Treaty Rights and Tribal Sovereignty

Sep 3, 2014, 0:01
Wisconsin Anti-Indian Activist Elaine Willman Brought the Attack on Treaty Rights and Tribal Sovereignty to Bellingham, WA on April 6.
Wisconsin Anti-Indian Activist Elaine Willman Brought the Attack on Treaty Rights and Tribal Sovereignty to Bellingham, WA on April 6.
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“Take these Tribes Down” The Anti-Indian Movement Comes to Washington State

26 April 2013

This IREHR Special Report takes you inside the April 6 meeting hosted in Bellingham, Washington by the anti-Indian groups Citizens Equal Rights Alliance and Citizens Equal Rights Foundation. The report sheds light on these groups’ anti-Indian ideas and goals, their legal strategy and their plans to re-invigorate anti-Indian activism in Washington State and around the country.

“Take these tribes down”
The Anti-Indian Movement Comes to Washington State

By Chuck Tanner

April 6, 2013. As blue sky peeked through the clouds of an overcast Northwest morning, a group of mostly indigenous people gathered near the Lakeway Inn Best Western in Bellingham, Washington. Drumming and singing pulsed as those present held signs reading, “Honor the Treaties” and “We are All the People.” Event organizers, Idle No More Bellingham, had called community members together to protest two organizations “who are holding a conference to discuss opposition to the existence of tribes as separate and sovereign entities.”[1]

Inside a Lakeway Inn conference room, about fifty people were gathered to hear a lineup of speakers assail the very ideas of tribal sovereignty and treaty rights – of tribal nationhood.  The anti-Indian movement had come to town.  The concerns of Idle No More Bellingham were entirely justified.

The Bellingham conference was sponsored by the Citizens Equal Rights Alliance (CERA) and Citizens Equal Rights Foundation (CERF), one of a series of events being hosted around the country by these closely-linked national anti-Indian groups. CERA/CERF held previous meetings in New York and Massachusetts; others are slated for late April in the Midwest and June in Northern California.  CERA/CERF organized these forums after canceling their regular annual Washington D.C. conference.

These two groups’ cross-country drive comes as One Nation United (ONU) – the other major national anti-Indian group - appears in decline.  Despite building relations with former Washington State Attorney General (and losing 2012 gubernatorial candidate) Rob McKenna in 2007, ONU took down its webpage and quit responding to email inquiries in the last year.[2]  CERA/CERF’s conferences appear aimed at boosting ties with local activists and asserting itself as “the” national anti-Indian umbrella.  The meeting ended with CERA/CERF committing to help revive anti-tribal activism in Washington State.

The conference served up a combination platter of anti-Indian “legal theory” 101 and pep rally with a side of movement strategy. Following the pledge and a prayer, CERA board member Tom Williams, a Lynden, Washington-based businessman and lead event organizer, set the tone:

 “The federal government, through federal Indian policy, and Washington State, through the Centennial Accord, a document many of you probably may not have heard of. They have created rights and governance authority… for themselves that does not exist. And they have created rights and governance authority for the federal government and for tribal governments that does not exist. And this fake governance authority and rights create a situation where they can violate individuals’ civil rights.”

CERA legal counsel Lana Marcussen declared that “[T]ribal sovereignty is really a major legal fiction that has been created by the United States government.”

In the real world, by contrast, tribal sovereignty – the inherent right of Indian Nations to govern their lands, resources and people living in them – is rooted in eons of tribal self-governance. No act of the U.S. government ever created, or justly diminished, this right. The Supreme Court has recognized the independent political authority of tribes for nearly 200 years.

Williams’ and Marcussen’s proclamations are standard CERA/CERF fare - the red meat and potatoes of a movement aimed at ending tribal nationhood. CERF Secretary Darrel Smith writes that, “To allow Indians as a group to practice political sovereignty as a general government ruling non-Indians or a geographical territory is wrong.”[3] Similarly, former CERA chair and event speaker Elaine Willman asserts that “all American Indians have been citizens since 1924, and the federal government should no longer be honoring treaties with its own citizens.”[4] These words harken to periods of U.S. Indian policy that were marked by coerced assimilation and rampant human rights abuses [See CERA and CERF Versus Tribal Sovereignty and Treaty Rights].

Speakers echoed a recurring strategic theme: anti-Indian activists should mine federal laws and court cases for anti-tribal language that can be used to seek termination in the courts and “educate” local and state officials.[5] CERA’s “legal theory,” in the end, combines anti-tribal ideas drawn from federal Indian law and false claims that tribes have no political sovereignty or treaty rights.

