"The European is to other races of men what man in general is to animate nature. When he cannot bend them to his use or make them serve his self-interests, he destroys them and makes them vanish little by little before him."
- Alexis de Tocqueville -
Mt. Baker stands watch over the Salish Sea…
By Paul VanDevelder
On a summer sailing voyage from Seattle to Port Hardy at the north end of Vancouver Island, a beam reach lifted us across Boundary Passage into Canadian waters where we immediately encountered foul weather on Trincomali Channel. With a nasty chop pounding our nose at last light my crew wasn't exhibiting any enthusiasm for pressing on, so we shortened sail and fetched an unfamiliar anchorage with good holding at the southern end of Galiano Island. As eight fathoms of anchor chain rattled over the bow rollers, the haunting trill of a mother loon announced the moonrise, waxing on a spring tide, just visible through the lower limbs of ancient cedars lining the snow-white beach off our bow.
When I woke at first light and rowed ashore a surprise awaited me on the beach. A lone woman in her mid-30s, with a bright smile and a long blond braid draped over her shoulder, sat on a rock at water's edge with her legs drawn up, her hands cradling a mug of coffee she had just brewed on a camp stove. "Beautiful spot," I said, after introductions.
"I saw you come in," she said. "Trincomali can get right feisty in a nor'easter."
"It's had a lot of practice," I said.
My new acquaintance knew all about nor'easters. She'd spent years living in a tent beside this bay doing fieldwork for her doctoral dissertation in physical anthropology at the University of British Columbia, in Victoria. Now, she came here whenever she could break away from city life, as she put it, "to commune with familiar spirits," a menagerie that included critters in the old growth forest; seals, porpoises, sea otters and orcas visiting the bay; ravens, eagles, loons and geese overhead; and the ghosts of the Coastal Salish people - long since departed - who carved the totem poles that lay where they fell in the Oregon grape, three centuries ago, beside this idyllic lagoon.
"This beach is a midden of shells the Coastal Salish people harvested from the bays and tidal flats in these islands for four thousand years," she told me. "They built the village in the lee of that bluff to shelter from winter storms. When they abandoned this island, this midden was the only footprint they left behind. I had to dig straight down through ten feet of crushed shells before I hit sand."
For the Coastal Salish, the surrounding hills and inland sea were their grocery store, pharmacy, and building supply center since the last Ice Age. Today, this mist-shrouded corner of our planet is home to the white spirit bear, countless raptors, ravens, humpbacks and orcas, seals and otters, and the largest protected temperate rainforest on the planet. I had sailed the Salish Sea and towering fjords of the Great Bear Wilderness a number of times, so I knew we had dropped anchor at the geographic center of a network of trade routes that once connected the Coastal Salish to the Tlingit and Haida tribes of southeast Alaska and the Queen Charlotte Islands; to the Skagits and Nisqually and Puyallup tribes in Puget Sound; and to the 'salmon tribes' throughout the Columbia River watershed - an area the size of France - as far east as the Nez Perce and Umatilla of the plateau country; and south to the Klamath and Modocs of the high Cascades. Prior to contact with the European, this estuarial paradise sustained an estimated 200,000 people in three thousand villages. It was an exotic and complex constellation of societies, as dense as any in the Americas, comprising more than seventy distinct tribal groups that spoke dozens of languages and co-existed peacefully for more than a hundred centuries.
A combination of temperate climate, plentiful food sources and a robust barter economy made it possible for the Lummi and Chehalis, the Tualip and Alsea and Chinooks, Klickitat, Muckleshoots, Tsimshians, Yuroks, Umatilla, Yakama, and Santiams to flourish. The region's economy bristled with trade and barter thousands of years before Euripides and Aeschylus staged live dramas in amphitheaters beside the Aegean Sea. Inter-tribal trade was so robust that a newly arrived British merchant complained in 1795 that the Indians were shrewd and "set their own price on the skins [otter and beaver] which was not moderate, and we were plagued the whole day to break trade on their own terms." Historian James Ronda was more circumspect in his assessment of the interlopers: "...the simplistic diplomatic model Lewis and Clark brought with them (in 1805) sought to reduce the highly complex social and economic structure of intertribal relations...into one of child-like servility to the great white fathers in Washington."
