal governments may apply for these grants by responding to the Request for Proposals that the BIE published on May 15, 2015, in the Federal Register.
 
“This grant program reflects President Obama’s commitment to tribal self-governance and self-determination, and will support tribal educators who best understand the unique needs of their communities as they strengthen their capacity to assume full control of BIE-funded schools on their reservations,”said Secretary Jewell, who chairs the White House Council on Native American Affairs. “It is a critical step in redesigning the BIE from a direct provider of education into an innovative organization that will serve as a capacity-builder and service-provider to tribes with BIE-funded schools.”
 
“With this announcement, we are taking the next major step in our efforts to return the education of Indian children to their tribes,” Assistant Secretary Washburn said. “We understand that tribal leaders, educators and parents have the greatest need to ensure that their children receive a world-class education, and with this effort, we will see to it that tribes can assume total control over the BIE-funded schools in their communities to improve the educational outcomes for their students.  We’re grateful Congress understands the importance of this process and appropriated funding to support this effort.”
 
 
“This grant solicitation carries out recommendations of Secretary Jewell and Education Secretary Arne Duncan’s Blueprint for Reform to transform the Bureau of Indian Education from a school administrator into a capacity builder and service provider to support tribes in educating their children and youth,” said BIE Director Dr. Charles M. “Monty” Roessel. “These grants will help tribes and their tribal departments of education to assume control of the BIE-funded schools serving their communities.”
 
The Blueprint for Reform, issued in June 2014 following consultation with tribal leaders, is an initiative of the White House Council on Native American Affairs, chaired by Secretary Jewell.
President Obama established the Council as part of his commitment to engage in a true and lasting government-to-government relationship with federally recognized tribes in a more coordinated and effective manner, including promoting and sustaining prosperous and resilient tribal communities. 
 
Jewell then issued a Secretarial Order to begin restructuring BIE from solely a provider of education to a capacity-builder and education service-provider to tribes. The goal of this transformation is to give tribes the ability themselves to provide an academically rigorous and culturally appropriate education to their students, according to their needs.
 
The Blueprint made several recommendations regarding the BIE’s budget. Interior should invest in the school system’s infrastructure, including new school construction, and align its budget to support tribal self-determination by requesting and increasing tribal grant and Tribal Grant Support Costs for tribally controlled grant schools.
 
Under the solicitation announced today, grants will range from $25,000 to $150,000 per fiscal year depending on the project, number of educational programs impacted, project design, and expected outcomes. Subject to the availability of appropriated funds, grants will be provided for three years and, depending on performance, may be renewed for additional two-year terms.
 
Grant funds will support program goals for the following areas that promote tribal education capacity-building:
 
·         To provide for the development and enforcement of tribal educational codes, including tribal educational policies and tribal standards applicable to curriculum, personnel, students, facilities, and support programs;
·         To facilitate tribal control in all matters relating to the education of Indian children on reservations and on former reservations in Oklahoma; and
·         To provide for the development of coordinated educational programs on reservations and on former reservations in Oklahoma by encouraging tribal administrative support of all BIE-funded educational programs, as well as encouraging tribal cooperation and coordination with entities carrying out all educational programs receiving financial support from other federal agencies, state agencies or private entities.
 
Top priority will be given to applicants that meet the following conditions:
 
·         Serves three or more BIE-funded schools (less priority will be given if the applicant has less than three schools, but with at least one BIE-funded school).
·         Provides coordinating services and technical assistance to all relevant BIE-funded schools.
·         Monitors and audits its grant funds by or through its Tribal Education Department (TED)
·         And offers a plan and schedule that provides for:
o   Its TED to assume all assets and functions of the Bureau agency office associated with the tribe to the extent the assets and functions relate to education;
o   The termination by the BIE of all such functions and office at the times of such assumption; and
o   The assumption to occur over the term of the grant, unless mutually agreeable to the tribal governing body and the Assistant Secretary – Indian Affairs, the period in which such assumption is to occur may be modified, reduced or extended after the initial year of the grant.
 
The BIE will assist tribes in the development and operation of TEDs for the purpose of planning and coordinating all educational programs of the tribe. Each proposal must include a project narrative, a budget narrative, a work plan outline, and a project coordinator to serve as the point of contact for the program. The project coordinator is ultimately responsible for ensuring that the TED fulfills the obligations of its grant.
 
The BIE will provide pre-grant application training at several sites to support tribes and TEDs in applying for grants. Details on location and times will be made available here.
 
The BIE oversees 183 elementary and secondary schools, located on 64 reservations in 23 states, serving more than 48,000 students. Of these, 59 are BIE-operated and 124 are tribally operated under Indian Self Determination and Education Assistance Act contracts or Tribally Controlled Schools Act grants. BIE also funds or operates off-reservation boarding schools and peripheral dormitories near reservations for students attending public schools.