TESTIMONY BEFORE
THE HOUSE COMMITTEE ON NATURAL RESOURCES
ON
H.R. 725: INDIAN ARTS AND CRAFTS AMENDMENTS OF 2009
BY
JEWELL P.W. JAMES, HEAD CARVER
LUMMI HOUSE OF TEARS CARVERS
OF THE LUMMI INDIAN NATION
DECEMBER 2, 2009
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Greetings and Appreciation to Chairman Rahall and distinguished members of
the House Natural Resources Committee. I appear before the Committee in two
capacities, one as an advocate for the Lummi Nation. The second role is in representation
of the House of Tears Carvers, as incorporated under the laws of the Lummi Nation to
teach and advocate traditional arts & crafts amongst the youth and elders, especially in
the teaching of totem arts. My name is Jewell P.W. James. I am the Head Carver for the
House of Tears. In that capacity, I guide and instruct youth and elders on the complete
process of transforming an old growth western cedar log into a totem pole, or masks, or
plagues, or carved bowls & rattles. I have studied Pacific Northwest Indian Art since
1972. I have studied and applied the art for 37 years and still consider myself as working
toward the title of becoming a Master Carver. Until that day arrives, I am an instructor of
the arts.
I am fairly well-known for being the Head Carver that designed, carved, and
located the 911 Healing Poles that are now raised in New York, Pennsylvania, and at
Congressional Cemetery (location of the Pentagon Totem Poles). These poles were
designed, carved, painted, and delivered by youth & elders, supported by the Lummi
Nation and several peer tribes located all across the Nation. It was the belief of the tribal
people, and Indian Nations involved, that Indian Country understood the impacts of
trauma and grief and could help the Nation move toward “Healing.” We have dedicated
and donated a Healing Pole to the Old Soldiers Home in Washington State. We raised a
Healing Pole at the Indian Boarding School known as Chemewa (Oregon), in memory of
all the Indian students that died there over the century it existed. We raised healing totem
poles in Bellingham, Washington, when a pipe line explosion killed local youth and
destroyed the salmon stream. We raised healing poles in the Lummi Nation for
remembering the destruction of an ancestral cemetery (Semiahmoo), as well as at Lower
Elwha for the vast destruction to their ancestral cemetery (Olympic Pennisula).
When the “Lummi Nation” was recognized for the Healing Poles, our leadership
stated over and over that it was a campaign that could not happen without the numerous
tribes that came forward to help finance the projects and make sure the poles reached
their destined locations. All of Indian Country recognizes that our traditional arts have
therapeutic value to the individuals, the families, the communities, and even to the United
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States as a Nation. For that reason, we are organizing to give an “inter-tribally sponsored”
totem pole to the National Museum of the American Indians, as well as a place another
pole before the Library of Medicine, both in the year 2010.
In the process of creating and raising Healing Totem Poles, we have carved and
raised totem poles along rivers and streams where local urban or industrial development
has caused significant, long-term damages to the rivers, streams, and salmon habitat. The
City of Ferndale (Washington) had commissioned us to carve the Salmon Story Poles
now located along the Nooksack River. The City of Bellingham had commissioned us to
carve and raise the same type of poles near the stream destroyed by the gas explosion.
The Stillaguamish Pioneers Association had us carve the same type poles for their
campaign to educate the general public on the need to protect the salmon returning to the
Stillaguamish River System, to preserve the integrity of the natural river environment for
future generations. All of this activity is a direct application of Native Arts and Crafts in
the form of “Native Science.” It is the intent behind the stories and symbols that were
used to teach the tribal public how to care for and respect the gifts of nature and to
manage our dependency upon it based on the same theory now considered as “sustained
yield” used in modern natural resources management regimes.
As the House of Tears Carvers, we enter into contracts for commission as well. In
this case, the Head Carver, Head Painter, and all the youth and elders involved all receive
a share of any commissions paid. But, during this process, they are all required to
participation in carving totem poles for public charity. We are presently finishing one for
the Lummi High School, another for a 100 Year Old Elder in the memory of the
formation of Jamestown (home of Jamestown Skallum). We are fund raising (for
supplies) to do a charity totem pole for Eagle Ridge Elementary School and Skyline
Elementary School, both located in Ferndale, Washington. House of Tears Carvers are
taught to “give back to the community in appreciation for learning the gift of carving.”
For the tribal youth that are involved or recruited to participate in the carving of
totem pole art, they receive instructions in the wood used to make the art, how to prepare
it physically and ceremonially, how to design the pole, apply the art, translate it from two
dimensional print to three dimensional design, how to paint it, and how to conduct the
ceremonies for raising the poles publicly. Many tribal youth are “traumatized” and their
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study and involvement in traditional Native Arts and Crafts is a form of “traditional art
therapy.” It teaches them self-respect, helps restore a sense of accomplishment and
integrity, and introduces them to the basic of traditional culture. This is a valuable lesson
learned, especially when they are required to do charity work for common public good.
The House of Tears Carvers has produced several dozen pieces of totem art that is
proudly displayed in the Lummi Community. It reinforces cultural identification. It
stimulates cultural pride amongst the youth, parents, and elders.
Consequently, over time, we have come to the attention of the Internal Revenue
Service, Department of Treasury. The IRS has sent us (actually, sent collections to myself
and my wife- as the Head Carver and Head Painter of the House of Tears) notice and
demands for payment on totem pole art projects where a commission was paid. In this
process, I am the Head Carver and would be responsible for “turning the tribal youth and
elders” into the IRS for any income they received from past totem art, or face the tax
consequences myself. We have never had to file 1099’s or W2’s for any type of
traditional Indian Arts and Crafts in the past. This is a new challenge by the IRS and we
cannot win in tax court. The IRS is expert at generating case precedence against native
artists. The tribal Indians will never be able to point to an exemption in the Tax Code for
their art income because the tax code was not written with them in mind. Nor was it the
intent, constitutionally, that tribal Indians be assessed federal income taxes for tribal
activities, arts & craft sales & revenues.
Many tribal elders are confronted with the same problem with the IRS. The IRS
demands the tribe file a 1099 or W2 on all arts & crafts purchased. This then subjects the
elders and poverty-stricken tribal members to tax collections by the IRS. Consequently,
Indian elders and artists refuse to sell their traditional products to the tribal government.
It is a national shame to recognize that the IRS can use it’s power and authority to destroy
the value of traditional Indian Arts and Crafts in the tribal economies.
In that light, as the House of Tears Carvers, we support the recommendations of
the Lummi Nation, on the need for clarification language in the 2009 Arts and Crafts
Amendments Act. The Lummi Nation requests that when the House enacts H.R. 725,
Indian Arts and Crafts Amendments of 2009 that the following language be included:
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(1) Federally Recognized Indian Tribes located along the US/Canada or
US/Mexico Borders: are recognized as affiliated with and related to other indigenous bands
and tribes north of or south of these borders. And, that cross-border traditional cultural sharing of
Arts and Crafts knowledge and practices, as directly associated with their indigenous extendedfamily systems, is a manifest native reality and necessary for comprehensive cultural preservation.
Any indigenous Native from Canada or Mexico, originating from immediate border communities,
that can prove they have blood relatives enrolled within said U.S. Border Tribes may be
recognized and certified as a native artist affiliated with said tribe for purposes of cross-cultural
sharing and preservation. Said federally recognized U.S. tribe may certify said recognized native
artists and hold them accountable to the same laws as enrolled tribal artisans.
(2) Indian Arts & Craft Tax Exemption:
“Any Native American Arts & Craft produced by enrolled members, or their children (whether
enrolled or not), of a Federal Recognized Indian Tribe, operating and producing art within the
exterior boundaries of an established Indian Reservation, whether established by treaty, executive
order, or federal statute, that produces revenue or income to qualified tribal members and their
dependents shall be exempted from all federal and state income taxation. Such products, once
produced, can be shipped to any exterior location outside the established reserve and still remain a
tax exempt activity. Such exemption shall extend to and apply to the production, transportation,
marketing, and management activities of said arts & crafts production when such activities are
implemented by a 100% Indian business entity owned and operated by an enrolled tribal member
(or their children), an Indian Artist Association of enrolled tribal members, or otherwise tribally
authorized corporation.”
(3) Traditional Arts and Crafts as Native Science: Native Americans, as tribal
collectives and individual artisans, have developed their own native science that incorporates the
uses of the traditional arts and crafts to express sound principles of natural resources management
and environmental protection by preservation of the sacred, traditional, collective knowledge
associated with traditional symbols and correlated teaching of stories, myths, legends, and
ceremonial knowledge through the use of said ancient artistic symbology and artistic expressions.
And, Congress, hereby, requires that all federal departments and agencies give recognition to and
respect toward these traditional artistic forms of manifesting tribal teachings about care and
respect for the inherent, original integrity of creation (floral, faunal, mineral, elemental, time) and
declares that said traditional teachings belong in the same category as valued principles tied to
modern day management & sciences associated with protection of natural resource bases and the
environment. And, that the use of said traditional arts and crafts is essential to tribal preservation
of traditional culture and is directly related to modern day tribal natural resources management and
regime development. And, any associated market value tied to said traditional arts and crafts does
not lessen or impact the value since said production in perpetuate traditional native science
systems and advocates care and respect for the environment.