The vanguard of Europeans quickly discovered that Pacific Northwest tribes had no intention of bowing in child-like servitude to anyone. Moreover, commercial enterprise had a lethal edge. "You killed a large percentage of the customers in order to do business with the rest on terms you considered proper,” wrote one Spanish captain. Like the Spanish, Russians, and English who preceded them, the Americans - latecomers to the region - carried primitive notions about native people that bore no likeness to the complex social tribal matrix they encountered at the turn of the 19th century.
Sophisticated tradecraft developed 'pre-contact' on a network of trade routes that criss-crossed North and South America on trails no wider than a man's shoulders. The Cree of eastern Canada traded with the Comanche of the American Southwest at the Mandan Villages on the Missouri River centuries before the French visited those villages in the 1730s. The Inca traded squash, corn and beans with the Cuna, Maya and Aztec in Meso-America, who in turn traded seeds through intermediaries with the Choctaw and Mandans on the Mississippi and upper Missouri rivers. Centuries of favorable climate and successful horticulture propagated a pre-Columbian population that numbered between 80 and a 100 million people. Meanwhile, across the Atlantic, famine and disease held Medieval Europe in a death spiral that trapped political and social evolution in a state of arrested development for centuries. When author Charles Mann asked five anthropologists where they would have chosen to live in 1491, in Europe or the Americas, they answered in one voice: the Americas.
From the sea, Pacific Northwest tribes harvested crabs and octopus, seals, sea lions, whales and porpoises, halibut, oysters, clams, scallops, mussels, cod, seaweed and kelp. From the forest they took deer and elk, mountain goats, black bear, rabbits and squirrels, and collected gooseberries, currants, raspberries, bracken fern, blackberries, strawberries, huckleberries, wild plums, crab apples, acorns, hazelnuts, myrtle nuts and walnuts. From the rivers and valleys they took seven species of salmon, lamprey eels, trout, steelhead and smelts, ducks, geese, swans, cranberries and camas bulbs. Their wealth was measured in dentalium shells, abalone, obsidian blades, baskets and canoes, and what they could not hunt and gather in their own environs they could easily acquire at the trading bazaar at Celilo Falls, or from numerous other gathering places scattered around the Salish Sea and the Columbia River watershed.
For millennia, Northwestern tribes lived far to the west of European imaginations. That is, until one cool July morning, in 1776, when a small group of Kalapooia women set off in canoes from their summer camp to harvest camas bulbs in the Willamette Valley. That same morning, members of the Cayuse tribe awoke to a new day of trading with their relations from the Wyams and Umatilla tribes at the great falls at Celilo. Three thousand miles away, a canon roared in a public square in Williamsburg, Virginia, announcing the birth of a new nation that keened the end to a way of life that Native Americans, occupying ninety-six percent of the continent, had known since 'the beginning of time.'
SHIP OF DISCOVERY, SAILORS OF CONQUEST
The first European explorers to the Pacific Northwest came by sea in the 18th century - Spanish ships from the south and Russian ships from the north - to trade for sea otter pelts. “The fur of these animals is softer and finer than that of any others we know of," noted one Russian merchant, "and therefore," he predicted, "the discovery of this part of the continent, where so valuable an article of commerce maybe met with, cannot be a matter of indifference.” Indifferent, they were not. More than four hundred voyages brought traders and merchants from eight different countries between 1774 and 1820. Following the Spanish and Russians ships came the English. Captain James Cook was determined to find a Northwest Passage to the Atlantic Ocean and claim these water and the surrounding lands for King George III. In that pursuit he failed, but the intrepid Canadian explorer, Alexander McKenzie, travelled overland from Ontario to British Columbia in 1794. Lastly came the Americans, who arrived by sea and down the westward flowing rivers. They found land's end at Astoria, at the mouth of the Columbia River, where they were soon followed by men intent on establishing entrepreneurial empires - including The Rocky Mountain Fur Company and the Northwest Fur Company. The cachet for being the first ship to breach the treacherous mouth of the Columbia River went to the American sailing captain, Robert Gray, who steered the Columbia Rediviva across the river's bar on May 12, 1792, an achievement he memorialized by naming the river for his ship and claiming the adjacent lands for the United States.
