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From Casper Star-Tribune, 19 November 2006

'We have these rights'

By KRISTA J. KAPRALOS and ERIC STEVICK
The Herald

EVERETT, Wash. -- Tulalip tribal elder Ray Moses keeps the stories his ancestors gave to him. He tells how the whale pushes the reluctant salmon back into the rivers, how the beaver tried to woo the field mouse.

Moses, 75, saves these old stories, passes them on.

In his pocket he keeps another story. It too is from the past, but this, he explains, is also the future. It is a folded, dog-eared copy of the Treaty of Point Elliott. He takes it out, holds it up in the sunlight, waves it at passers-by.

"People don't know that we have these rights," he says. "They need to know this."

People still debate the treaty's Indian fishing rights and fight over property lines. They argue with tribal police over their authority, and over whether non-Indians can build docks in Tulalip Bay.

The tribes are taking the next step.

Now, they say the 151-year-old treaty guarantees their world patent rights on native trees, flowers, shrubs and even weeds -- the DNA of every plant that naturally grows here.

If that's true, the tribes could gain trademark control over all future use of native plants. Tribal permission would be needed for pharmaceutical companies and other businesses to use the plants to make medicine, cosmetics or even herbal tea.

The treaty tribes also are pushing for more control of the environment. They've filed the first in a series of lawsuits intended to win a greater stake in managing Western Washington's environment. They call it the Habitat Claim.

They sued the state in August for control over the region's culverts, which carry runoff along and under roads. Control over the culverts, they say, is crucial to keeping pollution out of creeks, streams and rivers.

Tribal culture requires healthy salmon runs, thriving forests and water that is free from pollution, they say. Unless there are strict environmental regulations, they believe, their salmon-centered culture could be lost within a generation.

"Economic survival is different than cultural survival," said Terry Williams, a Tulalip tribal leader on environmental issues. "If you survive economically only to find that you can no longer practice your culture, that's devastating."

In January 1855, Indians pulled canoe after canoe onto the shore at Mukilteo. There were about 2,300 Indians from Western Washington ready to meet white settlers and federal delegates.

The delegates demanded land. They wanted to move every Indian in the region to one area and take ownership of what amounts to about a fifth of what is now Washington state.

The tribes insisted that they be able to keep their way of life. They wanted to continue fishing, hunting and gathering roots and berries at all of their usual places.

In 1955, when Tulalip elder Ruth Sehome Shelton was nearly 100, she retold the story she heard as a girl.

The group was gathered near the beach. Federal negotiator and Washington Territory Gov. Isaac Stevens was speaking. A tribal leader, whose name is lost, asked how long the treaty would last.

"Will it be for as long as the water flows in the rivers ... will that be ours, and will it be for as long as the sun travels from whence it comes until it returns to the west?"

Stevens nodded and then sat down.

Before the Treaty of Point Elliott was even ratified, however, settlers and Indians began disputing its words. By the 1960s and 1970s, Indians -- who still relied on salmon for survival -- were barred from fishing at many of their customary spots. The Indians insisted that the Treaty of Point Elliott granted them the right to fish within their traditional areas.

They decided to fight in court. And in 1974, U.S. District Judge George Boldt, a Montana-born sportsman, ruled that the treaty guaranteed the tribes half of all salmon and steelhead harvests.

State officials were shocked.

Tulalip tribal member Ray Fryberg said he'd heard about the treaty from his grandparents. "They were trying to teach me what would become very valuable," he said.

Boldt showed him its power.

"I didn't understand it at the time, but later it started to reveal itself to me."

In 1980, U.S. District Judge William Orrick declared that Boldt's ruling implied that the tribes have the right to a habitat that sustains the fish. However, the ruling was overturned by the 9th U.S. Circuit Court of Appeals in San Francisco.

Since then, the environment has continued to erode, said Williams, the Tulalips' environmental leader.

The tribes say they've got to use their treaty rights now to push the Habitat Claim. It would let them sue anyone who pollutes the region's environment.

The culvert lawsuit could cost taxpayers millions and infringe on property rights, said Barb Lindsay, director of One Nation United, a Redmond-based property rights advocacy group.

"This can affect every man, woman and child in the state of Washington where there is a culvert," she said.

Williams also sees a link between the survival of native plants and advancements in the biotech industry. The tribes never ceded ownership of those resources in the Treaty of Point Elliott, Williams argues.

"We not only have a property right to the plant, but also an intellectual property right to the use of the plant," Williams said.

The tribes already are cultivating native plants in locked reservation greenhouses. Tribal elders are recording their knowledge of herbal medicine for a database, available only to certain tribal members. Outsiders will never see it, tribal leaders say.

Pharmaceutical companies are only aware of about 50 of more than 150 plants that tribal members still use, Williams said. Some have asked the tribes to share their knowledge, he said, but the tribes have declined.

Many of the world's indigenous tribes don't traditionally recognize ownership of the Earth or its resources. That's changing.

There is a growing belief that if tribes don't claim ownership, someone else will, and their cultures will suffer, said Rudolph Ryser, a member of the Cowlitz tribe and director of the Center for World Indigenous Studies in Olympia.

To protect their genetic resources, tribes must develop a law and get federal support to enforce it, Ryser said.

The National Cancer Institute routinely enters into agreements with foreign governments and indigenous groups to ensure that the native population benefits from any drugs developed from natural resources found where they live.

In New Zealand, for example, the native Maoris also say their 1840 treaty with the British government reserves their ownership of genetic resources.

"The only way to protect and preserve wild plants and animals is to leave them in the care of indigenous communities that have cultures directly connected to the continuity of those things," Ryser said.

The tribes and medical researchers should be concerned, said Gordon Cragg, a chemist and prominent cancer researcher who recently retired from his post at the National Cancer Institute in Maryland.

If tribes gain official ownership of genetic resources, they should be prepared to make agreements with scientists to allow the resources to be studied.

"If they just sit on this and say, 'We won't collaborate at all,' then they don't gain anything, and the cancer patients or diabetes patients don't gain anything either," he said.

Cragg's department travels the world hunting down plant samples for medical studies. In 1960, it collected bark from the Pacific yew found on the Olympic Peninsula -- bark that scientists developed into Taxol, a powerful drug used to treat ovarian, breast and some lung cancers.

If a tribe stopped scientists from taking that bark, Cragg said, it could have meant death for untold numbers of women men and children with cancer.