Wednesday, August 28, 2013

Futurewise and Drama Stars Demonize Packing House Ordinance

The amendment to allow a meat packing facility to be an accessory use in the Whatcom County Ag-Zone has in the last 14 months of its torturous travel through our Council Chambers become a voluminous ordinance with many restrictions.  The County Council’s Planning and Development Committee, chaired by Bill Knutzen with members Barbara Brenner and Ken Mann, has worked in numerous changes to the planning commission’s original ordinance that have little to do with the realities of meat packing, but seem to address the fears and unease of urban residents. 

Read more here.

Jean Melious Sanitizes Environmental Lawsuit Climate

I was pondering the fact that the current Council majority, plus the candidates for Council with similar views and political affiliations, have decided to shun constituents who don’t agree with them.

Won’t talk to us or listen to us.  Those who believe that environmental protections are important, those of us who think that planning ought to ensure that infrastructure will meet the needs of future development, are to be treated as anathema...

Read more here.

Council Candidates Shun Tax Funded Environmental Litigant Forum

There has been a lot of media focus on a cancelled candidate forum for this evening, which was to be hosted by Futurewise of Whatcom County.  Apparently the so-called conservative candidates had declined to participate in the forum.  The reasons given for that decision were based on the ongoing litigation between Futurewise and RE Sources for a Sustainable Community, and the potential conflict that would likely occur at a forum sponsored by these litigants:...

To read more, go here. 

Saturday, August 24, 2013

Gateway Pacific Terminal Myths & Facts

SSA Marine Lawsuit Settlement Refills Coffers of ReSources and Puget Sound Environmentalists

Pacific International Terminals, the SSA Marine subsidiary pursuing the Gateway Pacific coal export terminal at Cherry Point, has agreed to pay $1.65 million to settle a lawsuit stemming from the company's unauthorized land-clearing work on the property in 2011.

Read more here:

Herald: John Stark: Big Win for Environmental Opponents of Gateway Pacific Terminal

Whatcom County and its regulatory state and federal partners have announced they will conduct a sweeping review of Gateway Pacific Terminal’s environmental impacts — an apparent victory for the coal terminal's opponents.

Read More: at the Bellingham Herald

Read more here:

Senator Doug Erickson Website Link: Environmentally Driven Ruling Thwarts International Resource Trade

Today the Washington State Department of Ecology and Whatcom County announced their decision on the EIS scope for the proposed Gateway Pacific Terminal, located at Cherry Point, Washington. With this announcement, Washington state has set a new precedent that could potentially interfere with international commerce laws protecting rail and trade and discourage new business investment in the state.

 Read More:

Resolution To Honor The Lummi Nation's Sacred Lands And Waters Of Cherry Point

WHEREAS The Whatcom County Democrats Central Committee affirms and promotes the inherent worth and dignity of all people.

WHEREAS – We recognize the Lummi Nation as the descendants of one of several original First Nation communities inhabiting, for many, many generations, the land and waters of this area, now known as the Salish Sea; and

WHEREAS That the First Nations’ cultural tenets include the preserving, protecting and promoting their way of life and how that means protecting the land, waters, plant life, air and animals who share it and upon which they depend; and

WHEREAS – The First Nations’ right to reserve the use and protection of those lands, fresh water, the ocean nearby, and the natural products and resources which may be derived from those places is a right that is guaranteed by conscience, treaty and law; and

WHEREAS – We recognize how vulnerable these gifts of natural resources are and how easily they can become exploited, severely harmed and depleted by forces who do not share First Nations’ worldview; and

WHEREAS – That urban and industrial occupation and use of those historical lands and waters, will destroy the natural remains of those tribal histories, and cause unrecoverable losses; and

WHEREAS – We further recognize the Lummi Nation know the lands and waters of Xwe’chi’eXen (known to us as Cherry Point) to be sacred lands and waters associated with their Creation Story, known to them as “the home of the ancient ones,” are the ancestral burial grounds for their People and they have a promise and duty to protect and preserve these sacred spaces; and

WHEREAS – The Lummi Nation have a history of opposing development of their cultural, historic and spiritual lands and waters, known to them as Xwe’chi’eXen, Cherry Point.

NOW THEREFORE, BE IT RESOLVED THAT The Whatcom County Democrats Central Committee, pledges its support to the Lummi Nation in protecting their sacred lands and water.

