The Lummi Indian Tribe has ordered Whatcom County to cease and desist the operation of a ferry that has served the public for a century. Residents of Lummi Island are in a panic. The prospect of radical fare increases or discontinued service is causing many to wonder if it is time to cut and run, but a downturn in the housing market and historic constraints on lending leave them uncertain whether they can even sell their homes.
The Tribe has threatened to end access in less than sixty days, leaving children with no way to get to schools and elders wondering if they will have emergency medical services. Many residents work on the mainland and wonder how they will get to work and pay their bills. Many are concerned they will lose everything, including their beloved island community. Lummi spokespeople have suggested they will make certain accommodations, implying an intent to increase their role as gatekeepers on this public way.
For more than a year, individual citizens, citizen groups and even local government officials, despite special trips to Washington, D.C., have been unable to gain the attention of their Congressional delegates, who report about $150,000.00 per election cycle in tribal "casino/gambling" campaign contributions. Letters from citizens have gone unanswered. A few rare replies from staffers have maintained a "hands off" attitude, claiming it is a matter for the County to settle with the Tribe. However, U.S. policy calls for federally mediated settlements of such historic disputes with tribes.
In 1921 the federal government approved a right-of-way for a ferry that has continuously served the public both before and since. This shortest crossing has, indisputably, been favored for millennia. Now, the Tribe asserts that later court rulings and the evolution of tribal sovereign power means the county ferry must either submit to extraordinary payment demands, cease to operate, or make treacherous crossings to alternate landings.
The Tribe asserts that the right-of-way as approved is insufficient, that their sovereign authority exceeds that of the Department of Interior's approval of the right-of-way, the Bureau of Indian Affairs approval and original investment in the landing, the United States Army Corps of Engineers' approvals of modifications to the facility, the authority of Congress to license and enroll a U.S. vessel for the traffic, the Commerce Clause of the U.S. Constitution, the principle of federal Navigational Servitude, their agreement to a federal judge's consent decree, public necessity, and a host of longstanding U.S. policies and legal precedents.
While charging private businesses on adjacent docks $150 per month, the Tribe demands $100,000 per month for the approved public roadway. In a recent communique, tribal authorities rejected the county's best offer of $200,000 per year - to the relief of many residents who don't understand why the right-of-way doesn't protect them from drastic fare hikes already implemented to cover costs of an interim agreement.
County and tribal officials have been talking for over a year, but citizens have been excluded from negotiations kept secret as a condition of the Tribe.
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O.K., enough is enough. Preface: I have a long history as a public interest advocate and am not without empathy for the Lummis. I have advocated on their behalf for many years. I ran a boatyard in Fairhaven for decades and had many an occasion to argue with local fishers over the propriety of the Boldt decision and the importance of usual and accustomed tribal fishing grounds. I have supported Indian Self-Governance, helping recruit and run tribal candidates for public office in the County. While working to hold Georgia Pacific accountable for its pollution, I advocated studying mercury levels in Lummi school children whose diet includes a large proportion of local seafood in which methyl-mercury is known to bioaccumulate. So I am not now going to apologize for arguing against them on this issue. I think they are dead wrong and hurting their own prospects with their current strategy.
Tonight, the Lummi Island Community Association hosted County Executive Pete Kremen, County Attorney Dan Gibson, County Councilor Barbara Brenner and Public Works Director Frank Abart for a discussion of the recent Lummi ultimatum. They said they remain open to a reasonable settlement, but upon the rejection of their last best offer, have redoubled their efforts to bestir Congressional delegates to action. A recently penned letter from the County Executive urges our federal representatives to encourage the administration to officially approve the lease rejected by the tribe last year.
I didn't have a chance to speak, but if I had, this is what I would have said:
Public interest advocacy is my hobby and I've been hobbying this issue for a while. There are several things that have been really annoying me, like the fare increases. This hobby is getting very expensive. Just coming to these meetings, the rarest of opportunities for public involvement, has cost me forty bucks!
