ML20148G643

Petitioner Tribes'Response to the Bd'S Request of 780926. Incl Petitioner Tribes'Preliminary Designation of Witnesses,Treaty W/Dwamish Suquamish,etc,1855 & Cert of Svc

ML20148G643
Person / Time
Site:	Skagit
Issue date:	10/27/1978
From:	Busch R, Means D EVERGREEN LEGAL SERVICES, MEANS, DONALD S.
To:
References
NUDOCS 7811130128
Download: ML20148G643 (19)

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'pd UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Q fy

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BEF0~RE THE ATOMIC SAFETY AND LICENSING BOARD s g<9 kq . .,{j ; <~

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In the Matter of ) 6 17 ~

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PUGET SOUND PORER & LIGHT ) DOCKET NOS. 50-522 COMPANY, e_t _a l . ) 50-523

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(Skagit Nuclear Power Proj ect, )

Units 1 and 2) )

4 PETITIONER TRIBES' RESPONSE TO THE BOARD'S REQUEST OF SEPTEMBER 26, 1978 This Board made three requests in the Chairman's September 26th letter: (1) Identify and quote applicable sections of treaties; (2) Designate witnesses and outline testimony; (3) Discuss representation on appeal and by SCANP.

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1. Identify and Quote the Section or Sections of the Treaties Relied Upon to Support the Assertions That Their Interests are Specifically Provided For in Those Treaties. -

The treaty in question is the " Treaty with the Dwamish, Suquamish, etc." commonly refered to as the Treaty of Point Elliott, 12 Stat. 927. The treaty was executed on January 22, 1855, ratified on March 8, 1859, and proclaimed on April 11, 1859.

Because the entire treaty is necessary to understand the reservation of fishing rights, a copy is attached to this response.

The pertinent portion of the treaty is Article 5:

The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common l with all citizens of the Territory... l The meaning of similar language in the treaty with the Yakimas was characterized by the United States Supreme Court as early as 1905, in United States v. Winans, 198 U.S. 371, 381-2 (1905).

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The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians j than the atmosphere they breathed. New conditions j came into existence, to which those rights had to be accommodated. Only a limitation of them, however,

was necessary and intended, not a taking away. In other words, the treaty was not a grant of rights to the Indians, but a grant of right from them, --

a reservation of those not granted. And the form j of the instrument and its language was adapted to

that purpose. Reservations were not of particular  !

i parcels of land, and could not be expressed in deeds,

, as dealings between private individuals. The reser- l 1

vations were in large areas of territory, and the l negotiations were with the tribe. They reserved i i rights, however, to every individual Indian, as l though named therein. They imposed a servitude '

upon every piece of land as though describec therein.

2 There was an exclusive right of fishing reserved within certain boundaries. There was a right outside of those boundaries reserved "in common with citizens of the territory." As a mere right, it was not ,

exclusive in the Indians. Citizens might share it, I but the Indians were secured in its enjoyment by l

a special provision of means for its exercise. They 4

were given "the right of taking fish at all usual and accustomed places," and the right "of erecting temporary buildings for curing them." The contingency 1

of the future ownership of the lands, therefore, was foreseen and provided for; in other words, the India-=

were given a right in the land,-- the right of crossing

{ it to the river,-- the right to occupy it to the i extent and for the purpose mentioned. No other conclusion would give effect to the treaty. And 4 the right was intended to be continuing against

the United States and its grantees as well as against

the state and its grantees.

! "In common with" clearly was never meant to place treaty tribes in the same status as private fishermen deriving whatever l rights they have from Anglo-Saxon laws of capture.

! The state argues that the term "in common with" was intended merely to insure that the treaty Indians would not be treated discriminatorily, that each Indian should have access to the traditional fishing grounds on the same footing with each white settler. The Supreme 1

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< s Court long ago considered this construction, however, and rejected it. [ Citing United States v. Winans]

United States v. Washington, 520 F.2d 676, 687 (9th Cir. 1975).

The Ninth Circuit had occasion to return to this question in 1978:

It is crucial'to remember that these treaties did not grant the tribes anything; rather, the tribes granted the United States a vast expanse.of land, reserving to themselves certain interests in it and in its profits a prendre.

Puget Sound Gillnetters Association v. United States District Court for the Western District of Washington, 573 F.2d 1123, 1126 (9th Cir. 1978). It should be noted that the United States Supreme Court has recently granted certiorari, based on a conflict between state and federal courts. State of Washington, et al. v. United States of America et al., Nos.78-119 and 78-139, U.S.L.W.

(October 16, 1978).

2. The Petitioners are Requested to Designate the Witnesses Who Would Present Data in Their Behalf if Intervention were o be Granted, as well as Outline the Content of the Evidence Each of the Designated Proposed Witnesses Would Submit if Permitted by Intervention.

The response to this request is contained in Petitioner Tribes' Preliminary Designation of Witnesses which is served and filed with this response.

3. Legal Analyses Concerning Preservation of Rights on Appeal and Relegation of Indian Rights to SCANP.

a. Protection of rights on appe'al At issue is exactly how the Indian rights asserted here would be protected in the review process were SCANP not to appeal. To the extent that a SCANP appeal might arguably protect Petitioners - a matter which the tribes certainly do not concede - failure to prosecute such an appeal, or to provide

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vigorous advocacy (for whatever reason) would leave Petitioners without an adequate legal remedy. The record would be silent as to Indian rights, and gravely deficient.

Assuming denial of intervention at Licensing Board, ,

Appeals Board, and conceivably Commission levels, the procedural '

rules, 55 2.714a and 2.762, would force Petitioners to sit by

. powerless and watch issues directly affecting their lives and livelihood being litigated and decided. The Indians, who have had the Anglo-Saxon system of advocacy forced upon them, would 1 l

not be able to participate as adversaries, submit proposed i findings and conclusions, take exceptions to the initial decision if necessary, or appeal that decision within this agency. They would thus be denied administrative appeals on extremely l important questions.

