Meeting touches on legislation, court cases, Columbia River Treaty and CRSO EIS, water adjudication and more
INCHELIUM – To open the 2019 Colville Tribal General Membership Meeting, held near Inchelium on Oct. 4, Colville Business Council Chairman Rodney Cawston told a story about a tribal elder he worked with when he managed the Colville Tribal Language Program.
“Every time we would go to different meetings or conferences, or when we would go to work with our youth in the different schools across the reservation, she’d always say, ‘way̓ x̌ast sx̌əlx̌alt. talíʔ x̌ast. kn sqilxʷ,’” said Cawston, who then translated, “‘Good afternoon, everybody. It’s really good to be an Indian.’”
Approximately 370 tribal members signed into the event that was hosted at the Round Lake Arbor, and each of those was given a 2019 Annual Report. Tribal member employees were granted administrative leave to attend the event.
“I cannot express, and I hope that we find ways and that everybody here we encourage our people and encourage our young people, our children, to be proud of who they are, to stand up and say, ‘way̓ x̌ast sx̌əlx̌alt. talíʔ x̌ast. kn sqilxʷ,’” said Cawston. “Those words, those teachings those elders left to us, those are so important to keep those things going.”
Miss Colville Confederated Tribes Miah Bearcub welcomed those who attended the gathering and thanked the Inchelium district for hosting the event.
“I always say, when I speak, that I think one of our greatest strengths is the diversity of our people, the diversity of our tribe, where our tribes have come from,” said Cawston. “We have been engaged in so many different areas in the last two or three years, especially in the last year, looking at where our people come from, our rights as Colville Tribal members, and through all this, in our court cases, the contract and grants we work on, language and culture are always a huge component. I cannot express enough how important it is for us to perpetuate who we are.”
Cawston further encouraged all tribal members to teach their children about their cultural heritage: “None of us here are Colville. We all have an ancestry to one of our tribes. We had our own ways, our own words for our 12 tribes, where we come from, where we descended. I just want to encourage everybody to teach your children, teach them where they come from, the tribes that they descend from, teach them about that history of their people. Bring them back to those homelands to where our ancestors and our elders came from.
“In all of those areas, wherever our people came from, that’s where many of our ancestors are buried. That’s where many of our ancestors gathered their traditional foods. That’s where our ancestors once lived. That’s really important today in our tribal government. One of things we are working on, working towards is establishing our aboriginal title back in some of those areas. There are so many areas, I think that is where our strength lies … We need to take every advantage and every opportunity we can to secure those rights of who we are and where our people came from.”
The topic of ancestral territories ran throughout the presentations by the CBC chair and the Colville Tribal Executive Director Francis Somday.
Cawston notes 2019 spelled a successful year in Olympia for Colville Tribes
During his presentation, Cawston noted at the beginning of the 2019 Washington State Legislative Session, the tribal council defined their priorities in Olympia, and then following the session, he was surprised with their success, he said.
“I think pretty much everything we lobbied for in the state legislature was passed this last year, but it took a lot of hard work,” said Cawston. “It took a lot of coordination, and it took a lot of effort not only for us as a tribal council but from many of our staff as well who worked on this, who tracked these bills, who helped us draft legislation or to draft language that we proposed with many of these bills, preparing reports, preparing testimony.”
Cawston highlighted the following bills.
SB-1564: an act relating to the nursing facility Medicaid payment system.
Washington Gov. Jay Inslee signed SB-1564 into law, May 8, allowing tribes to negotiate an enhanced rate/encounter rate at long term care facilities, such as the Colville Tribal Convalescent Center, rather than work through the state Medicaid payment structure.
“This was a huge success for us,” said Cawston. “With this bill, this is going to allow our tribe to increase our revenue for our Convalescent Center. There is so much that we can do, that we are looking forward to, that we’re going to be able to do, [such as] renovations for this facility to improve a lot of the programs.”
Cawston acknowledged CBC member Janet Nicholson’s testimony and work in support of the bill.
SB-5415: The Washington Indian Health Improvement Act.
Gov. Inslee signed SB-5415 into law, May 7. The bill builds off a 2016 Medicaid and Medicare policy update that presented the state with the opportunity to shift much of the costs of care for tribal members enrolled in Medicaid from the state general fund to the federal government.
The bill creates an Indian Health Advisory Council, adopts a Indian Health Improvement Advisory plan and reinvests the state’s savings from the change into newly established funds for projects identified by the advisory council.
