Tribes seek greater clout -- Based on 1855 treaty, Tulalips assert rights to plants, environment

By Krista J. Kapralos and Eric Stevick
Herald Writers © 2006 The Daily Herald Co.

October 22, 2006

Washington State - Tulalip Tribal elder Ray Moses keeps the stories his ancestors gave to him.

He tells how the whale pushes the reluctant salmon back into the rivers, how the beaver tried to woo the field mouse.

Moses, 75, saves these old stories, passes them on.

In his pocket he keeps another story. It too is from the past, but this, he explains, is also the future.

It is a folded, dog-eared copy of the Treaty of Point Elliott. He takes it out, holds it up in the sunlight, waves it at passersby.

"People don't know that we have these rights. They need to know this."

To the treaty tribes - today's Tulalip, Stillaguamish, Lummi, Swinomish and others - the 1855 pact signed by Mukilteo's shore tells everyone what belongs to them forever.

People still debate the treaty's Indian fishing rights and fight over property lines. They argue with tribal police over their authority, and over whether non-Indians can build docks in Tulalip Bay.

Photo Gallery Page 1 of the Treaty of Point Elliott from 1855 (National Archives an... [ view gallery ]

The tribes are taking the next step.

Now, they say the 151-year-old treaty guarantees their world patent rights on native trees, flowers, shrubs and even weeds - the DNA of every plant that naturally grows here.

If that's true, the tribes could gain trademark control over all future use of native plants.

Tribal permission would be needed for pharmaceutical companies and other businesses to use the plants to make medicine, cosmetics or even herbal tea.

The tribes already have put the case before the United Nations.

The U.N. Council on Human Rights is writing a document promoting tribal rights to indigenous intellectual property.

The treaty tribes also are pushing for more control of the environment.

They've filed the first in a series of lawsuits intended to win a greater stake in managing Western Washington's environment. They call it the Habitat Claim.

They sued the state in August for control over the region's culverts, which carry runoff along and under roads. Control over the culverts is crucial to keeping pollution out of creeks, streams and rivers.

Their reasoning, the tribes say, is simple.

Tribal culture requires healthy salmon runs, thriving forests and water that is free from pollution. Unless there are strict environmental regulations, they believe their salmon-centered culture could be lost within a generation.

"Economic survival is different than cultural survival," said Terry Williams, a Tulalip tribal leader on environmental issues. "If you survive economically only to find that you can no longer practice your culture, that's devastating.

"We're trying to figure out how we're going to survive the 21st century."

A living treaty

The Treaty of Point Elliott is among the most important documents in the founding of the state.

In January 1855, Indians pulled canoe after canoe onto the shore at Mukilteo.

There were about 2,300 Indians from Western Washington ready to meet white settlers and federal delegates.

Within the limits of the Chinook jargon they negotiated the future of a new nation, and of tribes who had lived there since before they recorded time.

There are 100 signatures on the treaty. Eighty-two, those belonging to Indians, are simple X marks.

The federal men demanded land. They wanted to move every Indian in the region to one area and take ownership of what amounts to about a fifth of what is now Washington state.

The tribes insisted that they be able to keep their way of life. They wanted to continue fishing, hunting and gathering roots and berries at all of their usual places.

In 1955, when Tulalip elder Ruth Sehome Shelton was nearly 100, she retold the story she heard as a girl.

The group was gathered near the beach. Federal negotiator and Washington Territory governor Isaac Stevens was speaking.

A tribal leader, whose name is lost, asked how long the treaty would last.

"Will it be for as long as the water flows in the rivers ... will that be ours, and will it be for as long as the sun travels from whence it comes until it returns to the west?"

Stevens nodded and then sat down.

Settlers and federal officials believed the Indians would assimilate into white society.

"The good part of the story is, in spite of all the atrocities and hoodwinking that went on, that the tribes survived and their culture exists," said David Dilgard, a regional historian with Everett Public Library.

Today, he added, "150 years after the document was signed, you have guys in suits on retainer saying, 'Let's take a closer look at this.'"

Opposition then and now

Before the Treaty of Point Elliott was even ratified, settlers and Indians began disputing its words.

Indians argued among themselves, claiming people who weren't chiefs were among those who signed the treaty. Settlers had trouble getting Indians out of the way of railroads, logging outfits and farms.

Fishing, then as now, caused many clashes. After the state created fishing seasons, Indians were allowed to fish out of season, using weirs and special types of nets.

A century ago - in 1906 - three white fishermen did as the Indians could, and cast nets in Steamboat Slough between Everett and Marysville. That act changed state law, and for a time handed the treaty rights over to everyone.