Their only alternative would be to appeal the denial of intervention in the federal courts, and, if successful, move for reopening on their contentions. It is difficult to predict the workings of such a review process. See 42 U.S.C.

52139; 5 U.S.C. 5704; Pepsico, Inc. v. Federal Trade Commission, 472 F.2d 179 (2d Cir. 1972); Thermal Ecology Must Be Preserved v.

Atomic Energy Commission, 433 F.2d 524 (D.C. Cir. 1970);

contra: Interstate Broadcasting Company v. United States, 286 F.2d 539 (D.C. Cir. 1960) and Public Service Commission of the State of New York v. Federal Power Commission, 284 F.2d 200 l (D.C. Cir. 1960). Because of the magnitude of the treaty right, l and the void which would exist on the record, it is a matter of argument when and to what extent appeals would be allowed.

But Petitioners would be forced to forego remedies j in this agency. Attempts at exhaustion here would be futile.

The delay of access to an appellate forum would, among other things, be costly for Petitioners, deprive them of access to l agency expertise on technical questions, force them to seek reopening of the record with the additional burdens imposed I when " extraordinary" remedies are involved, and interfere with i

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• a economic and social planning by the tribes and affected state and federal agencies in areas in which the Skagit nuclear project poses risks. Fisheries enhancement, harvest management and social programs would all be affected. As outsiders seeking to inform a federal court concerning deficiencies in these proceedings,

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Petitioners would be at a distinct disadvantage. That disadvantage could be compensated for, but only at considerable loss in time and expense.

Further, should intervention ultimately be ordered,

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and should Petitioners be successful in having the record reopened (see Therma 1 Ecology, supra.) Petitioners would be in the awkward position of arguing their interests for the first time in a proceeding which had already been completed once in their absence.

Finally, Petitioners' contentions involve mixed questions of law and fact. In order to grant intervention, a distinct likelihood, a federal court would have to recognize the existence of these questions. It would contribute to the speedy resolution of such a review, and ultimately to resolution of the whole matter, if those questions could be argued first at the agency level. The smooth flow of administrative proceedings will be frustrated, rather than expedited, by denial of intervention.

b. Representation by SCANP Petitioners contend that it is not sufficient, nor consistent with due process, to proceed as if SCANP could provide representation of Indian rights. This becomes quite apparent upon review of the federal law dealing with Indian treaties and federal parties practice.

Petitioners occupy a very special status:

It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own Government. Indians today are American citizens.  ;

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They have the right to vote, to use state courts, and they receive some state services.

But it is nevertheless still true, as it was in the last century, that "[t]he relation of the Indian tribes living within the borders of the United States ... (is] an anomalous one and of a complex character... They were, and always have been, regarded as hiiving a H semi-independent position when they preserved their tribal relations; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided." United States

v. Kagama, 118 U.S., at 381-382, 6 S.Ct., at 1112.

McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 173-4 (1973).

Indian tribes are " unique aggregations" having sovereignty over their members and over their territory. United States v. Mazurie, 419 U.S. 544 (1975). They still possess those attributes of sovereignty not taken from them by treaty or statute. ,

United States v. Wheeler, U.S. , 98 S.Ct. 1079, 1089 (1978).

They are analagous to separate nations. United States _v. Devonian ,

i Cas and Oil Co.. 424 F.2d 464 (2d Cir. 1970).

The rules applicable to treaties with foreign powers )

generally apply to Indian treaties. United States Solicitor For l The Department Of The Interior, Federal Indian Law (1958). Treaties )

with tribes, like treaties with foreign powers, are the supreme j law of the land. Worcescer v. Georgia, 31 U.S. 515 (1832).

There are, however, some special rules of treaty construction I which should be, remembered. Treaties must be construed as the Indians would have understood them and any doubtful expressions o are to resolved in favor of the Indians. Choctaw Nation v. Oklahoma,!

l 397 U.S. 620 (1970). Congressional intention to modify or abrogate j such treaties is not lightly imputed. Menominee Tribe of Indians v United States, 391 U.S. 404 (1968).  !

Rights vested by treaty are protectable under the Fifth i l

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Amendment'. Tee-hit-ton Indians v. United States, 348 U.S. 272 (1955); Choate v. Trapp, 224 U.S. 665 (1912). The unique nature of the treaty fishing right has already been pointed out.

United States v. Winans, supra: United States v. Washington, supra.

A federal agency may not interfere with such treaty rights, by denying access or by destroying a fishery, without specific congressional authorization. Confederated Tribes' of the Umatilla Indian Reservation v. Alexander, 440 F.Supp. 553 (D. Ore. 1977). l The United States, as trustee, is responsible for protecting l treaty rights, making any necessary claims before the courts. ]

Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976); i see also the discussion of federal trust responsibility in Petitioners' Reply Brief. In fact, the United States has been held a necessary party in actions to protect Indian interests.

Carlson v. Tulalip Tribes of Washington, 510 F.2d 1337 (9th Cir. 1975)"

But the United States' trust responsibility to protect Indian rights does not diminish the right of the tribes themselves to ]

act on their own behalf and when there is a conflict be, tween the United States and the tribes representation by the United States may be held to be inadequate under Rule 24(a) of the Federal Rules of Civil Procedure. Poafbitty v. Skelly Oil Company, 390 U.S. 365 (1968); State of New Mexico v. Aamodt, 537 F.2d 1102 (10th Cir. 1976); Skokomish Tribe v. France, 269 F.2d 555 (9th Cir. 1959).