BE IT FURTHER RESOLVED THAT We propose and support the rejection of all industrial, commercial and residential uses of the remaining natural lands and waters on and adjacent to Cherry Point; and

BE IT FURTHER RESOLVED THAT – We will encourage members to request that the current legislative bodies with jurisdiction over all industrial, commercial and residential uses of the remaining natural lands on or adjacent to Cherry Point, rule that such uses are not and shall not be permitted; and

BE IT FURTHER RESOLVED THAT We will encourage members to request that the current legislative bodies with jurisdiction over all industrial, commercial and residential uses of the remaining and connecting waters near Cherry Point, including the rivers and creeks, the nearshore and the offshore waters, rule that such uses are not and shall not be permitted, except for the use of potable water for consumption by the people, on and near such waters, so long as such use does not harm or threaten the existing natural community’s reliance on the same resources; and

BE IT FURTHER RESOLVED THAT We will actively encourage our membership to engage in activities and events, supported by the Lummi Nation, that could prevent or assist in deterring significant damage to these sacred lands and waters on and adjacent to Cherry Point; and

BE IT FURTHER RESOLVED THAT We will actively encourage our membership to engage in activities and events, supported by the Lummi Nation, that will work to educate the surrounding community as to the importance of preserving and restoring the lands and waters on and adjacent to Cherry Point.

Friday, August 23, 2013

The “Grand” Deception

This talk was presented Aug. 14, 2013 before the Bellingham Business Club by Marlene Dawson who served two terms on the Whatcom County Council.  Marlene served as a pro se in the Lummi ground water adjudication and has resided 38 years within the historic boundary of the Lummi reservation.
In trying to come up with a title for my talk today, I had a reason to call it the “Grand Deception.”  To my way of thinking, the efforts by government personnel and  governmental officials at all levels, to deceive or evade accountability with our native American neighbors, surpasses “anything” that is currently holding the attention of our media by way of Benghazi or the IRS scandals.

Federal management of Tribal Trust Reservations vs State management of Reservation lands assigned to individuals.

Now this single bit of information that I am about to explain is essential to retain.
In 2009, the U.S. Supreme Court reviewed one of the major qualifications needed to restore reservations to tribal trust.  That case was Carceiri v. Salazar.  It affirmed that only those reservations, where the Indians were still under federal superintendence in 1934, which was the year the Indian Reorganization Act was adopted, could restore their trust reservations.  That case falls in line or is completely compatible with Goudy v. Meath 203, U.S. 146 a 1906 U.S. Supreme court case out of our State.  Goudy affirmed that once the tribal reservation lands were completely assigned out to individuals that the reservation was no longer under federal superintendence but “exclusively” under State jurisdiction.
Again, we had a 1906 case that affirmed any restrictions associated with a reservation were dropped, once the lands were all assigned out and placed under exclusive State jurisdiction and a second case that affirmed in 2009, that no Indian groups can restore their trust reservation unless there was some semblance of tribal trust land remaining when the 1934 Indian Reorganization Act was adopted.

Federal fee/public domain reservations vs.Federal tribal trust lands

Before going further, I need to explain distinctions in land title.  Land title is critical to understanding the rights held by Indian groups. The title you hold in your privately owned home or acreage is held in fee simple title.   The federal government’s land holdings which were   “originally” intended to be handed over to the citizens and States, before they started holding them back and expanding them for other purposes like parks, were held in federal fee, also called public lands.
Now when Indian reservations were established, the federal government by and large removed the lands out of federal fee or the public domain and placed them into what is called “tribal” trust, for purposes of “tribal” governance.  Indian trust lands are not privately owned by a tribe or individual natives.  In fact, the lands cannot be sold because it is the U.S. government that retains title on these deeds.

Benefits of tribal trust lands vs liabilities and limits of fee simple tribal allotments

It is a known fact that holding lands in federal trust hinders an Indian tribe’s economic development. I doubt any of us knows of a bank that would loan money when the party doesn’t own the underlying title.
This leaves native Indians in a catch 22 situation.  When lands are in “tribal” trust, the Indian groups don’t have to pay taxes and the lands are outside State regulations for purposes like the Growth Management Act.  Additionally, when the lands are held in “tribal” trust, the federal government grants Indian groups personal control over the lands, which includes management of the reservation’s natural resources. That management includes its federal reserved water right.  
It is wanting these benefits without the negatives of fee simple title that include taxes and State governmental mandates, that I believe  led Interior personnel to help Indian groups create, through deception, what I refer to as our many created and re-created out of thin air Indian reservations.
Now, the federal government public lands or fee title was the land status upon which Donation Claims and Homestead patents were granted.  Appurtenant rights, as granted in those deeds, always included water.  As public lands, appurtenant water rights are to be governed under State law.  When Indians were issued lands or allotments upon the public domain, land in their own name, their deeds also included appurtenance language.  

