Everett, Wash.
Published: Friday, February 2, 2007

Tribes pursue rights in court

A judge asks state tribes to reconsider a lawsuit asserting treaty rights related to the environment.

By Krista J. Kapralos / Herald Writer

 SEATTLE - A federal district court judge in Seattle gave 21 American Indian tribes one week to reconsider a lawsuit that could give tribes more power in managing the state's environment.

In a packed courtroom Thursday, U.S. District Court Judge Ricardo Martinez listened for more than an hour as tribal and state attorneys argued over whether the case should be heard.

"Whichever way this court rules, the losing side will appeal," Martinez said, adding that both parties have been locked in the same dispute for decades.

Tribal leaders say the state has violated the treaties they signed with the federal government in the late 1800s by failing to maintain damaged culverts, which block fish from completing their seasonal runs.

They say fish are in danger of extinction because of the state's negligence.

The tribes, including the Tulalip, Stillaguamish, Sauk Suiattle and Lummi, say their treaties guarantee them the right to their traditional cultures - including fishing for sustenance and ceremonies - for all time.

"These fish are dying a death of a thousand cuts," said John Sledd, an attorney representing 10 of the 21 tribes involved in the lawsuit. "It's not one thing, but these culverts are cutting on the arteries."

The tribes are asking Martinez to define their treaty rights, which they say include a guarantee of vibrant fish runs and protection from development that could hinder those runs.

The treaties were intended to accommodate population growth and development, said Fronda Woods, a lawyer in the state attorney general's office.

She said that when tribal biologists were asked to specify the damage culverts have caused to fish runs, "they could not answer that question."

"The plaintiffs have not shown any actual injury that the court can redress," she said.

Tribal biologists later said they had given Woods multiple specific examples of how the culverts have affected the fish runs.

Woods also argued that the tribes are asking for "a broad declaration of a rule of law not based on concrete facts." She said the crux of the lawsuit is a dispute over the philosophical meaning of the treaties.

Tribal attorneys argued that by failing to fix the culverts, the state is hurting the environment that is critical to the survival of their culture. Woods countered that the tribes are asking the state to fix problems caused by natural progression over generations - "stuff that maybe we didn't even cause," she said.

Martinez pointed out that it was the state that put in the culverts in the first place.

"Over time, nature has changed things, and we have new science," Woods said. "What we have here is a case of no good deed goes unpunished."

Woods described several state projects aimed at repairing the culverts, but the tribal attorneys said that at the rate the state moves - repairing about a dozen culverts each year - it would take a century before the work was done.

By that time, tribal culture could be long dead, Lummi Natural Resources director Merle Jefferson said after the hearing.

"If it was a question of repairing the culverts and that's all, we would have settled this case," said Dan Raas, an attorney representing the Lummi Tribe.

A ruling in favor of the tribes would force the state to hurry its efforts to repair culverts and would clearly define tribal treaty rights, Raas said. Then, the state and others would have a clear obligation under federal law to consider tribal culture before they begin development. Tribal leaders could become arbiters in environmental and developmental regulations.

Tribal attorneys told Martinez that it's unlikely the tribes would agree to return to the negotiating table with the state before the end of next week. Martinez said if he doesn't hear from the tribes that they'll continue negotiations with the state by then, he'll begin deciding whether to hear the case.

Negotiations would be a dead end, Jefferson said.

Mason Morisset, an attorney for the Tulalip Tribes, said he'd speak to Tulalip leaders about the offer, but he said it's unclear whether such talks would be fruitful.

"This has been going on for years," he said.

Reporter Krista J. Kapralos: 425-339-3422 or kkapralos@heraldnet.com.
© 2009The Daily Herald Co., Everett, WA