The cases hold that although the United States would otherwise be an indispensable party, an Indian tribe is allowed to sue on its own behalf. In fact, the legislative history of 28 U.S.C. 1362 indicates that Congress specifically intended

- that Indian tribes could protect their interests when the United States, although a necessary party, did not choose to act.

Salt River Pima-Maricopa Indian Community v. Arizona Sand and Rock Co mp any , 353 F.Supp. 1098 (D. Ariz. 1972).

Under the circumstances of this case, the United States may well be a necessary party because of the involvement of treaty rights. To the extent that the United States has not chosen to P

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act, or has a conflict of interest, it is congressional purpose that Indians be allowed to act on their own behalf. Although the cases and statutes quoted relate to federal court proceedings, there is little distinction between formnswhen the rights are the same.

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As to the question of adequacy of representation, a statement by the Supreme Court on standing provides a backdrop:

Have the appellants alleged such a personal stake in the outcome of the con-

! troversy as to assure that concrete adverse-

- ness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult j constitutional questions?

3 Baker v. Carr, 369 U.S. 186 (1962).  ;

Rule 24(a) deals with adequacy of representation: )

i The requirement of the Rule is satisfied if applicant shows representation of his interest "may be" inadequate: and the burden of making that showing should be treated as minimal.

Trbovich v. United Mine Workers of America, 404 U.S. 528, 538,

n. 10 (1972). With regard to whether representation "may be inadequate" there is a slight presumption in favor of intervention.

Holmes v. Government of the Virgin Islands, 61 F.R.D. 3 (D. Vi.1973)

It would be unacceptable, a violation of federal law and congressional policy, to delegate protection of sovereign Indian tribes and their treaty-guaranteed rights to a private

, intervener. This is especially true when that intervener has i

not sought to assert those rights and when the agency making the delegation is an instrumentality of the federal trustee. And it is equally clear that if intervention is denied and if SCANP does not chose to pursue these Indian interests with vigorous i

m advocacv,these4 tribes

[ypd If. Jyv f /0 and ) ) these lb rights will be,splverely harmed.

f;%'<YS$f5670 $D l'W Russell W. Busch Date Donald S. Means Date hbkh.

Evergreen Legal Services Swinomish Tribal Community.

Attorney for Upper Skagit Indian Tribe Attorney for Swinomish Tribal {

and Sauk-Suiattle Indian Tribe Community j 5308 Ballard Ave. II.W. Box 277 .

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( Seattle, WA 98107 LaConner, WA 98257 <

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M s UNITED STATES OF AMERICA -

4 40 i NUCLEAR REGULATORY C0tWISSION J[  !

BEFORE THE ATOMIC' SAFETY AND LICENSING BOARD ,

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In the Matter of )

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PUGET SOUND POWER & LIGHT ) DOCKET NOS. 50-522 COMPANY, et _al.

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(Skagit Nuclear Power Proj ect, )

Units 1 and 2) )

PETITIONER TRIBES' PRELIMINARY DESIGNATION OF WITNESSES i

i The following outline was prepared in response to the Chairman's request of September 26, 1978. While Petitioners anticipate calling the witnesses listed, the list is not intended to be inclusive and, should intervention be granted, it would at that time be appropriate to complete arrangements and prepare written testimony. During the interim field and l literature research could result in changes to the list, -

depending on the nature of information gathered.

I EVALUATION OF COSTS UNIQUE TO PETITIONER TRIBES Dependence of Tribal Households on Fisheries Returning to the Skagit System Dr. Lynn Robbins, Anthropologist Morris Dan, Swinomish Dewey Mitchell, Swinomish Laura Wilbur, Swinomish Lawrence Boome, Upper Skagit l Larry Williams, Upper Skagit Lawrence Joseph, Sauk l l

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Andy Fernando, Skagit System Cooperative Economic Condition of Tribal Households Degree of Economic Reliance on Skagit Fisheries Degree of Subsistence and Ceremonial Reliance Cultural and Social Relationship to Fisheries Importance of Skagit Fisheries to the Economic Base of the Swinomish Indian Reservation Terry Brenneman, Tribal Operations Manager .

Fisheries and Reservation Tax Base Tribal Harvest-to-Market Enterprise Relationship of Indian Community to Skagit River Area Dr. Barbara Lane, Anthropologist Dr. Lynn Robbins Laura Wilbur, Swinomish Lawrence Boome, Upper Skagit Lawrence Joseph, Sauk Andy Fernando, Skagit System Cooperative Historic Habitation and Use of Area Current Habitation and Use Social and Psychological Values Socio-Economic Impacts of Construction and Industrializ'ation Dr. Lynn Robbins Field Research, Upper Skagit Tribe Economic and Social Patterns Risks from " Boomtown" Effects Tribal Labor Force Social Mechanisms Incidence of Alcoholism Relations with non-Indian Community Health Effects of Low-Level Ionizing Radiation on an Isolated Indian Community Dr. Lynn Robbins -

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Field Research Results Habits of Upper Skagit Receptors Marital Patterns Incidence of Genetic Isolation Dr. Rosalie Bertells, Biostatistician (tentative)

Mild Mutations in Closed Populations Incidence of Birth Defects and Other Health Effects Evaluation of Risk-Measurement Methods Here -

Methods of Gathering and Evaluating Baseline Data Child Health Monitoring During and After Operation (Field Research is done by student teams and tribal ,

employees after verification of methods with appropriate experts. For various reasons, all persons reviewing methods and data may not be available for testimony.

When student research, including literature searches, is complete, additional expertise may be sought as needed.)