The native residents were "very much surprised and alarmed" by the sight of Gray's ship when it dropped anchor in the river. Once their astonishment gave way to curiosity they "were all seized with such consternation as to abandon their village," Grey wrote in his log, "leaving only a few old people who could not follow...and thus a friendly intercourse was immediately entered into and which has never since been interrupted." Gray soon took leave of these friendly surroundings and swung his compass north, toward the Straits of Juan de Fuca.
Five months later, the English naval Captain George Vancouver sent a flotilla of long boats a hundred miles up the Columbia and made a duplicate claim to the river and surrounding lands for the English crown, setting up a legal battle - "The Oregon Question" - that would not be settled until 1846 when both nations agreed on the 49th parallel as the frontera between the United States and Canada. Then, an improbable event on the island of Haiti redrew the map of the known world and forever altered the life-ways of native people throughout the Americas. Northwestern tribal societies could not imagine how the forces of nature that governed their world - the seasons, the tides, the flowering camas lily and the seasonal return of salmon -would soon be eclipsed by legal constructs of conquest dreamed up in faraway lands by Popes, kings and emperors.
BARGAIN OR BOONDOGGLE?
When a waterlooed Napoleon Bonaparte surveyed the ruins of his life from the wind-scoured barrens of the South Atlantic island of St. Helena, he confessed in his diary that the greatest folly of his career was the military campaign he launched to quash a slave revolt on the island of Haiti, in 1802. On Napoleon's mental map of the world, Haiti was to France what Virginia was to King George III half a century earlier - a strategic geo-political military asset at the crossroads of lucrative trade routes that served as France's center of colonial governance. The island anchored the southern end of the emperor's grand colonial scheme, linking French colonies in the Caribbean to Quebec, Canada, via the continent's principal highway of commerce - the Mississippi River. France had controlled the Mississippi since the LaSalle expedition claimed it for King Louis XIII in the 17th century under the Doctrine of Discovery, a legal construct of international law with origins in the Crusades that gave Catholic kings and queens the right to lay claim to distant lands inhabited by savages, pagans, infidels and non-believers.
Napoleon's plans for consolidating the French empire encountered a speed bump when a charismatic Haitian slave, Toussaint L'Ouverture, led a revolt against French authorities in Port-au-Prince. French troops put down the revolt, but not before 50,000 French troops lay rotting in the sun under tri-colored flags. When news of the death of his commander in Haiti reached Paris in January 1803, the Corsican peered ten moves deep into the chessboard of Europe and recalibrated his global ambitions. Napoleon looked at the world as a game board he could control with military genius and sheer will, and his unique gift came in seeing the contour of empire emerging from grand strategies. Rather than risk more humiliation across the ocean, he decided to focus his energies on consolidating the game board of Europe under the French flag. Victor Hugo observed: “The energy that no other ruler of men has ever had in equal measure reached the incandescence it was to maintain [in Europe] until God grew bored with him.” Napoleon's decision to abandon French territories across the Atlantic instantly transformed his Haitian folly into an unexpected windfall for the new president of the United States, Thomas Jefferson.
Jefferson, elected to the presidency in 1800, spent the first two years in the White House trying to secure commercial navigation rights to the Mississippi River. Spain controlled the Mississippi and the Port of New Orleans because the Spanish crown, in a secret treaty with France in the 1760s, had agreed to safeguard French territories from conquest during France's war with England. The French-Spanish alliance proved to be a stubborn obstacle to Jefferson's ambitions on the Mississippi. Unbeknownst to him, the Spanish envoy's refusal to negotiate was a consequence of France secretly reclaiming the Louisiana territories from Spain, in 1800, through another secret compact known as the Treaty of San Ildefonso.
When the French governor of Louisiana hoisted the tri-color on Governor's Square in New Orleans, in 1802, there was no doubt on either side of the Atlantic that this event, as the historian Henry Adams put it, would forever "change the face of the world." Learning of Napoleon's treachery, Jefferson immediately dispatched James Monroe to Paris with a letter informing his plenipotentiary, Robert Livingston, that a treaty of intercession between France and Spain, if true, would leave the United Sates no choice but to "marry ourselves to the British fleet and nation" in preparation for war against France.
