Friday, April 24, 2009

Wintu Tribe sues the Federal Government

Winnemem Wintu Tribe Holds War Dance Before Launching Federal Lawsuit

By Dan Bacher

Arrayed in traditional regalia, over two dozen members of the Winnemem Wintu Tribe held a war dance along the banks of the American River on the evening of April 19 and morning of April 20 to bring attention to decades of injustice and destruction of their cultural sites by the federal government.

Male dancers in traditional feathered headdresses, accompanied by female singers in white dresses, performed the ancient ceremony around a sacred fire to the steady beat of a wooden drum.

After the ceremony, Caleen Sisk-Franco, the tribe’s spiritual leader, and Mark Franco, the tribe’s headman, and their pro bono lawyers filed a lawsuit at the U.S. District Court for the Eastern District of California.

The suit against six federal agencies and two current federal agency heads alleges that their actions have resulted in the “destruction or damage” to the Tribe’s sacred cultural sites in Shasta County, California. The Winnemem are seeking declaratory and injunctive relief, as well as monetary damages.

“We are a traditional people and have continued our traditional ways throughout the written history of the state of California,” said Sisk-Franco. “We hope this lawsuit and War Dance will protect our basic quality of life and ensure our freedom to maintain our traditions and culture.”

The ceremony was a continuation of the war dance that they launched against the federal government’s proposed raising of Shasta Dam in September 2004. The proposal to raise the dam anywhere from 6 to 200 feet threatens to flood the tribe’s remaining sacred sites vital for preserving their culture, including Puberty Rock where coming-of-age ceremonies are traditionally performed.

The tribe has been forefront in the battle to restore Central Valley salmon populations, now in an unprecedented state of collapse, and the California Delta. They have been outspoken opponents of proposals by Governor Arnold Schwarzenegger, Senator Diane Feinstein and corporate agribusiness to build a peripheral canal to export more water out of an imperiled estuary.

The tribe was also one of the plaintiffs in a lawsuit against the federal government that successfully challenged a biological opinion by the National Marine Fisheries Service under the Bush administration that concluded that proposed state and federal government water operations would provide “no jeopardy” to winter run Chinook salmon, spring run Chinook salmon, Central Valley steelhead and green sturgeon.

The Tribe held a rally at the State Capitol, attended by members of the Miwok, Hoopa Valley and other Indian Tribes, environmental justice advocates, and local activists, to call attention to the filing of its longstanding grievances against the federal government that began with the construction of Shasta Dam and continue until this day.

California Assembly Members Jared Huffman (D-San Rafael) and Fiona Ma (D-San Francisco) expressed their solidarity with tribe’s efforts at the rally. Huffman was the author of AJR 39, passed by the Assembly and signed by the Governor last year, that supports the restoration of federal recognition. In 1980’s, the tribe was inexplicably dropped from the list of federal recognized tribes in California.

“We all know that tribal recognition matters,” said Huffman. “The tribe was recognized until the 1980’s. Hopefully, with the new administration and Congress, we will be able to right this historic wrong.”

Assembly Member Fiona Ma emphasized that the Winnemen Wintu’s plight occurs within the larger context of the lack of federal recognition to member of Indian Tribes in California.

“Only 38,000 tribal members are recognized in California, while 400,000 tribal members still aren’t,” she said. “It’s important that the federal government bring you the dignity and justice that you deserve – you were living here before us.”

A court decision in the 1980’s forced the Bureau of Indian Affairs to give American Indian tribes throughout the country the right to decide whom their members are. However, the federal government maintained the right to determine who the federally recognized tribes are, according to Sisk-Franco.

“This decision has been devastating in California for Indians who have denied federal recognition,” said Sisk-Franco. “It has made historic tribes into non-people – and tribal members became non-Indians.”

As a consequence, the Winnemem Wintu aren’t protected under the Native American Graves Protection and Repatriation Act, the American Religious Freedom Act and other state and federal laws that protect federally recognized tribes.