UNQUANTIFIED RISKS TO SKAGIT SYSTEM FISHERIES Importance of Skagit System in Pacific Northwest Fisheries Richard Granstrand, Biologist -

Catch Statistics, All Species Economic Valuations Comparison to Total Puget Sound Harvest Unique Value of Specific Wild Runs Increasing Pressure on Fisheries Management in United States v. Washington Tribal Investment in Increased Fisheries Presidential Task Force Proposal Natural Enhancement Program l

Stream Rehabilitation i Steven Fransen, Biologist l Current Lack of Skagit System Data Base l l Data Collection by Skagit System Cooperative l l

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Construction Impacts

!' Michael Watson, Consulting Engineer j Methods of Predicting Discharge at Site l Defining Watershed Boundaries l Computing Precipitation Retention Hydrographs Correlating Storm to Discharge

Rating Silt and Flood-control Works l Richard Granstrand y Steven Fransen Evaluation of Affected Feeder Streams l

j Wiseman Creek Coho Production l Other Runs j Risks Associated with Containment Vessel Transport Interference with Indian Net Fishery

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! Risks Associated with Debris Removal l Risks Associated with Flow Modification Risks Associated with Dredging f

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j Cooling Water Intake System Michael Watson and Michael Kaczmarek, Geohydrologist j

. Unacceptable Levels of Groundwater Intrusion Evaluation of Existing Data 4

l Methods to Determine Risk

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Criteria for Hydrologic Mapping

Location of Test Wells j Pump-test Design

Computing Flow Characteristics a

Dewatering Surface Streams by Infiltration Evaluation of Existing Data Methods of Determining Capture

' Plotting Cones of Depression Stream Measurement Response Computation )

Effects on Wetted Area

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Richard Granstrand Steven Fransen Feeder Stream Evaluation Production Now Production Potential Sediment Sampling Spawning and Incubation Habitat Rearing Habitat-Benthic Community Spawning-to-0utmigration Cycles Induction Effects on Burrowing Salmonids Hot Water Diffuser Steven Fransen Richard Granstrand Establishing Migration Patterns Existing Data a

Sampling Techniques for Diffuser Area Determining Exposure ,

Size and Species Swimming Speed Attraction and Harboring Lethal and Sub-lethal Effects Michael Watson Computing Stream Velocities at Diffuser Point Computing Turbulence at Diffuser Point Existing Sediments Streambed Modification Nozzle Turbulence Comparison to Migrant Behavior Swimming Speeds Harboring in Turbulence Thermal Attraction Undesignated Effluent Concentration in Benthic Community Food Chains 9

$ 0 Warm Water Hatchery Steven Fransen Richard Granstrand Value of Natural Runs Mixed-Stock Harvest Risks Risks of Interspecific Interaction Timing Problems Dependent on Warm Water Supply Skagit River Enhancement Planning .

1 Practical Observations Design of Effective Monitoring System Steven Fransen Richard Granstrand Biological Limits

Michael Watson Discharge Measurement - Natural Flows Temperature Measurement Effluent Measurement 1

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CD TREATY WITH THE DWAMISH, SUQU AMISH, ETC. ,1855 1 I.,

Executed in the presence of us-I Cris. Taylor, assistant secretary.

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$ Andrew Smith.

John Flett, interpreter.

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- We, the chiefs and headmen of the Clow-we-wal-la, or Willamette [ ,,3 r'

Tum-water band of Indians, being assembled in council, give our assent af# %y 9 3

unto, and agree to the provisions of the foregoing treaty. . CF , i In testimony whereof we have bercunto set our hands and seals, at #~ f t

I Linn ci , Oregon Territory, this nineteenth day of January, eighteen hundre and rif ty-tive.

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Lal-bick, o'r John, his x mark. rL. s.

{ Cuck a man na, or David, his x mark. ,L. s.

• d g i Executed in the presence of us- kt 4

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5l Cris. Taylor, assistant secretary.

John Flett, interpreter. jj We, the chiefs and headmen of the Santam banda of Calapoola .H !

Indians, being duly authorized by our respective bands, give our assent unto, and agree to the provistons of the foregoing treaty. [k i In testimony whereof we have hereunto set our hands and seals, at $

Dayton, Oregon Territory, this twenty-second day of January, eighteen

hundred and fif ty-five. %m L'

Tow-ye-colta, or Louis, first chief, his x mark. ' L. s.

La bam, or Tom, third chief, his x mark. 't s.'  %-

Senegertta, bis x mark. 't. 8.

Pul i-can, his x mark. ' t s. [

Te-na, or Kiles, his x mark. ' t. s . ' t, i

Pul kup ti ma, or John, bis x mark. 't. s. "

his x mark. ' t. s. '

Sal-laf, or Silas, Hoip-ke-nek, or Jack, his x mark. 't. s.

Yep-tab, bis x mark. ' t. s. '

Sattnvose, or James, bis x mark. :t. s.;

Executed in the presence of us-Edward R. Gearv, secretary.

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Cris. Taylor.

Andrew Smith.

John Flett, interpreter.

TREATY WITH THE DWAMISH, SUQUAMISH, ETC.,1855.

Articles of agreement and convention made and concluded at Jfuckl. . tan. n. nu te-sh, ob Point Elliott, in the Territory of Washington, thh twatu- n su m second day of January, eighteen hunc{ red and jiftygive, by Isaac 2 %?%)*%l.R Stevens, guvernor and euperintendent of Indian afairs for the said tu Territory, on the part of the United States d d chi @, head-men and delegates of the Dwdmhk,and the un ersigneSuqudmish, S m bi.,

Snoqudinwo,Sam-dhmish, Skai-w ha-mish,Smalk-kamkh, Skope-dhmuh, 3'Quenti-md-mkh, Sk-tdh-le jum, St-kdh-mkh, Ska Stoluck-whd-mkh, Sno-ho-mkh, Noogit, Dok-wa-chah whd-ha, Kik-i-dttua, Swin-d-m mkh, kh, Squin-dh-mkh, Sahku-mihu, Jtee-sie-qua-guilch, Cho-hah-dh bish, and other allied and subordi-nate triba and bamh of Indians occupying certain lands situated in said Territory of Washington, on behalf of said tribes, and daly authorized by them.