Buoyed by recent court cases that undermine tribal sovereignty, CERA and CERF want more. The groups have prepared amicus briefs for two cases presently on the Supreme Court’s radar: Madison County v. Oneida Indian Nation and Adoptive Couple v. Baby Girl.  The first case addresses an attempt by Madison and Oneida (New York) counties to diminish, or effectively erase, the Oneida Nation’s 300,000-acre reservation in New York State. CERA/CERF claims to have received the consent of these counties to file its brief.[6] The second case involves the Indian Child Welfare Act (ICWA), a 1978 law intended to address the alarming number of Indian children removed from tribal homes by private and public agencies. This law allows tribes to intervene in adoption proceedings on behalf of Native children and prioritizes tribal adoptions. For CERA’s lead attorney, Lana Marcussen, the ICWA is “one of the most horrific laws regarding Indians on the book.”

Elaine Willman, CERA Chair from 2002 to 2007, and the anti-Indian movement’s top celebrity, shed light on the group’s legal strategy. Willman encourages people in legal conflicts with tribes to appeal their cases to a higher court.  “We always lose in the lower court,” Willman declared. “We always lose. You must appeal it up just one level.” Echoing the group’s strategy in the Oneida and Baby Girl cases, Willman described that CERA prefers to wait until a case is headed for the Supreme Court to file amicus briefs, allowing them to do it “on the cheap.”

CERA lead lawyer Lana Marcussen directed particular animus at the Supreme Court’s ruling in Morton v. Mancari (1974), declaring wishfully that “We think the Supreme Court is going to take out Morton v. Mancari” in the Baby Girl case.In Morton, the Court ruled that an Indian hiring preference in the Bureau of Indian Affairs was permissible because the “preference…is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities.”[7]

Sidebar

 

CERA and CERF Against Treaty Rights and Tribal Sovereignty

The April 6th conference held at the Lakeway Inn in Bellingham, Washington was organized by the Citizens Equal Rights Alliance (CERA) and the Citizens Equal Rights Foundation (CERF). CERA, a 501(c) 4 non-profit, emerged in the late 1980s as an umbrella for anti-Indian organizing around the country. CERA created CERF, a 501(c) 3 non-profit, to “protect and support the constitutional rights of all people, both Indian and non-Indian.”[S-1] Both groups are based in Gresham, Wisconsin, though they boast board members in eleven states, including two in Washington State.

CERA and CERF cast themselves as civil rights groups under the slogan “’We the People’ should be One People Under the Law.” Behind this banner, CERA and CERF call for an all-out assault on indigenous nationhood - an end to both tribal sovereignty and treaty rights. The writings of prominent CERA and CERF leaders and speakers at the event make this clear.

Darrel Smith, Citizens Equal Rights Foundation leader on tribal sovereignty:

“Federal Indian policy, modern tribal governments and the concept of sovereignty violate the most basic principles of the American Revolution...Indian policy and law defies the democratic principles of liberty and equality by giving Indians as a group political sovereignty...Integration is the law of the land....To allow Indians as a group to practice political sovereignty as a general government ruling non-Indians or a geographical territory is wrong.”[S-2]

Elaine Willman was CERA’s Board Chair from 2002 to 2007. She is the best known of the speakers at the Bellingham event. Willman previously served on the Honorary Advisory Board of United Property Owners (UPO). UPO is the descendant of Salmon/Steelhead Protection Action for Washington Now, or S/SPAWN. S/SPAWN was formed in the 1980s to oppose the treaty fishing rights recognized in the 1974 Boldt decision. Willman emerged as a regional anti-Indian leader in the early 2000s with the Citizens Standup! Committee on the Yakama Nation reservation.

Willman is presently Director of Community Development and Tribal Affairs for the Village of Hobart, Wisconsin. Hobart has been engaged in several lawsuits aimed at undermining Oneida Nation sovereignty. These include efforts by the Village of Hobart to extend its stormwater fees onto tribal trust lands, block a fee-to-trust transfer for the Oneida and block the transfer of some 911 emergency calls to the Oneida police rather than the Village's department.[S-3]

Willman’s writings make clear the anti-Indian movement’s aims of ending tribal sovereignty and treaty rights:

Elaine Willman on tribal sovereignty:

“The tiresome myth that inherent tribal sovereignty is pre-Constitutional needs a little sunshine. This misplaced theory has unfortunately succeeded a bit too often. It’s my belief that anything ’pre-Constitutional’ in this country was in fact, nullified by the U.S. Constitution.”[S-4]

