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Canku Ota

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(Many Paths)

An Online Newsletter Celebrating Native America


February 21, 2004 - Issue 107


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Tribal Triumph

credits: DEAN J. KOEPFLER | THE NEWS TRIBUNE Where he once was embraced with handcuffs, Billy Frank Jr. is now embraced with hugs. The Nisqually Tribal elder greets children last month at Wa He Lut School in Nisqually, which stands near the place where Indians and police had a showdown in 1970 during the "fish wars" over Indian fishing rights.

Where he once was embraced with handcuffs, Billy Frank Jr. is now embraced with hugs. The Nisqually Tribal elder greets children last month at Wa He Lut School in Nisqually, which stands near the place where Indians and police had a showdown in 1970 during the "fish wars" over Indian fishing rightsThe tribal drumbeats of a welcome song rumble through Wa He Lut Indian School on the bank of the Nisqually River. Children - more than 150 strong, representing 23 Indian tribes - pour out of their classrooms.

They form an arc around a small stage and sit cross-legged. They recite a pledge: "I'm very special. I'm unique. I count."

Before long, the self-esteem rally turns into a living history lesson. Vice Principal Brenda Lovin walks onstage, her voice filling the space left by the now-silent cowhide drums.

"Thirty years ago, something happened," she says. "It really changed the lives of Indian people in this area."

This might be the simplest way to tell schoolchildren about an improbable ruling in a white man's courtroom - a landmark decision that empowered their parents and brightened their futures. Washington Indian tribes not only won a share of the state's natural resources, they also leveraged it to gain respect, win land and monetary settlements and build membership rolls.

But this isn't the right audience for that kind of lesson. Instead, Lovin introduces the guest of the day: a 72-year-old Nisqually tribal elder, fisherman and Indian rights activist.

The children applaud. They might not know Billy Frank Jr. personally, but they live in the shadow of his legend every day.

Above their heads hangs a wooden canoe, which a 20-something-year-old Frank once paddled in the darkness while evading state game wardens. On the walls are murals depicting the lives of the Nisqually Indians fishing for salmon. The school itself stands on Frank's Landing, once the front line of the Northwest fish wars.

Frank wasn't much older than these children when he began fishing and getting arrested.

"You just be who you are and be proud of yourself," the longtime chairman of the Northwest Indian Fisheries Commission tells the students.

Wa He Lut Indian School wouldn't be here if not for Frank and others from his generation. A historic court case eventually gave them the clout to bring $5 million in federal money to the school.

Thirty years ago, on Feb. 12, 1974, U.S. District Judge George Boldt stunned the state in a decision from his Tacoma courtroom, reaffirming 13 Western Washington Indian tribes' treaty rights to half the fish in Washington. Five years later, the ruling was upheld by the U.S. Supreme Court.

The so-called Boldt decision, the most infamous and influential of the judge's 26-year career, turned the tide for native peoples who had dwindled near extinction. South Sound Indians have since returned to courthouses to affirm their sovereignty. Another U.S. Supreme Court case in 1987 led to the emergence of tribal casinos.

And just two years ago, tribes sued to force the state to fix culverts that block fish passage under state highways. A ruling in their favor in the so-called "second phase of the Boldt decision" could grant tribes authority to regulate growth in their watersheds. Fixing all the culverts, in turn, would mean hundreds of millions of dollars in expense for the state.

The "fish wars" that preceded the Boldt decision were the equivalent of a civil rights movement for South Puget Sound Indians. As Rosa Parks didn't give up her seat on a bus in Montgomery, Ala., Billy Frank and others didn't get off their boats in South Sound rivers despite repeated arrests.

"We hung onto it," Frank said. "It's the most important thing."

Fish wars and a courtroom battle
In the 1950s, small groups of Indian fishermen were netting fish off their reservations on the Nisqually and Puyallup rivers. The state, which held that the Indians were breaking laws, threw them into jail and confiscated their nets, canoes and livelihood.

A 6-year-old Nisqually Tribe member at the time, Alison Gottfriedson was scared of bright searchlights outside the windows. There were state game wardens on the other side of the river, looking for fishermen like her father.

"You never knew if he drowned or got arrested," Gottfriedson recently recalled.

On the Puyallup River, teenage fisherman Franky John went out on the water to net fish. Tribe members needed food, and many adult fishermen were in jail. If game wardens showed mercy to anyone fishing off the reservation, it was the young people, John said.

Several years later, it came down to an armed confrontation involving John and dozens of others. Puyallup Tribe members set up an encampment on the riverbank in 1970 to protect their fishermen with force. Tear-gassing, kicking and clubbing the activists, a force of game wardens and helmeted Tacoma police broke up the camp near the Puyallup Avenue-Pacific Highway bridge, arresting about 60 people. The camp was bulldozed within a few days.

Enough was enough, according to federal lawyers who filed suit that year on behalf of the tribes. The federal government wanted to clarify what rights the Indians had secured when they signed treaties in the mid-1800s.

At the end of a three-year trial, few observers expected Boldt - a conservative sport fisherman with no background in Indian law - to rule so overwhelmingly in favor of the tribes. Even the Indians weren't sure, though there were signs throughout United States v. Washington that Boldt was sympathetic to their cause.