AnrtcLe 1. The said tribes and bands of Indians hereby cede, relin- cmma a uus to quish, and convey to the United States all their right, title,'and interest * '""*""

in and to the lands and country occupied by them, bounded and described l

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670 TREATY WITH THE DWAMISII, BUQU AMISH, ETC.,1855. ,

L as follows: Commencing at a point on the eastern side of Admiralty l

!, Inlet, known as Point Fully, about midway between Commencement ,

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Boundaries, and Elliott Bays; thence eastwardly, running along the north line of i lands heretofore ceded to the United States by the Nisqually, Puyallup, and other Indians, to the summit of the Cascade range of mountains; , 1 thence northwardiv, following the summit of said range to the 49th 1

l L parallel of nor.th lai,itude; thence west, along said parallel to the middle of the Gulf of Georgia; thence through the middle of said gulf and

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the main channel through the Canal de Arro to the Straita of Fuca, ,

i and crossing the same through the middle of Admiralty inlet to Suqua- l through the peninsula, and follow-

)] mish ing theHead; divide be,thence southwesterly,l tween Hood's Cana and Admiralty Inlet to the portage i thence northeastwardly, and following the g known as Wilkes' line of lands Portage;ded heretofore ce as aforesaid to Point Southworth, on the western side of Admiralty Inlet, and thence around the foot of

[3 Vashon's Island castwardly and southeastwardly to the place of begin- ,

ning, including all the islands comprised within said boundaries, and l

} all the right, title, andinterest of the said tribes and bands to any lands  ;

a) within the territory of the United States. I d neurvauon. ARTICLE 3. There is, bowever reserved for the present use and

• y occupation of the said tribes ancl bands the following tracts of land, viz: the amount of two sections, or twelve hundred and eighty acres,

surrounding the small hight at the head of Port 3Indison, called by the i Indians Noo-sohk-um; the amount of two sections, or twelve hundred

!i and eighty acres, on the nortb side Hwhomish Bay and the creek

emptying into the same called Kwilt-seh-da, the peninsula at the I soutbeastern end of Perg's Island, called Shdis-quibl, and the island 1 called Chah-choo-sen, situated in the Lummi River at the point of ,

separation of the mouths emptying respectively into Bellingham Bay ,

and the Gulf of Georgia. All which tracts shall be set apart, and so i

,f far as necessar surveyed and marked out for their exclusive use; 3 l

White'inot to rentde nor shall any w ite man be permitted to reside upon the same without thereon unie=, etc.

permission of the said tribes or bands, and of the superintendent or i

agent, but, if necessary for the public convenience, roads may be run i through the said reserves, the Indians being compensated for any g damage thereby done them. ,

}. Further reservadon AnTIctz 3. fhere is also reserved from out the lands bereby ceded

*""" of land, on the

) the amount ofshore northeastern thirty-six sections, of Port or one Gardner, and township'e north of th mouth of Sno- i i% homish River,includingTulalip Bay and the before-mentioned Kwilt-seh da Creek, for the purpose of establishing thereon an agricultural and industrial school, as bereinafter mentioned and agreed, and with ,

a view of ultimately drawing thereto and settling thereon all the Indians living west of the Cascade 3 fountains in said Territory. Pro- I vided, Ammer, That the President may establish the central agency l and general reservation at such other point as he may deem for the benetit of the Indians.

rd%d "'iy AnTIcts 4. The said tribes and bands agree to remove to and settle

• t on. ymr. upon the said first above-mentioned reservations within one year after

'k7 the ratification of this treaty, or sooner, if the means are furnished them. In the mean time it sball be lawful for them to reside upon i

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1. I' any land not in the actual claim and occupation of citizens of the United States, and upon any land claimed or occupied, if with the -I permission of the owner.

? Righta and privl. AnTICLE 5. The right of taking fish at usualand accustomed grounds E I".E""" " '"' and stations is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary tmuses for the purpose of curing, together with the privilege of hunting and gather- -

ing roots and berries on open and unclaimed lands. Pecmded, however,  ;  ;

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• O TREATY WITH THE DW AMISH, SUQUAMISH, ETC. , IBM.

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That they shall not take shell-fish from any beds staked or cultivated -

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by citizens.Amr!CI.E fl In consideration of the above cession, the United Sta'es d*,gy Sh' x agree to pay to the said tribes and bands the sum of one hundred For the and i 3 tifty thousand dollars,in the following manner-tbat is to say:

first year after the ratification bereof, fifteen thousand dollars; for the next two year, twelve thousand dollars each year; for the next three }'. I years, ten thousand dollars each year; for the nexc four years, seven  !

thousand rive hundred dollars each years; for the next five years, six .

thousand dollars each year; and for the last five years, four thousand nmv w 3. appued.

two hundred and tif ty dollars each year. All which said sums of money  ;

shall be applied to the use and benefit of the said Indians, undez the tt direction or the President of the United States, who may, from time ,[ j O to time, determine at his discretion upon what beneficial objects to -

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' expend the same; and the superintendent of Indian affairs, or other 7 proper otilcer, shall each year inform the President of the wishes of -

'f said Indians in respect thereto.

The President may hereafter, when in his opinion the ga=g f AnTIct.E T.