The overarching annoyance is the lack of public participation. Tonight, citizens wanted to know if creative solutions were being explored. Public officials assured them no stone had been left unturned. Well, thanks but no thanks. I am really not interested in a lot of creative problem solving behind closed doors. Whatever creative solutions are considered should be considered with affected citizens and the public at large. Otherwise, those who will pay have no say in what the charges might be. If federal policy for federal mediation of a comprehensive settlement were followed, all citizens, tribal or not, would be welcomed to be involved.
Annoyance number two: The Lummi ultimatum states that the Tribe does not want to be a "drive through community" for the ferry.
Look, I'm on record all over the place professing that cars are the scourge of the earth. Nothing else "drives" bad land use management, environmental degradation, and economic waste so unintentionally. I am on record on this issue, believing cars and their disruptions are probably more significant than the ferry's operation. This belief is born out in the Lummi demands for five times the ferry charges toward traffic safety improvements annually.
Nevertheless, I'm offended. Public ways are a public convenience, serve public necessities, and yes, create some problems. Live with it. Manage it. My neighborhood, and all of Whatcom County, is a "drive through community" for residents of the Lummi Nation. No one is charging them a fortune to go home or wherever they please. A Lummi Nation Para-Transit vehicle routinely passes my front door on its way to a nearby public housing complex. I welcome them and hope they are providing a valuable service to their clients. Blessings be!
I am ultimately annoyed that the County persists in pursuing a lease when a right-of-way has already been approved. A lease only assures this dispute will be continued, either at the end of a lease term, or arbitrarily with a change of tribal representation. Gatekeepers on public ways are inimical to the basic freedoms we all want to enjoy. It is the stuff of feudal fiefdoms, castles, cannons, tribute, and inevitable conflict. It is the essence of the evolution of the Magna Carta and case law through the ages that has everything to do with a citizen's right to go home unabused. Are we condemned to repeat the past?
While admittedly dim, the brightest note was Attorney Dan Gibson stating that moving the ferry terminal had been taken off the bargaining table. Not explicitly stated, but implied by the Lummi rejection, was that $1,000,000 per year of safety surcharges the County couldn't afford to offer were also off the table. Finally, the $200,000 per year Lummi gatekeeper fee seems to be off the table, too, since the Tribe rejected the County's last best offer and returned their check. That means we are back to square one with nothing but the issues and potential conflict ahead. I hate to hail this as dimly bright, but sometimes things just have to get worse before they can get better. Good. I don't want to have to pay tribute to the Tribe for seeing Ruby Gayle, the youngest member of my extended family. I just want a road to get to my family's homes.
I call upon the federal government to stand for public necessity, to attest and affirm the early and longstanding approval of the right-of-way to Lummi Island. I ask for proactive federal participation in a reasonable settlement addressing ancillary impacts on land use and safety. I chastise our elected representatives for their sloth and indolence. I pray our tribal neighbors will have the patience to await a pragmatic and mutually beneficial outcome. Let's work together to see that everyone can get to school, to work, and home. Let's work together to see the federal government takes responsibility for their decisions and helps solves the problems thereby created. Blessings be!
Comments by Readers
David Camp
Feb 24, 2011Here is one very good use for the squads of federales that have invaded the county since the “war on Terror” was declared - how about enforcing a federal right-of-way rather than harassing and local residents and breaking the 4th amendment?
David Camp
Feb 24, 2011correction - “rather than harassing local residents and breaking the 4th amendment”.
John - is there any way the comment input area can display the full width of the text? The last 5 or 6 characters are hidden from view and it makes posting comments more difficult than it needs to be.
Todd Granger
Feb 24, 2011Well Tip,
The same reason Rick Larson’s political campaign promotions can still be seen everywhere, across the land.
“absolute jurisdiction and control of the Congress of the United States.”
http://caselaw.findlaw.com/us-9th-circuit/1499055.html
“absolute” defined by a local election, and in Blacks Law Dictionary
absolute duty. See Duty (1), see None; Rick Larsen(D).
duty to act? see; General Washington, and General Grant; against General Jackson, and his favorite Chief Justice refusing to enforce either Cherokee Nation or Worcester, and the party invention on display, the Trail of Tears from another drunk executive party 1829, the White House to Pete’s House and Rick Larsen’s House too.