There was the time Lena Hillaire of the Suquamish Tribe was called to the stand as an expert witness. She couldn't speak English.

As the questioning began, Hillaire looked at Willie Frank Sr., Billy Frank's father, and asked for translation. They started speaking in a native language.

The state objected. Boldt overruled.
"Finally, there was a judge who listened to us," Billy Frank recalled.

Representatives of the fishing industry demonstrated outside the courthouse during the trial, and after it ended protesters burned Boldt in effigy. One sign read: "A dead Boldt is a good Boldt."

The tribes came out of the trial triumphant, but memories still cut deeply for some.

"We all have a different way of feeling," said Maiselle Bridges, Gottfriedson's mother. "I know what the Boldt decision has done to all the tribes across the nation. But we paid a high price for it."

"Big-time players"
Boldt died 10 years after issuing his most-famous ruling, but his legacy remains.

"You just can't overstate the impact of the (Boldt) decision," said Robert Anderson, director of the Native American Law Center at the University of Washington in Seattle.

The affirmation of Indian treaty rights bore broader implications than just netting of fish. It also expanded Indians' access to hunting and shellfish grounds. Tribes now have a say in affairs outside their reservations, such as the federal Clean Water Act, Endangered Species Act, hydropower projects and drinking water rights.

"They are big-time players," Anderson said. "Tribes' rights are taken into context in hundreds of different ways."

They could be even bigger players depending on the outcome of the "second phase of the Boldt decision," also known as the culvert case.

The tribes claim the state is violating their rights to half the state's fisheries by mismanaging the environment to the point where there's not enough fish for them to catch. They point to 177 culverts under state highways blocking 250 miles of salmon spawning and rearing habitat.

Tribes filed the lawsuit in January 2001 based on the state's own 1997 study, which estimated it would take 20 to 100 years to fix the culverts. According to one estimate, the state fixed 53 fish barriers between 1991 and 2002 and spent $11 million doing so.

This phase of the lawsuit brings the Boldt case into a new century. The judge kept it open so that the affected parties could work out the details of implementing his decree.

The tribes and the state are negotiating to settle the culvert case, said Fronda Woods, the assistant attorney general who specializes in Indian laws.

"I don't see it being resolved soon," she said.

A favorable outcome for the tribes would give them broader authority to manage habitat and regulate growth in their watershed, Woods said.

Greater numbers, greater standing
When Ramona Bennett was elected to the Puyallup Tribe's council in 1968, only 174 tribal members were enrolled. Today, the tribe has about 3,000 members.

Some joined because they're proud of their heritage. Others signed up because of monetary benefits from legal settlements and from the Emerald Queen Casino, which opened in 1996. Each enrolled member gets paid $2,000 a month.

As their numbers have grown, so has their standing in white society.

"We had the reputation of dirty, drunk, lazy," Bennett said. "But now we have smoke shops, fireworks and casino. The rest of the population came to know us as industrialists, who are clever and hard-working."

In 1984, the tribe sued the Port of Tacoma, railroad companies and others, claiming ownership to 160 acres in the Tacoma Tideflats. In 1988, the tribe settled for $162 million in land, cash and programs. It was the largest land-claims settlement ever negotiated with a single tribe.

The settlement provided $20,000 for each Puyallup and about $10 million to the tribe's fisheries services. Another few million dollars came to the tribe's fisheries after settlements with Puget Sound Energy over disputes on the Electron Dam on the Puyallup River, as well as another settlement with the port on the construction of a terminal, said Joseph Anderson, the tribe's fisheries management director.

Just last week, the Puyallups made a deal with the port to secure its support for a third tribal casino, probably along the freeway in Fife.

The tribes are spreading their resources and wealth well beyond reservation lands. In just one year, the Puyallups gave $175,000 to Riverside Fire & Rescue for a fire truck, bailed out the 2001 Daffodil Parade with $50,000 and pitched in $50,000 for a fallen firefighters memorial on the Ruston Way waterfront, among other gifts.

Local governments receive hundreds of thousands of dollars from the tribe for everything from police vehicles to sidewalk projects.

"They've always been here," said Fife Mayor Mike Kelley, who went to Fife High School with some tribe members. "We just see more of them."

He said the Puyallup Tribe has grown into a great partner with surrounding cities.

"They are good friends to have," he said. "And (partnership with them) is the way of the future."

Taking charge of their own affairs
These milestones wouldn't have happened if not for the momentum and recognition the tribe gained from the Boldt decision, say tribal members, state officials and Indian law experts.

Members had been scattered, and many were homeless. Reservation boundaries were vague. All the Puyallups had was a cemetery.

"We were dying of federal neglect," Bennett said. "Government was so arrogant they thought they had abolished us."

One of the biggest spinoffs of the Boldt decision was the way it empowered tribes to look after their own affairs.

"It's meant that tribal governments became bigger," said Woods, the assistant attorney general.

Governance structures were imposed by outsiders, trumping the traditional ways Indians have ordered themselves. But they at least became the medium for tribes to effectively express their existence.