Bonaparte yawned. Jefferson's benign saber rattling did not disturb the French emperor in the slightest. France's true adversary in this trilateral intrigue was the British Crown. The long-standing enmity between France and England now played into Napoleon's grand strategy. "To emancipate nations from the commercial tyranny of England, it is necessary to balance her influence by a maritime power that may one day become her rival," Napoleon wrote his foreign minister, Talleyrand, "and that power is the United States...Obstinacy in trying to preserve it [Louisiana] would be madness...I have given England a maritime rival who sooner or later will humble her pride." True to Napoleon's designs, the United States and England - instead of becoming allies - rushed back to war against each other in 1812.
The treaty of cessions between the United States and France has been viewed ever since as the signature accomplishment of the Jefferson presidency. On April 11, 1803, the ripe apple of French 'Louisiana' tumbled from an overhanging branch into Jefferson's lap. No one was more thunderstruck than the Prince of Monticello, whose misleading choice of words describing the transaction as a 'purchase' succeeded in obscuring for the next ten generations of American school children the legal underpinnings of a far reaching deal that suddenly found itself subsumed by falsehoods that have since become standard narratives in American history books. As President Franklin Roosevelt's solicitor for the Department of the Interior, Felix Cohen, explained to a bewildered audience of congressional lawmaker's in the late 1930s, the 'Louisiana Purchase' was a chimera in Jefferson's imagination.
"Practically all of the real estate acquired by the United States since 1776," explained Cohen, "was purchased not from Napoleon or any other emperor or czar but from its original Indian owners. What we acquired from Napoleon in the 'Louisiana Purchase' was not [title to] real estate, for the treaty itself recognized all [but 60 square miles] of the ceded territory as being owned by the Indians." Jefferson's treaty with Napoleon specifically stipulated that the lands known as Louisiana were owned by the tribes who lived there; from the Mississippi River to the Rocky Mountains, and from the Gulf Coast to Canada.
'IN ALL THE USUAL AND ACCUSTOMED PLACES'
At this point in the development of a cohesive federal Indian policy, writes the renowned Indian law scholar, Robert Williams, "...the idea that normatively divergent savage peoples could be denied rights and status equal to those accorded to the civilized nations of Europe" became an established principle of federal Indian law for a United States government "...whose discourse of conquest ensured that all future acts of genocide would proceed on a rationalized, legal basis." President Andrew Jackson said as much in his farewell address to Congress, in 1833, declaring that Indians "have neither the intelligence, the industry, the moral habits, nor the desire of improvement which are essential to any favorable change in their condition. They must necessarily yield to the force of circumstances and ere long disappear."
In the 1830s and 1840s, the ethnic cleansing of Indians from eastern forests was accomplished through a series of 'removals' implemented by Jackson and a compliant Congress in defiance of rulings by Chief Justice John Marshall and the U.S. Supreme Court (which, at the time, had no power to enforce it's rulings). With the removals of Cherokee, Creeks and Choctaw as prologue, George Manypenny's first official act as the new commissioner of Indian affairs, in 1854, was to drop a legal bombshell on lawmakers. Congress, at the time, happened to be engaged in a furious debate over the future of slavery west of the Mississippi River. The United States government does not own Kansas or Nebraska, Manypenny informed lawmakers, any more than it owns the Dakotas, Wyoming or the Montana territory. The commissioner explained that this misunderstanding grew out of a misreading of the treaty between France and the United States, popularly known as the 'Louisiana Purchase.' The language of the treaty, he pointed out, recognized Indian nations as the titled owners of the former French territories. What Jefferson and the federal government purchased from France, for $15 million, was the right to use the rivers for commerce, the right to govern, and the privilege of moving the nation's western border to the Rocky Mountains. The only real estate that changed hands in this deal was the land beneath the port settlements of New Orleans and St. Louis. "Gentleman," said Manypenny, quoting from the treaty itself, "the rights of person or property now pertaining to the Indians in said Territories is inviolate." This meant that none of the lands described as 'Louisiana' could become public domain until the Indian Nations agreed to cede the land to the United States by treaty.
This shocking news presented Congress with a legal problem far more complex than settling the slavery question in Kansas and Nebraska, but one which is curiously absent from history books on 19th century national expansion. In 1854 the federal government had neither plans nor inclinations to negotiate treaties with the 'wild tribes of the West.' Now, it seemed, it had no choice. Fur men had trapped out most of the western rivers, silk had replaced beaver felt in European haberdasheries, the "Oregon Question" had been resolved with England, gold had been discovered in the Sierra Nevada mountains of the newly acquired territory of California, and Indian Nations, it turned out, owned all avenues and pathways to the Pacific Coast.