Ham Hayes
Feb 24, 2011Tip,
If Senators Cantwell and Murray and Rep Larsen continue to ignore this issue or even respond, then they have ceased to act as our representatives, haven’t they? It is that kind of behavior that raises feelings of disgust with many citizens.
Is it possible for the affected parties to seek relief in Federal Court as an alternative path to the inaction by administration or congressional parties?
hotpickle
Feb 24, 2011I may be way off base with my belief of why the White House, the Bureau of Indian Affairs, The Army Corp of Engineers, Senator Cantwell, Senator Patty Murray, and Congressman Rick Larsen, all either ignore requests for help with this problem, or brush it aside with one brief sentence. I don’t think it truly has to do with accepting political campaign cash donations from Indian gambling casinos, but rather with a much higher pressure point. I believe it originates with the Obama Doctrine. Both before and after his Presidential campaign of 2008. Mr. Obama has repeatedly promised to reverse over 200 years of injustice to the American Indian. It is a promise he is keeping. In past days we had Senator Slade Gorton, at one time referred to as “Indian Fighter Slade” because of his threats to withhold all Federal Indian Funds, due to the Lummi Nation actions against the community of Sandy Point to reach fair agreement over well water rights for their community, and attempts at totally pumping their aquifer dry, by drilling a well next to the Sandy Point well, and flooding the water into their aquaculture site. We now have Senator Cantwell. The days of such confrontation will not happen again. It truly seems unfair to the settlers on Lummi Island, that this is all happening. It is unfair. The price of ending injustice is fairness. The price of reversing injustice is injustice. This is just part of the change we have elected to believe in.
Tip Johnson
Feb 25, 2011Ed,
I’m not sure what to say to that, but I can say that a lot of this problem stems from a pattern of government running roughshod over native rights. I agree that we should all agree to a nation of laws, but we have not always provided the best example. In fact, the civll case resulting in the consent decree that stipulated the terms of the last ferry lease was originally leveled against a County Commissioner who maliciously interfered with the Lummi’s authority to purvey water and sewer services, broke accords to approve subdivisions, and testified before the Indian Claims Commission that the County should abrogate the Point Elliot treaty. That’s hardly a good faith bargaining position and it has hurt the County’ since.
But the County has no monopoly on bad faith. Our U.S. Government has routinely ignored treaty provisions and Supreme Court decisions in the administration of Indian affairs and enacted laws inconsistent with treaty intents while both abusing and exploiting trustee obligations to the disadvantage of Indian Americans,
My issue here is public accommodation, pure and simple, not Indian bashing. I don’t know you, but I expect we would disagree on most anything else about Indian Affairs. I have steadfastly worked against so-called “Indian Fighters” like Slade Gorton and Jack Metcalf for more than half my life, just as I’ve fought bigotry and discrimination at every other opportunity.
Thank’s for your comment. I welcome all constructive suggestions pertaining to how the ferry can fulfill its public necessity without foreclosing other public accommodations or private enjoyments.
Todd Granger
Feb 25, 2011There you go Tip,
One of my favorites!
http://www.citizensource.com/History/20thCen/CRA1964/CRA2.htm
hotpickle
Feb 26, 2011Tip, your painting over my comment with the broad brush of “bigot” and “indian basher”, I feel is both inaccurate and unfortunate. I was merely trying to point out the differences between political responses past and present, as a possible reason why all government officials seem to ignore your calls and letters. I tried not to be judgmental on whether happenings were right or wrong. When one looks over the incredible volume of records, research, groundwork, documentation, and long hours you have put in to the ferry lease issues on behalf of Lummi Islanders, it makes it puzzling, why no one in government will even acknowledge anything you say or do. I have tried to rationalize reasons why. I think that even knowing how much you disliked and opposed everything Slade Gorton and Jack Metcalf did and said, they would have done you the honor of replying to your calls and letters, and explaining their position. I tried to offer one possible reason why your current liberal friends in government seems to think you no longer exist. I could be wrong. By the way, how is that petition thingy working for ya?