,interests of the Territory sball require and the welfare of the said m. i Indians be promoted, reinove them from either or all of the special.

reservations hereinbefore made to the said general reservation, or such t

?

other suitable place within said Territory as he may deem tit, on re- I munerating them for their improvements and the expenses of such {

removal, or may consolidate them with other friendiv tribes or bands; L and he may further at his discretion cause the whole or any portion (

2 of tbc lands hereby reserved, or of such other land as may be selected [

in lieu thereof, to be surveyed into lots, and assign the same to such rema7"beamigned

• "d'" *

• individuals or families as are willing to avail themselves of the privi Anw. p. m 3

. lege, and will locate on the same as a permanent home on tLe same T :j terms and subject to the same regulations as are provided in the sixth  %.

article of the treaty with the Omahas,so faras the same may be appli- 3<.

cable. Any substantial improvements heretofore made by any Indmn, P and whirh 'ho shall be compelled to abandon in conseqtience of this treaty, shall be valued under the direction of tbo President and pay- @j ment made accordingly therefor. d" ARUCLE 8. The annuities of the aforesaid tribes and hands sball not be taken to pay the debts of individuals.

AnncLE 9. The said tribes and bands acknowledge their dependence d'n%f' ,7,g"'

on the Government of the United States, and promise to be friendly -

with all citizens thereof, and they pledge themselves to commit no is, i

depredations on the property of such citizens. Should any one or more of them violate this pledge, and the fact be satisfactorily proven before y

y-the agent, the property taken shall be returned, or in default thereof, Toanor oor*

of if injured or destroyed, compensation may be made by the Govern.Nor will they mak

~

h ment out of their annuities. $

except in self-defence, but will submit all matters of difference between d

7 them and the other Indians to the Government of the' United States or its agent for decision,and abide thereby. And if anv of the said Indians 6 commit depredations on other Indians within the' Territory the same Si rule shall prevail as that prescribed in this article in cases of depre- To=rrenduonena- E dations against citizens. And the said tribes agree not to shelter or k conceal otfenders against the laws of the United States, but to deliver ""  %

them up to the authorities for trial.AnnCt.E 10. The above tribes and bands are desirous d r. n' ~~ ar* at i .

from their reservations the use of ardent spirits, and to prevent their

• people from drinking the same, and therefore it is provided that any "

Indmn belonging to said tribe who is guilty of bringingliquor into soiii ",

reservations, or who drinks liquor, may have his or her proportion of I the annuities withbeld from him or her for such time as the President may determine.

I

/

. Am ,9 s

c-- #e- mam .u _, c ._ c -- - . _ _ _ _ _ m __

. t Y

.r. -

5 672 TitEATY WITH THE DW AMISH, SUQU AMISH, ETC. ,1855.

6 N. e,3 Z'n44o d 'M

.ioinwtn m held AnTicLE 11. The said tribes and banda agree to free all slaves now by them and not to purchase or acquire othus hereafter.

p'dh edi'n'd,Y$'tl.ut ' Airrtcts 19. The said tribes and bands further agree.not to trade at

>> .  : Vancouver's bland or elsewhere out of the dominions of the United

- States, nor shall foreign Indians be permitted to reside in their reser-

[ rations without consent of the superintendent or agent. "

p

• nuco ppropri.ied AnTietz 13. To enable the said Indians to remove toand settle upon 5 'n ',JiMulidi: their aforesaid reservations, and to clear, fence, and break up a sutli-

= cient quantity of land for cultivation, the United States further agree I to pay the sum of fif teen thousand dollars to t>e laid out and expended

), I under the dire,ction of the President and in such manner as he shali '

[ j approve.

ARTicLz i4. The United States further agree to establish at the

' United States to es.

l J ['N. 'iEAes'o"ef general agency for the district of Puget's Sound,within one year from

1 I' . net."pfr7eE.T.*ii. the ratification nereof and to support for a period of twenty years, an agricultural and industrial school, to be free to children of the said tribes and bands in common with those of the other tribes of said dis.

}

trict, and to provide the said school with a suitable instructor or 1 instructors, and also to provide a smithy and carpenter's shop, and furnish them with the necessary tools, and employ a blacksmith, car-penter, and farmer for the like term of twenty ~ years to instruct the Indians in their respective occupations. And the United States finally who agree to employ shall furnish a physician medicine to reside and advice at thesick, to their saidandcentral shallagency,inate vacc them; the expenses of said school, sbops, persons employed, and med-ical attendance to be detraved by the United States, and not deducted

' ~

from the annuities. ,

dnl4," ben to AartcLE 15. This treaty shall be obligatory on the ties as soon as the same shall be ratified by the ident Pres, and banate contracting of the United States.

In testimony whereof, the said Isaac I. Stevens, governor and super-headmen, and intendent of Indian atTairs, and the undersigned chiefs,have hereunto delegates set their hands of and the seals, aforesaid at thetribes place and andonbandsthe dayofanJndians, d year herein-before written.

Isaac I. Stevens, Governor and Superintendent. [L. s.]

Seattle, Chief of the Dwamish and Wata.ka-lah-tchie,orJohn Hobtst.

Suquamish tribes, his x mark.

Pat.ka-nam, Ch'if of the Snogual-(Lhoot, Subchief of Snohomish,(L. a.]

s.]x mark.

his moo,Snohomishand other tnbes, Smeh. mal-hu Subchief of Skai.

his x mark. wha-cnish, his x mark. [L s.]

Chow-its. hoot, Chief of the Lummi(L.Slateh s.] ka-nam, Sub-chief of Sno-and other tribes, his x mark. qualmoo, his x mark.

Goliah, Chief of the Skagits and(L g.] St'hau-ai, Sub-chief of Snoqual-(L s.]

other allied tribes, his x mark. (L s.] moo, his x mark.