Elaine Willman on treaty rights:

 “State Enabling Acts are acts of Congress that preserve the sovereignty of state resources, and supersede Indian treaties; but Northwestern States utterly ignore this fact, as well as the fact that all American Indians have been citizens since 1924, and the federal government should no longer be honoring treaties with its own citizens.”[S-5]

The Enabling Acts and 1924 Indian Citizenship Act simply did not alter the national status of tribes, or their treaty rights. Tribal nationhood and sovereignty are rooted in eons of self-governance by indigenous peoples. They are recognized in the U.S. Constitution’s Commerce Clause and nearly 200 years of Supreme Court precedent. Treaties with Indian Nations are based on these inherent attributes of tribes and recognized in the U.S. Constitution’s Supremacy Clause (Article VI) as the “supreme law of the land.” CERA and CERF's assault on tribal communities is an affront to human rights, the U.S. Constitution, and the inherent right of Indian Nations to self-determination.

That is, tribal nations are political communities, have a unique relationship with the United States, and Congress may acknowledge this in its actions. The Supreme Court has recognized the political nature of the tribal-federal relationship since the 1820s.

The political-racial distinction in Morton v. Mancari has been under attack by the Mountain States Legal Foundation (MSLF) and Bush (II)

administration Solicitor General Paul Clement, as described in a recent article by attorneys Gregory Smith and Caroline Mayhew. MSLF, best known for its anti-environmental litigation, has also led legal challenges to federal affirmative action policies. The anti-Morton effort, in fact, has employed the Court’s ruling in Adarand Constructors v. Pena, a case argued before the Court by MSLF president William Perry Pendley. In Adarand, the Court held that “racial classifications” used to address racial inequality – e.g., through affirmative action policies – must be “narrowly tailored measures that further compelling government interests” (a level of legal interrogation known as strict scrutiny).[8] CERA and CERF have piled onto an effort driven by bigger anti-tribal players.  For example, the groups’ briefs in the Oneida case stated,  

“The assumption that the historical racial classification of ‘Indian’ and “Indian tribe’ can become an integrated part of our law instead of an application of a completely separate territorial law is erroneous. The special status created through federal treaties and statutes does separate the ‘Indians’ and ‘Indian tribes’ from the rest of the citizenry. This fact has created real discrimination in the enforcement of ‘Indian’ rights against all other property interests of ordinary state citizens and has damaged state sovereignty.”[9]

In sum, CERA and CERF have joined a legal campaign intended to undermine Congressional acts that recognize the political character of tribes and strip federal power to address racial inequality through affirmative action. This is “civil rights” in CERA-speak.

Conference speaker Philip Brendale continued along this track, also providing the day’s most honest moment by demonstrating the vicious nature of CERA’s intended attack on Indian Nations.  An enrolled Cowlitz tribal member, according to Department of Interior documents, Brendale haltingly read a prepared speech targeting the 1974 Boldt decision and later sub-proceedings in the ongoing case, U.S. v. Washington.[10]  Judge George Boldt’s original ruling recognized that treaties signed in 1850s had reserved to tribes one-half the fish passing through their “usual and accustomed” fishing places and the right to co-manage fisheries with the state.  In the latest phase of the case, a federal district court ruled in March that Washington State must speed up efforts to repair state-managed culverts that damage salmon habitat and deplete salmon stocks reserved in the treaties.[11]

While some might praise a judicial decision honoring the letter and spirit of the treaties, Brendale declared that, “Puget Sound tribes are the howling dogs keeping this [culverts] case going since 2007.”

Brendale specifically calls for “weaponzing” the concept of a “moderate living” found in Washington v. Washington State Commercial Passenger Fishing Vessel Association. This 1979 Supreme Court ruling upheld the Boldt decision and, unjustly, wrote that treaty rights secure “so much as, but no more than, is necessary to provide the Indians with a livelihood - that is to say, a moderate living.”  The Court indicated that the 50 percent allocation in Boldt could be adjusted down if a tribe should dwindle to just a few members or abandon its fisheries – neither of which has happened.[12] This argument was raised, and rejected, when a federal court ruled in 1994 that treaty-reserved fishing rights also applied to shellfish.[13]

For Brendale, however, the term “moderate living” provides a “weapon” to be wielded against tribal communities: “We have at our disposal what we need - the weapon, the means, the opportunity and the financial support to take these tribes down. What do we get for our trouble: the opportunity to strike a most devastating psychological blow to Northwest tribes’ pride and their sense of well-being.”