Tip Johnson
Feb 26, 2011Ed,
I apologize. That brush was indeed too broad. I think I have been sensitized by the rash of disrespectful and unproductive blog comments in the Herald. Indeed, the reason for the federal policy for mediating such disputes is the tendency for these things to run out of control, at least deteriorating social relations if not resulting in harm.
Also, I have to agree. Gorton and Metcalf probably would at least suffered me the courtesy of a reply. I sadly realized on the lobbying trips I have made to DC that despite having an appointment, arriving at a Democrats office was usually followed by a long wait before even being received, and often rudely, as in, “What do you want?” ALmost without exception, arriving at a Republicans office was followed with a quick welcome, nab offer of a seat and usually a cup of coffee. I know Republicans are historically more business oriented and therefore customer service sensitive, but the Democrats were always a bit of a disappointment to me.
And I further agree. I have put a lot of hours into this issue. It is more than a little disappointing that out fine Democratic delegation won’t even bother to reply. I grew up with a League of Women Voters mom and always understood that our representatives were especially charged with looking out for the public’s interest above all. I guess those days are gone. At least they seem to be gone from our current elected officials who have literally let the Lummi Island Community swing in the wind for over a year under threats that normally wouldn’t be brooked from anyone.
As for the petition, I caught a lot of flack for that idea from Lummi Islanders who were afraid that being less than timidly courteous might annoy the tribe and spoil their chances at achieving a reasonable lease. PLIC (Protecting Lummi Island Community) and LICA (Lummi Island Community Association) issued a joint statement discouraging participation in the petition. I therefore made two samples, one strong, one nice, available to islanders and dropped it.
The petition is still probably the strongest tactic available, since it could be widely distributed by email, collect vast support from friends and family, and would gain the attention of all members of Congress, not just those who have been holding the door closed. Oh, well.
Anyway, thanks for taking me to task, Ed. After sitting on it a while I realized you did have a valid point but might not have admitted it if you hadn’t piped up.
David Camp
Feb 27, 2011Ed & Tip - It seems to me the lack of response from our federal representatives to Tip’s legitimate concerns, thoughtfully presented, is that they do not consider they represent the likes of you. You job is to vote, pay your taxes, and shut up until your next opportunity to vote. In the meantime, safe in their sinecures, they work for the people who purchased their jobs for them.
My advice is to get Monsanto to build a plant on Lummi Island and your problems would be over - the feds would probably build a bridge!
Todd Granger
Feb 27, 2011Actually David,
The sink or swim Court. Where is Rob McKenna and the Governor?
“Citizens of the United States, whether rich or poor, have the right to choose to be citizens ?of the State wherein they reside.? U.S. Const., Amdt. 14, ?1. The States, however, do not have any right to select their citizens.27 The Fourteenth Amendment, like the Constitution itself, was, as Justice Cardozo put it, ?framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.? Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 523 (1935).
Metcalf was a strong supporter of the TEA-21 Act of 1998.
On May 8, 2008 the Clinton ferry terminal in Clinton, Washington was named after Metcalf, in part for his work to secure funding for safety improvements to it while a Member of Congress.
One cannot toss Metcalf into the same boat with Gorton. I believe Slade Gordon was shown best, in Washington v. Washington Vessel, FOOTNOTE 1 in the recent Sandy Point Case
and relationship of state government’s corrupt lawyers club.
“Because of the widespread defiance of the District Court’s orders, this litigation has assumed unusual significance. We granted certiorari in the state and federal cases to interpret this important treaty provision, and thereby to resolve the conflict between the state and federal courts regarding what, if any, right the Indians have to a share of the fish, to address the implications of international regulation of the fisheries in the area, and to remove any doubts about the federal court’s power to enforce its orders. 439 U.S. 909.”
Only in Washington State could an Attorney General use a State Power for personal benefit
“Sink or Swim” Shown best by Slade Gordon’s Conflict.
http://www.sladegorton.com/
Michelle Luke
Feb 27, 2011Hi Tip
Ruby is a doll, I haven’t seen her in awhile. We have the reverse situation, our grandchildren live on the mainland.I have followed your articles and appreciate your contributions. I will have a different take on public participation. Many of us have spoken at public meetings, as well as open session at Council meetings we have written letters and e-mails and have tried to stay as sane as possible during the past year. Many of us support PLIC for independent legal opinions and help neighbors and friends with the personal issues that come with this crisis. While we don’t all agree on every aspect of our situation, many islanders have spent the better part of this last year educating themselves, looking for solutions and getting involved.Most recently with the Lummi Island Task Force. Public participation is going on all around me.