The advisory council is to include one representative from each of Washington’s 29 tribes and the CEO of each urban Indian organization among others.
SB-5511: This bill expands affordable, resilient broadband service to enable economic development, public safety, health care and education in Washington’s communities. Gov. Inslee signed the bill into law, May 13.
SB-1485: Cawston described this bill as one “that changed ‘chaplain’ to ‘religious coordinator’ for the Department of Corrections, for the [Department of] Children, Youth, and Families and for the [Department of] Social Services, and allows for our own tribal leaders, or own religious leaders to provide religious and spiritual services.” Gov. Inslee signed the bill into law, April 23.
HB-1713: A bill set to improve law enforcement response to missing and murdered Native American women. Gov. Inslee signed HB-1713 into law, April 24.
“This is a really important bill for us as well,” said Cawston. “We’ve experienced so many of these losses for our Native American women here on this reservation.”
The new law establishes two Washington State Patorl tribal liaison positions, requires the WSP to develop a best practices protocol for law enforcement response to missing persons reports for indigenous women and requires the Governor’s Office of Indian Affairs to provide the WSP with government-to-government training.
Cawston acknowledged CBC member Joel Boyd’s work on the bill.
SB-5079: The Native American Voting Rights Act. Gov. Inslee signed the bill into law, March 14. The new law requires county auditors to establish a drop box on reservations when requested by tribes, permits the use of nontraditional addresses on voter registration and allows use of tribal identification for electronic voter registration.
The new law also allows the state attorney general the ability to sue counties “for failure to establish a tribally-requested ballot drop box or collect ballots from a tribally-designated pickup and collection point.”
Cawston acknowledged CBC member Margie Hutchinson for testifying for the bill.
HB-2079: This bill addressed statewide wolf recovery. Gov. Inslee signed the bill into law, May 21. The law solidifies the legislature’s intent to “support full recovery of gray wolves in Washington state” and “to support the livestock industry and rural lifestyles and ensure that state agencies and residents have the tools necessary to support coexistence with wolves.”
The law also requires periodic reviews of the state Department of Fish and Wildlife’s wolf management plan, and the bill further requires funding for nonlethal deterrents “for minimizing depredation of livestock by wolves.”
“I would really like to recognize our Fish and Wildlife for this bill,” said Cawston. “When I was over in the Legislature, a number of the congressman there came up and thanked me because they used a lot of the data of our Fish and Wildlife program in support of this bill. So all of the work our Fish and Wildlife program does, for tracking and counting our elk and deer populations, how they can approve habitat, all this information was really useful.”
HB-1579: This bill implemented recommendations from the Southern Resident Killer Whale Taskforce related to increasing Chinook abundance. Gov. Inslee signed the bill into law, May 8. According to HB-1579, in recent years the population of southern resident killer whales in Puget Sound has declined to a 30-year low of 74 animals, and in response, in 2018 Gov. Inslee convened the Southern Resident Killer Whale Taskforce “to study and identify actions that could be taken to help sustain and recover” the species.
As part of their work, the task force “found that Chinook salmon compose the largest portion of the whales’ diet, and are therefore critical to the recovery of the species.”
With this goal in mind, working with the Killer Whale Taskforce and Chinook abundance bill, the Colville tribes received budget provisos in 2019 of $500,000 to improve hatchery operations at the Colville Tribes’ Chief Joseph Hatchery and $540,000 to study salmon passage over Chief Joseph Dam.
The Colville Tribes has worked “tirelessly on fish in the Columbia,” said Cawston in speaking about the bill.
In 2019, the tribes conducted cultural releases of Chinook salmon into Rufus Woods above Chief Joseph Dam and into Lake Roosevelt above Grand Coulee Dam at the San Poil River and at Kettle Falls. The Tribes also conducted experimental releases into Lake Rufus Woods, and in September, the tribes worked with Whooshh Systems in conducting a proof of technology demonstration at Chief Joseph Dam. In that demonstration, the private company demonstrated their Passage Portal’s ability to move Chinook over the dam.
State Capital Projects Committee puts $4.5M toward treatment facility
Working with the legislature’s Capital Projects Committee, the Colville Tribes received approximately $4.5 million for a treatment facility that the tribe has planned to build near Keller.
Cawston called the funding “one of the greatest successes we had,” and further acknowledged CBC member Jack Ferguson for his work on acquiring the funding.