Philip Brendale advocates raising the specter of tribal casinos as “evidence” of tribes’ “moderate standard of living” and attempt “lowering the 50 percent salmon set aside down to zero.”

Brendale next took up how to fund such a lawsuit. “Where can we find the deep pockets, investors, with the need to reduce the number of stakeholders?” he asked.  His answer  - the “large coal companies, and the railroads, that mine and haul millions of tons of coal,” particularly those involved in the proposal to build a coal terminal at Cherry Point in the Lummi Nation’s “usual and accustomed” fishing area. Tribes, environmentalists and some local government officials are engaged in opposing the Gateway Pacific Terminal at Cherry Point. The terminal, to be owned by SSA Marine, threatens tribal fisheries and the ecological health of the area. Carrix Inc., SSA Marine’s parent company, has received major investments from Goldman Sachs Infrastructure Partners.[14]

"We have at our disposal what we need - the weapon, the means, the opportunity and the financial support to take these tribes down. What do we get for our trouble: the opportunity to strike a most devastating psychological blow to Northwest tribes’ pride and their sense of well-being."

CERA Event Speaker Philip Brendale's proposed approach to treaty-reserved fishing rights.

Brendale proposed reaching out to these companies through someone with “legal strategy credibility” that “would have best chance to convince these companies to finance a winning case without getting their corporate hands dirty.” Unsurprisingly, Brendale named himself that person. “I have some credibility already,” he declared. “I have... in place a non-profit operation which would serve as a reception entity to which the targeted companies could deposit, donate funds.”  Brendale is the President of the Red Horse Capital Campaign based in Yakima, Washington.[15] Brendale’s claim to credibility stems from his role as a petitioner in the infamous case, Brendale v Confederated Tribes and Bands of the Yakima Indian Nation (1989).

Despite clear treaty language committing the reservation to the “exclusive use and benefit” of Yakama Nation tribes, a divided Court opened some areas of the reservation to local government jurisdiction over non-Indian landowners – a violation of tribal sovereignty.

If Brendale uttered the day’s most vicious statement, Elaine Willman spoke its most offensive. Willman was by far the biggest movement celebrity at the conference – greeted by fans who milled about as the anti-Indian leader autographed copies of her 2005 book, Going to Pieces: The Dismantling of the United States of America. The title speaks for itself.

Willman is presently Director of Community Development and Tribal Affairsfor the Village of Hobart, Wisconsin. The Village has been involved in several lawsuits aimed at undermining Oneida Nation sovereignty. These include efforts to extend Hobart stormwater fees onto tribal trust lands, block a fee-to-trust transfer for the Oneida, and block the transfer of some 911 emergency calls to the Oneida police rather than the Village’s department.[16]

Willman offered a full plate of anti-Indianism – starting with a conspiracy theory of an Indian takeover of Washington State.  Proclaiming that “twenty-nine tribal governments that serve about 75,000 enrolled tribal members that have hijacked Washington State,” Willlman declared: “These twenty-nine tribes are literally consuming and overpowering and now controlling that fixed land base of Washington State.” Grasping the brass ring of delusion, she concluded:

“The real Trail of Tears here for Washington state, is Governor [Mike] Lowery, Governor [Gary] Locke,  Governor [Christine] Gregoire, and now Governor [Jay] Inslee. That is the real Trail of Tears. They have placed state sovereignty subservient, with the help of the legislature too, they’re not innocent. They have placed Washington State sovereignty subservient to the sovereignty of twenty-nine tribes here.”

The Trail of Tears refers to the forced removal of the Cherokee Nation from their homelands in Georgia and North Carolina to Oklahoma in 1838 and 1839. Some 4,000 tribal members died as they were forcibly marched during winter conditions. Many other tribes were removed in this period, which extended into the late 19th century. This simply is not happening in Washington State.

Willman continued. Noting that Wisconsin has just 11 tribes compared to Washington State’s 29, the anti-Indian veteran told attendees that “we’re [Wisconsin] not getting cannibalized as quickly as the state [Washington] is with this federal, and I will say state, Indian policy” [italics added].  Not yet finished, Willman dubbed U.S. Senator Maria Cantwell the “Indian Princess…on the Senate Committee on Indian Affairs” for reaching out to tribes and defeating anti-Indian U.S. Senator Slade Gorton in 2000 – apparently part of Willlman’s Indian “takeover.”