A tradition of insufficient, phony tribal trust deeds:

- required vol/page of federal register not on deed

- required land restriction phrase missing

- required Alta title insurance never obtained

Now, the majority of our 566 federally recognized tribes appear to have no valid tribal trust deeds upon which they must depend for the kind of sovereignty and water rights that operate outside of State law.  For decades, knowing that most Indian groups and their members could never qualify for the acquisition of trust deeds on their former trust reservation, Interior has been directing natives to record what constitutes insufficient federal trust deeds. 
What makes these deeds insufficient or phony?  It is the fact they do comply with the Federal Justice Title Standards where the volume and page where the deed is recorded as trust in the federal register must be  noted, it may not state the authority for which a trust acquisition is permitted, but more important they don’t have a restrictive phrase that the lands are restricted from alienation without the approval of the Secretary of Interior.  
The restrictive phrase mandates the property cannot be sold or have a lien placed on it since it is held by the U.S. government.  It is notification of this information on the deed which affirms the property has received final, formal acceptance into trust by the U.S. government.  Since 1991, the trust applicant must also obtain an Alta Title policy.  This is a policy which has no exceptions in the policy.  It will warrant the trust applicant for their authority to place the lands into trust and all the treaty and federal resource management rights which attach to it.

Department of Interior denys knowledge of incomplete process, yet sends instructions on how to manipulate the system.

A hearing was held before the Senate Committee of Indian Affairs in 2005 on the federal fee to trust process.  The process or regulations to change fee simple holdings to trust are outlined in Title 25 Section 151.  During this senate hearing, Interior’s Inspector General stated that anything “short” of criminal acts is occurring within the Bureau of Indian Affairs. 
Now, when personnel from the Bureau of Indian affairs were deposed in 2006 for of the Lummi ground water suit, they were asked if they had heard anything about improper tribal and individual trust deeds being recorded as trust.  They said they hadn’t but stated that “anything” can be recorded.  
I have proof that personnel in fact not only knew but directed deeds purporting to be trust, before the process was completed, be recorded at the County.  In fact, the procedure has been written into the department directives.  The specific written directions tell the trust applicant to: “Record this deed at the County, obtain Alta Title insurance, then return the deed it to us so we can complete the process for you.” 
The deeds to which I am referring were signed by Interior personnel and stamped in the body of the deed stating that the land had been accepted into federal trust.  The applicant recording the deed fails to obtain an Alta title policy, the process is never completed and none are the wiser regarding failure to complete the Federal Justice Title Standards.

Do Washington State Assessors commit fraud in recording insufficient deeds?

So, the next question becomes if it isn’t illegal or fraudulent to record deeds that purport things that aren’t, is it fraudulent for our assessors to create a data base using improperly executed “federal” trust deeds, deeds that grant benefits not available to other citizens? I believe it is, especially when there is a letter to the County from Interior dated 1952 which explains that the restrictive phrase is how one can determine the difference between a fee simple deed recorded and a trust deed.

Washington State Treasurer directs Assessors to, in good faith, accept deeds signed by the US Department of the Interior. A little white lie that treats “review” as “acceptance” misrepresents the title as “good”.

Our State assessors, wanting cover, were given a letter from the State Treasurer which authorizes our State assessors to work in good faith.  Basically they have directed that where deeds, purporting to be trust have signatures from Interior personnel, the assessors should accept them as such.  They’ve told the assessors it is not up to them to determine what is valid.  Perhaps it’s not up to the assessor to determine whether exemptions for seniors under a certain annual income qualify.  Do they work in good faith in this area?
Assessors could now require copies of Alta title policies before granting tax exemptions.  In the past our assessors may have contacted Interior personnel by phone if they had questions on a deed.  
Occasionally you will find someone honest with you.  But they won’t put their honest words down on paper.  For example, when I was on the County Council, I was told all the lands within the Lummi reservation were fee simple.  I asked if they could put that in writing and they said they were prohibited from doing so.  Most will tell say, “Yes, the deed has been accepted for trust, when what they really mean is that the native’s application for “review” has been accepted.   It’s this little while lie that the Inspector General relies on to say Interior’s actions are just short of criminal.  