Kwallattum, or General Pierce, Luge-ken, Subchief of Skai-wha-(L s.]

Subchief of the Skagit tribe, his mish, his x mark.

S'heht.soolt, or Peter, Subchief of(t.. s.]

x mark. (L s.] Snohomish,.his x mark.

S'hootst. hoot, Sub-chief of Snobo- (L s.]

mish, his x mark. Do41ueh oo-sati, Snoqualmoo tribe, Snah-tale, er Bonaparte, Sub chiefhis(Lx s.] mark. (L s.]

of Snohomish, his x mark. John Kanam, Sno Squush.um, or The Smoke, Sub-(L chief, s.] his x mark.qualmoo sub-[L s.]

chief of the Snoqualmoo, his x Klemsh ka. nam, Snoqualmoo, his mark. (L s.] x mark. (L s.]

See.alla-pa.han, or The Priest, Ts'huahnti, Dwa mish sub-chief, Subchief of Sk.tah-le-jum, his x his x mark. [L s.]

mark. (L s.] Kwuss ka. nam, or George Snate.

He-uch ka. nam, or George Bona- lum, Sen., Skagit tribe, his x mark. (L s.]

parte, Sub-chief of Snohomish,(L s.] Hel.mits, or George Snatelum, his x mark.

Tse-nah. tale, or Joseph Bonaparte, Subchief of Suohomish, his x Skagit subchief, his x mark.Sk.igit tribe, su'

' S'kwal his x kwi,k.

toar (L s.]

mark.

Ns' ski cos, or Jackson, Subchief (LSeh. s.] lek.qu.Sub-chief Lummi tribe, ~ :

of Snohomish, his x mark. (L s.] his x mark. -

(L s.]

i J

I 1

?. -

s TREATY WITH THE DWAMISH, SUQU AMISU, ETC.,1855. 673 S'h' cheh oos orGeneralWashing- Tse-aum. ten, Lummi tribe, his x ton, Subchief of Lummi tribe, mark. [L s.]

his x mark. (u. a.] Kit hahl ten, Lummi tribe, his x Whai lan.hu, or Davy Crockett, raark John, Lummi(L s.]

Subchief of Lummi tribe, his x 7..t *wkanam, or mark. (L. s.] tribe, his x mark.

She-ah.delt hu, Subchief of Lum. Ch.lah ben, Noo .qua.cha-mish(L s.]

mi tribe, his x mark. band, bia x mark. (L s.]

Kwult seh, Sno-chief of Lummi(L. s.]Noo-heh-oos, Snoqualmoo tribe, tribe, his x .uark. (L s.') Hweh his x mark.

Kwull et hu, Lummi tribe, his x uk, Snoqualmoo tribe, his(L s.]

mark. x mark.

[L s.] Peh-nua, Kleh. kent-coot, Skagit tribe, hia x Skai whamish tribe, his(L s.]

mark. (L. s.] x mark. (L s.]

Sohn heh.ove, Skagit tribe, his x Yim.ka-dam, Snoqualmoo tribe, mark. -

(L s.] Twooi his x mark. [L s]

as-kut, Skalwhamish tribe, S*dehSkagitap kan,his tribe, orxGeneral mark. Warren,(L n.] his x mark. (L s.]

Chul-whil-tan, Subchief of Suqua. Luch a!-kanam, Snoqualmoo tribe, mish tribe, his x raark. [L s.] . his x mark. (L. s.]

Ske+h.tum, Skagit tribe, his x S' hoot-kanam, Snoqualmoo tribe, mark. [L s.] his x mark. [L s.]

Patchka nam,or Dome,Skagittribe, Sme-a.kanarn, Snoqualmoo tribe, his x mark. (L. a.] his x mark. (L. s.]

Sata-Kanam, Squin.ah nush tribe, Sad zis-keh, Snoqualmoo, his x hia x mark. [L. a.] mark.

Sd-so-mahtl, Kik.ial-lus band, his Heh mahl, Skaiwhamish band, his[L s.)

x mark. ' L. s.

x mark. [L s.]

Dahtl.de-uiin Subchief of Sah-ku- Charley, Skagit tribe, his x mark. 'L. s. l meh hu, his x mark. (L. s.] Sampson,Skagittrihe, his x mark. ,L s.

Sd'zek-do.num. Me-eek wi guilse John Taylor, enohomish tribe, his sub-chief, his x mark. x mark.

(c. s.] Hatch-kwentum, Now a-chais, Sub-chief of Dwa- Skagit tribe, his(L s.]

mish, his x mark. x mark.

(Ls-] Yo-i kum,Skagit tribe,his x mark. L s.1 Mis.lo-tche, or Wah-hebl tcLoo, [(L. s.]

Sub-chief of Suquamish, his x T'kwa.ma-ban, Skagit tribe, his x mark. mark. [L s.]

Sloo-noksh tan, or Jim, Suquamish(L. s.]

Sto-dum-kan, Swinamish band, his tribe, his x mark. (L s.] Bex mark. (L a.] j Moo-whah lad hu, or Jack, Suqua. lole, Swinamish band, his x '

mish tribe, his x mark. (L s.] mark. (L. s.]

I Too-leh plan, Suquamish tribe, his D'zo lole-gwam hu, Skagit tribe, x mark. (L s.] hia x mark. E,,. .

Ha seh-doo-an, or Keo kuck, Dwa- Steh-shail, William, Skaiwhamish[L s.]

mish tribe, his x mark. band, his x mark. (L a.] p

[L s.] ~

Hoovilt meh tum, Subchief of Su- Kel.kahl-tsoot, Swinamish tribe, quamish, his x mark. his x mark. [L. s. ]

fr ~

We ai.pah,Skaiwhamish tribe, his(L s.] Skagit tribe, his x mark.

