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Canku Ota

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(Many Paths)

An Online Newsletter Celebrating Native America


December 15, 2001 - Issue 51


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Voyage to Rescue a Tribe's History

credits:Samish elder Lena Daniels, 92, looks out at one of her family’s traditional fishing spots off the north end of Orcas Island. Pointing toward Orcas is her son, Randy. Paul Joseph Brown / Seattle Post-Intelligencer

Samish elder Lena DanielsORCAS ISLAND -- The boat slides quietly through Thatcher Pass and past Decatur Island, where red-barked madrone trees cling to the rocky bluffs.

This, Lena Daniels recalls, was the Samish highway.

It was the watery road that Daniels traveled eight decades ago in a dugout canoe, long before the U.S. government decided her people had ceased to exist as a tribe; long before a federal judge suffering from Alzheimer's disease stripped them of treaty fishing rights.

Still sure-footed at 92, Daniels climbs aboard the Paraclete to cruise through the San Juan Islands and back to her childhood. She is there to help her tribe, the Samish Nation, recover something precious taken from them long ago.

Until now, the old Indian woman never thought the stories of her youth mattered to anyone but the members of her tribe. But now, such stories could determine the future of the San Juan Islands.

This week, the Samish plan to file a lawsuit in federal court to regain their fishing rights. If the tribe prevails, it could use its newfound power to protect the fishery by restricting development in the San Juan archipelago, one of the premier vacation spots in the Northwest.

A few months ago, in preparation of the suit, Daniels joined other Samish elders and leaders on this voyage to turn living history into legal testimony.

Because she speaks only Samish and the Indian dialect of her home on the Malahat Reserve north of Victoria, B.C., Daniels' son, Randy, translated as she told her stories.

The Paraclete motors past Lopez and Shaw to a beach on the northern tip of Orcas Island, the spot where Daniels' grandfather, Boston Tom, made his home.

Suddenly, the old lady's face is filled with life.

She is like a girl again -- the girl who would paddle with her family to Boston Tom's beach to spend the golden summer days catching salmon.

It's been more than 70 years since Daniels and her elders were barred from that beach.

The engine on the Paraclete is quiet now, and no one speaks, except the old lady in a tongue that is all but lost.

As the Samish prepare for their lawsuit, Daniels is one of several elders whose accounts may become legal testimony of a past still alive among the Samish people.

Daniels' gnarled hand points to the spot where her family set their reef nets. The lawyer writes a note.

Her old eyes glow as she gazes upon her home place. She dabs the corner of her eye with a handkerchief.

Took land for payment

Daniels used to live in a house on this beach.

But one fall, white islanders found that Boston Tom had died while his family was away. They buried his body in the village of Orcas.

When the family returned, the islanders demanded Boston Tom's beach as payment for the burial. The family has not lived there since.

Ken Hansen, the tribal chairman, watches as the old lady dabs her tears.

"When," he asks, "does someone stand up and say the United States made a mistake?"

Daniels was 65 years old in 1974, when U.S. District Judge George Boldt issued his landmark ruling.

He said that Puget Sound tribes whose great-great-great-grandfathers had signed treaties with the United States were entitled to half the salmon catch.

Then, Boldt had to decide which modern tribes were entitled to those treaty rights. He was supposed to make that decision in 1976, but became ill.

Three years later, on Boldt's last day as a judge, he signed an order that stripped the Samish and four other tribes of their treaty rights.

Although the Samish had signed a treaty 125 years earlier, Boldt found that they no longer existed as a tribe. What no one knew at the time was that a year earlier, Alzheimer's disease had begun eating away at the judge's ability to reason.

The tribe went through 16 years of legal limbo, all the while fighting to restore its federal recognition.

Then, in 1995, a federal judge in Seattle overturned Boldt's earlier ruling and decided that the Samish deserved to be recognized as a tribe.

The judge called the tribe's quest for recognition "a protracted and tortured history ... made more difficult by excessive delays and governmental misconduct" by the Bureau of Indian Affairs and lawyers from the Interior Department.

But even after the tribe regained recognition, they remained stripped of treaty rights as a result of Boldt's 1979 ruling.

In their lawsuit, the Samish are asking that Boldt's last-minute ruling, made as he was going home to die, be re-examined.

Sister-tribe opposition

To reopen Boldt's 22-year-old ruling, the court must find an injustice or judicial error that harmed the tribe, explained Craig Dorsay, the lawyer representing the Samish.

Complicating the case is the great reticence of judges to overturn long-standing decisions that have been upheld on appeal. A further concern in this case is deference to a deceased judge of great stature.

Dorsay said Justice Department lawyers have told him they will not oppose the tribe's efforts to obtain treaty rights as long as the issue of Boldt's Alzheimer's disease is not raised.

Dorsay has no plans to raise the issue. Even if he did, it would not likely affect the landmark 1974 decision upholding treaty rights because Boldt's Alzheimer's disease did not begin until 1978, according to the judge's death certificate.

It's also likely that the Samish will face opposition from sister tribes that don't want to split the already depleted salmon harvest even further.

Treaty rights also would greatly increase the Samish tribe's legal standing to influence land use and environmental policies in the San Juans and surrounding waters.

The Samish, who have been sustained in their years of legal limbo by a fierce determination to assert their rights as a sovereign people, have resolved to preserve the fishery and the unique character of the San Juans that has made it a tourism magnet.

"Today, as I travel through my beloved islands, I have fear for the pressures that threaten the sanctity of our homeland," said tribal chairman Hansen.

"I'm afraid of the 30 million gallons of raw sewage a day that are pumped from the Victoria sewage system into the straits. I am concerned for the natural resources with single-hulled oil tankers passing by. I'm worried by the pressures of housing development along the shoreline.

"There's not enough herring to feed the salmon, there's not enough salmon to feed the killer whales and the killer whales are dying because of the toxins in the food chain. If the killer whales go, humankind is not far behind."

If Hansen has anything to say about it, the Samish highway that Daniels paddled so many years ago will be preserved for generations to come.

Samish Indian Nation
The Mission of the Samish Indian Nation is to use the talents, knowledge and skills of tribal members to preserve & strengthen our culture and to ensure quality of life, prosperity, health and education for all members through progressive, diversified tribal and individual enterprises that sustain our Nation into the future.

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Canku Ota is a copyright © 2000, 2001, 2002 of Vicki Lockard and Paul Barry.


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