Treaty's key points of contention - Document that established Indian reservations still debated

By Krista J. Kapralos and Eric Stevick
The Daily Herald Writers

Like the U.S. Constitution, the language of the Treaty of Point Elliott is constantly debated.

This is a primer on what the treaty means and key issues still being argued today:

Experts interviewed include:

Fronda Woods, a lawyer for the state Attorney General's office.

David Dilgard, historian, Everett Public Library Northwest Room.

Mason Morisset, a tribal attorney, and Charles Maduell, a property rights attorney, both from Seattle.

Tulalip tribal members Terry Williams and Ray Fryberg, who both have testified in federal court cases on treaty issues.

Article I

This stated which lands the U.S. wanted to claim.

The tribes signed away a vast swath of northwestern Washington. It extended from a narrow point near Mount Rainier, stretching north to what is now the Canadian border, west to the San Juan Islands, and east toward what is now the Wenatchee National Forest.

All told, the treaty added roughly a fifth of what is now Washington state to U.S. territory. That's more land than Massachusetts and Connecticut combined.

Article II

This set up what were supposed to be temporary reservations.

The United States reserved for the tribes two areas, each 1,280 acres. The first was at the head of Port Madison, near the current Suquamish Reservation in the Puget Sound. The second was near the current Lummi Reservation near Bellingham.

These reservations were meant to be temporary, said Fronda Woods, a lawyer for the state Attorney General's office. A larger reservation, outlined in Article 3, was to be the permanent home of all the tribes who signed the treaty.

What federal agents didn't either know or acknowledge then was that not all Indian tribes got along, and not all tribes would willingly leave their areas.

These smaller reservations still exist today.

This article included language aimed at keeping whites off the reservation without tribal permission.

Article III

This set up the Tulalip reservation, where all Indians were expected to settle.

This is one of the more controversial parts of the treaty.

The treaty created the 23,040-acre Tulalip Indian Reservation where nearly two dozen tribes west of the Cascade Mountains were expected to settle.

Since the treaty was signed, the boundaries of the reservation have been disputed.

Article 3 raises property rights debates even today. Non-Indians who own land within the reservation, and state attorneys, interpret it as saying the tribes don't own Tulalip Bay or the water in it and that the reservation begins where the water ends.

The tribes say their land includes the water in the bay and the tidelands at its edges.

Federal Indian policy in the 1800s and the early 1900s encouraged assimilation and created reservation schools where tribal members would learn to farm.

The tribes would never have agreed to give up Tulalip Bay, said Ray Fryberg, a tribal member.

"It's a spiritual thing, and salmon is a part of it," he said. "Salmon is a main spoke in the wheel of the life of our people."

By law, treaties must be interpreted in favor of the Indians, said Mason Morisset, the Tulalip Tribes' attorney.

"If the Indians would have intended that they kept their tidelands, then that's how they interpret it," Morisset said. "They wouldn't have said, 'This is your reservation, but you can't go wading.' I've never understood that."

Non-Indians with homes along the shores of Tulalip Bay say they're willing to go to court to assert ownership of the tidelands.

Early this year, the tribes announced that non-Indian landowners must pay rent for space used for decks and bulkheads. They also banned new construction of the structures.

The landowners say their property deeds, many of which were drawn up when Indians sold their personal land allotments a century ago, argue that their property extends to the low water mark of Tulalip Bay.

"This is almost taxation without representation for some of those property owners," said attorney Chuck Maduell, a Seattle property rights lawyer.

The treaty doesn't say who has jurisdiction over lands that were allotted to individual Indians and then sold, Maduell said.

Article IV

This set up a deadline for Indian resettlement.

All 22 tribes were to relocate to the reservations within a year of when the treaty was ratified. President James Buchanan signed the executive order that approved the treaty four years later, in 1859.

Until they relocated, the Indians were allowed to live on any land that wasn't yet claimed by U.S. citizens.

Article V

This allowed tribes to continue their traditional way of life throughout the territory.

This article is the treaty's most contentious and most-often litigated.

The article ensured the tribes' right to camp out and fish at their normal fishing sites.

They could gather roots and berries on unclaimed lands, but they couldn't take shellfish from areas cultivated by settlers.

Historically, most disputes between the state and the tribes have been over the tribal fishing rights outlined here.