“I was overwhelmed to hear we received the $4.5 million, because that is something we really need for our people,” said Cawston. “Unfortunately, we have so many of our membership inflicted with alcohol and drug abuse, and you know, many of the treatment facilities that we send our people to, many of these places have waiting lists, and our people have to wait. Many of the times, they need immediate care and attention.”
The tribes are getting close to breaking ground on construction of the facility, said Cawston.
Courts: Cawston highlights Supreme Court decision with Teck, B.C. Court of Appeal in Desautel Hunting
In courts in both the U.S. and Canada, the Colville Tribes saw success in 2019, Cawston said at the General Membership meeting.
In June, the U.S. Supreme Court declined to hear an appeal by Teck Inc. of the Colville Tribes’ landmark environmental enforcement case, establishing that the Canadian mining giant’s actions in dumping millions of tons of toxic waste into the upper stretches of the Columbia River make it a responsible party under state law.
“Our tribe never gave up on this, as much as Teck would have liked the council to give up, our tribe to give up,” said Cawston. “They kept appealing. It was very expensive. They had one last opportunity to file an appeal with our Supreme Court, and our Supreme Court chose not to hear the case, so we were successful in this litigation.”
Now, tribal staff continues to negotiate cleanup of the river with the EPA, state of Washington and Teck, said Cawston.
“We’ve done some cleanup, but there is so much work that still has to be done, and that is going to go on for many years into the future,” said Cawston. “But we’re trying to do everything we can to improve the habitat and have clean water on our reservation.”
In May, the Court of Appeal for British Columbia ruled in favor of the Colville Tribes in the Rick Desautel/Sinixt hunting case, affirming a lower court ruling that held that Desautel and the Sinixt people have the right to hunt in their traditional territory in Canada.
“Many of you here in this district traveled over to that ruling,” said Cawston. “I really appreciate that. I want to thank each one of you who made that journey over there. These judges see all of our people in that audience, they see how important that is for us. I don’t know if our membership realizes how important that is for our tribe, to see that the Colville Tribe has rights on both sides of the United States and Canadian Border.”
According to Cawston, the province has appealed the decision to the Supreme Court of Canada, but the tribes have not yet heard if the court will hear the case.
“Even if they do accept it, we have a lot of promise that they’re going to uphold this decision, that they will not overturn the decision of their lower courts,” said Cawston. “It’s already been decided in two or three of the lower courts in favor of the Colville Tribe.”
The next step is looking at the Colville Tribes’ Indigenous Land Claim in Canada, said Cawston.
“We’re really working hard on this. We are strategizing on this,” said Cawston. “All of those traditional homelands are pretty much the headwaters of the Columbia, so on the Canadian side of the Columbia, all of those headwaters, we want to have our Indigenous Rights Claim of those areas.”
Tribes continue to work on Columbia River Treaty, EIS
The Columbia River Treaty, which was signed in the early 1960s, could end in 2024, and currently the United States and Canada are in negotiations with a modernization of that treaty.
In the 1960s, tribes were not given any chance for input, said Cawston, and although tribes from both sides of the border have reportedly been withheld from the negotiation tables in the modern negotiations, they have worked to have their voices heard.
“If you look back into the history of our people this is when termination was happening right on this reservation,” said Cawston. “We were fighting for our families. The federal government was doing everything to acculturate and assimilate our people. We were fighting just for the survival of the Colville Tribes.
“Today, 15 tribes have come together, 15 tribes all along the Columbia, a coalition of the tribes, to look at the new treaty, or the modernization of the existing treaty,” Cawston continued. “Going forward, the tribes now are not going to sit back.”
Together, the coalition of tribes published a NW Regional Recommendation in 2013 that called for ecological function, including fish passage over Grand Coulee Dam and Chief Joseph Dam, to be installed into the modernized treaty.
In May, the Colville Tribes hosted Jill Smail, the lead U.S. negotiator for modernization of the Columbia River Treaty on the Colville Reservation.
“I have to sit here as a tribal leader and also question are we getting fair compensation for our water, for our aquatic lands,” said Cawston. “Remember, we own part of that aquatic land. The only other tribe that owns part of the Columbia is the Spokane. The Spokane Tribe, their ownership in relation to what we own as the Colville Tribe is just so far apart. We own far more than they do.
“These are really important issues for us to think about. Looking futuristically, what are we going to negotiate? What do we want out of this treaty process? We want fish back. We know we want fish back. We’ve heard from our ancestors. We’ve heard from our elders. I heard from my father. I heard from my grandmother, who used to be here in Kettle Falls and in the San Poil.”