Todd Granger
Mar 01, 2011“What Washington needs is adult supervision.”
Barack Obama
Yes they do! The Lummi Island Story, The Gentlemans Agreement!
Lummi Tribe
43. The Lummi Tribe is the present day tribal entity which, with respect to the matters that are the subject of this litigation, is a political successor in interest to some of the Indian tribes or bands which were parties to the Point Elliott Treaty. This tribe is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Lummi Indian Reservation. Its membership is determined in accordance with its Constitution and Bylaws approved by the Assistant Commissioner of Indian Affairs on April 2, 1948, as amended April 10, 1970. It does not have a current federally approved membership roll but it presently has approximately 1,500 members. [FPTO � 3-12; Ex. PL-56]
44. The Lummi Tribe is composed primarily of descendants of Indians who in 1855 were known as Lummi or Nook-Lummi and who lived in the area of Bellingham Bay and near the mouth of the river emptying into it. The present Lummi Tribe also includes descendants of the Semiahmoo and Samish Indians of 1855. The Lummi Indians, and the Semiahmoo and Samish Indians who were subsumed under the Lummi designation, were party to the Treaty of Point Elliott. Fourteen [**109] of the signatories to that treaty were identified as Lummi Indians. [FPTO � 3-39; Ex. USA-30, pp. 1-5]
45. Prior to the Treaty of Point Elliott, the Lummi, Semiahmoo and Samish Indians had been engaged in trade in salmon, halibut and shellfish both with other Indians and with non-Indians. [FPTO � 3-42] This trade continued after the treaty. [Ex. USA-30, p. 6] At the time of the treaty they maintained prosperous communities by virtue of their ownership of lucrative saltwater fisheries. The single most valuable fish resource was undoubtedly the sockeye, which the Lummis were able to intercept in the Straits on the annual migration of the sockeye from the ocean to the Fraser River. [Ex. USA-30, p. 11] Lummi Indians developed a highly efficient technique, known as reef netting, for taking large quantities of salmon in salt water. [Ex. USA-30, p. 11] Aboriginal Indian “reef netting” differs from present methods and techniques described by the same term. [FPTO � 3-40] The Lummis had reef net sites on Orcas Island, San Juan Island, Lummi Island and Fidalgo Island, and near Point Roberts and Sandy Point. [Ex. USA-30, p. 23; Exs. USA-62, USA-63; Tr. 1699, l. 2 to 1701, [**110] l. 21] When nature did not provide optimum reef conditions the Indians artificially created them. [Ex. USA-30, p. 17] Reef netting was one of the two most important economic activities engaged in by these Indians, the other being the sale of dog fish oil. These Indians also took spring, silver and humpback salmon and steelhead by gill nets and harpoons near the mouth of the Nooksack River, and steelhead by harpoons and basketry traps on Whatcom Creek. They trolled the waters of the San Juan Islands for various species of salmon. [FPTO � 3-42; Ex. USA-30, pp. 6-25; Ex. G-21, pp. I-19-I-21]
46. In addition to the reef net locations listed above, the usual and accustomed fishing places of the Lummi Indians at treaty times included the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay. Freshwater fisheries included the river drainage systems, especially the Nooksack, emptying into the bays from Boundary Bay south to Fidalgo Bay. [Exs. USA-20, p. 39; USA-30, pp. 23-26; Exs. PL-94a, b, c, d, e, t, u, v, [*361] w, x; Ex. G-26, pp. II-9 to II-13; Exs. USA-60, USA-61, USA-62, USA-63, USA-64; [**111] Tr. 1665, l. 4-11, l. 23-24]
47. Reef net locations were owned by individuals who claimed proprietary rights by virtue of inheritance in the male line. These locations constituted very valuable properties to their native owners. [Ex. USA-30, pp. 6, 20, 21; Tr. 2036, l. 10-16; Tr. 2039, l. 19 to 2041, l. 20] Some of the Lummi signers of the treaty were owners of reef net locations. Lummi Indians who were present at the Point Elliott Treaty Council later asserted that the Lummi signers had received assurances there that they would continue to hold the rights to their fishing grounds and stations, including their reef net locations. [Ex. USA-30, pp. 6-10; Tr. 2054, l. 2 to 2055, l. 1]