In order to provide immediate relief from the threats of the IRS to the incomes of
traditional Indian Artists that produce art products where the “stories of conservation” are
associated with the treaty-reserved fisheries, it would benefit tribal artists if the bill
included language that declared:
(4) “The Congress, hereby, recognizes for purposes of clarification that traditional
Indian arts and crafts, when associated with traditional stories of conservation, are
qualified forms of modern day fisheries management and protection activity tied to and
associated directly with tribal fisheries and natural resources management, and are
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protected by the same laws that may before, now, or hereafter be applied to the treaty
reserved fishing rights. “
The reason the U.S. Congress enacted the laws to create and institutionalize the
American Indian Arts and Crafts Board was to help stimulate Indian Arts and Crafts, as
well as protect it from duplication and fraud by non-Indians and foreign interests.
Seventy years later Indian Country is still struggling to secure protection of their arts and
crafts and the correlated “sacred knowledge” associated with the same. There, once, was
a theory that the protection of Indian Arts and Crafts would stimulate an on-reservation
tourist economy to help combat Indian poverty- this has rarely resulted.
In addition, foreign interests have plagued the markets in the Pacific Northwest, from
California to Alaska, with cheap Asian imports that destroy the Indian Markets. The
Cruise Ships that ply the Northwest Pacific Coast wantonly sell cheap knock-off copies
of “real Alaskan Native Art.” Even the Sea-tac Airport allows stores to import and
market the cheap copies in their shops. These activities completely destroy the capacity
of Native American Indian/Eskimo/Alaskan/Aleute Artists to make a living. There is,
then, no capacity for marketing the labor intensive “Real, Authentic Native Art.”
A couple years ago, the Stillaguamish Tribe had developed their tribal casino. In order
to make it appear more “Native” it decided to open bids for Native Artists to carve a
totem pole for display in front of their casino. The House of Tears Carvers were offered
the contract due to their public charity work done for the Nation during the 911
aftermath. However, in the end, the contract was given to a non-Indian chain saw carver
(called Chainsaw Jack) from Concrete, Washington. This pole is now displayed at the
Angel of the Winds Casino, with no indication that it was made by a non-Indian.
A couple other examples, one local tribal casino has “plastic reproductions” of
“authentic Indian totem pole art” placed in their casino. Another, has used an Italian
Carver to carve a couple million dollars in totem pole art, with a couple young natives
used as the front for the contract. If the law was written correctly, and enforced, then that
person should have been allowed to only receive a minor share of the proceeds for the
contract to compensate him for his “teaching the art” rather than a majority of the
commission for being the primary artist. This contract was a sham agreement.
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In addition, there are numerous “Creation Myths/Stories” that are associated with
Native Arts and Crafts within each and every tribal community. These myths/stories
belong to the collective knowledge of the tribal community. It is a part of their
“cosmology.” This cosmology teaches each tribal generation a specific philosophy about
living with, respect of, and care for the natural environment. It is “Our” sacred
knowledge that we have a right to retain, own, preserve, and transmit to the next
generations. When non-Natives are allowed to market Native Arts and Crafts as
“authentic” and even in mimic then they are also robbing the tribal community and
collective of their rights to the knowledge symbolically represented by the arts and crafts.
While we experience non-Indians reproducing our traditional arts and crafts for profit, we
also have non-Indian authors stealing our stories and securing “copy rights” to their
written or recorded versions. Although the United States has not endorsed the United
Nations Declaration on the Rights of Indigenous Peoples, there is language within the
declaration that signals major concern over this plight of traditional, indigenous artists.
In summary of the last couple points, the tribal enrolled artists should be able to file
lawsuits for damages done when non-Indians secure sham contracts to replicate Indian
Arts and Crafts and place them on the market as authentic or authentic reproductions. If a
totem pole is commissioned the local tribal artists should be empowered to sue for the
value of the contract plus emotional and cultural damages. When local shops import and
sell reproductions made by non-Indian artists/companies then the local tribally enrolled
artists should be allowed to sue for damages, force an accounting of the products sold in
the local market and secure triple damages to discourage the on-going violations of the
laws. This would, most likely, however, be best managed if the right to sue was located
within the power of the local tribal government, acting on behalf of their local artists,
with any recovery dedicated to non-profit tribal activities to encourage tribal artists to
meet the supply and demand of local, regional, and national markets. This was the intent
behind the formation of the Lummi House of Tears Carvers.
In another area of concern, the House of Tears Carvers and the Lummi Nation have
had difficulty in accessing Old Growth Western Red Cedar from the Mt. Baker/
Snoqualmie National Forests. The regional and local offices recognize that there is
enough law and regulations to assure access as a matter of policy; but, tribal access is
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competitive. We have to compete with “local non-Indian cord wood permitted cutters on
a first come first serve basis.” We need guaranteed access as tribes and tribal artists
(represented by their tribe). Presently, we have to wait for a storm to blow a tree down or
wait for a tree to begin to lean toward a public road or area, making it a danger to the
general public, then we “might” be able to secure rights to the tree or logs. This is not
guaranteed either, since we are required to compete with other tribes for the same tree.
We are allowed to take the same board footage that would be allowed by a cord wood
permit for non-Indians. Often this “minimal access” does not provide enough of a tree to
carve a totem pole. In addition, most often the tree is shattered into fragments when it
blows down by force of storm.
The Straits of Juan de Fuca, Puget Sound, Straits of Georgia has recently been renamed
the “Salish Sea.” This is a great moment for the Native Tribes in the Pacific Northwest.
We are, academically, classified and identified as “Coast Salish.” The tribes West of the
Mountains in Washington State are Coast Salish and directly related to the Tribes and
Bands located on the Eastern Shores of Vancover Island and mainland Southern British
Columbia, Canada. A recent study of one hundred Coast Salish Bands has shown that the
reintroduction of traditional culture has been one prime factor in decreasing the number
of teenage suicides amongst the native populations. A self-study of the Lummi Nation
has shown that 60 to 80% of our tribal youth are involved in high risk behavior that will
most likely kill them during their teen years and before they reach forty years old. There
are reasons why the SAMHSA Grant awarded to the Lummi Nation encourages culturally
relevant counseling and utilization of traditional arts as therapy.
In the implementation of this grant tribal community involvement is critical. The tribal
communities have suffered historical trauma in their treatment under the protection of
federal law and Christian Society. Almost all aspects of our traditional tribal culture,
ceremonial knowledge, and arts & craft were attacked as foreign and unacceptable to a
Christian Nation as a matter of law. For the U.S. Congress to offer protection of our
traditional arts and crafts is in line with more recent congressional actions to reinstate
and protect Indian rights. We have slowly recovered some “religious freedom” and
“rights to the repatriation of ancestral remains.” Extending more protection of Indian Arts
and Crafts is a step in the right direction. Who we are as Native American Indian Tribes,
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Nations, and Communities is reflected in the sacred philosophy stored within the symbols
of our arts and crafts. Preservation of this knowledge has been accomplished with the
odds against us as colonialized Native peoples. In the past, federal laws and policy sought
to completely destroy our cultural awareness and identification. Our arts, crafts, and
ceremonial regalia was collected, burned, or sent to national or private collections, all
under the “civilizing theory” that it would “Destroy the Indian to save the man!” In our
estimate and experience, we need protection from the national government, state
governments, as well as private profiteers that would steal our culture for private gain.
In closing, I would like to remind the Congressional membership on this Committee
that the U.S. Constitution fully empowers the Congress to enact legislation for the
protection and preservation of Native American Indian Arts and Crafts. The Indian
Commerce Clause (Art. I, Sec. 8, Cl. 3) is a plenary delegation of authority to the
Congress to regulate its citizens to assure they do not take advantage of the Indian tribes
and tribal people. The Congress can enact laws that actually protects the rights of Indians
and guarantees their place in regional and national markets. The United States negotiated
several hundred treaties with the Indian and this caused them to assume the “Sacred Trust
of Civilization” owed to the tribal people and Indian Nations. It is a part of their treaty
commitment, as a consequence of receiving nearly four million square miles of land and
natural resources by Indian Treaty Cessions.
The Supreme Court has the authority (Article III) to address Treaty questions or
congressional enactments that protect Indian rights and Commerce (Art. III, Sec. 2, Cl.3),
as Supreme Law of the Land (Art. VI, Cl.1, Cl.2, Cl.3). The Congress can enact laws that
protect our treaty rights to remain and practice our traditional forms of society, in
collective and as individual traditional artists. While you amendment the Indian Arts and
Crafts laws, in 2009, please assure that you protect tribal people from the abusive powers
of the Internal Revenue Service…to alleviate the problems tied to their attempts to apply
the federal income tax laws to revenues generated by tribal Indians and their descendants.
For that reason, we pray that the House Natural Resources Committee shall secure the
full support of the House Ways and Means Committee to provide more extensive relief
and protection for enrolled Native American traditional artists.
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MEMORANDUM ON COAST SALISH FISH TRADITIONAL ARTISTSWHOSE PRODUCTS TEACH SALMON/FISH CONSERVATION AND THE
PROTECTON OF THE RELATED HABITAT & ENVIRONMENTSEXPRESSED AS PART OF THE TRADITIONAL FISHERIES CULTURE
PROTECTED BY LAW AND SUPREME COURT DECISION
January 2008
MEMORANDUM PURPOSE: Treaty Fishing Rights of the Indian Tribes were
interpreted by the Supreme Court to have four basic characteristics to the treaty rights(1) ceremonial/cultural/religious/spiritual value, (2) commercial value, (3) subsistence
value, and (4) conservation value of the various fish/shell fish species. The IRS has failed
to recognize the cultural/ceremonial/spiritual values of the treaty fishing rights because it
is outside their normal understanding of Native American society and traditional culture.
