TACOMA — The U.S. government says the Chinook Indian Nation doesn’t exist. The people who packed a federal courtroom to capacity last week felt otherwise.
During a May 8 hearing, attorneys discussed the government’s motion to dismiss the tribe’s August 2017 civil suit.
Judge Ronald Leighton asked for two more weeks to make his decision, but Chinook Chairman Tony Johnson left feeling Leighton’s request for more time was a good sign.
“He clearly was affected by our testimony, our information,” Johnson said.
About an hour before the hearing, dozens of supporters, some dressed in traditional regalia, others in #Chinookjustice t-shirts, began to gather in front of the U.S. District Court for Western Washington in downtown Tacoma. Among those participating were people of Puyallup, Grande Ronde, Cowlitz, Yupik, Ojibwe, Duwamish, Coos, Lower Umpqua, Suislaw, Swinomish, Tlingit, Makah, Dakota and Steilacoom descent, as well as a number of non-Native allies. The group included several notable Native rights activists, Johnson said.
The supporters stood in a wide circle, holding their hands up in a gesture of respect as the Puyallup Tribe Drummers, and then Johnson led traditional songs. An elder from the Chinook community blessed participants with a bundle of smoldering sage.
Between songs, Johnson said watching the crowd of supporters grow was “a beautiful experience.”
“We live in an awfully rural place — not much going on down there. We aren’t used to seeing or feeling the kind of love that were feeling here on the street,” Johnson said. “I’m just really grateful for it. I can’t say enough about it.”
The battle continues
The tribe’s suit against the federal Department of the Interior and Bureau of Indian Affairs is the newest chapter in their 100-years-long effort to become a recognized tribe. Although it was briefly recognized in 2001, the George W. Bush administration quickly revoked their status. Recognition would give the Chinook access to health and education benefits, expanded hunting and fishing rights, more money for preserving their heritage and more legal sway, among other things.
The suit alleges the tribe was actually recognized under a 1911 treaty, and has, in the past, unofficially been treated as a recognized tribe. Portland lawyers James Coon and Thane Tienson argue that in dealing with the tribe for 100 years, the government has effectively acknowledged its existence. The suit also asks the judge to throw out a Bureau of Indian Affairs regulation that prohibits tribes from seeking recognition again. Additionally, Johnson said, the tribe is asking the court to affirm that it can access federal funds the tribe won in 1970, but never received.
“This is just the very first part of this part of the fight, I’m sorry to say. Because you know, we Chinook hired our first lawyers in 1899,” Johnson said in his pre-hearing speech. “And here we are all these years later, fighting this battle.”
No end in sight
Seattle-based U.S. Attorney Brian Kipnis asked the judge to dismiss the case.
“They said each and every aspect of your case should be thrown away,” Johnson told his supporters outside the courthouse. “They don’t want to be involved.” His audience responded with a chorus of loud boos.
A dismissal at this point wouldn’t actually kill the suit. If the government wins in District Court, the tribe will appeal to the higher Ninth Circuit Court of Appeals, which handles federal cases from much of the Western U.S. If the tribe wins, the government is also very likely to appeal.
Johnson said the tribe’s main reason for requesting the hearing was to gauge whether Judge Leighton is receptive to their complex legal arguments, and to show him that the tribe is a group of politically active, living people, not a relic of the past.
“The call out that we sent for today was, ‘Please just come fill the courtroom. Let this judge know it’s not his every day in court,’” Johnson explained.
Marshals n’ Indians
As the hearing drew near, the Chinook and their supporters formed a line for the security checkpoint that stretched all the way through the cavernous lobby of the train-station-turned-courthouse. The line was orderly, but at times, the U.S. Marshals who run court security seemed unprepared for the huge turnout. Security rules also caused a few surprises for the Chinook supporters.
A few young men did not bring official identification, so they were not allowed to enter. When the group moved inside, someone placed a bundle of sage on a sign outside the entrance. A few minutes later, a plainly irritated security guard told the crowd someone had to remove the sage because it is illegal to put anything on a federal sign. Soon after the “Sage-On-a-Sign Incident” was peacefully resolved, Johnson addressed the crowd, explaining that he had just been told drumsticks were not allowed past security because they can be used as weapons. A young boy volunteered to hold all of the drummers’ sticks. Several young men stepped out of line to hand them over.
It was standing-room-only during the roughly hour-long hearing. Supporters filled every seat on the ground floor and every last bit of space in the balcony. They craned their necks to watch as the three attorneys and Judge Leighton grappled with complex legal questions.
From the government’s perspective, the Chinook have no right to seek recognition now, because they chose not to appeal after their status was revoked in 2001. The government attorney, Kipnis, said the tribe was trying to fight a legal battle that had already been settled. He said the tribe’s claim to de facto treaty status had no legal merit.
“Judge, it is at best a back-door way to be treated as if they were a recognized tribe,” he told Leighton. “It’s over. It’s a final decision,” he continued. “You litigate new controversies, but you don’t revisit old ones.”
Coon and Tienson, the attorneys for the tribe, said the Chinook should get a second chance to make their case because they didn’t get a fair shot the first time. They described the Bureau of Indian Affairs as a “broken” and notoriously slow-moving bureaucracy with a well-established history of making arbitrary decisions. For example, they said, the BIA cited the Chinook’s supposed lack of formal government in the past as evidence that they did not constitute a real tribe. But another small tribe with a similar history was given recognition, with BIA officials noting that the tribe had always had an informal system of government. They also said old BIA rules banned tribes from using oral history to support their recognition claims. Like many other Native American groups, the Chinook preserved their history and culture primarily through oral traditions. Those rules have been modified in more recent years.
“This has been a long, hard fight, not only by Chinook, but by tribes nationally to preserve their identity,” Coon said.
Bound for Supreme Court?
The attorneys and judge acknowledged that there were no easy answers. Leighton said he thought it possible that the case would go all the way to the United States Supreme Court. He concluded by saying that before the hearing, he thought he knew how he was going to rule. But after listening to both sides, he needed more time to think it through.
Johnson thought Leighton was moved by the tribe’s arguments for keeping the case alive.
“No one in our community is ever gonna think things are going to be done perfect or right for us, because it’s not our experience,” Johnson said. “On the other hand, it did feel good to hear those arguments made, and have a judge that was seemingly willing to really hear it. I think we’re optimistic.”