48. After the treaty the Lummi Indians continued to use their reef net locations until about 1894, when fish traps owned by non-Indians were located so as to render valueless many of the Lummi reef net locations. Some Lummis continued to use locations in the San Juan Islands from the turn of the century to the early 1920’s. In approximately 1924 Lummi Indians stopped reef netting at their sites off the west coast of Lummi Island when the cannery to which they had been selling [**112] their fish closed. In 1934, when fish traps were prohibited in Puget Sound waters, Indian fishermen again had access to former locations. When a new cannery opened in 1939 Lummi Indians and non-Indians began reef netting again on the west coast of Lummi Island. However, non-Indian fishermen using the reef net technique rapidly occupied the more profitable reef net locations. [Ex. USA-30, pp. 26-27; Tr. 2097, l. 21 to 2102, l. 3; Tr. 2812, l. 22 to 2814, l. 10; Ex.PL-2, pp. 169-171, 175; Exs. L-5, p. 4, l. 4-7, l. 26 to p. 5, l. 9; L-6, p. 1, l. 29 to p. 2, l. 24]
49. The Department of Fisheries issues a reef net license to any non-Indian who applies and pays the fee and to any Indian who applies without a fee. The Department does not determine the site where the license is used nor does the license entitle the licensee to any site. The Department does, however, regulate reef net fishermen by time, area and distance between rows of gears. It does not regulate the number of reef nets or the separation between reef nets and reef net boats within a row. [FPTO � 3-608]
50. There are presently 43 reef nets being operated in Legoe Bay off Lummi Island, [**113] arranged in rows arbitrarily numbered from 0 to 9 running north to south. None of these is owned by Lummis. Within each row there are varying numbers of reef net gear at specific positions which are numbered from the shore outward. A number of these rows and some of the positions are vacant and have remained so for many years because the sites are not productive. [Tr. 3674, l. 9 to 3677, l. 6; Tr. 3714, l. 17-19; Tr. 3764, l. 5-20; Exs. RN-7 and RN-8] Many of the reef net operators have been fishing in the same locations for thirty to thirty-five years. Only seven or eight positions of those occupied in 1973 were profitable over a four-year period. [Tr. 3703, l. 2 to 3704, l. 3; Tr. 3714, l. 10-14; Tr. 3744, l. 20 to 3745, l. 5]
51. Present day non-Indian reef net gear at Legoe Bay is located in part directly on the sites traditionally occupied by the Lummis at treaty times and thereafter. [Ex. L-7; Tr. 3743, l. 3-19; Tr. 2928, l. 3 to 2929, l. 11; Tr. 3756, l. 13 to 3757, l. 19; Ex. L-1; Ex. L-3; Tr. 3099, l. 20 to 3108, l. 23; Ex. L-4; Tr. 3113, l. 3 to 3117, l. 1]
52. The location of the reef net is [**114] one of the most critical factors in the success of a reef net operation. [Tr. 3710, l. 15-18; Tr. 3748, l. 22 to 3749, l. 5] Profitable positions are occupied permanently, unprofitable ones abandoned or operated intermittently or experimentally. [Tr. 3702, l. 25 to 3710, l. 14]
53. Since the turn of the century, the heavier volume of fish in the vicinity of Legoe Bay traveled close to shore. This has changed so that now fish must be [*362] taken in deeper water. This has been caused by the installation of traps and the present abundance of other fishing gear in the reef net area. [Tr. 3746, l. 20 to 3748, l. 20] In aboriginal times, Indian fishermen, like all fishermen, shifted to those locales that seemed most productive at any given time, including operation of the reef nets. [Exs. USA-20, p. 22; USA-52, p. 4, l. 25 to p. 5, l. 1]