Along with the ongoing Columbia River Treaty negotiations, the U.S. Army Corps of Engineers, Bureau of Reclamation and Bonneville Power Administration are currently going through a review process for the environmental impact statement concerning the long-term operation of the Columbia River System, and in those discussions the tribes have also pushed for fish passage, said Cawston.
According to the Army Corps of Engineers’ website, the three co-lead agencies have developed four alternatives and expect to issue a draft EIS with the preferred alternative in February 2020.
“It’s through this process, we’ve said we want fish passage over Chief Joseph and Grand Coulee dams,” said Cawston. “We’ve been to Washington D.C. with many of our legislators, expressing to them how important it was to have our fish back. We’ve had many of those legislators tell us the CRSO is not the right place to address this. We’ve had those same legislators tell us the Columbia River Treaty process, that’s an international negotiation and fish passage shouldn’t be dealt with in that treaty process. So we meet with those legislators and we say, ‘Okay. If you think we can’t do this through the CRSO or through the Columbia River Treaty, then where do we address it? You tell us where we can address it, and we will address it.’ But none of them can say anything to us.”
Tribe discusses water adjudication
In a September press release, the Colville Business Council announced they had taken a step to protect water rights for the Colville Tribes, filing a permit through the state of Washington’s Department of Ecology for general stream adjudication of the Columbia and Okanogan Rivers and other waters on and off the Colville Reservation to determine the Tribes’ water rights.
At the Colville Tribes’ 2019 General Membership, Cawston addressed the process.
“I know there is a lot of speculation about this,” said Cawston. “It creates a nervousness in our people, but if you think we don’t do anything and we let it go. What can happen by us just sitting back and allowing the state to permit water to whoever or wherever? We know the state has probably over-permitted water on the Columbia. So we filed this permit, and it is going to take years.”
Cawston cited a similar case put forward by the Yakama Nation. That case, which was filed in the early 1970s, was settled last year, according to Cawston.
“If we don’t do anything with this, what could happen?” said Cawston. “Are we going to allow the state to over-permit water without us knowing what rightfully, legally, what quantity of water should be attributed to the Colville Tribe? If we want to do anything, if we want to start our own agricultural production and we want to litigate other permit holders, we have to litigate each one of them individually. In this process, we are holding the state accountable. They have to join all of those permit holders in this case. That becomes their financial responsibility.”
During a question and answer session of the meeting former CBC members Gene Joseph and Mel Tonasket both pushed back, asking CBC to bring the topic back to discussion at the table.
“[This] deserves to be brought back to the table for discussion, the issue of the allottees,” said Joseph. “I don’t think you have their consent to waive your tribal sovereign immunity and bring their land to state court without their consent. We couldn’t do it in the Walton Case … The other thing is I just disagree that the tribe should waive its sovereign immunity and go to state court…”
“I agree with you, Mr. Chairman, that water right is one of the most important things we own, but I honestly don’t think we’re ready for litigation. I don’t think we’re ready for negotiation. You all know negotiation means to give and take, to give and take. If we’re going to talk about negotiating water rights that means we’re going to have to give up something in water rights to keep something in water rights, and I don’t believe that tribal membership has given the tribal council - even if I was sitting with you - the authority to give up their tribal water right. That’s one of the most important things that we’ve got: Our land and our water, our children and our people.”
Tonasket called the issue at hand a sovereignty issue and cited, like Joseph, the Walton Case.
In response, Cawston noted part of the process is opening the public forum on the topic.
“One thing I do agree with is water is really important, really critical,” said Cawston. “This is a case very similar to one already heard by the Yakama Nation... They just settled that and they started their case in 1972, when you guys were on council, and they basically secured their water rights. It is under a lot of threat. I don’t know how many of you watch the debate that is going on politically, but I know some of the senators in Idaho … I know they are looking to have all the water in the Columbia that is not legally tied in an agreement or a law, that it is to be used for agriculture. They’ve got this as a senate bill, being proposed right now … There is a lot taking place with this. It is going to take a lot of money. We could do this at the federal level, but if we did it at the federal level, the Colville Tribe would be responsible for adjoining everybody who has permits on the Columbia River.”
Cawston also noted the tribes had contracted water rights attorneys for the process.
Following the general membership meeting, CBC issued a press release noting presentations on the Colville Tribes’ Water Rights Petition had been scheduled for upcoming Omak, Keller, Nespelem and Inchelium District Meetings. These may be scheduled specifically for the purpose of discussing the Tribes’ water rights petition, and held separately from the regularly-scheduled district meetings.