The Internal Revenue Service has developed the Indian Tribal Governments division that
is guided by the “Employment Tax Desk Guide” published by ITG. Therein, there is
Chapter 3- Treatment of Certain Payments. Specific reference is made to Internal
Revenue Code Sec. 7873 per the Indian Fishing Rights Exemption language that was
added to the Internal Revenue Code. The section deals with Indian Fishing RightsRelated Activities. Such activities are broadly defined, including aquaculture, and
activities that are directly related to harvesting, processing, transporting, and
marketing/selling the harvests. The right was clearly substantiated, in review of the
applicable laws, as encompassing such rights as secured by treaty, executive order or
(federal) statute. Of the diverse categories of tribal members/fishers, employees, entities
qualified for the exemptions, the IRS/ITG list has not, until this time, included
recognition that the ceremonial value (culture/religious/spiritual) aspects of the treaty
right was a part of the adjudicated rights recognized by the U.S. Supreme Court, when it
reviewed the extensive rights defining the treaty-protected activity. Traditional tribal
artists use the cultural arts to teach the stories of “conservation- in the same capacity as
the public education and information services performed by fishery personnel- such as
habitat technicians, biologists, fisheries aides, fisheries biologists, program directors,
public information staff, policy advisors, and other personnel actively engaged in
teaching the general public about protection of the salmon/fish populations and related
marine/riverine habitat and environments, and non-anadromous fish populations/species.
The only difference is that the “science” included in cultural arts and teachings are
elaborated by the use of cultural symbols. Qualified tribal artists, and tribal art
associations or partnerships or entities, make their qualified Indian products within the
tribal traditional territory and market or sell it from there. The tribal artists that use the
salmon/fish symbols and recreate these traditional stories of conservation are enrolled
members and protected as a matter of tribal and federal laws. The IRS/ITG should and
must include the traditional arts as a part of the treaty fishing right industry and rule that
it is protected under Section 7873 IRC. Such lack of clarification is currently causing
undue hardship to the artists and has caused discouragement in the expressions of their
traditional arts due to the threat of taxation.
POSITION ON SECTION 7873 APPLICATION TO COAST SALISH FISH
CULTURE ARTISTS: The extensive litigation over the extent and definition of the
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Treaty Fishing Rights question has resulted in legal recognition that the right has three
important legal characteristics- it has a commercial, a subsistence and a cultural
component. And, as regards legal management, it requires a fair distribution (50/50)
between the Indian and non-Indian fleets, with strict adherence to the legal requirement to
meet conservation necessities to preserve the runs and species. The income tax exemption
applied to all aspects of the treaty fishery, regardless of the source of income used to
meet the legal requirements of providing the tribal people with a ‘moderate living’ from
the secured rights. As pertains to the treaty fishing rights exemption clarification
language of IRC Section 7873, the Internal Revenue Service should conclude as follows:
“Section 7873 incorporates and includes federal tax exemptions for all
income derived from the sale of modern productions or reproductions of
traditional arts, artifacts, or artistic totemic expressions that
commemorate the necessity of the protection of the treaty-protected
fishery resources, the salmon populations, salmon habitat, and related
natural environments. And, that, such artistic expressions are a part of
the value-added domain of the protected tribal fishery and culture;
Provided that the art is done by a enrolled tribal member of a recognized
fishing tribe, and created, woven, carved, beaded, or painted within the
traditional territory of the members’ nation’s aboriginal or treaty-ceded
territory. And, marketing such artistic expressions, artifacts, or totemic
arts to any location or entity outside the Usual and Accustomed Fishing
Grounds and Stations of the respective tribe is as qualified for the
exemption as marketing, shipping, or transporting harvested salmon or
seafood products to any market outside of the traditional territory of the
harvesting tribe. Such artistic rights to market artistic representations of
the tribal fish culture are an important part of the right to harvest the
salmon and fish populations for commercial, subsistence, cultural, and
conservation purposes. Such rights are a part of the Court interpreted
treaty purpose to assure that fisher tribes’ membership can secure a
modern living from the protected rights and can participate in the
modern economy of the United States unimpeded.”
THE COURTS CONSIDERED THE COMMERCIAL, SUBSISTENCE, AND
CULTURAL VALUE OF THE TREATY PROTECTED FISHING RIGHTS:
The Courts have developed canons of construction dealing with Indian Treaty
Rights termination questions. “The Congressional intent must be clear to overcome ‘the
general rule that doubtful expressions are to be resolved in favor of the weak and
defenseless people who are wards of the nation, dependent upon its protection and good
faith.’ McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 174 quoting
Carpenter v. Shaw, 280 U.S.363. Accordingly, the Court requires the ‘Congressional
determination to terminate…be expressed on the face of the Act or be clear from the
surrounding circumstances and legislative history.’ Mattz v. Arnett, 412 U.S. at 505. The
federal courts, in the fishing rights cases, had recognized that the ‘cultural aspects of the
treaty fishing rights’ was very important to the tribal fishing communities.
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When the IRS began to hold that treaty reserved fishing rights were taxable, and
secured Tax Court judgments in line with their determinations, the Treaty Fishing Tribes
continued to maintain that such an act of taxation was contrary to treaty intent. Because it
appeared there would be no resolution of the legal conflict with the IRS, in line with the
tribes’ interpretation, the tribes sought clarification by the U.S. Congress. The result was
enactment of IRC Section 7873- Indian Fishing Rights Exemption. Included as a part of
the intent of the section, it was understood that neither the tribes, nor their registered
tribal fishermen, would have to even report their exempt treaty fishing rights income; nor
were they required to pay other federal taxes on the income, nor would they have to pay
any state taxes on such income. In addition, the tribes would basically self-regulate the
interpretation, identification, management, and compliance enforcement of the treaty
income exemptions. The scope of the exemptions have been interpreted by the IRS, in
this light, and published in their documents on tribal governments and taxation. As to the
cultural arts component of the treaty right, that is within the right of the tribal
governments to define, especially since such rights to express tribal art is a federally
protected right as well.
During the original proceedings of U.S. v. Washington, 384 F. Supp. 312 (1974), the
tribes had to defend the historic relationships they had with the fish resources; in regards
to their dependency upon the resources for commercial, subsistence, and cultural and
ceremonial purposes. It was articulated in the ‘Brief of Respondent Indian Tribes’ ((in
the Supreme Court of the United States, October Term, 1978 (Nos. 77-983, 78-119 and
78-139)), that the “Court found that the “first salmon ceremony” was celebrated virtually
throughout the area as a religious rite to insure the continued return of the salmon (FF 6,
384 F. Supp. At 350, Joint App. 101). And, that “It is beyond question that fish were
central to Indian religious beliefs. As the Court found, the first salmon ceremony was
celebrated generally throughout the area and was essentially a religious rite to welcome
and pay homage to the salmon and to insure their continued return to the area. It was
thought that if the salmon were not treated properly they would become offended and
cease to return to the stream where they had been improperly attended (Ex. USA-25, at 1,
Joint App. 354). The religious rite was but a part of a wider conception of the
interdependence and relatedness of all living things (Ex. USA-20, Joint App. 369).
“It was likewise clear that fish were important in a broader cultural context. Thus, the
Nisquallies identified star constellations by reference to fish and fisheries (Ex. USA-20,
Joint App. 369). Fishing played a central role in Puyallup culture and the Puyallups
lavished attention and concern on the salmon (Ex. USA-26, at 11). The Quileutes named
months of the year for fish or fishing activities (Ex. USA-30, at 13-14; see also FF 105,
384 F. Supp. At 372, Joint App. 140). And, of course, today, taking, preparing, eating and
trading fish are still important functions for Indian communities. Fishing provides the
basis for cultural identification and cohesive force in Indian Society (Ex. USA-20, Joint
App. 394). We recognize, today, that Native American Coastal art is commonly filled
with images that depict the creation of the various maritime/riverine life (salmon, halibut,
seals, whales, shell fish, trout, sturgeon, otters, etc). This was all a symbolic celebration
of the cultural dependence upon the natural resources, especially the salmon.
“Indian trade and commerce in fish was central to their way of life. Indians formed a
very considerable proportion of the trade of the Sound (Ex. P.L. 11, Joint App. 329).
Extensive trade was carried on in order to acquire not only food but raw materials and
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manufactured goods. This trade involved both necessities and luxuries (Ex. USA-20,
Joint App. 369). At treaty times surplus food could be converted to wealth. Distribution
was effected through a complex exchange system (Id. At 369).”
“After the treaties and in reliance thereon, the tribes continued to fish for commercial
purposes (Ex. USA-21, Joint App. 409). This trade and commerce played an important
part in economy of the area as a whole with the Indians playing a central role in the
business of the non-Indians. The influx of settlers into the Territory increased the demand
for consumption and export. Almost all of this demand, ‘including that for export, relied
on Indians to supply the fish.’ Smoked salmon was exported to China…The business of
securing that salmon had been done solely by the Indians (Id. At 372). Today, the value
of the seafoods harvested is recognized nationally and internationally, and the greatest
effort is now focused upon development of the “value-added” aspects of the treaty
harvests. Value-added is extremely important now that the harvestable shares of the fish
populations have become less and less, due to over-harvests and environmental damages
to the salmon habitat and spawning grounds (e.g., damages caused by clear-cuts or
culverts that limit upstream access).