54. All the reef net boats employ the same basic principal developed and used by the aboriginal Lummis, namely creation of an artificial reef to lead the migrating salmon into a net slung between two boats which is lifted when the fish enter the net. [Ex. USA-30, pp. 13-19] Modern gear incorporates numerous [**115] refinements and improvements including the addition of electric power to pull the nets. [Ex. RN-1, p. 55, l. 6 to p. 67, l. 14; Ex. RN-5, p. 15, l. 21 to p. 17, l. 9]
55. The present reef net operators occupy fixed positions at the reef net grounds in Legoe Bay and maintain a “gentlemen’s agreement” among themselves. The agreement is to the effect that an occupant of a location is entitled to maintain that location to the exclusion of all others. It further provides that no location will be yielded unless to one who agrees to purchase the equipment from the occupant. If the occupant does not desire to sell his equipment no change in occupancy of the location can occur. [Tr. 3681, l. 1 to 3682, l. 4; Tr. 3704, l. 4 to 3705, l. 10; Tr. 3717, l. 13-22] Reef netters do not voluntarily give up their locations or rotate to any other location. [Tr. 3771, l. 19-22] Members of the Reefnetters’ Association do not recognize Lummi Indians as having any treaty right to occupy a position on the reef net grounds, and these Indians are, as far as these reef-netters are concerned, in no different position than a non-Indian who would seek to acquire a location. [**116] [Tr. 3717, l. 23 to 3719, l. 20]
56. In years past, the few Lummi Indians who operated reef net boats were gradually squeezed out of the reef net fishery by non-Indian pressure and by physical crowding of boats on Indian locations. [Tr. 2936, l. 20 to 2938, l. 17; Tr. 2962, l. 6-21; Tr. 2963, l. 18 to 2964, l. 1; Tr. 2966, l. 7 to 2967, l. 2] No present day Lummis are willing to contest any of the present occupants for possession of a reef net site. [Tr. 3008, l. 13-21] The Lummis are not willing to invest money and gear to occupy locations which are not economically productive. [Tr. 3007, l. 24 to 3008, l. 12] There are Lummi Indians who would be interested in participating in the reef net fishery at Legoe Bay if they could gain access to economically productive locations. [Tr. 2941, l. 13 to 2943, l. 1; Tr. 3009, l. 16 to 3010, l. 2] However, they object to having to purchase a non-Indian’s fishing gear in order to occupy a good location. [Tr. 3029, l. 15-24]
57. Over the years the Lummi Tribe and the Department of Fisheries have often worked together to resolve differences, although never reaching [**117] total agreement. [Tr. 3014, l. 4-13] In spite of Lummi objections, the Department of Fisheries has opened Bellingham Bay to a heavy gill net commercial fishery which severely depletes the number of fish reaching the Nooksack River, which is depended upon by the Lummi fishermen for a drift net fishery. [Tr. 2978, l. 25 to 2979, l. 18; Tr. 3019, l. 16-22]
58. At the present time, members of the Lummi Tribe engage in all types of fisheries, including gill netting, purse seining and trolling for salmon on Puget Sound, crab fishing, beach seining for all species, including herring, and drift and set gill netting in the Nooksack River. [Tr. 2974, l. 17 to 2975, l. 13] Eight Lummi fishermen own and operate commercial-size fishing boats and approximately 150 members of the tribe take part in the fishery on the Nooksack River. Fishing is vitally important to the people of the tribe, both for subsistence and a livelihood. [Tr. 2976, l. 7 to 2977, l. 6]
[*363] 59. The Lummi Tribe regulates both its river fishery and offshore fishery and requires its members to carry a tribal identification card and abide by tribal regulations. These fishing regulations [**118] are enforceable in tribal court and the tribe utilizes its police for enforcement. [Tr. 2977, l. 9 to 2978, l. 18] The tribe also imposes and collects a tax on its tribal fishermen. [Tr. 2981, l. 17 to 2982, l. 2] The tribe also operates a hatchery located at Skookum Creek some 15 or 20 miles from the reservation which has planted fish in the Nooksack River which will migrate to the ocean and Puget Sound. [Tr. 3016, l. 5-22]