2006 federal report spotlights misuse of “acceptance” in tribal trust deeds.

Now following the 2005 Senate hearing on fee to trust, it was the General Accounting Office in 2006 which confirmed Interior’s problematic use of the term “accepted.”  In fact, I have an email from the assistant director of the General Accounting Office, the one who headed up the fee to trust study for the Senate committee of Indian affairs.  He affirmed this upside down use of the term “accepted” explaining it not only in his email and but in their official 2006 Congressional report. 
It is critical to understand and remember that people cannot just gift property to the U.S. government to hold for them.  Because of the responsibility that the federal government retains for property held in trust, a trust applicant must again go through a very formal and strict process.  It is a process that ends with a properly executed federal deed.  It’s not one that will simply satisfy general recording requirements for a State real estate deed. 

Lummi tribe holds no Alta Title policies or documents validating tribal trust status.

In a Freedom of Information request I made to Interior, I requested a single copy of any Alta Title policy that the Lummis might hold.  The department responded that no such document existed.  In the Lummi ground water suit, under requests for production, a request was made for all trust related documents that would support the trust status and acquisition of Lummi held trust lands on the Lummi reservation.  Not one Alta Title policy was provided nor the many other requirements mandated. 

Can State simple fee lands be legally made Federal tribal trust lands?

Now, since the problem has been exposed, some think it can be solved   similar to how many would like to address our illegal aliens problems, by saying go to the back of the line and comply with the stipulated fee to trust requirements.  But for the majority of native Indian groups, this appears not to be possible.  Most reservations were completely allotted or assigned out which puts them legally under exclusive State jurisdiction. 
Some in Congress are saying, let’s just forget that so many Indian reservations were all assigned out and don’t qualify to put lands in federal trust.  All the federally recognized Indian groups should to be on an equal footing so let’s just treat them all the same. But many treaties never intended permanent reservations.  In fact, from the beginning, a good number of our reservations never had their reservations removed from the public domain and placed in trust so how can one legally restore a trust reservation which never was.
 Almost all the reservations in California were established as public domain or federal fee reservations.  There would be a federal constitutional crisis if Congress “formally” granted Indian citizens, many of whom are members of tribal groups with marginal Indian heritage, rights never intended under a treaty.  But, the effort is underway to ignore our state constitutions, federal law and the intent of treaties where Indians were intended to be transitioned to State governance.

How extensive is the impact of insufficient deeds?

To fully understand to what extent the recording of these insufficient or phony deeds and has resulted in created and re-created reservations, you need to understand that in this state alone, we had 18 reservations in the 1800’s.  In 1934, when the Indian Reorganization Act was adopted, again an Act to help Indians restore existing trust reservations, we had eight reservation. In the fifties we had five trust reservations.  Today, our State recognizes 29 reservations.  And to top it off former Governor Christine Gregoire granted the right for every one of these federal recognized tribes the authority to have not one but two casinos.
Lummi was one of those reservations not formally existing in 1934 and the Nooksacks were assigned by the federal government to live on the Lummi reservation.  Nooksacks were never intended to have a separate reservation. 

2009 Carcieri vs Salazar Supreme Court decision continues to be ignored in Washington State.

No one is really dealing with insufficient Indian trust deeds, which continue to be recorded at counties across this nation. In contacting our Attorney General’s office, I received two responses when asking when our State was going to address the problems exposed by the 2009 U.S. Supreme Court, Carcieri and supported by Goudy v. Meath. 
One stated that the Interior needed to correct the situation and another stated that States don’t have to comply with U.S. Supreme Court decisions.  But, if history serves me, I believe the National Guard was involved to ensure the southern schools did not remain segregated, so I believe that one Assistant Attorney General may have misspoke. I also personally believe it is up to the assessor and the prosecutor to make sure the situation gets corrected and this is best done by requesting Interior’s Area Director for help in correcting the records.
Letters could be sent to our tribal officials stating that all deeds purporting to be federal trust but lacking the appropriate requirements under the Federal Justice Title Standards will be removed from the data base and placed in fee simple.  The a list of those requirement can be provided. 

