This article opens a three-part examination of Washington State Attorney General Bob Ferguson’s appeal of a treaty-rights affirming decision by the Ninth Circuit Court of Appeals in the “the culverts case.” The case is slated for oral arguments before the U.S. Supreme Court on April 18. This first article provides an overview of the issues to come. The second installment will detail Ferguson’s opposition to tribal treaty rights and how it catapulted the organized anti-Indian movement to the halls of the U.S. Supreme Court. The third segment will examine how Ferguson’s attack on treaty rights continues long-standing practices of the Washington State Office of the Attorney General. Throughout, these articles will discuss how Ferguson’s actions are also rooted in an even longer “tradition” – that of settler colonialism in the United States.
Bob Ferguson and the Citizens Equal Rights Alliance
“Politics makes strange bedfellows.” Adapted from a line in Shakespeare’s The Tempest, this adage describes short-term alliances between political actors with seemingly little in common. In the light of facts and logic, however, it generally turns out that the “strangeness” is much ado about nothing – such associations being readily explained by the interests and ideological commitments the “odd fellows” share, at least on specific issues.
Such is the case with amicus briefs filed in March by the anti-Indian Citizens Equal Rights Alliance (CERA), and anti-environmental Pacific Legal Foundation, in support of Washington State Attorney General Bob Ferguson’s opposition to tribes in the latest phase of U.S. v. Washington – known as the “culverts case” and set for oral argument before the U.S. Supreme Court on April 18th.
The original Boldt decision (Phase I of U.S. v Washington) in 1974 ruled that treaties signed in the 1850s had reserved to tribes one-half of the fish moving through their “usual and accustomed” fishing places as well as a tribal right to co-manage fisheries with the State of Washington. As part of Phase II, in 2016, the Ninth Circuit Court of Appeals upheld a district court ruling that culverts managed by the State of Washington violated these treaties by cutting off habitat and contributing to the reduction of salmon populations. Ferguson’s appeal takes aim at the latter decision.
The Citizens Equal Rights Alliance is a leading national anti-Indian organization, seeking the termination of tribal governments and the abrogation of treaties signed between tribes and the United States. The Pacific Legal Foundation is a libertarian-leaning legal advocacy group that seeks to gut environmental protections and other federal regulations. These organizations’ briefs in the culverts case call for far reaching assaults on tribal treaty rights and sovereignty, as will be detailed in the second article in this series.
Bob Ferguson, a Democrat, has become a darling of civil rights advocates and environmentalists – and for good reason. When reality-TV President Donald Trump stepped up attacks on immigrants, Muslims and the environment, Ferguson sued to block the administration’s proposed Muslim travel ban, attack on DACA (Deferred Action for Childhood Arrivals) and proposals to boost coal leasing on federal lands, among other things.
On tribal treaty rights, however, “knavery’s plain face” showed when Ferguson appealed the Ninth Circuit’s decision in the culverts case. In part, Ferguson is opposing language from a 1979 Supreme Court ruling indicating that tribal fisheries must be protected so that tribes can attain a “moderate living” from them. The second installment in this series will examine how arguments similar to Ferguson’s have been used by the organized anti-Indian movement. It will also describe how Ferguson’s appeal of the Ninth Circuit ruling helped place even more radical assaults on treaty rights before the U.S. Supreme Court.
But the AG’s actions did not stop there. In February, Assistant Attorney General Mike Grossman signaled the office’s opposition to the inherent right of the Skokomish Tribe to manage fisheries on the stretch of the Skokomish River abutting the tribe’s reservation. A January 2016 memo from the U.S. Department of Interior had affirmed that this area of the river “is held in trust by the United States for the benefit of the Tribe.” Grossmann explained to the Kitsap Poggie Club on February 21 that federal and tribal sovereignty immunity kept the state from suing to challenge Skokomish control of the river. Not stymied by this, Grossman stated, “I think, frankly, the federal government has to sue us…And why would they do that if we’re not fishing? … I think we need to get back in the river and fish.”
That is, the Washington State Assistant Attorney General appeared to encourage non-Indians to fish in opposition to the treaty-reserved right of the Skokomish Tribe to manage fisheries on the river that bears their name.
In these actions, Ferguson is carrying on the anti-Indian “traditions” of the Washington State Office of the Attorney General – practices tracing most directly to the 1970s when anti-Indian leader Slade Gorton held the office and launched a career attacking tribal sovereignty and treaty rights. A third article in this series will examine the anti-Indian history of the AG’s office and Ferguson’s place in it.
But Ferguson’s actions are rooted in an even deeper American “tradition” – that of settler colonialism. Not just concerned with installing a “native” administration subordinated to the colonizer to in order gain control over cheap labor and resources – e.g., Britain’s escapades in India – this brand displaces an area’s original inhabitants to create access to resources, labor and living space for citizen-settlers.
Across its recent history, the Washington State Attorney General’s office – whether occupied by Republicans or Democrats – has supported at least three types of action rooted in settler colonialism: the displacement of tribal members from long-standing fisheries so that non-tribal, mostly white, citizen-settlers could seize them; attempting to ensure that the state’s citizen-settlers could act with impunity in Indian Country by not having to follow tribal laws and regulations; and defending the ability of the state’s citizen-settlers to engage in economic and development activities without regard to negative environmental impacts on tribal fisheries.
Specifically, Bob Ferguson’s appeal in the culvert case is attempting to absolve state government from responsibility for its damage to tribal fisheries. The AG’s opposition to Skokomish Tribe fisheries management hearkens back to those days when “outlaw fisheries” simply seized treaty-reserved fish.
In this short-sighted approach, the Washington State Attorney General is contributing to the destruction of ancient fisheries that support Native and non-Native families alike. This fact was addressed in an amicus brief from eight non-Indian commercial and sports fishing organizations stating that,
“Washington’s salmon fisheries are vital to non-Indian fishing families in Washington and Alaska. Salmon fishing has provided economic opportunity and a way of life for generations. Culverts owned by the State of Washington block access to vast areas of salmon habitat and spawning grounds, crippling these fisheries. Harm to Washington’s salmon fisheries directly harms fishing families and businesses throughout the Northwest and Alaska. The district court correctly found that injunctive relief was necessary to address the harm caused by the State’s culverts.”
In the end, the bedfellows of CERA and Attorney General Bob Ferguson are not that strange, intersecting where settler colonialism brings together a state attorney general carrying on his predecessors’ racist practices and an anti-Indian organization dedicated to ending tribal nationhood in the United States.
A brief supporting treaty rights from former Washington State Governor Dan Evans stated that such conflicts can lead to “serious racial tension that the State should strive to avoid.” In the immediate post-Boldt period, and more recently, such conflicts led to outbursts of bigotry and threats of violence directed at tribal fishers.
If this tragic past repeats itself in the wake of the culverts decision, or along the banks of the Skokomish River, blame can be placed firmly at the doorstep of the Washington State Office of the Attorney General.