The rush of immigrants across the continent, which began as a trickle in the late 1830s and grew into a river in the early 1840s, had enormous consequences for immigrants and Native Americans alike. As Congress hurriedly dispatched treaty commissioners to negotiate with the tribes, lawmakers and settlers in the West increasingly came to rely on the time-honored solution to the government's 'Indian problem' with it's favorite tool; 'treaty-and-breach' (read: the forced removal of Indians from treaty protected lands). To pacify tribes in the Pacific Northwest, Congress drafted the Organic Act when news reached the nation's capitol that an incident between the Cayuse and Christian missionaries in Walla Walla, Washington, had resulted in numerous deaths on the Oregon Trail. This act created the Oregon Territory with the intent of reassuring native leaders that the Great White Father wanted peace: "Nothing in this act...shall be construed to impair the rights of person or property pertaining to the Indians in said territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians."
Congress sent a treaty commission to the Oregon Territory to reassure all of the tribes that immigrants would settle on none of their lands unless and until they agreed to land cessions in formal treaties. To underscore that promise, the government's principal treaty negotiator, Isaac Stevens, allowed expedience to masquerade as largesse. He guaranteed the Umatilla, Yakama, Walla Walla, Nez Perce and Salish Sea tribes that they could retain their usufructory rights - to 'hunt, gather and fish' - in all of their usual and accustomed places. Stevens' legendary energy and intelligence was exceeded only by his ambition. He told white settlers in Olympia, Washington, that his principal objective was to "extinguish, as quickly as possible, the Indians' claims to their traditional lands so that immigrants could be given legal title." To achieve that end he acceded to the tribes' demands to retain their 'usufructory rights' bolstered by the belief that the wave of settlers moving across the continent would eventually make those concessions moot.
The U.S. Senate ratified ten treaties brokered by Stevens that reserved tribal 'privilege of hunting, gathering roots and berries and pasturing their livestock on unclaimed lands in common with citizens of the United States.' Die cast for pennies, glass beads, and shiny objects at treaty councils in the mid-19th century would morph into billion dollar contests in the 21st.
SOVEREGNTY AND FEDERALISM
Few facts of American life haul more deeply contentious freight in state legislatures and federal courtrooms than treaties with Indian nations that continue to protect Native American sovereignty. Non-native citizens are baffled by the questions never answered in their high school and college history books: How does native sovereignty work in the framework of federalism, and why do the tribes win so many cases based on these archaic agreements?
Chief Justice John Marshall anticipated those questions with unadorned language in the landmark cases, Cherokee v. Georgia, 1832, and Worcester v Georgia, in 1833. "Sovereignty," he wrote, "exists as a pre-condition among self-governing entities and acts as a legal shield protecting all rights and privileges reserved and implied by nationhood." This doctrine, also known as the Marshall Trust Doctrine, elevated Native sovereignty out of obscurity into a full partnership with the federal government in the framework of federalism and the U.S. Constitution, a perilous sin of omission the nations' founders knowingly left to the wisdom of future generations.
But non-native America in the 19th century was ill disposed to retrofitting Indian Nations into the power-sharing framework of federalism. Nevertheless, Native sovereignty proved to be a stubborn impediment to westward migration for Euro-Americans, so Congress and successive Presidents ignored Marshall's rulings in order to effect the 'removals' of Native people from treaty protected homelands in the East. Compacts brokered by Isaac Stevens in the 1850s, however, were not so easily dismissed when the thorn of sovereignty pierced the veil of federalism a century later in fierce contests over the protection of diminishing natural resources such as Chinook and Coho salmon. Those compacts, protected by Article VI, Clause 2 of the U.S. Constitution as 'the supreme law of the land,' are the ground on which great legal battles are being fought today by tribal, state, and federal agencies. Irony, in the case of Native sovereignty and federalism, is the hand holding four aces. Land has been replaced at the heart of modern battles by the thorny legal construct known as 'usufructory rights.'