“Fishing then was clearly the single most important activity to Western Washington
Indians. It was central to their diet, religion, culture, trade and commercial activities. It
was, as this Court has noted, ‘not much less necessary’ to their existence than the
atmosphere they breathed.” United States v. Winans, 198 U.S. 371, 381 (1905).
“Further, there is no question but that the treaty commissioners understood the
importance of fish in Indian culture as noted above: “The treaty commissioners knew that
fish were important to the Indians, not only from the standpoint of their food supply and
culture, but also as a significant element of trade with the settlers.” (Ex. USA-21, Joint
App. 382).
“There was no intent to prevent the Indians from using fisheries for economic gain
(See FF 21, 384 F. Supp. At 355, Joint App. 109, and sources cited therein). At Neah
Bay, Governor Stevens told the Indians that far from wanting to stop their fisheries he
wanted to send them more modern apparatus to help them (Ex. PL-16(b), Joint App.331).
Not only was there no intention of creating a class society with the Indians on the bottom
of the economic rung, but the treaty commissioners clearly wanted to provide the Indians
a means of participating and prospering in the economy of the territory (Ex. USA-20,
Joint App. 396). The Indians civilization was totally dependent upon fish for diet,
religion, and culture. Their economy, which allowed most of them a relatively high
standard of living, was based on commerce in fish.
The Court of Appeals correctly recognized that the Indians’ fishing rights continued to
be tribal rights, not belonging to any individual Indians. 530 F.2d at 688. In so doing, the
Court specifically recognized the long-standing approach of the United States
government to Indian property rights. Cf. 3 Kent’s Commentaries, at 383. As the Court
held in Montana Power Co. v. Rochester, 127 F.2d 189, 192-93 (9th Cir. 1942): “The
Indian society is communal in character rather than individualistic; and this is particularly
true in respect of the hunting and fishing grounds of the Indians.” And, when a sovereign
nation treats with another nation, the rights created are held by the sovereign, even
though individual citizens may derivatively enjoy the rights. This pertains to fishing
rights as well as others.
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In the case of the Washington tribes, of course, the basic consideration to the United
States was that the tribes cede the portion of Western Washington west of the Cascades.
The United States was not dictating to these tribes as conqueror to the vanquished, but
rather the tribes, as co-sovereigns, treated with the United States in friendship and in
order to secure peace between the parties to the treaty. It is hardly to be supposed that the
tribes voluntarily entered into an agreement under which they ceded the entire Puget
Sound basin and the portion of the State west of the Cascade Mountains and reserved for
themselves mere access to their usual and accustomed fishing grounds and stations….
We, based on the above, soon come to recognize that the tribes had a permanent
interest in the preservation of their treaty fishing rights, as regards its value for
commercial, subsistence, and cultural value. And, that the well-known fact of the cases
that were moved before the Supreme County have continued that “conservation”
necessities is a duty and obligation that limits the harvests of both the treaty and nontreaty fleets. However, we have found that the Court has ruled that the tribes are entitled
to secure a “moderate living” from the exercise of their treaty fishing rights. While the
level of this “moderate living’ has not been determined by the Courts, the idea that the
tribal people are able to exercise their fishing rights for economic gain, even in the
modern markets of the local, regional, national, and international communities.
Tribes, still today, continue to preserve their “traditional culture” and the significant
teachings it preserves and transmits from one generation to the next as to the duty and
obligation to preserve the salmon, bottom fish, related habitats, and related environments.
Much of the cultural arts (regalia making, drums, rattles, masks, baskets, plagues, house
posts, totem poles, woolen blankets and sweaters, etc.) are mediums of expression that
are used to pass knowledge from one generation to the next, from one group to another
about the necessity of being conservative in use and practice of harvest activity
associated with the salmon/fish populations and related environments. Such artistic
expressions take on the symbolic aspects of a modern day book on conservation
management of the natural resources and environment necessary to fish and salmon
population protection.
The Lummi People believed that the preservation and protection of cultural arts was so
important to the tribal community that it was incorporated as a part of their tribal
constitution as regards the regulation and administration to encourage “Indian
handicrafts” (Art. VI, (n) and that the creation of cultural entities (such as the Lummi
House of Tears Carvers) is authorized under the constitutional powers delegated to the
tribal council (Art. VI, (p).). And, of course, nationally, the United States had created the
American Indian Arts and Crafts Board in order to encourage the same Indian handicrafts
and tourism industries, as well as to protect the respective rights of the tribes to their
designs, symbols, knowledge, and other aspects of the ancestral and modern Indian art
industry. This national protection is in recognition that such native arts have local,
regional, national, and international market value. In fact, the national laws of the United
States had to be crafted in order to prevent fraudulent sales of art pieces that are claimed
or alleged to be Indian-made. The fact is that Indian handicrafts and arts and crafts are
highly regulated and subject matter of federal legal protection. In the Pacific N.W., the
Coast Salish Artists are using the stories and symbols of the traditional culture to create
art pieces, articles, artifacts, and other forms of artistic expression that incorporate the
most important aspect of their culture- salmon and other sea foods, plants, sea mammals,
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and related environments. The tribal cosmology weaves the importance of their fishing
culture into their artistic symbology. This is central to their ability to create and generate
art pieces or textiles or woven or carved or painted or beaded products that have
personal, interpersonal, tribal, intertribal, and inter-societal commercial value. Their art
products are valuable to the local, regional, national, and international commercial
markets and many tribes seek to encourage tribal members to expand this aspect of
cultural expression, as a means to create small cottage industries. By meeting this market
demand they are able to exercise a valuable part of their cultural fishing economy that the
Supreme Court declared was a part of their right to secure a ‘modern living.’
By using their cultural knowledge to produce their totemic arts, their woven blankets,
baskets, drums, regalia, and other mediums of expression, the artists have been able to
place great emphasis on the need to “conserve the salmon species and their dependent
environments and spawning habitats.” All tribes across the United States, and all cultures
around the globe, have utilized traditional teachings, the traditional cosmology of their
ancestors to develop a foundation to their cultural arts. In the Pacific Northwest, the
salmon and surrounding environments, floral and faunal entities, have, likewise, been
manifested in their cultural art expressions. These expressions have market value. This
market value is associated with the marketing of Indian fishery products and the relevant
industry. Marketing artistic expressions of the fishing rights is culturally acceptable and
intrinsic to tribal society. Tribal cultures market the symbols through art. It is much like
the value of a logo attached to a modern advertised fish product sold to the general
public. Indian arts and crafts hold the same symbolic value when it comes to marketing
parts of their cultural treaty fishing rights.
One example of a Coast Salish Artist is the Lummi Master Carver (SS#533-56-6366),
who is protected by the Lummi Nation’s enactment of the Articles of Incorporation for
House of Tears Carvers. This artist is equivalent to any tribal fisheries management or
biological director or staff that would be classified with a masters degree or doctorate in a
comparative science of fish culture.. By teaching and instructing in the totemic arts, he
teaches the Story of Conservation of the Salmon and related Fisheries resources. In
addition, he is a registered tribal member (#1248) that has a treaty guaranteed right to
“fish” in all the Lummi ‘Usual and Accustomed Fishing Grounds and Stations.’ As a
Master Totem Pole artist, he uses his skills to teach and carve totemic symbols of the
many stories of conservation that were used by the tribal ancestors. Such artistic
expressions were used to traditionally and culturally influence and manage the tribal
memberships’ harvest of the (salmon) natural resources and to assure that the water
habitat of the salmon and the environment was protected by the membership, and modern
society. As a tribal Indian, registered with the tribal fisheries program and enrollment
Office, we believe that Lummi Master Carver, and all his tribal apprentices, are qualified
for legal protection under Section 7873-Indian Fishing Rights Tax Exemption. His
totemic art stories are being located in various locations of the Lummi Usual and
Accustomed Fishing Grounds and Stations- as adjudicated in U.S. v. Washington, 384 F.
Supp. 312 (1974). All of his carvings are done on the Lummi Indian Reservation (at 4305
½ Lummi Shore Road, Ferndale, Washington 98248) and transported to the various sites
for public placement. His works are not museum pieces but pieces of totemic art used to
teach the general public about the need to protect the natural environment, the natural
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habitat of the salmon and related floral & faunal species, as well as protection of the
marine and riverine environments the fish populations are dependent upon for survival.
The Lummi Indian Tribe, through the Lummi Treaty Protection Task Force, was the
lead coordinator on the work to secure the passage of legislative amendments to the
Internal Revenue Code that confirmed the tax-exempt status of treaty fishing rights. This
language passed as Section 7873 of the Internal Revenue Code in 1988. The language
addressed treaty fishing rights, tribal fishermen, and what is directly related to the fishing
right that is exempt from federal taxation. The language was broadly interpreted in 1992.
In compliance with this broad interpretation, the IRS issued substantial federal tax
reimbursements to tribal fishermen and tribal fishing industry and fishery management
employees. This reimbursement went to many persons- even the fish court personnel and
biological staff in management, hatcheries, or those conducting test fisheries or stream
monitoring activities, for example. The list of exempted tribal fishing industry employees
is broad. But, it was significant and remains so today, that culture is an important part of
the legally protected right. Native art is directly related to the fish culture. Exemption of
income from marketing the native art is founded upon this ‘directly related’ aspect of the
right, and provided for in Section 7873.
In the traditional way of management of our tribal fisheries, the Lummi and N.W.