CERA board member Butch Cranford demonstrated the close relationship between some local anti-tribal gaming groups and the broader anti-Indian movement. A leader of the Plymouth, California-based No Casinos in Plymouth, Cranford gave advice on blocking tribal casinos by challenging land opinions issued by the National Indian Gaming Commission and opposing fee-to-trust transfers.

Former Whatcom County Commissioner Marlene Dawson also spoke, largely continuing her nearly two-decade obsession with diminishing the Lummi reservation. A onetime “Honorary Adivisory Committee” member for United Property Owners (the predecessor to One Nation United), Dawson vigorously opposed Lummi Nation sovereignty while on the Commission -  assailing tribal sovereign immunity, seeking funding cuts to the Lummi Nation and pressing for the diminishment of the Lummi reservation on behalf of on-reservation tideland lease holders.[17] Speaking to the CERA/CERF choir, Dawson when even further: “All of Washington State reservation lands, or treaty lands, were subject to appropriation for public use. The majority of reservations in this state, while originally held in trust, were intended to be transitioned out of trust. They were not intended to be permanent reservations.”

Dawson had unilaterally declared all Indian reservations in the state effectively diminished.

Elaine Willman on tribal sovereignty

“The real trail of tears here for Washington state, is Governor [Mike] Lowery, Governor [Gary] Locke,  Governor [Christine] Gregoire, and now Governor [Jay] Inslee. That is the real Trail of Tears. They have placed state sovereignty subservient, with the help of the legislature too, they’re not innocent. They have placed Washington state sovereignty subservient to the sovereignty of twenty-nine tribes here.”

Targeting Washington Tribes

Early in the day, CERA/CERF legal counsel Lana Marcussen foreshadowed a call to target Washington State for increased organizing efforts.  Marcussen cast the situation in Washington State as dire:

“Here in Washington State, in particular, this is an issue that is a mess. Part of that’s the way the Boldt decision happened and part of that is the way your state has bought into this legal fiction…I realize Washington State has absolutely bought into this idea that there’s this real thing called tribal sovereignty and there’s this overriding federal trust.  It’s garbage.”

Later in the day, her patience strained, Marcussen lashed out. Referring to Washington State’s recognition of tribal reserved water rights in recent negotiations, she shouted,

“What the hell’s going on here?   What are you guys doing?  Or, at least, what is your state doing? I don’t want to accuse the people in the room, specifically. But what the hell is the State of Washington doing?”

Apparently inspired, long-time anti-Indian activist Buz Whitely stood to propose forming a single entity out of anti-tribal groups still active in the state. Whitely specifically mentioned groups near the Tulalip Reservation and in the southern part of the state – likely a reference to activists on the Yakama reservation as CERA board member Jackie Allen is from Toppenish, Washington. Whitely is a longtime leader of the Association of Property Owners and Residents of the Port Madison Area (APORPMA), one of the first anti-Indian groups to form in Washington State.[18] APORPMA has been located on the Suquamish Indian reservation, though the group disbanded in recent years. Back from the organizational grave, Whitely appears ready to make another run at tribal rights.

Lana Marcussen responded to Whitely that CERA already exists as an “umbrella” group and would support renewed organizing in the state. Butch Cranford also pitched for CERA as the key movement resource. Recounting CERA’s aid to No Casino in Plymouth, he exhorted “it doesn’t matter if it has to do with child welfare, if it has to do with Indian civil rights, fee to trust, Indian gaming.   It doesn’t matter what part of federal Indian policy that’s affecting your community.  CERA. We’re here. We’re available. And we’re just like you.”

Any renewed anti-Indian campaign in Washington State is likely to build on the base established in Whatcom County  - a factor that likely led CERA and CERF to hold the regional event in Bellingham.

CERA board member Tom Williams of Lynden, Washington was the local event’s contact person and lead organizer - a task he no doubt shared with wife, Katherine, who staffed the registration table.  A ‘governing person’ of Williams Construction in Everson, Washington, Williams cut his anti-Indian teeth as President of the North County Community Alliance. This state-registered non-profit unsuccessfully attempted to block the Nooksack Tribe’s Northwood Crossing Casino.  Williams and the North County group promoted misinformation about casinos, including that they negatively impact the economy and that, “While they [casinos] make millions, the profits do not go to the tribes.”[19]

A 1998 study by actual economic researchers Veronica Tiller and Robert Chase found that gaming generated some 46 percent of all tribal revenues and employed over one-half of the 14,000 tribal employees in Washington State.[20]  Another study found that fully 81 percent of people employed in tribal gaming operations were non-Indian.[21] In addition to creating jobs for non-Indians, Indian Nations use gaming revenues to invest in tribal programs, fund economic development and donate money to non-Native non-profits.