Now, tribal members are using this article to gain more control over western Washington's ecosystem.

What started as a fight to catch salmon has become a legal tool that could toughen environmental regulations throughout the region.

In the 1950s and 1960s, the tribes argued that this article gives them the right to fish when and where they choose. State and federal officials said Indians should comply with existing guidelines.

The controversy brewed, peaking in the 1970s, when protests and armed conflicts over fishing rights led to a federal courtroom.

In 1974, U.S. District Court Judge George Boldt ruled that the treaty reserved for Indians the right to half of all salmon and steelhead harvests and opened the door for other claims, including access to shellfish.

It was a decision that stunned the state, and bolstered the confidence of the tribes.

Now, the tribes argue amongst themselves over the locations of "usual and accustomed" fishing grounds.

They're also arguing with the state over hunting and gathering rights, and over environmental regulations that could affect those rights.

The tribes say the U.S. government has an obligation to sustain the region's natural habitat as it was when the treaty was signed.

The treaty tribes have filed a lawsuit scheduled to be heard in court next year, which could give sharp teeth to the Endangered Species Act and other environmental edicts.

"In order to hunt, there has to be an animal," said Terry Williams, a tribal leader on environmental issues. "And in order for there to be an animal, there has to be a habitat that supports the animal."

Article VI

This promised payment for the land.

The U.S. government agreed to pay the tribes $150,000 - about $3 million in today's dollars - over a period of 27 years. A federal court was established in the mid-20th century to hear tribal claims that the payments weren't fair. That court was dissolved about 10 years ago.

Article VII

This allowed the reservation to be divided and given to individual Indians.

This happened on the Tulalip reservation between 1883 and 1909. Later, some tribal members sold their allotments, many to non-Indian families who still live on that land. Now, the reservation is a checkerboard of tribal and nontribal land.

Article VIII

A financial restriction on the payment.

None of the money guaranteed in Article 6 was to be used to pay individual debts within the tribe.

Article IX

Proclaiming the tribes as rulers of their reservation, but prohibits them from warring with the United States.

The tribes promised to be friendly with U.S. citizens and were not allowed to make war with any other tribes or shelter criminals wanted by the U.S. government.

Non-Indians who live on the Tulalip reservation have used Article 9 to challenge the right of tribal police officers to detain them for traffic and other offenses.

The state Supreme Court ruled in 1993 that tribal officers can stop non-Indians and detain them until a sheriff's deputy or other official is called.

Some non-Indians who live on the Tulalip Reservation, and state lawmakers who support them, say they're not under tribal jurisdiction.

They point to a recent informal opinion offered in a letter from a state attorney at the request of Republican legislators Val Stevens of Arlington and Dan Kristiansen of Snohomish.

The letter raises a question about whether tribal police are covered under the definition of law enforcement officers in state law.

The treaty's language isn't clear on jurisdictional issues including law enforcement, Maduell said.

Snohomish County Prosecutor Janice Ellis and Sheriff Rick Bart urge anyone pulled over by tribal police to comply, saying they can raise jurisdictional issues afterward.

Article X

Banning alcohol.

The tribes requested that no alcohol be allowed on the reservations.

Article XI

Freeing slaves.

Some tribes took members of other tribes as slaves. This pre-Civil War article required the tribes to free those slaves.

Article XII

Trade restrictions.

The tribes would not be allowed to trade on Vancouver Island. This article was to prohibit the tribes from conducting business with British outposts to the north while the U.S. and Great Britain sparred over boundaries.

Today, this edict is routinely ignored by Western Washington tribes. Woods said the state isn't concerned about it.

Article XII

Financial support.

The tribes were required to move to the reservations and break up portions of the land for farming. The federal government agreed to pay the tribes $15,000 - about $300,000 in today's dollars - to help develop those portions.

Article XIV

Assimilation promises.

The tribes were to get an agricultural and industrial school, and a blacksmith and a carpenter to teach tribal members the traditional skills of white settlers.

It was part of a U.S. policy of assimilation that failed. Tribal children were taken from their homes and placed in boarding schools where they were not allowed to speak their native language. The boarding schools were closed in the 1920s and 1930s.Tribal members had long fought various diseases introduced by white settlers. In treaty negotiations, the tribes demanded that a doctor provide health care and a clinic on the reservation.