Results of insufficient deeds and re-created reservations:

- unfair business competition

- loss of State tax revenues

- illegal 5% utility tax through PSE to Lummis

- elimination of well drilling/new potable water sources

Due to lack of any willingness to tackle this issue, we the citizens are facing an uneven playing field when it comes to businesses being located on these created and re-created reservations, along with the loss of control of our State resources.   And to those of us still residing within the historic boundaries of Lummi reservation, we continue to pay, through roll over taxes from Puget Sound Energy and other utility services, a 5% utility tax to the Lummi Indian Business Council, a tax initiated by the Lummis in the 80’s which is completely illegal. And yet still others have also been left with no potable water.  This is because the State closed down a certain portion of the reservation to well drilling.  This mandate followed a mediated settlement in the reservation ground water suit which resulted in the State giving the Lummis control over all water not already in current use. 

Prevalence of “sensitivity” protocols in State Governance

What I’ve shared with you about the insufficient recorded deeds, I shared with our assessor, prosecutors, and the Bellingham Herald.  This all occurred before I was fired from public office.  According to the Bellingham Herald, my involvement with the local tribes as a council member was divisive.  I guess they see accountability as being divisive.
After leaving office in 2002, I went to the State auditor and State Tax Revenue departments to share my information.  The State Auditor was aghast; she said she couldn’t believe our County was using insufficient deeds to create our data base.  She told me she was going to put corrective action in writing to our assessor.  She called two weeks later to say that she had been told by her higher ups not to put any corrective action in writing, due to the sensitivity of the issue. 
Not to be deterred, I went to the State Tax Revenue department and explained that I had seen other deeds from reservations in our State as well as from other States so I knew the recording of insufficient trust deeds wasn’t just a local issue.   I felt the State Tax Revenue Department would surely be interested in the loss income.  Personnel there said they were going to check and see exactly how pervasive the problem was. I called back every three months to see how things were progressing.  After nine months, I was told, “This is a very sensitive issue. “  I then know the issue would continue to be ignored. 

Presentation of findings in Washington D.C.

Not too much later, I made a personal trip to Washington D.C. I felt strong enough about the issue to spend by own money for a trip where I was to be given an opportunity to share my findings at a CERA conference and talk with federal personnel.  CERA is a national group that deals with civil rights issues within Indian Country.
While in D.C., I was provided an opportunity to speak for a few minutes, to a close adviser to President W. Bush as well as to Congressional aids.   Both the findings of the General Accounting Office that explained the upside down use of the word “accepted” for trust and the 2009 U.S. Supreme court case Carcieri came subsequent to that CERA conference.  I am thinking the visits by CERA members might very well have had an impact in some small way. 

Experiences and influence as pro se counsel in Lummi ground water suit

When the Lummi ground water suit was about to commence, I decided to become a pro se in the suit.  I wanted to see first-hand how the parties, being directed by higher ups, were going to manage the fact that a federal reserved tribal water right only attaches to federal lands in trust.  I wanted to see how they were going to determine the amount of trust land, lands which were never held on trust on this now former Lummi reservation.  I suspected it was going to be through mutual agreement.   
In addition to representing myself in this water adjudication, I had eight others who wanted to be listed as pro se in my submitted arguments.  Judge Zilly directed the Department of Ecology’s attorneys and the tribal attorney to get together with me and come up with agreement statements.  These statements of agreement are essential because they minimize the arguments to be presented to the court.  The State, Lummis and the Justice department had already formulated their list of agreement statements. 