Congress and the Legislature set up committees and held hearings to talk about services for tribes, such as education, health care and law enforcement.

To show the scores of services the Puyallups now receive, Joseph Anderson throws a 30-page tribal phone directory on his desk.

"We grew from a one-pager to this," the tribe's fisheries director said.

The phone book lists scores of services the tribe didn't have before 1974: children's services, natural resources, Chief Leschi School and the Emerald Queen Casino, to name a few.

Only about 35 tribal fishermen work the river anymore. But the tribe has more than a dozen fisheries employees and several more in other parts of its natural resources department.

"It's amazing to see the scientific expertise that the tribes have at their disposal," said Robert Anderson, the UW's Indian law expert. "That grew directly out of the Boldt decision."

Ramona Bennett and Joseph Anderson say they don't mind people who joined the tribe for money. They share the same Puyallup blood, and having them is better than the alternative of extinction.

"We were put here to protect brothers and sisters and the nations of fish," Bennett said. "We are still the people that were put here, and government recognized that we were not going away."

A warrior's schoolhouse
Every morning at Wa He Lut Indian School, a prayer echoes from the speaker system, followed by a rhythm of a coastal hand drum and singing.

"I teach them the circle of life," music instructor Melvin Blacketer said. "Without the prayer, we couldn't have the school. Without the school, we couldn't have the prayer."

In 1974 - the same year as the Boldt decision - Maiselle Bridges opened Wa He Lut with a teacher from New York, fewer than 10 students and herself as the cook. Wa He Lut was a Nisqually warrior and friend of the legendary Chief Leschi.

"We put in windows high up because we didn't want our kids to see (state game wardens) attacking us," Bridges recalled. "We used to tell our teacher, 'When you see them come in, get the kids on the floor so that they don't see us.'"

The flood of 1996 destroyed the old building, and the federal government sent $5 million to build a new school, which opened in 1998. Its annual operating budget is about $2 million, mostly from federal sources.

Here, the teaching of Indian culture is integrated into the everyday curriculum. In one activity, children dance in a circle, which has no beginning or end - just like the cycle of life that carries salmon, humans and the other creatures of Earth.

The boys and girls can dance with smiles and not worry about wardens outside. They need not get arrested to prove their rights. Looking ahead a few years, they need not work as fishermen on the river that flows near their school.

They can be anything they want, as Billy Frank Jr. told them in the shadow of his retired dugout canoe.

"This is a wonderful time," Frank said. "Hopefully, it'll stay like this from now on."

Eijiro Kawada: 253-597-8633

Boldt decision sparked five-year legal battle

Feb. 12, 1974

U.S. District Court Senior Judge George Boldt issues the "Boldt decision," granting tribes 50 percent of the state's fish.

March 22, 1974

Boldt orders the state to "make significant reductions in the non-Indian fishery" in order to make progress toward the 50/50 allocation. The state appeals to the 9th U.S. Circuit Court of Appeals.

April 1974

The Washington Department of Fisheries adopts regulations to reduce fishing by non-Indians.

Spring-summer 1974

Non-Indian fishing groups file suit in Thurston County Superior Court, and the court concludes that the WDF director exceeded his authority.

June 4, 1975

The 9th Circuit Court affirms the Boldt decision.

Jan. 26, 1976

The U.S. Supreme Court denies review of the Boldt decision.

June 9, 1977

The state Supreme Court rules that the WDF has no authority, under state law, to adopt regulations allocating more fish to tribes.

July 1977

The WDF adopts fishing regulations that do not comply with the Boldt decision.

Aug. 31, 1977

Boldt assumes direct control of the fisheries, which are managed and policed through federal court orders and federal marshals until late 1979.

April 28, 1978

The 9th Circuit Court affirms Boldt's orders. The state and nontribal fishing groups seek review by the U.S. Supreme Court.

February 1979

Boldt asks to be relieved of judicial duties because of failing health.

July 2, 1979

The U.S. Supreme Court upholds the principles of the Boldt decision, but rules the fish caught for ceremonial reasons and for families should count toward the tribes' 50 percent share of the fish.

Nov. 30, 1979

The state Supreme Court overrules its prior decisions.

How a judge read an 1854 treaty

The Nisqually, Puyallup and other South Sound tribes signed the treaty of Medicine Creek in 1854. It was one of six treaties affecting 13 Western Washington tribes, who forfeited most of their land and resources and were systematically confined to reservations.

But one line in the treaty eventually turned into a bigger concession than territorial Gov. Isaac Stevens and the white settlers could have imagined. It's the part that gives the tribes the "right of taking fish at usual and accustomed grounds and stations ... in common with all citizens of the United States."

In 1974, U.S. District Court Judge George Boldt interpreted that "in common with" meant the tribes were entitled to half the state's salmon and steelhead not needed for spawning. And he said "usual and accustomed" meant Indians could fish at traditional places off the reservation, too.

Boldt also ruled that fish caught by tribal members on the reservation, fish that tribal fishermen take to feed their families and fish taken for tribal religious ceremonies do not count toward the 50/50 allocation. The U.S. Supreme Court reversed that part of the decision in 1979.

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