Tom Williams’ relationship with Elaine Willman extends back to at least 2007 when the North County group promoted an appearance in Lynden by the anti-Indian leader.[22] CERA/CERF also distributed a document thanking other Lynden, Washington-based “individuals and organizations” that “helped fund/support this event.” These included:

  • Tad VanderGriend of Vander Griend Lumber Company, Inc. Vander Griend holds business licenses to operate in Bellingham and Blaine, Washington.
  • Ken Stremler of Farmers Equipment Company. Stemler holds business licenses to operate in Lynden, Bellingham, Burlington and Sunnyside, Washington.
  • Virgil and Cheeta Stremler of Stremler Gravel. Virgil Stemler holds business licenses to operate in Lynden, Sumas, Anacortes, Bellingham and Blaine, Washington.[23]

CERA has also built ties with local radio personalities at the Bellingham-based KGMI radio station. KGMI’s conservative format features Rush Limbaugh, Glenn Beck and Sean Hannity.  KGMI talk show hosts Kris Halterman and Dick Donahue both attended the conference. Elaine Willman hailed Halterman as “one of the most courageous media outlets I’ve come across,” while Donahue stood to the applause of attendees. A broadcast of Halterman interviewing CERA leaders played as attendees trickled into the conference room.  CERA leaders had previously appeared on both Halterman and Donahue’s shows. Donahue doubles as radio personality and owner of Asset Advisors, LLC, a Bellingham-based financial planning firm.[24]

Halterman provides the most visible CERA/CERF link to Tea Party activism. Halterman sports her own page on the Tea Party Nation website and appears in a directory of “People Following Whatcom County” on the FreedomConnector of the Tea Party faction Freedom Works. Halterman has also been affiliated with the Bellingham Tea Party. While the local Tea Party promoted the event on a Facebook page, the group was not specially recognized or thanked from the podium by event leaders or speakers.[25] Tea Party activists may well be fellow travelers, but CERA/CERF organizers drove this event.

CERA appears to have built a relationship with longtime property rights activist Skip Richards. Richards was on hand to describe his involvement with the Department of Health’s Water Supply Advisory Committee and water resource planning in Whatcom County. Richards is known for his mid-1990s activism with the Coalition for Land Use Education. At the time, Richards flirted with militia and far right groups, as documented by Paul de Armond at the Public Good Project.[26] Richards is currently the principle of Catalyst Consulting, promoted as providing consulting services on natural resource policy.[27]

Richards’ presentation indicated that he has to-date been peripheral to CERA/CERF activity in the county. “This presentation,” he qualified, “is entirely tangential to what you’re gathered here today to  talk about. .. I don’t know a thing about these topics that you’re talking about here today. I’m listening to, learning about them, a lot of this for the first time. Way above my pay grade. I’m not qualified to comment on them. And I take no position on them.”

Richards nonetheless played to his audience by peppering his talk with the groups’ notion of tribal sovereignty as “fiction.” Recounting his experience in water negotiations, he told attendees that, “we were told we if we were going to sit down in this process, we had to accept the state’s, whatever you call it, fiction, it’s position, on tribal rights, sovereignty and all that.  That was a given.” Richard’s presence at the conference gives local CERA/CERF activists another potential Whatcom County ally.

Toward the end of the day, conference leaders and attendees discussed potential targets and goals for local activists. CERA legal counsel Lana Marcussen stated, “I’ll tell you, I think the water rights issue being number one…We start representing communities, citizens groups. I guess what I’m going to tell you is start getting organized.” The water rights conversation focused on the Nooksack River watershed where the Lummi and Nooksack tribes hold senior water rights under the 1855 Point Elliott Treaty. In the words of a handout distributed by Marlene Dawson, however, “It is my opinion that the Point Elliott treaty groups have no authority to seek ‘tribal’ water rights.”

Elaine Willman addressed a current organizational weakness – the lack of an allied anti-tribal legal counsel located  in Washington State. As Willman described, “You can count on two hands the legal counsel across the country that actually focus on Indian law on our side of the issue. You won’t find more than one or two in the whole State of Washington. That was part of our problem in Toppenish. And that’s part of the problem in Lynden and everywhere else… If you’re really going to do a good case and really hold things accountable, the first thing I would do is say, you  get a very good out-of-state legal counsel that knows what the heck they’re doing, and have that legal counsel  commit to working with Lana [Marcussen], because she’s an attorney’s attorney.”