Documents and solicitor opinions that invalidate the Lummi water claims

When they wanted me to recognize the sovereignty of the Lummis, I explained I could not do this based on the information I had. I explained that not only were the Lummi recorded fee to trust deeds inadequate, but Interior land status reports indicated no “tribal” trust lands had “ever” existed within the historic reservation boundary.  I explained that it was the presence of tribal trust lands that supported tribal sovereignty and that lacking such, the Lummis had no sovereignty separate than that of a common property owner.  Moreover, I had as backup an opinion from one of Interior’s solicitor, an opinion found on line.  That opinion affirmed that “certain” of our federally recognized tribes, held the kind of authority which was limited to simply that of a property owner. 
Lack of federal trust title is the reason that the federal government is not treating the 566 federally recognized tribes on an equal basis in terms of now trying to buy up reservation lands.  The recent front page news article said the federal government was looking at buying up fragmented parcels of property for 150 tribes, only one being in California.  California is a State with the most federally recognized tribes of any State but they are nearly all public domain reservations, as opposed to trust. 
During this water adjudication conference to create agreement statements, I shared a second solicitor opinion I had found online.  This opinion affirmed no tribal holdings had ever been issued to any of the 22 Point Elliott treaty groups.  It also stated that a court would need to affirm such. 
One of the exhibits I showed the attorneys during this conference included a map where a perfected Donation Claim existed.  While there had been several Donation Claims and a Homestead Patent on the Lummi Reservation, the one perfected Donation Claim was for 160 acres to a white settler and his family, a claim which straddled the Nooksack River.  So much I stated for any kind of exclusive tribal on reservation fisheries asserted under the Boldt fishing case.
The Lummi attorney got all up tight concerning the point of the Donation Claim on the river and said that the map I was using was incorrect and that the Donation Claim was not even on the Lummi reservation.  So, I brought out the deed and another more specific map of the John Hedge Donation claim of 160 acres.  It mapped the claim as being within the reservation land and it stated such in the deed as well.
Still not willing to give up on this sovereignty issue, I explained the State made a royal mess with their agreement statements in the Boldt fishing case and that I wasn’t going to do that here.  I showed them, per a line out of the Boldt decision, wherein the parties, in addressing the history of the five different treaties had affirmed that all these treaty Indian “tribes” had received exclusive title to lands.  I explained this is a false assertion as none of our Washington State Indian tribes retained aboriginal title of their reservation lands.  I explained our native Indians were truly dependent wards as they had ceded everything, including their reservation lands.  
To support this image of sovereignty is now why the Lummi leadership is so intent on the public referring to them as Lummi Nation instead of how their tribal constitution reads which Lummi Indian Business Council.
All of Washington State reservations were intended by the treaty to be eventually transitioned to State governance.  A reference can be found where the reader is directed to read a section of the Omaha treaty.  It is in Section 6 of the Omaha treaty where not only are the specifics of land assignments laid out but the point at which State governance is to be enacted.   
Unlike aboriginal, or unceded reservations, which were intended to be permanent tribal home lands, the treaty goal for our northwest natives were intended only for permanent individual homes  or more specifically private farms.  So, in addition to public domain reservations, what we can find in the treaties are two types of trust reservations, one with a permanent homeland purpose and those intended to be transitioned to State governance, which can also be considered public lands, once opened.  In the Steven treaties, Congress gave the President the authority to open all the reservations, using land assignments, when he saw fit.
Motion to throw out the water adjudication

In my heart of hearts, I was sure the State would be looking for a way to get out of the Lummi federal water adjudication, so after establishing the points I would agree to; I submitted a fifty page motion to throw the water adjudication out for lack of substance.  I explained it was illogical to assert a reserved federal water right when there were no tribal lands held in trust.  I asserted a federal reserved water right was dependent on tribal trust holdings. 
Provided all exhibits to State counsel; docket numbers assigned; took vacation in good faith

I submitted no documents to the Judge.  The State already had them in their possession and as I explained, I was sure they would support the motion.  All exhibits to be used, including mine, were provided docket numbers, available to all the litigating parties to review. 
I really didn’t want to get in the middle of the reservation ground water suit.  My intent was to make sure the exhibits were there so the State would have no way to avoid the facts.  So, instead of attending the next scheduled court hearing, where my motion would be brought up, I decided to go on a much needed vacation with my husband.

Motion to throw out the suit not supported by State Counsel

On returning, I was told by those attending that the Judge had asked if I was present and when I wasn’t he asked the other parties if any of them supported the motion I had submitted.  Since the parties all remained silent, Judge Zilly stated he was throwing out my motion.

Judge Zilly honors request of Lummi Counsel and the Justice Department to throw out all Dawson exhibits.

When I attended the second court hearing, Judge Zilly affirmed he had dismissed my motion.  He explained that subsequent to that action, a request had been made by the Justice Department and the Lummi attorney to have all my exhibits, pertinent to my lands status assertions, thrown out.  They submitted an itemized list of my docketed exhibits and it of course included the map that showed the reservation all allotted out, the one identifying the white settler’s Donation Claim, the one that straddled the Nooksack River. 

Severely limited by case law

Judge Zilly stated, that since he complied with the motion to have all my exhibits removed, that I was now left in the future to use only case law and the treaty for my arguments.  Clearly, I felt this would be a major blow.
I knew case law, such as the Boldt case, had been treating the Lummis as though they held unceded or aboriginal trust reservation lands.  This reservation was not that, nor had it been a regular trust reservation located on ceded lands.  These lands remained public lands, ready for assignment to any party ready to settle and farm the lands. 

