Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24• TREATY RESOURCES • A win for treaty resources in Pacific NW culverts case Seattle, Wash.—Last June the Ninth Circuit Court released its long-awaited decision in the Culverts Case. This is an important decision for tribes. Many of the treaty rights caseshavepreventedstatesfromenforcingtheirfishandgame laws against tribes who have reserved the right to harvest off- reservation. This is why GLIFWC member tribes hunt and fish within the off-reservation Ceded Territories under tribal regulations, not state regulations. ThedecisionintheCulvertsCasestandsfortheprinciple thatstateshaveanaffirmativedutytoprotecttheenvironment to allow tribes the ability to access those natural resources they reserved in treaties. United States v. Washington was brought by the United States on behalf of 22 Indian tribes in the Pacific Northwest against the State of Washington. For more than 20 years, the plaintiffs have maintained that culverts built and maintained by the state block the natural migration of salmon from the ocean to inland areas used by the tribes to off-reservation fishing grounds, and thus violate the treaties. Their claims came to the Ninth Circuit Court ofAppeals several years ago, but at that time the court determined that they had not provided enough particularized information to support their claim. Thecasereturnedtocourtinthe2000s,withtheplaintiffs bringing detailed evidence showing a strong causative link between Washington’s culverts and dramatic reductions in salmon available to harvest in the tribes’ “usual and accus- tomed” fishing areas. The district court found in favor of the tribes in 2013, and the decision was appealed to the Ninth Circuit Court of Appeals. The Ninth Circuit examined the discussions made during negotiations of the Stevens treaties and found that treaty negotiators assured the tribes that they would always have an adequate supply of fish. [Governor] Stevens told the Indians during negotia- tions for the Point Elliott Treaty, “I want that you shall not have simply food and drink now but that you may have them forever.” During negotiations for the Point- No-Point Treaty, Stevens said, “The paper is such as a man would give to his children and I will tell you why. The paper gives you a home. Does a father not give his children a home? This paper secures your fish. Does a father not give food to his children?” United States, et al. v. Washington, *10 No. 13-35474, 2016 WL 3517884 (9th Cir. June 27, 2016). The court found that the State of Washington is also bound by those promises. In building and maintaining barrier culverts, the state blocked approximately 1,000 linear miles of streams suitable for salmon habitat, preventing the free passage of several hundred thousand mature salmon every year. These affirmative activities violated the treaties. The district court originally ordered the state to replace many of the culverts by October 31, 2016, with others to be replaced over a period of seventeen years. The state was required to prioritize projects that would likely result in sig- nificant benefits to the tribes. The Court of Appeals found that the district court’s design was an appropriate remedy. By Phoebe Kebec, GLIFWC Policy Analyst ThelateNorthwestIndianFisheriesCommission(NWIFC) Executive Director Billy Frank Jr. examines a culvert in the upper Nooksack River watershed in Washington State in 2008. NWIFC member tribes successfully argued that the State has a duty to protect treaty resources—in this case salmon habitat in the territory ceded by 22 tribes in Washington. For decades, poorly installed culverts have blocked the passage of salmon from the ocean to inland waterways. (photo courtesy Tony Meyer/NWIFC) Watersmeet, Mich.—Spanning some 80 miles between theOjibwecommunitiesofKakiweonianing(L’Anse)andKete- gitigaaning (Lac Vieux Desert), the ancient footpath played an essentialroleintravel,trade,andculturalexchangeforcenturies. Later, Europeans, explorers, missionaries, fur traders and early American residents incorporated the woodland route into their travels. Now, a trio of stakeholders is protecting the Lac Vieux Desert-L’Anse Trail with a formal agreement to keep the cor- ridor intact for future generations. “Forourancestors,thatwasthemainroute.FromKeweenaw Bay to Lac Vieux Desert, the trail extended all the way to Green Bay,” said Giiwe Martin, Lac Vieux Desert (LVD) tribal historic preservation officer. Representatives from Keweenaw Bay Indian Community, LVD Band and US Forest Service minted a memorandum of understanding June 23 with a signing ceremony and community feast. The new 10-year pact replaces an earlier five-year agree- ment between the parties. “The Forest Service has gone above and beyond to help us preserve that trail,” Martin said. “When you partner with other agencies and everyone comes together to do good work, the outcome is going to be good.” Whileonlyafewfeetwideduringitsheyday,theagreement establishes a half-mile buffer along the route, favoring hand toolsoverheavyequipmentandotherlandscape-alteringdevices. A consultation process kicks in when Forest Service manage- ment activity is proposed within close proximity to the ancient trail. “There are parts of the trail where we really don’t know where it goes,” Martin said. “The buffer helps keep cultural resources intact.” The north-south trail spans portions of Baraga, Hough- ton, Iron, and Gogebic County in western Upper Michigan. At L’Anse the trail terminates at the head of Keweenaw Bay and Lake Superior; the Lac Vieux Desert end of the trail opens up access to waterways leading to Lake Michigan and the Missis- sippi River system. To help the public as well as future generations understand the significance of the trail, the tribes and Forest Service are exploring an interpretive project that may include signage at appropriate locations associated with the trail. Nashke! Azheshkaawag. page 23 Forest Service, tribes preserve historic trail By Charlie Otto Rasmussen Staff Writer Lac Vieux Desert Tribal Chair- man Jim Williams Jr signs the Kakiweonianing-Ketegitigaaning Trail Corridor Memorandum of Understanding June 23 inWaters- meet, Mich. (US Forest Service photo) Storytellers project moves to Lake Superior Red Cliff, Wis.—The Ogichidaa Storytellers project continued this past June, moving from the inland Lac CourteOreillesReservationtotheshores Gichigami where tribal commercial fishermen challenged the authority of states to regulate treaty harvests in the 1960s into the early 1970s. A production team comprised of GLIFWC staff and videographer Finn Ryanmetwithtribalmembersassociated with the State of Wisconsin v. Gurnoe case (53 Wis. 2d 390 1972), and con- ductedaseriesofon-camerainterviews. The Gurnoe case stems from the fall 1969 arrest of eight tribal members whofishedinLakeSuperiorwatersnear theirrespectivereservationsofRedCliff and Bad River. The judge merged the two separate incidents into a single case to decided whether the 1854 Treaty allowed tribal members the right to fish off-reservation waters of Lake Superior without possessing state licenses and permits. Ina1972rulingthecourtfoundthat the treaty right remained intact. Today, the State of Wisconsin, Red Cliff, and BadRiverbandsmanagetheGichigami fishery together, negotiating multiyear agreements on harvest allocations for important species like lake trout. Themulti-yearStorytellersproject is, in part, designed to recognize the achievements of everyday tribal mem- bers who helped treaty tribes restore off-reservationrightsnegotiatedwiththe federal government in the mid-1800s. Producersplantomakethestoriesavail- able as individual vignettes and a full narratedcollection. —CORasmussen PAGE 5 MAZINA’IGAN FALL 2016