Pat-sen, Pat.teh us, Noo wba-ah sub-chief,(L s.] K x mark. 0, S'ah-an hu,or Hallam, Snohomish(L s.) his x mark.

(L s.] S'hoolk.ka-narn, Lummi sub-chief,(L s.]

.4 -

tribe, his x mark. iE She-hope, or General Pierce, Skagit his x mark. F tribe his x mark. (L. s.]

Ch-lok-suta, Lummi subchief, his(L s.]

or Thomas Jeffer- x mark. (L s.] R w

Hwn.lah son, Lummi lakq, tribe, his x mark. (L s.] C Cht sirnpt, Lucimi tribe, his x  %

mark. (L s-]

,k Faccuted in the presence of ur-- t M.T.Simmons, Indian agent. S. S. Ford, Jr.

Orrington Lushman. F.

C. H. Mason, Secretary of Washington Territory. Ellis Barnes. p Benj. F. Shaw, Interpreter. R. S. Bailey. p S. M. Collins. +-

Chas. M. Hitchcock. E' H. A. Goldsborough. Lafayetee Balch.

George Gibbs. E. S. Fowler.

John H. Scranton. J. H. Hall. b Henry D. Cock. Rob't Davis. j 4

J t

^,

S. Doc. 319, 58-2, vol 2 13 4

- - - mm . .

.m, y1 ,_ 3

. c s

'l UNITED STATES OF AMERICA .\

NUCLEAR REGULATORY COMMISSION d .

^

v l Q' <;f." _, a l  ;

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD C '

gy. ' . i, I

e**

x e \

^7' . fd

)

$ /

,;g.Y /

b I

In the Matter of

) k/ ~gj / -

PUGET SOUND POWER & LIGHT COMPANY, ) DOCKET NOS. 50-Dt.

et al. ) 50-523 i I

)

(Skagit Nuclear Power Project, )

Units 1 and_2) ) l CERTIFICATE OF SERVICE I hereby certify that copies of:

PETITIONER TRIBES ' PRELIMINARY DESIGNATION OF WITNESSES and PETITIONER TRIBES ' RES10NSE TO THE BOARD'S REQUEST OF SEPTEb8ER 26, 1978 ,

have been served on the following by depositing the same in the United States mail, postage prepaid, by transmitting through a guaranteed-delivery freight forwarder, or by legal messenger, on this day of h e b d"", 1978.

by Russell W. Busch Attorney for the Upper Skagit Tribe and Sauk-Suiattle Tribe Samuel W. Jensch, Esq., Chairman Alan S. Rosenthal, Chairman Atomic Safety and Licensing Board Atomic Safety and Licensing U. S. Nuclear Regulatory Commission Appeal Board Washington D.C 20555 U.S. Nuclear Regulatory Commission Washington D.C. 20555 Dr. Frank F. Hooper, Member Atomic Safety and Licensing Board Dr. John H. Buck, Member School of Natural Resources Atomic Safety and Licensing University of Michigan Appeal Board Ann Arbor, MI 48104 U.S. Nuclear Regulatory Commission -

c/o U.S. Nuclear Regulatory Commission Washington D.C. 20555 ..

Washington D.C. 20555

m. n. - _ -

'> Gustave A. Linenberger, Member CFSP and FOB .

Atomic. Safety and Licensing Board E. Stachon & L. Marbet .,

19142 S. Bakers Ferry Rd.

U.S. Nuclear Regulatory Commission Boring, OR 97009 Washington, D.C. 20555

- ..s -

- Michael.C. Farrar,' Member Canadian Consulate General , j,,

Atocie Safety and Licensing Appeal Peter A. van Brakel ;_. .

.' g r @,.,

~

Vice-Consul . , .

y.y;s; Board 412 Plaza 600 -

U.S. Unclear Regulatory Commission .

Washington, D.C 20555

. .6th and Stewart Street

. ... ' ...;;:.9 .-:i

~

Seattle, WA 98101 a ,, : , . . t. ...

'. ., . . ' ..J l . ., ..

-. c.  ;. . . .

Dohketing and. Serv 2.ce . ect2.on

~

f. Theardore Thomsen .;

.- Offi~ce of. the Secretary Perkins, Co2.e, Stone, .,

U.S. Nuclear Tlegalatory Commission -

Olsen & Will1ams WasM gtou., D.C." 20555 '

1900 Washington Bldg. .;

Seattle, UA 98101;-- .c l

. Richard L. Black, Esq.

Counsel for NRC Staff U.S..Nnclear Regulatory. Commission Roger M. Leed, _r sq. -- .

1411 - 4th Aver D1dg.

Office of the Executive Legal '

Suite 610 Director seattle, WA 98101 1 Washingtone.D.C.' 20555 ,

Nicholas D. Lewis, Chairman - -

' Energy Facility Site Evaluation ^ -

~

. Council- l 82'O East Fifth Avenue .

/

Olympia, WA 93504 ,

Robert C. Schofield; Director ,

~

Skagit County Planning Dept.

120 West Kincaid Str'eet Ecunt Vernon, UA 98273 .

1 Richard M. Sandvik, Esq. , .

Assistant Attorney General

.- l De artment of Justice ,

50'O Pacific Euilding ~

..[

520 S.W. Yachill

. Portland, OR 97204 ,

Robert Lowenstein, Esq.

Icwenstein, Newman, Reis &

Ay.elrad -

1025 Connecticut Avenue N.W.

Washington , D . C . 20036 ,

H .11. Phillip s , E sq . ..

Vice President and Corporate .

Counsel Portland General Electric Company ~ ~ ~ ~~ -~ "'" -

~ ~

121~ S~.Yi Talifi5h~'SEFe~eT~ -

.e