Tribes depended upon culture, tradition, ceremonies, sacred knowledge, and untold
generations of experience to manage harvest activities of the membership and assure the
salmon was distributed fairly to all tribal members. The tribal societies used song, dance,
ceremony, sacred knowledge, and artistic representations to manifest a clear social
expectation that the natural resources must be protected. Traditional means of Indian
Tribal conservation contributed to the significant increase in the salmon populations
found in the Pacific N.W. by the time of first contact. For example, the First Salmon
Ceremony and the myths about Salmon Woman (her husband Raven, Brother-in-law
Bear, and her Salmon Children, for example) were traditional tools for teaching the tribal
children and adults about the necessity of respecting the salmon and their habitat. This
teachings of respects reached from the spawning grounds upriver to the salmon return to
that House of the Great Salmon Chief under the Ocean.
These oral stories hold the equivalent intent of written in words about conservation
found in modern day fishery management regimes of the tribes, state, and federal
governments. The stories, told orally and manifested in the arts, regalia, and common
household items were the vehicles to constantly teach and remind the community to
respect the salmon. The stories composed a societal function of teachings all tribal
persons to take only that amount of salmon that was needed to survive. To teach them
and remind them not to mismanage their relationships with the natural environments that
supported or impacted the salmon populations. It was taught that mismanagement,
disrespect or dishonoring of the salmon would result in famine and societal
impoverishment.
This system of conservation was addressed in Phase I of U.S. v. Washington. It was in
response to the state’s claim that the tribal people did not understand the idea or
philosophy of conservation of salmon populations. The tribes testified that their stories,
their songs, their dances, their ceremonies were used to teach this very concept to all
individuals and the tribal society. The associated traditional stories were used to teach
membership the necessary duty to protect the natural balance for a sustainable resource
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and healthy natural environment (as determined as an important part of our treaty right in
Phase II of U.S. v. Washington, See: Culvert Case, 2006). These conservation lessons
were taught by oral history. For example, oral history taught about Part I of the Salmon
Story- How the Salmon Came to the People & First Salmon Ceremony and Part II- Story
of Bear and the Steelhead. Other relevant stories, that carry importance to the
understanding of the salmon is respect for the river itself- such as the creation of the
Nooksack River and the Mountains that feed water into it, in Lummi Territory. Other
tribes have similar creation myths.
Tribal traditional teachings came, in parallel, through the arts (totem pole art, rattles &
masks for ceremonials, basket design, blanket/sweater designs, etc.). The master story
teller, the master carver or master weaver were and are equivalent to the modern tribal
biologists and managers in modern fisheries management parlance. Their job was and is
to teach tribal people to honor, respect, and protect the salmon populations and their
habitat, as well as about the needs to protect the riverine, marine, estuary environments
and habitat. Woven into these teachings was the conservation of the floral & faunal
aspects of life. All the figures that would be carved were a part of the story of creation
and the cultivation of the necessary respect to maintain a healthy environment. For
example, the Lummi Reef Netters owned the fishing sites as a priority right- they and
their crew harvested for their families and then harvested for the women and children that
did not have any fishers helping them, and they harvested for necessity, not greed, and
closed the nets down to make sure they did not take more than was needed to live (U.S. v.
Washington, at 360).
The right to the salmon was protected by the treaty with the United States, at the
demand of the tribal leaders at all of the negotiations conducted throughout Oregon and
Washington Territories. While salmon were specifically addressed in the treaty language,
the tribes ended up in extensive lawsuits to protect their rights, in the state and federal
courts. The tribes interpreted the treaties to mean that the traditional fisheries would
remain a right of the tribes, managed and protected by the tribes, and was a right under
tribal self-government and self-regulation. Such right to regulate reflects tribal concerns
over the harvests commercial, subsistence, and cultural value.
In construing treaties and agreements, the courts have relied on several maxims: “We
will construe a treaty with the Indians as ‘that unlettered people’ understood it, and ‘as
justice and reason demand in all cases where power is exerted by the strong over those to
whom they owe care and protection,’ and counterpoise the inequality ‘by the superior
justice which looks only to the substance of the right without regard to technical rules.”
United States v. Winans, 198 U.S. 371, 380-81 (1905); accord Choctaw Nation v.
Oklahoman, 397 U.s. 620, 631 (1970); Tulee v. Washington, 315 U.S. 681, 684-85
(1942), United States v. Shoshone Tribe, 304 U.S. 111, 116 (1938). “Doubtful
expressions are to be resolved in favor of the weak and defenseless people who are wards
of the nation, dependent upon its protection and good faith.” Carpenter v. Shaw, 280U.S. 363, 367 (1930), accord with Winters v. United States, 207 U.S. 564, 576-77 (1908);
“A treaty was not a grant of rights to the Indians, but a grant of rights from them- a
reservation of those not granted.” Washington v. Washington State Com. Passenger
Fishing Vessels Ass’n, 443 U.S. 658, 680 (1979); accord with United States v. Winans,
198 U.S. 371, 381 (1905). The N.W. Tribes did not understand that sharing the salmon
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and fish resources with the non-native society would require them to sacrifice the cultural
(ceremonial, artistic) components of their fishing rights.
Although treaty negotiations were with the Indian tribes, the treaties reserved rights to
every individual Indian, as though described therein. United States v. Washington, 384 F.
Supp. 312 (1974). When the Internal Revenue Service attempted to tax the fishing rights
of the tribes, we reflected on U.S. v. Washington, wherein it was stated, “Mindful that
treaty fishing is a right, not a mere privilege, the following sentence from Murdock,
quoted in a footnote, (p.402, 88 S.Ct. p. 1730) of Puyallup I seemed pertinent: “The
power to tax the exercise of a privilege is the power to control or suppress its
enjoyment.” “As stated by the United States Supreme Court in Winans (198 U.S.
pp.381-382, 25 S.Ct. 662), treaty fishing rights are personal rights held and exercised by
individual tribal members. Although the exercise of that particular civil treaty right may
be limited or modified in any particular or to any extend by or with the authority of
Congress, …” 384 F. Supp. 312, at 337 (1974). In tribal society, an individual that
displays and inherent gift to create artistic representations of native culture are considered
as having the individual right to practice that field and produce their products for
distribution. Individuals that displayed the quality of craftsmanship in the arts would be
hired time and again to create for others that do not have such an inherent gift. They
products had marketable value that was recognized and appreciated.
As we are currently aware, the U. S. Congress and the Presidency did modify the
Indian Treaty Fishing Rights in 1988. In that year the amendments to the U.S. Internal
Revenue Code had added Section 7873 – Indian Fishing Rights Exemptions. Thus, the
income of Indian Fishermen (whether fishing under language of a treaty, executive order
or federal statute) was declared exempt from federal and state taxation, as a matter of
tribal treaty right. The management of the exemption is an act of tribal self-government
and self-regulation. This is why tribal/treaty Indian fishing rights income is generally not
reportable to the IRS, since having to have to report the income is a form of suppressing
the freedom of the treaty right itself. Management of tribal members that exercise the
fishing right is a legal right of the tribal government, and equally it may choose to
manage the artistic expressions of tribal artists that practice in the tribal community; after
all, the artists are depicting the collective knowledge of the tribal community, as it relates
to their fishing rights.
In United States v. Washington, 312 F. Supp. At 343 (1974), the Court ruled that “For
these reasons the court finds that the taking of fish for ceremonial and subsistence
purposes has a special treaty significance distinct from and superior to the taking of fish
for commercial purposes and therefore fish taken to serve ceremonial and subsistence
needs need not be counted in the share of fish that treaty right fishermen have the
opportunity to take.” The court further held that, “..one common cultural characteristic
among all of these Indians was the almost universal and generally paramount dependence
upon the products of an aquatic economy, especially anadromous fish, to sustain the
Indian way of life. These fish were vital to the Indian diet, played an important role in
their religious life, and constituted a major element of their trade and economy. U.S. v.
Washington, 312 F. Supp. At 350 (1974).
“The First Salmon Ceremony, which with local differences in detail was general
through most of the area, was essentially a religious rite to ensure the continued return of
salmon. The symbolic acts, attitudes of respect and reverence, and concern for the salmon
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reflected a ritualistic conception of the interdependence and relatedness of all living
things which was a dominant feature of native Indian world view. Religious attitudes and
rites insured that salmon were never wantonly wasted and that water pollution was not
permitted during the salmon season.” U.S. v. Washington, 312 F. Supp. At 351 (1974).
“There is nothing in the written records of the treaty councils or other accounts of
discussions with the Indians to indicate that the Indians were told that their existing
fishing activities or tribal control over them would in any way be restricted or impaired
by the treaty……. . At the time of the treaties Indian control over fishing practices was by
customary modes of conduct rather than by formal regulations. …Subsequent to the
execution of the treaties and in reliance thereon, the members of the Plaintiff tribes have
continued to fish for subsistence, sport and commercial purposes at their usual and
accustomed places. Such fishing provided and still provided an important part of their
livelihood, subsistence and cultural identity. U.S. v. Washington , 312 F. Supp. At 387
(1974). “The Indian cultural identification with fishing is primarily dietary, related to the
subsistence fishery, and secondarily associated with religious ceremonies and commercial
fishing.” U.S. v. Washington, 312 F. Supp. At 358 (1974).