Somday discusses upcoming projects, Pasco development
Colville Tribal Executive Director Francis Somday presented a series of projects the tribe will be working on over the next several years.
Those projects included the Inchelium Wellness Center, the Colville Tribal Substance Abuse Treatment Facility in Keller, the Omak Clinic, the Nespelem Long House, the Nez Perce Long House and the Pasco properties.
Inchelium Wellness Center: Somday reported that Inchelium District council members had pushed for a new “facility here in Inchelium that would house employees in your district on a regular basis and also when there’s inclement weather and we have to grant administrative leave because you all have to travel two mountain passes to get to the agency.”
Somday noted the project is in the infancy stages of developing a request for proposals related to the design, but that nine architectural firms had applied through a request for qualifications and quotes. DSWG Architectural/Engineering had the most favorable submission during the RQQ process with an approximate quote of $650,000.
Somday further noted a 35-acre site, known as the Judd Property, had been selected. That site already has city water, sewer and power, said Somday. The Judd Property is located to the north and east of the Lake Roosevelt Community Health Clinic and Inchelium EMT station.
Colville Tribal Substance Abuse Treatment Facility in Keller: Somday noted the tribes are currently in the permitting process before construction begins on the Colville Tribal Substance Abuse Treatment Facility in Keller, which is set to be located on the Meadow Creek bench, just south of town.
Somday further noted that Architects West designed the project, and that the anticipated size will be a total of 23,756 square feet.
The proposed cost of construction is expected to be $17,314,131, and both Somday and Cawston noted the tribe had secured approximately $4.5 million from the state of Washington for the project. Additionally, Somday said, the tribe is working to garner new market tax credits that would cover an additional 20 percent of the project.
Somday noted those tax credits initially function as a low interest loan for the construction, but after seven years the loans turn into a grant.
In June, CBC passed a resolution contracting Travois, a private consulting firm, to find investors on behalf of the tribe through the federal New Market Tax Credit program. Previously, Travois had secured approximately $7 million of investments through the same program for construction of the Lucy F. Covington Government Center.
Also in June, CBC approved a resolution to allow Key Bank to pursue financing for construction of the facility.
Nespelem Long House: A new Nespelem Long House has been put on the tribes’ capital projects lists after it has become apparent that the community has outgrown the small, 30-year-old long house located north of Nespelem on Highway 155, said Somday.
A site for a new Nespelem Long House has been selected off Highway 155 across from the Fourth of July Grounds near the Nespelem Agency, and a request for proposals is currently being developed, the tribal executive director said.
Nez Perce Long House: The Nez Perce Long House in Nespelem burned down in 2012, and since that time, there has been a push to rebuild.
The old facility, which was covered under tribal insurance, had been approximately 6,300 square feet, and plans for a new facility are close to twice that size, said Somday.
“Council is currently working with the Nez Perce cultural group to design a facility that will come in more inline with what our insurance costs are,” said Somday, noting the tribe has approximately $1.6 million set aside for the project, but “it’s going to take more than that to build that facility.”
Pasco properties: Earlier this year, the tribe purchased three properties in Pasco, totalling approximately 184 acres inside the usual and accustomed territories of the Colville Confederated Tribes, and the tribes have begun looking at economic development opportunities at those properties.
“Last year, we talked to you about building an economy on the reservation and an ever-expanding tribal budget,” said Somday. “So, how do we get new dollars coming into the reservation? We have to start developing in our ancestral territory.”
Although neither Somday nor Cawston spoke of detailed plans, both suggested a potential casino at the Pasco properties. Somday further suggested a convenience store as well as other economic opportunities.
“Your compact with the state of Washington allows for a couple more casinos. This one would be the showcase for the Colville Tribes, in the Palus territory,” said Somday, who estimated a casino at the site “should generate $35-50 million a year, net revenue, once established.”
“The Tri-Cities is the fastest growing community in the state of Washington,” said Somday. “There are 400,000 people that reside there … Just to give you a comparison in terms of market, Spokane is 400,000 people, including Post Falls and surrounding communities... It’s a rich area, Franklin, Benton and Walla Walla counties.”
At this time, the tribes have begun looking at economic development opportunities at the locations, and tribal leaders have begun meeting with local entities in the Tri-Cities area concerning the development, according to Somday.
The properties would need to go through fee-to-trust conversion.