Today, the tribe has a federally-funded health clinic. There is some debate as to whether this article guarantees universal health care to all tribal members.

Article XV

This is where everyone signed.

There are 100 signatures in all. Eighty-two of them, those belonging to Indians, are simple Xs.

 

Text of the Treaty of Point Elliott, 1855

As printed by The Daily Herald
October 22, 2006

Articles of agreement and convention made and concluded at Muckl-te-oh, or Point Elliott, in the territory of Washington, this twenty-second day of January, eighteen hundred and fifty-five, by Isaac I. Stevens, governor and superintendent of Indian affairs for the said Territory, on the part of the United States, and the undersigned chiefs, head-men and delegates of the Dwamish, Suquamish, Sk-kahl-mish, Sam-ahmish, Smalh-kamish, Skope-ahmish, St-kah-mish, Snoqualmoo, Skai-wha-mish, N'Quentl-ma-mish, Sk-tah-le-jum, Stoluck-wha-mish, Sno-ho-mish, Skagit, Kik-i-allus, Swin-a-mish, Squin-ah-mish, Sah-ku-mehu, Noo-wha-ha, Nook-wa-chah-mish, Mee-see-qua-guilch, Cho-bah-ah-bish, and other allied and subordinate tribes and bands of Indians occupying certain lands situated in said Territory of Washington, on behalf of said tribes, and duly authorized by them.

Article I

The said tribes and bands of Indians hereby cede, relinquish, 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 as follows: Commencing at a point on the eastern side of Admiralty Inlet, known as Point Pully, about midway between Commencement and Elliott Bays; thence eastwardly, running along the north line of lands heretofore ceded to the United States by the Nisqually, Puyallup, and other Indians, to the summit of the Cascade range of mountains; thence northwardly, following the summit of said range to the 49th parallel of north latitude; thence west, along said parallel to the middle of the Gulf of Georgia; thence through the middle of said gulf and the main channel through the Canal de Arro to the Straits of Fuca, and crossing the same through the middle of Admiralty Inlet to Suquamish Head; thence southwesterly, through the peninsula, and following the divide between Hood's Canal and Admiralty Inlet to the portage known as Wilkes' Portage; thence northeastwardly, and following the line of lands heretofore ceded as aforesaid to Point Southworth, on the western side of Admiralty Inlet, and thence around the foot of Vashon's Island eastwardly and southeastwardly to the place of beginning, including all the islands comprised within said boundaries, and all the right, title, and interest of the said tribes and bands to any lands within the territory of the United States.

Article II

There is, however, reserved for the present use and occupation of the said tribes and bands the following tracts of land, viz: the amount of two sections, or twelve hundred and eighty acres, surrounding the small bight at the head of Port Madison, called by the Indians Noo-sohk-um; the amount of two sections, or twelve hundred and eighty acres, on the north side Hwhomish Bay and the creek emptying into the same called Kwilt-seh-da, the peninsula at the southeastern end of Perry's Island, called Shais-quihl, and the island 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 far as necessary surveyed and marked out for their exclusive use; nor shall any white man be permitted to reside upon the same without permission of the said tribes or bands, and of the superintendent or agent, but, if necessary for the public convenience, roads may be run through the said reserves, the Indians being compensated for any damage thereby done them.

Article III

There is also reserved from out the lands hereby ceded the amount of thirty-six sections, or one township of land, on the northeastern shore of Port Gardner, and north of the mouth of Snohomish River, including Tulalip Bay and the before-mentioned Kwilt-seh-da Creek, for the purpose of establishing thereon an agricultural and industrial school, as hereinafter mentioned and agreed, and with a view of ultimately drawing thereto and settling thereon all the Indians living west of the Cascade Mountains in said Territory. Provided, however, That the President may establish the central agency and general reservation at such other point as he may deem for the benefit of the Indians.

Article IV

The said tribes and bands agree to remove to and settle upon the said first above-mentioned reservations within one year after the ratification of this treaty, or sooner, if the means are furnished them. In the mean time it shall be lawful for them to reside upon 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 permission of the owner.

Article V

The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands. Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens.