“Federal recognition of our tribe will strengthen our position by establishing formal government to government relations between our tribe and the federal government,” said Sisk-Franco. “It will allow us allow use to take advantage of resources to do scientific studies, such as those necessary to reintroduce Chinook salmon to the McCloud River. By keeping us unrecognized, the government is holding us in a handicapped position.”

The Tribe would like to reintroduce the McCloud River’s native strain of Chinook salmon, barred from running up the river since the construction of Shasta Dam in the 1940s, to once again ascend the river.

Mark Franco has talked to fishery officials in New Zealand, where the McCloud River strain of Chinook was successfully introduced in the early 1900s, about bringing the fish back from New Zealand to the McCloud. The salmon could be reintroduced to the McCloud by building a channel extension to Dry Creek, a tributary of Shasta Lake, to enter Cow Creek or another tributary to the Sacramento River below the dam.

Jayne Fleming, Pro Bono Counsel and Human Rights Team Leader at Reed Smith LLP, one of the 15 largest law firms in the world, filed the lawsuit on behalf of the tribe. Other members of the team include Heather B. Hostelry, Cheryl B. Kahn, Eugenia S. Churn and Kevin L. Jayne.

“Numerous federal laws and policies require federal agencies to consider environmental and cultural values when they assess proposed government projects,” said Fleming. “These laws also require federal agencies to consult with and fully disclose all the relevant information about their proposed actions to potentially affected individuals, as well as to use all possible means to preserve important historic, cultural and natural aspects of our national heritage. In dealing with the Winnemem Wintu, the defendants have blatantly ignored and violated these requirements, and they continue to do so, to the detriment of the Tribe's history and culture.”

“By holding the war dance and filing the lawsuit, we are hoping the people in power at the Capitol and the federal government take notice of our situation,” summed up Michael Preston, one of the war dancers. “We are doing this because they haven’t paid attention to us as an unrecognized tribe for decades.”

The Lawsuit:

Defendants include the U.S. Department of the Interior, Bureau of Reclamation, Bureau of Indian Affairs, Bureau of Land Management, U.S. Forest Service; and U.S. Department of Agriculture, as well as the current Secretary of the Interior Kenneth Salazar and the current Secretary of Agriculture Thomas Vilsack. The cabinet members are being sued in their official and individual capacities.

The Complaint details numerous U.S. government actions that have forced the Winnemem to retreat from their ancestral homeland on the McCloud and lower Pit Rivers and lose critical elements of their culture.

These actions include:
• Interfering with the Tribe’s own sacred burial sites
• Destroying medicinal grapevines and dumping dirt at the Nosoni Creek Cultural Site
• Bulldozing and filling a vegetated area at Nosoni Creek used for ceremonial storytelling
• Interfering with the Tribe’s use of an ancient fire pit at Dekkas Cultural Site; allowing trespassing at the Dekkas Cultural Site
• Destroying ancient Manzanita trees used for sacred fire pit ceremonies at Dekkas
• Ordering removal of the Tribe’s sacred ceremonial rocks from Dekkas; allowing trespassing at the Coonrod Cultural Site at Ash Creek
• Destroying ceremonial and medicinal plants at the Gilman road Cultural Site
• Placing a public bike trail through the Tribe’s Buck Saddle sacred prayer site.

According to the tribe’s lawyers, “These and other actions violate numerous federal laws and policies, including the National Environmental Policy Act, the American Antiquities Act of 1906, the Archeological and Historic Preservation Act, the Historic Sites, Buildings and Antiquities Act, the National Historic Preservation Act, the Archeological Resources Protection Act, the Native American Graves Protection and Repatriation Act, the American Religious Freedom Act, and several similar California statutes.”

The Complaint details causes of action for negligence, trespass, public nuisance, private nuisance, conversion, emotional distress, invasion of privacy, declaratory relief and injunctive relief. It demands a declaratory judgment, as well as injunctive relief and mandamus, and damages against all defendants.

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