THE GHOST OF JOHN MARSHALL
For more than a century, Indian Country land theft was so commonplace that Congress was finally compelled, in the 1940s, to establish the Indian Claims Commission to remedy the disappearance of 125 million acres of tribal trust lands in the American West. Chief Joseph's band of the Nez Perce, in the Wallowa Valley of eastern Oregon, won a $9.2 million award for lands illegally deeded to settlers by government agents in the 1880s, but financial remuneration for their loss was notable as an exception among tribes in the Pacific Northwest, most of whom went away empty handed despite dozens of well documented claims. This was no accident. The commission was disinclined to repatriate stolen lands to Indian tribes that were - unbeknownst to tribal governments - secretly identified by the Department of the Interior for 'termination' of tribal status. Congress dismissed claims made by the Cayuse, Modoc, Klamath, and Yakama tribes, among others, without explanation.
The Termination Act of the 1950s, promoted by a former Oregon governor and car salesman, Douglas McKay - then Eisenhower's secretary of the interior - targeted dozens of tribes and bands for termination in Oregon alone. The law sought to condemn treaty-protected trust lands under eminent domain, abolished Indian governments, sold off enormous tracts of timber and other resources, and suspended the health, housing and education programs created for Indians by President Franklin Roosevelt's visionary Commissioner of Indian Affairs, John Collier, under the Indian Reorganization Act of 1934. State governments in the West viewed Collier's programs as a serious threat to their own sovereignty and their plans to disenfranchise Indian tribes, so when Republicans took control of Congress in the 1950s, rolling back FDR's Indian policies was a top priority. Numerous reservations were closed. In 1956, the Bureau of Indian Affairs appointed trustees to sell off 'surplus' Indian lands as quickly as possible. "If it meant cutting down every tree in Oregon," wrote the legendary Sioux lawyer and activist, Vine Deloria Jr., "they would have so authorized."
The 'removal era' of the 1830s had been resurrected in a new guise. Indians who lost their homelands in the 1950s to termination were then shipped off to urban centers such as Chicago, Los Angeles, San Francisco, Seattle, and Denver with one-way bus tickets and a voucher for a room in a flophouse, redeemable at the local Bureau of Indian Affairs office when they got off the bus. A program of forced urbanization of the American Indian, modeled after Commissioner Dillon Meyer's repatriation of Japanese citizens held in internment camps during WWII, exiled tens of thousands of Indians from their homelands into urban ethnic slums.
Racism dies hard in America. Mythological narratives become surrogates and place holders for what took place in the darkest shadows of our national narrative. Stories that begin in blood usually end in blood, but truth finds its way to high ground on incoming tides. A poll taken during President Kennedy's first year in office found that a large majority of Americans viewed the 'Indian situation' as a 'disgraceful blight on the conscience of the nation.' Something had to be done.
Sensing a shift in national sentiment, terminated tribes from Wisconsin to the Pacific Northwest quietly began winning back federal recognition in the 1960s, but native people would not forget the devastating traumas of termination and relocation. As it has so often in the story of the Native America, irony struck once again in 1971. Behind the leadership of President Richard Nixon and Senator James Abourezk (a progressive Democrat from South Dakota), Congress disavowed a century and a half of failed Indian policy after the debacle of Wounded Knee II by passing the American Indian Self-Determination Act of 1974, to be followed two years later by the Indian Health and Education Acts. "When we got that through Congress, less than a thousand Indian students were attending schools of higher education, nationwide," the late Vine Deloria Jr. once told me. "Twenty years later, more than 80,000 native students were in colleges and universities. The Coyote Warriors were on the move. Richard Nixon made that happen."
Two years after the Indian Health and Education Act was passed, President Jimmy Carter's secretary of the interior, Cecil Andrus, sponsored the American Indian Religious Freedoms Act. This long overdue rollback of the Religious Crimes Code of 1883 - a notorious law that striped indigenous people of their 1st Amendment religious freedom - restored to Indians the right to perform traditional ceremonies, such as the Sun Dance, and extended protection to native sacred sites, such as the Medicine Wheel atop the Big Horn Mountains in Montana, for the first time in a century. In that politically charged atmosphere, the landmark Boldt Decision in 1974 - written by the senior judge of the federal district court in Tacoma, Washington - set off a civil war of words and dockside violence in the region when the court awarded the 'salmon tribes' fifty percent of the commercial catch of anadramous fish in the Columbia River watershed and beyond, a ruling that cited the 'usufructory rights' in the Steven's treaties as being the decisive provision in the legal battle with the states of Washington, Oregon, Idaho and Montana. "The right of taking fish, at all usual and accustomed grounds and stations," wrote Judge Boldt (quoting the treaties), "is further secured to said Indians, in common with all citizens of the United States."