By the 1960s and 1970s, Indians - who still relied on salmon for survival - were barred from fishing at many of their customary spots. State fisheries officers arrested Indians for illegal fishing. The Indians insisted that the Treaty of Point Elliott granted them the right to fish within their traditional areas.

"I came out to fish right out here," Tulalip Tribes Chairman Stan Jones, 80, said, nodding toward Tulalip Bay. "State fisheries would try to chase us back up the river."

They decided to fight in court.

"We knew we couldn't lose anymore because we had hardly anything," Jones said.

In 1974, U.S. District Court Judge George Boldt, a Montana-born sportsman, ruled that the treaty guaranteed the tribes half of all salmon and steelhead harvests.

State officials were shocked.

Tulalip tribal member Ray Fryberg said he'd heard about the treaty from his grandparents. "They were trying to teach me what would become very valuable," he said.

Boldt showed him its power.

"I didn't understand it at the time, but later it started to reveal itself to me."

The habitat claim

Boldt's decision opened new conflict between the tribes and the state as each side tried to determine what the ruling actually meant.

In 1980, U.S. District Court Judge William Orrick, in a case known as "Boldt II," declared that Boldt's ruling implied that the tribes have the right to a habitat that sustains the fish that are the lifeblood of their culture.

Orrick's ruling gave the tribes jurisdiction over much of the environment.

The state appealed. Two years later, the ruling was overturned by the 9th Circuit Court of Appeals in San Francisco.

Since then, the tribes have tried to find common ground with the state, only to see the environment continue to erode, said Williams, the Tulalips' environmental leader.

The tribes say they've got to use their treaty rights now to push the Habitat Claim, even if it means costly court battles. It would let them sue anyone who pollutes the region's environment.

The culvert lawsuit could cost taxpayers millions and infringe on property rights, said Barb Lindsay, director of One Nation United, a Redmond-based property rights advocacy group.

"This can affect every man, woman and child in the state of Washington where there is a culvert," she said.

The state hopes to delay the case, set for trial in March, to prepare a stronger defense, said Tom Fitzsimmons, chief of staff to Gov. Chris Gregoire.

The tribes say they aren't looking for money. Instead, they want to have more say in how the environment is managed.

The treaty is a powerful weapon, Tulalip Tribes' attorney Mason Morisset said - it's the "shotgun behind the door."

Intellectual rights

Williams also sees a link between the survival of native plants and advancements in the biotech industry.

The tribes must safeguard the species, all genetic blueprints within them and the secrets they may hold.

The tribes never ceded ownership of those resources in the Treaty of Point Elliott, Williams argues.

If the tribes have their way, Williams said, the future could hold virtual borders through which the plants - and their genetic codes - could not pass without tribal permission.

"We not only have a property right to the plant, but also an intellectual property right to the use of the plant," Williams said.

"Any breakdown of that plant to look at what generates medicinal purposes of that plant in the genes, that's our right as well."

The Tribes already are cultivating native plants in locked reservation greenhouses.

Tribal elders are recording their knowledge of herbal medicine for a database, available only to certain tribal members. Outsiders will never see it, tribal leaders say.

Williams' quest to safeguard the tribes' traditional knowledge has taken him from Geneva, Switzerland, to Rio de Janeiro, Brazil, lobbying for United Nations support.

Global edicts, including the 1992 Convention on Biological Diversity and the U.N.'s Declaration for the Rights of Indigenous Peoples, support tribal ownership of intellectual property, such as ancient healing methods.

Williams' work has captured the interest of the World Intellectual Property Rights Organization, another branch of the U.N. Williams says the organization has asked him to develop a pilot project for protecting tribal knowledge.

Common plants, such as fireweed, are well known to the state's tribes. The Snohomish used infusions of fireweed to cure sore throats, and the Skokomish used it to fight tuberculosis.

Western red cedar bark provided tribes clothing and hats; the Lummi chewed the buds to soothe sore lungs and calm nausea.

The ancient remedies that are widely known now are only a fraction of the cures tribal elders remember. Pharmaceutical companies are only aware of about 50 of more than 150 plants that tribal members still use, Williams said.

Some have asked the tribes to share their knowledge, he said, but the tribes have declined.

While the treaty reserves tribal rights to hunt and gather roots and berries on "open and unclaimed" land, the state isn't sure what that means, said Fronda Woods, a lawyer in the state Attorney General's office.

"Does that mean cedar bark?" she said. "Mushrooms? What about the commercial timber harvest?"