Lana Marcussen echoed the need for movement lawyers, stating, “I think there needs to be a consortium of attorneys starting to put together, figuring out how we’re going to make a lot of money for CERA,” referencing her hope for potential lawsuits by anti-Indian activists in the event that Morton v. Mancari is undermined.

Greg Brown received some interest in opposing a proposed fee-to-trust transfer by the Lummi Nation of a parcel near Slater Road and Interstate 5 in Whatcom County. Marlene Dawson, of course, continued her call for working to diminish the Lummi Reservation on behalf of non-Indian tideland lease holders.
Whatever target anti-Indian activists in the state choose, CERA and CERF have built relations with a base of like-minded activists in Whatcom County and other parts of the state. Under these groups’ guidance, the potential for a round of renewed anti-Indian mobilization is a reality.  CERA/CERF and its local allies will have an uphill struggle to impact policy outcomes – they do, however, appear to have the capacity to sour community discussions with anti-Indian venom and misinformation.

It is time for people of good will, Indian and non-Indian alike, to stand together and tell CERA and CERF that their brand of racism is not welcome in our state, our counties, our cities and our communities.

Notes

[1]. Idle No More Bellingham. http://www.youtube.com/watch?v=s5InM3GXECA.

[2]. In 2007, then-Washington State Attorney General Rob McKenna appointed One Nation United National Director Barbara Lindsay to a position on his Task Force on Eminent Domain. McKenna’s office also gave informal legal advice to Lindsay as her group discussed its strategy concerning the culverts case (U.S. v. Washington). See Tanner, Chuck and Leah Henry-Tanner. 2012. Trampling on the Treaties: Rob McKenna and the Politics of Anti-Indianism. Borderlands Research and Education. Silverdale, Washington.

[3]. Smith, Darrel. Starter Kit on Sovereignty. Citizens Equal Rights Alliance.

[4]. Willman, Elaine. 2006 Northwest Federal Indian Policy Issues! Findings of Regional Gathering of Community Education Group Leaders Held in Marysville, WA on 03/25/06.

[5]. Robert A. Williams Jr. has described this aspect of federal court decisions at length in Like A Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in American (2005, Minneapolis: University of Minnesota Press).  Williams specifically addresses how overtly racist 19th century Supreme Court decisions continue to be used to undermine the inherent sovereignty of Indian Nations. However, the same concept is at work here - the call to use ideas found in court cases that fail to fully respect the rights of tribes and treaty obligations to seek termination and treaty abrogation. 

[6]. Devin, James. Citizens Equal Rights Foundation, Citizens Equal Rights Alliance and Central New York Fair Business as Amici Curiae Supporting Petitioners. Madison County and Oneida County v. Oneida Indian Nation of New York and Stockbridge-Munsee Community, Band of Mohican Indians. No. 10-72.

[7]. This author disagrees strongly with the characterization of Indian Nations as “quasi-sovereign.” This language is found in many Court decisions, reflecting the ultimately colonial nature of federal Indian rather than the inherent character of tribes as sovereign nations.

[8]. For more on this issue, see Smith, Gregory and Caroline Mayhew. 2013. Apocalypse Now: The Unrelenting Assault on Morton v. Mancari. The Federal Lawyer. April 2013, p.47-56.

[9]. Devin, James. Citizens Equal Rights Foundation, Citizens Equal Rights Alliance and Central New York Fair Business as Amici Curiae Supporting Petitioners. Madison County and Oneida County v. Oneida Indian Nation of New York and Stockbridge-Munsee Community, Band of Mohican Indians. No. 10-72.

[10]. Interior Board of Indian Appeals. Estate of Caroline. 3 IBIA 91 (09/21/1974).

[11]. United States v State of Washington. Case NO. CV 70-9213. Suproceeding 01-01. Memorandum and Decision. March 29, 2013.

[12].Such an interpretation is completely at odds with respect for treaty rights as well as long established “Canons of Construction” used by the Supreme Court to interpret treaties. One of the “Canons” holds that treaties should be interpreted as Indian understood them, which the Boldt treaty history made clear would not have included a decrease in fish stocks. U.S. Supreme Court. Washington v. Washington State Commercial Passenger Fishing Vessel Association. 99 S.Ct. 3055 (1979) 

[13]. U.S. v. STATE OF WASHINGTON. No. CV 9213, Sub-proceeding No. 89-3
United States District Court For The Western District Of Washington. 873 F. Supp. 1422. December 20, 1994, Decided

[14]. Coal Train Facts. http://www.coaltrainfacts.org/. Downloaded April 15, 2012; SSA marine. Press Release: Goldman Sachs Infrastructure Partners makes investment in Carrix with plans for growth. July 5, 2007. http://www.ssamarine.com/070607.html. Downloaded April 15, 2012.