Article VI

In consideration of the above cession, the United States agree to pay to the said tribes and bands the sum of one hundred and fifty thousand dollars, in the following manner - that is to say: For the first year after the ratification hereof, fifteen thousand dollars; for the next two year, twelve thousand dollars each year; for the next three years, ten thousand dollars each year; for the next four years, seven thousand five hundred dollars each years; for the next five years, six thousand dollars each year; and for the last five years, four thousand two hundred and fifty dollars each year. All which said sums of money shall be applied to the use and benefit of the said Indians, under the direction of the President of the United States, who may, from time to time, determine at his discretion upon what beneficial objects to expend the same; and the superintendent of Indian affairs, or other proper officer, shall each year inform the President of the wishes of said Indians in respect thereto.

Article VII

The President may hereafter, when in his opinion the interests of the Territory shall require and the welfare of the said Indians be promoted, remove them from either or all of the special reservations hereinbefore make to the said general reservation, or such other suitable place within said Territory as he may deem fit, on remunerating them for their improvements and the expenses of such removal, or may consolidate them with other friendly tribes or bands; and he may further at his discretion cause the whole or any portion of the 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 individuals or families as are willing to avail themselves of the privilege, and will locate on the same as a permanent home on the same terms and subject to the same regulations as are provided in the sixth article of the treaty with the Omahas, so far as the same may be applicable. Any substantial improvements heretofore made by any Indian, and which he shall be compelled to abandon in consequence of this treaty, shall be valued under the direction of the President and payment made accordingly therefor.

Article VIII

The annuities of the aforesaid tribes and bands shall not be taken to pay the debts of individuals.

Article IX

The said tribes and bands acknowledge their dependence on the Government of the United States, and promise to be friendly with all citizens thereof, and they pledge themselves to commit no depredations on the property of such citizens. Should any one or more of them violate this pledge, and the fact be satisfactorily proven before the agent, the property taken shall be returned, or in default thereof, of if injured or destroyed, compensation may be made by the Government out of their annuities. Nor will they make war on any other tribe except in self-defense, but will submit all matters of difference between them and the other Indians to the Government of the United States or its agent for decision, and abide thereby. And if any of the said Indians commit depredations on other Indians within the Territory the same rule shall prevail as that prescribed in this article in cases of depredations against citizens. And the said tribes agree not to shelter or conceal offenders against the laws of the United States, but to deliver them up to the authorities for trial.

Article X

The above tribes and bands are desirous to exclude from their reservations the use of ardent spirits, and to prevent their people from drinking the same, and therefore it is provided that any Indian belonging to said tribe who is guilty of bringing liquor into said reservations, or who drinks liquor, may have his or her proportion of the annuities withheld from him or her for such time as the President may determine.

Article XI

The said tribes and bands agree to free all slaves now held by them and not to purchase or acquire others hereafter.

Article XII

The said tribes and bands further agree not to trade at Vancouver's Island or elsewhere out of the dominions of the United States, nor shall foreign Indians be permitted to reside in their reservations without consent of the superintendent or agent.

Article XIII

To enable the said Indians to remove to and settle upon their aforesaid reservations, and to clear, fence, and break up a sufficient quantity of land for cultivation, the United States further agree to pay the sum of fifteen thousand dollars to be laid out and expended under the direction of the President and in such manner as he shall approve.

Article XIV

The United States further agree to establish at the general agency for the district of Puget's Sound, within one year from the ratification hereof, 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 district, and to provide the said school with a suitable instructor or instructors, and also to provide a smithy and carpenter's shop, and furnish them with the necessary tools, and employ a blacksmith, carpenter, and farmer for the like term of twenty years to instruct the Indians in their respective occupations. And the United States finally agree to employ a physician to reside at the said central agency, who shall furnish medicine and advice to their sick, and shall vaccinate them; the expenses of said school, shops, persons employed, and medical attendance to be defrayed by the United States, and not deducted from the annuities.

Article XV

This treaty shall be obligatory on the contracting parties as soon as the same shall be ratified by the President and Senate of the United States.

In testimony whereof, the said Isaac I. Stevens, governor and superintendent of Indian affairs, and the undersigned chiefs, headmen, and delegates of the aforesaid tribes and bands of Indians, have hereunto set their hands and seals, at the place and on the day and year hereinbefore written.