“Fisheries management takes into consideration both the resource itself and the
objectives and needs of the societies which control and seek to utilize it. The commercial,
sport and Indian fisheries are managed for different use objectives and user interests. …
The Indian tribes have as their primary use objectives the fostering of Indian economic
well-being, the preservation of Indian cultural heritage and way of life, and the provision
of a significant element of Indian diet.” U.S. v. Washington, 312 F. Supp. At 383 (1974).
“Because of traditions, treaty provisions, and location of Indian communities, the Indian
fisheries are largely place oriented. Management of Indian fishery objectives must
consider this factor.” U.S. v. Washington, 312 F. Supp. At 384 (1974).
The Lummi Indian Nation, by its culture, traditions, and ceremonials, incorporate a
deep respect for the natural environment of the salmon, and the salmon itself. This
environment includes the oceans, the rivers, and the forests & lands surrounding the
salmon habitat. As Chief Seattle is often quoted as saying at the treaty negotiations, “all
things are connected.” The totemic arts depict the stories of the salmon and the creation
of the environment surrounding the tribal Indians dependence upon nature for their
traditional, cultural, ceremonial, religious life style. This traditional means of
preservation of knowledge through the traditional arts is just as important to traditional
tribal governance as the modern day form of biological and fisheries management
knowledge is to self-governance.
Therefore, it is important to take official notice that carving totem pole designs and
figures, and other artistic cultural expressions, for public and private display of the
“Stories of Conservation” is an activity that is valuable to tribal society and the larger
surrounding non-Indian society (which has done extensive damage to the fish populations
and correlated environments). This type of art is used to teach the necessity of protecting
the salmon and its habitat as much as commercial advertisements and Public Service
Announcements are used today to market tourism, seafood products, or otherwise. It is
completely within the self-determination and self-governing power of the Lummi Nation
to recognize this truth and the value of this traditional cultural knowledge. It is an
important vehicle for the Lummi to use traditional means of teaching preservation of
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harmony with the natural salmon environment for their children and the surrounding
public.
As noted above, the Federal Court, in U.S. v. Washington, 312 F. Supp. (1974), as
confirmed by the U.S Supreme Court, in Washington v. Washington State Commerical
Passenger Fishing Vessel Association, 443 U.S. 658 (1979), found that the tribal people
have a right to take fish and not just a right to attempt to take fish. This means that there
is an implied treaty right to have the environment (riverine, marine, forest, agricultural,
etc.) protected so that the salmon populations are not destroyed. This is called Phase II of
the U.S. v Washington decision- the environmental protection question. The Lummi note
that this environmental protection of the salmon habitat is the very foundation to the
lessons of the Salmon Story and First Salmon Ceremonies traditionally depicted in our
oral history and totemic arts.
Thus, in conclusion, the totem pole carvers of the Lummi House of Tears Carvers (as
incorporated under the Lummi Constitution), and other artists, are protected in the same
manner as tribal members that are hired as fisheries management or fisheries biologists or
fisheries enforcement staff in lieu of actually being fishermen. These employees, like the
artists, are a form of “fishers” that are harvesting, marketing, and transporting another
valued aspect of the treaty protected fishing right. This recognition that the “arts” of the
traditional tribal community commonly depict these stories of conservation is an
expertise that is taught to the artists by their traditional instructors, from one generation to
another via oral tradition or otherwise. Their common function and mission is the
teaching of conservation and the protection of the salmon stocks and their habitat, and the
related floral and faunal environments (called biodiversity under modern management
concepts).
In fact, the House of Tears Carvers was instituted by the late Vern Johnson, Jr.- a
LIBC Member and Fisheries Staff member specialing in water rights and salmon habitat
protection, along with the late Cha-des-ska-dum Whichtalem- the Lummi Culture
Protection Specialist, and the current organization chairman/Master Carver is Jewell
James. In result of their perception of the necessity of preservation of traditional
knowledge for teaching respect for the salmon, its habitat, and the natural environment,
the House of Tears Carvers was incorporated under the laws of the Lummi Nation. While
most every traditional artist is first an individual that seeks to master a chosen medium of
expression, they are all secondarily members of the tribal collective and held accountable
to the expectations of the community, as teachers of the arts and the correlated stories
that teach respect for creation of the natural environment.
A recent example of the use of tribal totem art for public good was the development of
the totem pole pieces that were located along Whatcom Creek, in Bellingham,
Washington. This was a site were a gas pipeline crossed the stream. It leaked and an
explosion took place. Two forms of tragedy transpired- first, there were youth killed in
the explosion (traumatizing their families) and two the explosion caused extensive
damage to the stream habitat and resident fish, mammal, & bird populations. The Lummi
& Nooksack Tribes worked with the City of Bellingham, Whatcom County, the state, and
federal agencies to rebuild the natural habitat and stream, and to remember the tragedies
imposed upon the community and the families that lost loved ones in the explosion. After
the stream was rehabilitated, it was decided that totem poles shall be raised at the site- to
help the community remember the lost of the youth as well as damages to the floral, the
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faunal, the fish, the stream, and environmental integrity. These poles depicted the story of
conservation of the salmon and animal life in the habitat.
Another recent example of teaching the public of the necessity of protecting the river
and its environmental integrity was accomplished in cooperation between the City of
Ferndale and Lummi’s master carver. In Ferndale a Riverside Park was constructed and
opened (December 14, 2007). Included in the park were three totem poles as public
informative art. The first depicted the story of how the Lummis and Pioneers opened the
river up by removal of a major log jam (removal was completed in 1877). This opened
the river up for navigation and for the salmon that could now go around the log jam to
reach up river spawning habitat. The next pole depicted the Story of How Raven Brought
the Salmon to the people (Part I of the Story of Conservation of the Salmon). The second
story depicted how Bear and His Wife influenced the Life Cycles of the Salmon (Part II
of the Story of Conservation of the Salmon). The combined influences of the two parts of
the story has, over the centuries, resulted in the Coast Salish Tribes instituting the First
Salmon Ceremony- to teach the people to respect the salmon during its complete life
cycle as well as its habitat.
In conclusion, the Lummi Nation requests that the respective Solicitor for the
Northwest Regional offices of the Internal Revenue Services recognize that the use of
traditional and modern Native American art is directly related to the treaty protected
fishing rights and a direct manifestation of the cultural/religious/ceremonial aspects of the
protected right. The Coast Salish Tribes and their fisher people, as a part of the on-going
U.S. v. Washington litigation, have a right to secure a moderate living from the protected
right and this includes all the tribally-enrolled artists that depict the fishing culture in
their art products.
Jewell P.W. James, Lummi Master Carver
House of Tears Carvers of Lummi Nation
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ATTACHMENT TO MEMORANDUM ON TOTEM CARVERS& TAX EXEMPTION- A
sample of Pacific NW Indians Stories of the Conservation of
the Salmon Species and Protection of the Spawning Habitat.
SALMON WOMAN AND HER CHILDREN- Part I & II
Lummi Culture Protection Committee
Written by Jewell Praying Wolf James
February 4, 1992
RAVEN AND SALMON WOMAN-PART I
Once, a long time ago, when the world was still young, the Indian
People were traveling throughout their territory; following Raven,
amongst the islands, all along the shores, and up into the mountains.
Raven had a duty to lead them to their source of food. He knew his
people were very hungry and if he did not succeed soon then they may
starve to death. It seemed that all the animals had failed to provide
the annual foods his people normally relied upon. The fruits, the
berries, the roots, and all the other types of food seemed to be so
very scarce. The people could never remember a time that life was so
difficult for everyone. Raven was having a great problem as a leader,
he was running out of ideas on where to go, what to do, how to feed the
hungry children and elders.
The People had been eating and living on the few roots they could
dig year round. Some were drinking a lot of the wild berry teas they
could find in the mountains and fields. Others were eating some of the
soft sides of the tree bark to stay alive. But, still, this plant food
did not provide the people with enough to sustain themselves. Raven had
to find another way for the people to
survive, a new food source if possible.
There was one thing that Raven did not try, yet. He did not search
the unknown parts of the great waters, the bays, the ocean itself. He
knew that it was his obligation to try. His canoe was brought to the
waters edge. His best canoe paddle was made ready. Tule and cedar mats,
and a cedar root hat were placed inside, and some water for his thirst.
He did not take any food, for there was very little edible plants
gathered to sustain the children and elderly. Raven climbed into his
canoe and shoved off, down stream, heading down the Nooksack River,
away from the Island at the river delta.
The people all gathered along the shore. They wished the best of
luck to Raven. They all sang spiritual songs to give him strength and
to guide him. They waved as he paddled out from the village. Some say
his act was one of desperation and he did not turn back to wave for
fear the people may see his concern in his face- for leaders do not
cry. The people watched until he was out of sight from the shore. Each
one, young and old, kept him in their hearts, after all he was doing
this for them. But, still, they were worried. He was a great leader and
had all their respect but he was one person. They admired him for he
held the interests of the people up above his personal needs foremost.
His heart was bigger than most.
Raven paddled and searched. He went to all the is-lands. His people
had been there before. They searched and the land was barren. They were
very familiar with all the islands. He traveled past the familiar
sites, rechecking all the spots once again. As he paddled, he began to
lose his sense of time. He became hungry and drank some water. Day came
and then night, then another day and another night. It seemed that time
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between day and night overlapped and he was no longer able to keep
track. Was he gone a week, a month, how long?
Raven went without any type of food for many days and nights- even
the plant foods seemed very inviting to him now. Some say this was the
beginning of fasting for spiritual gifts. Others say it is just one
example of many times that leaders and people fasted and were rewarded
for their sufferings.