ŸState cousel declines to argue existence of the Lummi reservation.

The first order of business directed by Judge Zilly was to address whether the Lummi reservation still existed.  The State, interestingly, declined to enter any kind of argument.  I knew then that the State was going to play soft ball.  I of course had no exhibits to support my view the reservation was all allotted out and consequently abolished, so Judge Zilly ruled the reservation as still existing. 

Surface and ground water considered a federal reserved water right

The next question to argue was whether a federal reserved water right was limited to surface water or groundwater.  It was decided that both could be used.  In other words, any water that touches the surface of the reservation be it lake or stream of river as well as water found underground would suffice to address the quantity of water needed for the “purpose” of the federally reserved water right.

Purpose of Lummi reservation determined by Judge Zilly to be agricultural only; not fisheries.

Then the Judge asked the parties to argue the purpose of the reservation.  The State argued it was agriculture, the Justice Dept. and Lummis argued it was fisheries.   I argued it was agriculture and not fisheries. I noted that according to the treaty the tribes only had an in common right to fisheries.  I stated that no mention was made in the treaty for any kind of “exclusive” on reservation tribal fisheries.   In fact, I pointed out that there is no reference to any “tribal” fishing rights, only individual Indian rights and it was to include allied Indians. I explained that fishing was recognized at that time only for purposes of subsistence, not as a means to civilize the natives.  
I referenced how in the treaty the federal government financially assisted the natives in their individual agricultural pursuits.  The government provided no subsidies for fishing.  I referenced only the fact of the 160 acre Donation claim on the river.  I explained that since the bedlands of the Nooksack were included in the settler’s title, the settler could not be restricted from fishing.  I pointed out I could not provide support of this fact because I had been prohibited from supplying this essential piece of evidence by having my exhibits thrown out.  
The judge ruled that the primary purpose was agriculture, not fisheries and he focused on the aspect that the treaty made no exclusive fisheries claim.  He also stated no secondary purpose for the reservation would be considered.  To say this was the first upset of the apple cart is an understatement. 

How much water does an agricultural purpose preclude?

The next argument involved the method of quantification for this agricultural purpose.  PIA which stands for the “practicably irrigable acreage” is what is used to quantify the amount of water needed for purposes of agriculture.  The quantity of water to be determined is that which is “economically feasible” to irrigate.  To prepare for each of these arguments, I found myself reading on line and writing until the wee hours of the morning.

1963 US Supreme Court in Arizona v. California

Finally, I hit the jack pot. I found the legal case I needed.  It was a suit that affirmed that if any party did not agree on the amount of trust lands identified for purposes of quantifying the purpose of the reservation, they could request the court make a proper determination.  The U.S. Supreme court issuing that decision was made in 1963 and is called Arizona v. California
I explained in my argument that while I supported using the PIA method for quantifying the trust acreage that it didn’t matter what method was used because I was going to challenge the existence of any piece of land identified for this agricultural purpose since I would now be requesting the court make a proper determination of the land status.  I quoted the case that permitted this inquiry.

“Thrown out” exhibit, 1954 Interior land status report showed two acres of Lummi trust land—for public schools.

At the next hearing the Judge sat with a 1954 Interior land status report before him.  It was one of my Interior land status exhibits, only I hadn’t provided it.  Previously, I had made a copy of it for the acreage owner’s attorney.  This attorney brought it to the Judge as one of his own exhibits.  The Judge asked the parties if this land status report from the fifties was true.  He said it showed only two acres of trust lands on the Lummi reservation.  No one responded! They all remained silent.
In making my reference to the Arizona case, I referenced the exhibit Zilly was now seeing.  As I had done previously, I explained I had been prevented from submitting this critical document.   But, I explained that the 2 acres identified in the report as trust, were actually held in public trust in so far as they were to serve as school lands.  In that writing, I also provided the reference to an Interior solicitor opinion.  That opinion explained that public school lands, even though they existed within a recognized Indian reservation boundary, were not to be considered “tribal” trust for governance purposes. Solicitor opinions carry a great deal of weight in any kind of court proceedings.