[15]. Washington State Secretary of State. Corporations Division. Corporation Detail for Red Horse Capital Campaign.

[16].See Village of Hobart. http://www.hobart-wi.org/

[17]. Letter from Marlene Dawson to Jennifer Belcher, Commissioner of Public Lands. July 3, 2000; Prentice, Rachel. Lummis and water districts move toward renewed talks. Bellingham Herald. November 2, 1996; Prentice, Rachel. Lummis take swipe at county official Dawson. Bellingham Herald. August 19, 1996.

[18]. For more on APORPMS, See Ryser, Rudolph. Anti-Indian Movement on the Tribal Frontier. August 1995. Olympia, Washington: Center for World Indigenous Studies.

[19]. Williams, Tom. North County Community Alliance Newsletter. January 2007.

[20]. Tiller, Veronica and Robert Chase. 1998. Economic Contributions of Indian Tribes to the Economy of Washington State. Albuquerque, NM: Tiller Research, Inc. and Tacoma, WA: Chase Economics. http://www.goia.wa.gov/images/pdf/iacbook.pdf

[21]. Taylor, Jonathan. 2012. The Economic and Fiscal Impacts of Indian Tribes in Washington. Olympia, WA: Washington Indian Gaming Association.http://www.washingtontribes.org/pdfs/WIGA%20Taylor%20September%202012%20Web%20Version.pdf

[22]. Williams, Tom. North County Community Alliance Newsletter. January 2007.

[23]. Information on business license of supporters of the CERA/CERF event was obtained from the following sources: Washington State Department of Revenue. State of Washington Business Licensing Service. http://bls.dor.wa.gov/; Washington State Secretary of State. Division of Corporations. www.sos.wa.gov/corps/; Washington State Department of Revenue. http://dor.wa.gov/Content/Home/Default.aspx.

[25]. The American Innovator. Bellingham Tea Party. March 19, 2011. http://theamericaninnovator.com/2011/guests/031911-bellingham-tea-party; Bellingham Tea Party. Facebook Page. CERA/CERF Educational Conference. March 22, 2013. https://www.facebook.com/events/116897151834758/; Freedom Works. FreedomConnector. People Following Whatcom County. http://connect.freedomworks.org/node/13196/people?page=0%2C5; Tea Party Nation. Kris Halterman’s Page. http://www.teapartynation.com/profile/KrisHalterman.

[26]. De Armond, Paul. A Not So Distant Mirror. 1996. http://www.publicgood.org/reports/nosodist/; De Armond, Paul. Skip Richards' Years of Contact with Christian Patriot Militias. 1996; http://www.publicgood.org/reports/richards.html.

[27]. Richards, Skip. Catalyst Cosulting. http://skip-richards.com/Consulting_Services.html. Downloaded April 15, 2013.

 

Sidebar Notes

[S-1]. Amicus brief filed by CERA and CERF in the case of Madison County and Oneida County v. Oneida Indian Nation of New  York and Stockbridge-Munsee Community, Band of Mohican Indians.

[S-2]. Smith, Darrel. Starter Kit on Sovereignty. Citizens Equal Rights Alliance.

[S-3]. See Village of Hobart. http://www.hobart-wi.org/

[S-4]. Willman Elaine, Executive Director, Citizens Standup! Committee. Reply to Tom Wanamaker. http://www.parr1.com/ElaineWillman/Coming%20Out%20of%20the%20political%20fog...

[S-5]. Willman, Elaine. 2006 Northwest Federal Indian Policy Issues! Findings of Regional Gathering of Community Education Group Leaders Held in Marysville, WA on 03/25/06.

 

Chuck Tanner is a co-coordinator of Borderlands Research and Education. Borderlands is committed to using strategic research to support indigenous sovereignty and treaty rights and environmental justice.

Last modified on Saturday, 27 April 2013 15:41
Charles Tanner Jr

Chuck Tanner is a co-coordinator of Borderlands Research and Education. Borderlands is committed to using strategic research to support indigenous sovereignty and treaty rights and environmental justice.

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