But, for Raven it seemed that he was not
winning. He lost sight of where he was from and did not even know where
he was going. He could no longer see the familiar island shorelines
anymore. During his travels a fog had set in and he became lost.
Raven began to despair. He did not believe that he could survive a
trip back to the village, even if he could find his way out of the fog
and back to his people. He had only water. He began to accept death. He
was cold and had made a temporary shelter from his matting, but he was
losing body heat and could not replace it- since he could no longer
burn body oils to restore his energy. He began to sing his death song.
He was preparing himself for death, which would take him away from his
beloved people. His life was ending in failure, he feared.
Some say that Raven was thinking about his people right up to the
last minute. He drifted in his canoe. He sang out, "O' Great
Transformer, I regret that I have failed to save my people. They
trusted me as their leader. I have tried and now they have no one to
protect them, to guide them, to advise them. I only wish to have done
more for them." Raven sang his death song, he mind, his body, and now
his spirit were getting ready to change worlds. He was going to join
his ancestors.
Off, in the distant waters, someone swam, apparently alone,
listening to the song and story of Raven. It was Salmon Woman. She was
still in the waters, observing. She was moved ever so deeply by the
story of Raven and his people's needs. She felt sorry, but at the same
time had great respect for him. She admired the fact that he not only
was willing to give his life for his people but his last dying thoughts
was for their health and safety. She believed anyone who would be so
concerned about others must be really good and strong of heart. She
listened and slowly swam closer to Raven's canoe.
Salmon Woman decided to do something about it. She used the powers
of transformation and changed into a human female. She swam closer to
Raven. She hollered out- "Help, Save me. Please!" She knew that Raven
could hear her, even though she was not clearly visible from his canoe.
She hollered and hollered, swimming ever closer to Raven. She could see
him through the fog very clearly, slowly getting closer and closer.
Raven completed his song. He was just going to lay down on his tule
mat and cover himself with his cedar mat, with his cedar root hat over
his face, and wait for his death; but, then, he heard a female voice.
He sat up and listened, staring into the fog, watching along the water
surface. He thought he could depict some movement off in the distance.
He picked up his paddle and steered his canoe toward the spot were
Salmon Woman was. He slowly approached
her, then realized it was
a
woman in the water and he quickly responded and came to her aid. He
pulled his canoe along side her and helped her into the canoe.
He thought that she must have fallen from some other canoe. She
appeared so weak, so helpless. He made her comfortable as possible. She
was allowed to sit on his tule mat, to rap herself in his cedar mat and
to cover her wet head with his bark hat. She was given the last drops
of his water. He waited, she rested. He wanted her to recover from the
cold water, to gain her breath from her swim. He thought how terrible
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that she could fall out of a canoe and no one would even stop and pick
her up. How could anyone be so cruel.
Salmon Woman was amazed at his generosity. He was dying but still
was concerned about saving her, about her warmth, her comfort, her
thirst. She watched him intently. His eyes were soft and concerned. His
voice gentle and caring. She asked about his people. He told her of his
people's story, their hunger, their need, and how he was responsible to
them. She was pleased and admired him deeply.
She said, "I am Salmon Woman. I have many children. My children play
in the oceans all around you. They follow wherever I go and lead them.
My children are beautiful, healthy, and their color glows like the
sparkle of the sun off the waters surface. My children are obedient and
come whenever I call."
Raven looked around. He could not see any children swimming in the
water. He was concerned, was her children drowning in the cold waters.
Salmon Woman told him, you cannot seen them, they swim in the water,
below the surface. I shall introduce them to you. She sang a beautiful
song, a spiritual song. As she sang she took Raven's bark hat dipped it
into the water. Each time she raised the hat she came up with a Salmon
Child. She said, these are my children. They each have a name. This one
is called "Chinook." She sang and dipped the hat again, this one is
called "Coho." She continued, "this one is called Sockeye, this one is
Pink, this one is Chum, and this one is Steelhead."
Salmon Woman
filled the canoe with her children. The waters around the canoe boiled
with so many Salmon Children swimming around it.
Raven was stunned. He had never seen children like this, nor has he
ever heard a song like the one she sang. He asked her how many children
she had. She said she never could count all of them, although she knew
each and everyone of them by name, and loved and cherished them beyond
the love that humans could feel for their own children. She told Raven,
"I give my children to you and your people, so that they may survive.
If your people are as loving and caring as you are then they deserve
these children."
Raven was deeply moved. But, he said, "I am lost. I cannot find my
way back to the village. Your gift is very appreciated. My people could
truly benefit from such a gift, but I am lost."
Salmon Woman told Raven, "just paddle straight ahead and believe. I
and my children know these waters, the rivers, and we know where your
village is located. Raven did as he was told. As he paddled Salmon
Woman sang her song and the children followed alongside and behind the
canoe. But, soon, Raven stated, "I cannot see, I am lost, it is
hopeless, the fog makes me blind."
Then, Salmon Woman stood up. She sang a new song. Raven listened. He
watched. The fog raised up. This was why Salmon Woman is also known as
"Fog Woman." She had the spiritual song of the fog as well. Raven
looked around and he could see the familiar islands once again. He
paddled. Salmon Woman sang her song and her children followed, leaping
toward the village. Soon they could see the village in the distance.
As they came closer to the shoreline, the People in the village
could hear a strange, and beautiful song that they had never heard
before. They all ran to the shore. They could see the canoe of Raven.
He was not alone. They were excited. They waited. He arrived and
beached his canoe. All the people ran to the canoe to see what he had
found. They helped Raven out of the canoe. Then, they all got a first
look at the strange and beautiful Indian woman that was with him. She
wore Raven's bark hat and had his cedar mat on like it was a cape. They
all stood silently, waiting for Raven to speak.
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Raven stood, he looked around. He people waited. He told them about
how far he went, how hard he looked. He told them that he gave up and
was ready to accept death when he found Salmon Woman. He explained how
she was in the water, and how he helped her, only to find that she had
lived in the water and had more children then she could count. He told
them about the beautiful salmon song and then the mysterious fog song.
He explained that while he paddled Salmon Woman sang a song and her
children followed her to the village. He explained how deeply she loved
her children but will sacrifice them for his people to survive.
The people listened. They looked out into the bay and the salmon
children seemed to be endlessly coming. They soon filled the whole
river. They swam, they leaped, they all came one at a time and Salmon
Woman told every-one the names that her children are known by. She
explained how she understood the people to be loving, caring and
deserving of her sacrifice. . . the Salmon Children were a gift to the
people.
The people never had to worry about food. The Salmon Children were
with them year round. The salmon stayed in the river, near the village.
Raven was so proud of the gift, that he had taken Salmon Woman as his
wife. Some say this was the greatest honor he could bestow upon her. He
was a great leader and she gladly married him. They spent many years
together. The people were happy.
Then, some say it was the children of the people that disgraced the
gift of Salmon Woman. Some say that it was Raven, that he was cruel to
her and the children, and was abusive toward his wife. Others say it
was the people, that they forgot to be respectful and grateful for what
they had.
One story says that one child said, "I am sick of salmon.
All we eat is baked salmon, boiled salmon, broiled salmon, sun dried,
wind dried, kippered, bar-be-qued,
and smoked salmon. Salmon with
every meal, every day, every week, every month, all year round. Salmon,
Salmon, Salmon all the time.
I am sick of it and hate it. I wish we
did not have to eat it."
They say that Salmon Woman was hurt by the treatment she and her
children were receiving. Some say that Raven was gone when she decided
to take her children and leave. She stood by the waters edge and sang a
new song. She sang this song and as she did all the Salmon Children
came back to life. The dried, the smoked, the boiled, all of it came
back and rolled to the water. As each neared the water they turned back
into whole salmon and leaped into the water, swimming toward the bay,
and waiting for their mother- Salmon Woman.
When she finished her song, and all the children had transformed,
then she walked into the water and trans-formed back into a salmon,
just like her children. She swam away, singing a song, while all her
children followed her. They went in the direction that they originally
came with Raven. Soon they were out of site, gone forever. She vowed to
never bring her children to a place that they are not wanted or
appreciated. She would not tolerate the disrespect of herself or her
children's great sacrifice.
The people panicked. They did not mean to be disrespectful. They
sent away for Raven, who was on a hunting trip. He came back and
demanded to know where his wife was. The people hung their heads and
admitted to being abusive. Raven was dismayed. He hurt in his heart
over the lost of his wife and her wonderful children. It did not matter
whose fault it was, everyone was responsible. Everyone had the
opportunity to correct the wrongs that were being done; but, still,
Salmon Woman felt damaged enough to have to leave, taking all her
children with her.
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Raven and the people began to suffer. They began to starve. They all
wished for the wonderful Salmon Children. They pleaded with Raven to
find his wife, to locate her and ask her to come back, with her
children. Raven thought for a long time. He did not know where she came
from or how to locate her house under the waters. All he knew was that
she came to him in his time of need. She had a good heart and just
might listen to their pleas for her to come back. Raven got his canoe,
his paddles, his mats, and his water ready and headed out to search for
his long lost wife.
Once again, many days and nights were spent searching. It was only
after Raven's many promises to make his people, and himself, respect
her children did Salmon Woman even come close enough to the canoe for
Raven to talk to her. She still loved him and his people. She agreed to
come back; but, there were going to be changes. His people would have
to accept these conditions. She transformed and boarded his canoe,
singing her special songs she lead the Salmon Children back to the
village waters of the river.