Tidal lands are not trust lands

I had also referenced U.S. v. Stotts 49 F (2a) 619.  This is federal district court case from 1930 which affirmed, while the Lummi tidelands were within the “boundary” of the Lummi reservation, they were outside the reservation “land survey” and had been determined to be considered public lands.  I compared the tidelands to the public trust held in the school lands.  I explained the tidelands were not “tribal” trust but public trust which benefited Indians, where there use would be in common with the settlers.  I further explained that since the tidelands were outside the reservation “land survey” was the reason there wasn’t any kind of identification of tidelands in Interior’s 1954 land status report or any others for that matter.  This particular land status report was critical because it also identified the land status of all of the reservation land assignments within our State.  It supported that the Point Elliott Treaty groups were issued restricted fee patent deeds, as opposed to trust patents. The inference being that these lands went directly to the individual native in their own name and by passed any tribal holding. 
I knew I would have to make this public land argument regarding the tidelands because when I pointed out to a native, under a deposition, that there were no trust lands identified on this 1954 Interior’s land status reports and that I was wondering on what basis they could assert any kind of federal reserved water right claim, the native Lummi  stated, “The tidelands were in trust and the Lummis can drill wells on the tidelands.”

The lawsuit goes to mediation rather than let the judge rule.

Getting back to Judge Zilly, I mentioned that no one responded to his question on whether the 1954 land status report was accurate in so far as it identified only 2 acres of trust lands existing on the Lummi reservation.  Lacking any kind of response, in an exasperating tone, Judge Zilly responded - “Those two acres are school lands.”  After the Judge’s comment, nothing more was said and everyone filed out the door.  Nothing more needed to be said, the parties all understood where the judge would be going. 

Washington State cedes groundwater management to Lummis for disputed area, the Lummi peninsula

At the next hearing, the parties prepared a statement that they were going into mediation.  The judge agreed to this effort.  True to form, the State continued to play soft ball.  As mentioned, they gave the Lummi Indian Business Council control and management over the groundwater not already in use for the particular area being litigated or that area called the Lummi Peninsula. 

Lummis decline mediation over groundwater in the Sandy Point area

The second phase of the Lummi ground water adjudication was supposed to address the groundwater in the Sandy Point area.  The Lummis decided to skip the second phase and proceed to their planned third phrase, which was to engage the farmers and the legal jurisdictions affected by the Nooksack River. 

Lack of legal force and obvious Justice Department over reach indicates likely failure of Lummi legal plans and likelihood of a second State supervised county wide mediation.

In my opinion, the native leaders in our community are just fishing for a new Judge.  It’s also been over two years since the Lummis have applied for this second adjudication of federal reserved water rights. But, it’s being ignored by the Justice Department.  I personally don’t believe the Justice Department is about to be embarrassed a second time.  I assume if the Lummis are successful in getting to in court that they will just plan for another mediation session with the State, once things start going sideways for them.

Clinton era ruling states public domain lands are not Indian lands; therefore endangered fish species becomes a State, not a Federally adjudicated water issue.

In regards to the Nooksack River and many concerns folks have over the Endangered Species Act and whether there is sufficient water for their survival, it is important to know that in 1997, President Clinton issued Secretarial Order #3206.  This Order addresses the Federal Trust Responsibilities and the Endangered Species Act. It clearly states in this Act that public lands or those in the public domain are not Indian lands.
Understand, it is trust lands that are considered Indian lands and only on these lands can Indians assert their authority.   Since the bedlands of the Nooksack River and the tidelands are public lands, this means the State should be addressing the needs of the Endangered Species Act as it pertains to the quantity of water to be kept in the River.  The native Indians, like any citizen group, should have input but it must be input with verifiable science.

Broader citizen involvement is needed to bring State and Whatcom County officials to honor law and resist Indian tribal over reach.

 My concern is that whether one is in court or out of the court in mediation, the natives know that the State will continue to be a push over.  Moreover, since the County hasn’t proven they are willing to stand up to the Indian groups, I question whether the PUD would do much better.  This is why I am here today; I want to encourage citizen involvement in this issue. 
I compare the State and County to the court servants in the story of the Emperor with No Clothes.  As you recall, no matter how silly the Emperor looked with no clothes, the court servants continued to support that the thievery tailors had spun the Emperor a grand outfit, an outfit which was non- existent.   And, like the child in that story, I will continue to convey what I perceive to be the truth.  Hopefully, if others listen, the voice will become louder so that a difference can be made.

For further information on what you can do call Marlene Dawson at: 360-384-0823