A changing tradition

Many of the world's indigenous tribes don't traditionally recognize ownership of the Earth or its resources.

That's changing.

There is a growing belief that if tribes don't claim ownership, someone else will, and their cultures will suffer, said Rudolph Ryser, a member of the Cowlitz tribe and director of the Center for World Indigenous Studies.

The center is an independent nonprofit think tank based in Olympia.

To protect their genetic resources, tribes must develop a law and get federal support to enforce it, Ryser said.

The Suquamish and Quileute tribes have already developed such laws, Ryser said.

The National Cancer Institute routinely enters into agreements with foreign governments and indigenous groups to ensure that the native population benefits from any drugs developed from natural resources found where they live.

In New Zealand, for example, the native Maoris also say their 1840 treaty with the British government reserves their ownership of genetic resources.

That treaty and the Treaty of Point Elliott were signed before scientists started seriously studying nature in a way that led to modern genetics.

Charles Darwin's "The Origin of Species" was printed in 1859. Gregor Mendel, working with mice and pea plants, presented his paper on inherited traits in 1865.

"The only way to protect and preserve wild plants and animals is to leave them in the care of indigenous communities that have cultures directly connected to the continuity of those things," he said.

The tribes and medical researchers should be concerned, said Gordon Cragg, a chemist and prominent cancer researcher.

If tribes gain official ownership of genetic resources, they should be prepared to make agreements with scientists to allow the resources to be studied.

"If there are proper agreements, they stand to benefit," said Cragg, who just retired from his post as head of the Natural Products Branch of the National Cancer Institute in Maryland.

"If they just sit on this and say, 'We won't collaborate at all,' then they don't gain anything, and the cancer patients or diabetes patients don't gain anything either."

Cragg's department travels the world hunting down plant samples for medical studies. In 1960, it collected bark from the Pacific yew found on the Olympic Peninsula - bark that scientists developed into Taxol, a powerful drug used to treat ovarian, breast and some lung cancers.

If a tribe stopped scientists from taking that bark, Cragg said, it could have meant death for untold numbers of women men and children with cancer.

Battle for the beaches

The treaty also causes headaches for non-Indians living on the Tulalip Reservation, including Tom Mitchell and his wife, Patricia Johansen-Mitchell.

From their home overlooking Mission Beach, they spot the tops of gray whales returning each spring to feast on ghost shrimp.

At night, they hear the whales' sonorous weeshhhh in the water. The next day, if the tide's low, they see muddy craters left behind by hungry whales.

"It's always a big deal when they arrive," said Mitchell, president of the Marysville-Tulalip Community Association, a group of non-Indians who own land or live on leased land on the reservation.

Johansen-Mitchell's parents owned the land on which they live, and built their home more than 40 years ago.

It's an idyllic spot, but these days, the Mitchells and about 400 other nontribal families are embroiled in property disputes with the tribes over who owns the tidelands.

The tribes say the Treaty of Point Elliott gives them jurisdiction over the beaches.

Last March, they passed tidelands management policies that restrict development along the shoreline, and they banned new docks, stairs, bulkheads and other structures.

Non-Indian landowners produce deeds, some a century old, that describe their property to the low water mark: they believe their deeds give them ownership of the beachfront.

It's a battle that has both sides, and their lawyers, researching the treaty.

"The tidelands are just the first and most visible effort we think the tribe is going to implement as they attempt to gain greater and greater control of the reservation," Mitchell said.

He predicts the tribes will assert jurisdiction over uplands property along creeks and sloughs.

Tribal leaders say the beaches are reserved for the tribes, and that bulkheads and docks destroy the tidelands' delicate ecosystem. They have yet to enforce the new shoreline policies, but property owners are bracing for court.

'There's no indication that they're about to start implementing it," Mitchell said. "That may be simply because they recognize they may not get away with it."

Remembering the treaty

Last year, 150 years after the treaty was signed, local historians invited Indian leaders to once again paddle to Mukilteo and pull their canoes onto the beach.

The federal delegation that brokered the treaty expected the tribes to eventually disappear.

"That's the irony," said John Collier of the Mukilteo Historical Society. "The Point Elliott Treaty has emerged as a symbol among Native Americans to keep their cultural identity, as well as a living document with real political and economic influence in the 21st century."

Jones, the Tulalip Tribes chairman who's been alive more than half as long as the treaty, puts it simply.

"The treaty is as strong now as it's ever been."

Reporter Krista J. Kapralos: 425-339-3422 or kkapralos@heraldnet.com.

See The key points of contention on the Treaty of Point Elliott. - and the full text of the Treaty of Point Elliott