There was a bit of cool-aid shared at last week’s water symposium regarding potential rights to the Nooksack River which need to be addressed. Lummi tribal attorney Skip Johnsen shared an incomplete history of Judge Zilly’s findings regarding the Lummi’s ground water adjudication. Zilly’s findings overturned the Boldt fisheries case thereby exposing the State’s false agreement statements used in that suit.
Judge Zilly found there was no tribal “homeland” purpose. In other words, the reservation purpose was relevant to not “tribal” purposes for a permanent homeland but for individual purposes. Zilly found the purpose of the reservation to be agricultural. While Lummis argued for a fisheries purpose, Zilly found there could be no other secondary fisheries purpose because there is no mention of an exclusive fishery in the treaty. To further support this finding against a fisheries purpose, a 160 acre Donation Claim was assigned to a white settler within the reservation boundary; the lands of this claim straddled the Nooksack River. How the State manages the River resource might also best be addressed by using Goudy v. Meath 203, U.S. 146 (1906). This is a case which affirmed that once reservations are allotted in severalty, they are no longer considered Indian Country but are under the exclusive jurisdiction of the State. Lummi was allotted in severalty during the 1800s.
To establish the amount of water needed for an “agricultural” purpose, parties would need to establish the amount of existing trust land. If there is no trust land, there is no federal reserved water right for such a purpose. Interior land status reports show there is no Indian trust land within the Lummi reservation “land survey.” When an Interior land status report was shared with Zilly, which showed the reservation was “never” a tribal trust reservation but remained in the public domain, all saw the handwriting on the wall. The Judge’s review of the land status is what precipitated the mediation. Solicitor opinion M-36181 will additionally affirm no trust lands were ever assigned to any Point Elliott treaty group.
In my opinion, the Lummi Indian Business Council (LIBC) filed to adjudicate the river water because they are fishing for a new judge. They also know the State will not want to re-open the Boldt fisheries case. Additionally, once in court, LIBC know they can get the State to mediate in their favor should court findings deviate from the Boldt findings. The big question is will the Justice department want to again be exposed for going after baseless tribal water claims?
Submitted by; Marlene Dawson – pro-se in the Lummi ground water suit
4029 Salt Spring Dr., Ferndale, Wa. 98248 phone 360-384-0823