The people were glad to see her and her children. They gathered,
excitedly they listened as Raven told them of the special
conditions
of their return. First, because the people got to use to having the
salmon near them all the time the people took them for granted. The
Salmon Children were forbidden from staying near the village year
round. Maybe if the people did not see them all the time they may learn
to appreciate them more. The Salmon Children would not sleep near the
village of people.
So, the Salmon Children were sent upstream to make their beds
(spawning beds). And, the children would only stay for certain seasons
and then they would leave the river for a time. They would go to the
House of Salmon
Woman, under the waters of the oceans. They would
return after a time, after making this journey each year. The people
agreed to the terms and they all became happy once again.
This was a time that the Xwlemi People, as a society, began to pay
great honor to Salmon Woman and her Children. At one time they forgot
about how poor they were before they found the "Salmon." But, after
enjoying times of plenty, they became disrespectful and the salmon were
nearly completely destroyed. However, with care and consideration they
were able to restore the salmon runs. Still, it was
no longer only
Raven's duty to honor and respect her, it was the duty of everyone. The
First Salmon Ceremony, today, teaches and reminds the people to respect
their food. . . especially that provided by Salmon Woman and her
children. It reminds the people that their food, once again, could be
taken away from them. It is a story that teaches the children to never
say, "I don't like it," or "I wish we did not have to eat it."
Ever
since, the Indian People honor the First Salmon and are thankful for
their food. Salmon is as important to the Xwlemi Culture today as it
was in the past; maybe, it might be more important due to the daily
battles to protect the Salmon Children and the waters they live in (up
the Nooksack River and out in the Bays and Ocean). This is all a part
of the extensive problems the Indian and non-Indian people have to work
out today. . . who is responsible for protecting the salmon for future
generations?
Kwel Hoy> (that is all), Hy>sh>qe (thank you), Se-sealth, Xwlemi
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BEAR, BEAR’S WIFE, AND THE STEELHEAD- Part II
The people all lived in the village, at the mouth of the river. They
all knew that the gift of Salmon Woman and her Children was amongst
them. Raven was a great leader. His wife was wonderful. Each year her
children came to the village, and then went upstream to the spawning
beds. Each year they returned to their mother's house under the oceans.
But, the people always knew that the Salmon Children would return each
year. All the people learned to keep the respect for the children. This
guaranteed their survival.
Raven had a brother. His name was Bear. Bear was married. His wife
was pregnant. In accordance to the beliefs of the people, Bear's wife
was in a very spiritually strong condition. She was creating life. She
was deeply loved and respected by all the people. She was a part of the
great mystery of creation. But, as long as she was pregnant then
Brother Bear could not hunt, fish, or even gather roots and berries. In
fact, it was preferred that he not touch his gear or that of the other
hunter's and fishermen as well.
The people believed that some of the powers around Bear's wife,
during this time of creation, could rub off and influence the things
Bear does or touches. If he touched hunting gear, or fishing gear, or
gathering gear then it could cause harm to the owner or the plants and
animal themselves. The hunters and fishermen prayed before they hunted
or fished- this was respectful, it was the tradition of the people.
Plants and animals were food, but they were once spiritual beings at
one time and deserved to be respected. Tools had to be clean physically
and spiritually to work properly. If Bear touched such tools, then he
could undo all the work.
Brother Bear was restricted from hunting, fishing, or gathering as
long as his wife was pregnant. It was Raven's duty to hunt, fish, and
assure that plants and roots were gathered for the house of his
brother- Bear. Raven gathered up his gear and did his duty, helping
provide for his brother's family needs.
To Bear it seemed that each hunting or fishing trip his brother went
on took longer, and longer, and longer. He was restless. He wanted to
go hunting. He wanted to go fishing. He wanted to do something. It
seemed that the rule of his not doing any of these fun things was
unfair. He was a man. He should provide for his family, not someone
else. It did not seem necessary to him. After all, it was his wife that
was pregnant not him. What harm would it do if he went fishing, at
least.
Raven was gone and not expected back for some time. The people would
not notice if he left for
a short while. If he when fishing then he
could provide his wife with extra food, above and beyond that which his
brother was providing. He was a man, he should provide for his own
wife, this thought became his justification. No one would blame him.
Besides, what right was it of Raven to do all of his duties.
Bear knew that the people would see him in the bay if he went
fishing there. They would see him in the river if he fished near the
village. He thought and thought. Then, it seemed to strike him as a
great idea, he would follow the Salmon Children upstream to their beds.
He could fish there and the people would never see him. What they did
not see could not possibly hurt them. After all, there were millions
and millions of the different Salmon Children. No one could possibly
notice a few would be missing, not if they were taken in the upper
reaches of the river, away from the village.
All of Brother Bear's fishing gear was stored away. He decided to go
to the spawning beds and simply fish with his hands. Bear left the
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village. He arrived up-stream and spotted the Salmon Children in their
beds. He knew each one by their names. He could tell them all apart.
There was Chinook, there was Coho, there was Sockeye, there was Pink,
there was Chum, there was Steelhead. They all were in his reach. All he
had to do was to reach out and grab a few. No one would even know.
Bear reached out and touched the Salmon Child called Chinook. As
soon as he did then all the Chinook Children died in their spawning
beds. He thought nothing of it. He did not realize that the power that
surrounded his wife's pregnancy was too overwhelming for the Salmon
Children. He, then, reached out and touched the one called Coho and
immediately all the Coho died. First the Chinook floated down stream,
and pass the village at the mouth of the river. The people saw this and
were upset. Then, the people saw the Salmon Child called Coho drift
pass the village. They sent a search party out to find Raven, for no
one ever remembered the Salmon Children dying like this.
The people searched and searched. The whole village was concerned
and being overcome with grief and fear. They anxiously waited for the
return of Raven, surely he had answers. In the mean time, Brother Bear
was still enjoying himself in the spawning beds. He next found the
Salmon Children called Sockeye, then Pink Salmon. As he touched them
they all died. They drifted down stream, pass the village.
As soon as Raven returned he called a meeting of the village. He
noticed that only one person was gone- Brother Bear. He knew that
Bear's wife was pregnant and that Bear was forbidden to touch the
fishing equipment for good reasons. This respectful conduct was
expected of all the people in the same condition and circum-stances as
Bear. Bear was not to be treated any different. He realized that it
must be his own brother that was violating the promises made to Salmon
Woman. . . to respect her children and leave them alone in the spawning
beds.
Brother Bear was so happy to be fishing. He thought what a foolish
rule it was for them to say he could not fish. Here he was, fishing,
all alone, and no one could catch as many fish as he had. Bear did not
even notice that the river bed and shore was covered with the
multitudes of dead Salmon Children. He did not want to see, so he
became blind to his own mistakes and errors. He was happy, that was all
that mattered to him. He had an excuse. Next Brother Bear found Chum
Salmon. He reached out and caught one, then all the other Chums began
to die. They floated down stream.
Raven followed the dead fish upstream. He came to the spawning beds
and there he found his Brother- Bear. Bear was just ready to reach out
and touch the Salmon Children called Steelhead. Raven stopped him.
Steelhead was not touched by Bear. It did not die in the spawning beds.
It did not float down stream pass the village. Bear could not deny he
was fishing. Raven explained to Bear all the damage that was done. Bear
was ashamed and he shamed his Brother- Raven, and he brought shame upon
his whole village and all the people. The vows to Salmon Woman were
violated, again.
Raven had to punish his brother. So, he forbid his brother from
using any fishing equipment from that day forward. Bear would be stuck
with fishing in the spawning beds, when the Salmon are not in their
best quality condition. But, the damage was done. The Salmon Children
called Chinook, Coho, Sockeye, Pink, and Chum were all touched by Bear
when his wife was pregnant.
They, the Salmon Children, all were affected by this. Now, they all
die in their spawning beds. Before they use to go to the spawning beds
then return to the oceans, to the House of Salmon Woman- under the
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water. They would take this journey year after year. But, now, it all
changed. They would come to the spawning beds only to die.
All except Steelhead- who was not touched by Bear. Steelhead, to
this day, continues to swim up to the spawning beds then return to the
ocean, year after year. This is why Steelhead is different from all the
other Children of Salmon Woman.
Raven remembered all the disrespect before this happened. He
remembered the time that Salmon Woman took her children away before,
and the people suffered from their foolish behaviors of disrespect.
Raven knew that Salmon Woman could leave the village, once again, and
take all her children away forever. He convinced her it would be wrong
to make all suffer for the poor decision of one- Bear. But, he knew
that all of us were responsible to make sure such disrespect did not
happen again. So, there had to be a way for the whole village, all the
people. to remember this event and not be so disrespectful in the
future.
This was the time that the people began to hold the "First Salmon
Ceremony." They knew that Salmon Woman would continue to send her
children, year after year. But, to remember the sacrifice and the need
to not repeat past mistakes, the people began to hold annual ceremonies
to remind the elderly and teach the young children to never forget.
Through the use of a traditional, annual, ceremony each generation
would be taught. All of the people would participate- the elder-ly, the
young, and the leadership.
Now, each year, with the arrival of the
First Salmon Children, the people remember that the death of the Salmon
Children is a spiritual matter, and if we want them to come back every
year then we have to be respectful. . . they are, after all, spiritual
sacrifices for the benefit of the human children.
Kwel Hoy> (that is all), Hy>sh>qe (thank you), Se-Sealth, Xwlemi
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