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.
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