Boldt's opinion, erected as it was on John Marshall's long-settled trust doctrine, withstood a relentless barrage of attacks by Washington state's attorney general, Slade Gorton. As a U.S. senator, Gorton would unsuccessfully resume his crusade against usufructory treaty rights by introducing a raft of bills in Congress designed to roll back tribal sovereignty. None passed muster. "In the old days," says Tom Goldtooth, director of the Indigenous Environmental Network, "we used bows and arrows to protect our land, our families, our resources. That wasn't very effective. A century later we exchanged our bows and arrows for science and law. That's worked out much better."
It has, indeed. When the Klamath tribe sued the state of Oregon to honor its 'prior appropriation' water rights in the monumental Adair v. Oregon case, federal district court judge Gus Solomon ruled that the tribe's water rights were protected by the 'supremacy clause' of the U.S. Constitution and must be restored. Science and law work so much better that the U.S. Supreme Court upheld the Mille Lac's Chippewa's usufructory rights to fish in their 'usual and accustomed places' in Minnesota against a fierce attack by the state. Science and law have worked so well that the high court upheld a lower court ruling in favor of the Isleta Pueblo tribe's right to establish it's own water quality standards on the Rio Grande River in New Mexico under provisions of the Clean Water Act, a ruling that forced the city of Albuquerque to spend $400 million to clean up its upstream waste-treatment facilities, and has been followed by dozens of tribes in other states. They worked so well that the U.S. Supreme Court upheld the rights of Puget Sound tribes to access their ancestral shell fish beds across private land, and they have worked so well that last year, the Ninth Circuit Court ordered the state of Washington - now distinguished for having the longest losing streak of legal battles against Indian treaties of any state in the West - to remove thousands of culverts (at a projected cost of billions of dollars) that either impede or prevent salmon from reaching treaty protected spawning beds in the Salish Sea watershed.
If past is prologue, these cases foreshadow a litigious future for tribes - many of which are rich with natural resources protected by treaties - and jealous state governments that are growing desperately short of much needed natural resources, such as water, arable land and timber, mineral deposits and dinosaur juice. Of course, no one reporting on these cases, either in print or electronic media, ever mentions Chief Justice John Marshall, or the Worcester v. Georgia decision of 1833, or the sanctity of the trustee/guarantor relationship between Indian nations and the federal government, nor the 'supremacy clause' in the U.S. Constitution. But make no mistake. The ghost of the great jurist stood in the shadows of those courtrooms where these contests were decided. A faint smile bracketed his piercing black eyes and the peerless legal mind that lurked behind them, a mind that realigned federalism to include Indian Nations, that protected Indian sovereignty for the ages, and single handedly set a fledgling nation on it's feet.
The story of people indigenous to the Pacific Northwest, from Southeast Alaska to the northern California, can take as its beginning the first oyster shucked by a Coastal Salish woman on that white shell beach on Galiano Island, in British Columbia, thousands of years ago. Where will that story end? Recently, a visionary architect named William McDonough was hired by the Department of Energy to explore long-term solutions for nuclear waste at Hanford Reach, a radioactive superfund site on the Columbia River that has defied solutions for decades. Intrigued by the challenge, McDonough convened a team of engineers to begin looking for answers. On a visit to the site, he and his group were invited to attend a powwow being hosted by the nearby Yakama tribe. Over dinner the tribal chairman inquired as to the nature of their project. McDonough explained that his team was looking for a fail-safe way to tell people, ten thousand years in the future, that the nuclear waste stored at Hanford will still be extremely dangerous.
"Oh, that's what this is all about," said the surprised chairman. "Well, I can put your mind at ease about that. Don't worry, we'll tell them."
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Paul VanDevelder is the author of Coyote Warrior: One Man, Three Tribes, and the trial that forged a nation (Little,Brown & Co.), and Savages and Scoundrels: The untold story of America's Road to Empire through Indian Territory (Yale University Press), and "Reckoning at Standing Rock," (High Country News) web site: http://www.savagesandscoundrels.org