The Treaty of Point Elliott: A living document

ON THE TREATY FRONT: A new monthly series on the history and meaning of tribal sovereignty, treaty rights, environmental stewardship and issues that threaten these important rights. This is just the first in a recurring series of articles produced by the Tulalip Tribes Treaty Rights Office to help educate and inform the membership. Our Mission is to “Protect, enhance, restore and ensure access to the natural resources necessary for Tulalip Tribal Members’ long-term exercise of our treaty-reserved rights.” 

Longhouse Chiefs.

 

Submitted by Ryan Miller, Tulalip Tribal Member, Treaty Rights Office

As members of the Tulalip Tribes, we hear the words “treaty rights” and “sovereignty” all the time. There is no doubt that to each of us they mean something different, yet there are some core principles that stem from these phrases. 

Sovereignty is the right to self-determination and self-governance. A sovereign government has the right to govern without outside interference from other groups. Our people were born sovereign as the first nations of this land.

This is of course complex, and so are the tribes’ relationships with other governments. We know that we do not govern without interference from outside forces, especially the federal government. The federal government’s policy regarding tribal rights continues to change and has a significant impact on tribes throughout the country. We’ll discuss more issues around tribal sovereignty in a future article.

The second important thing to define is a treaty. A treaty is a legally binding contract between two or more sovereign nations. It outlines the role each side will play in the future of the relationship and sometimes includes the reasons why they have entered into agreement with one another. Treaty rights are generally considered to be the rights reserved by tribes through treaty and are sometimes called “un-ceded rights” which reflects their existence prior to treaty signing.

There were five treaties made with northwest Washington tribes; the Treaty of Point Elliott, the Treaty of Point-No-Point, the Treaty of Neah Bay, the Medicine Creek Treaty, and the Treaty with the Quinault. Compared generally to treaties signed with many tribes to the east of Washington they are much more favorable (that is not to say that tribes did not bear an unfair burden of sacrifice). Part of the reason for more favorable treaties is that the United States had a comparatively small standing army, just 15,911 enlisted men, which were tasked with covering a huge geographical area. They did not have the resources to fight wars with a number of tribes in a far off corner of the country. As a result, Governor Isaac Stevens was assigned to make peace and enter into treaties with northwest tribes in order to secure land for settlers in the Washington Territories.

When our ancestors signed the Treaty of Point Elliot in 1855, the federal government, through its territorial Governor, Isaac I. Stevens, affirmed that the tribes had the inherent right to self-governance and self-determination as outlined in the excerpt from the U.S. Supreme Court’s ruling in Worcester V Georgia,

  “The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial,…The very term “nation,” so generally applied to them, means “a people distinct from others.” The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties.” 

Congress itself defines treaties as the “supreme law of the land” and only signs treaties with other “nations” therefore recognizing tribes as nations and affirming that treaties supersede other laws such as those made by state governments. This excerpt also explains that the U.S. government understood that these rights were “natural rights” implying recognition of tribes’ existence as sovereigns before the creation of The United States. 

In the treaty, our ancestors made great sacrifices by ceding millions of acres of land for the promise of medical treatment, education, and permanent access to the resources they had always gathered, including across all of our ancestral lands that lie outside of the reservation.

Tulalip canoe.

Article Five of the treaty addresses the most commonly known and arguably most culturally important right, 

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 purposes of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed land.”

Though truthfully this article was never well defined in law until in 1974 when Judge George Boldt gave his decision in the landmark Indian law case US v Washington (commonly known as the Boldt Decision), where he affirmed what treaty tribes had already known: the phrase “in common with” was meant to be an equal sharing of the salmon runs minus the number of fish needed to spawn future generations.. This court decision, along with a series of subsequent decisions recognized tribes as having equal management authority with the State of Washington over natural resources. This has given tribes a significant role in how fisheries are managed as well as managing tribal hunting. Washington tribes have contributed greatly to the process of salmon recovery and restoration of critical habitats and species. Tulalip has also worked to conserve and enhance the plants and wildlife that our people need to continue to practice our traditional ways. 

Tribal and court interpretations of Article Five, secures tribal access to these resources until the end of time and recognizes that any entity whose actions diminish either these resources or our access to them violates the spirit and intent of the treaty. 

We know that the treaty is alive and well. It’s as important to us today is it was to our ancestors at the time of signing. We raise our hands to our ancestors and leaders past and present who fought and continue to fight to protect these rights and our way of life. 

If you have questions, comments, or suggestions for future subjects please send them to ryanmiller@tulaliptribes-nsn.gov

Thank you for reading and we’ll see you next month!

 

 

Failed Treaty of Point Elliott Promises Spotlighted in Play

Richard Walker, Indian Country Today Media Network

This was James “Smitty” Hillaire’s debut as a stage actor, and yet he emoted anger, frustration and pain like a pro.

“We don’t like to call it acting,” Hillaire said. “We’re trying to tell a story, a story that hasn’t been told … A lot of people didn’t realize why we’re still fighting for our rights today. It’s still going on.”

Hillaire portrays Chowitshoot, a leader of the Lummi people and a reluctant signer of the 1855 Treaty of Point Elliott in “What About Those Promises?”, a stage production about treaty promises that have not been fulfilled by the United States.

To develop the script, Shelly Muzzy pored through transcripts of proceedings stored at the University of Washington. The audience is confronted with a true version of history not like those found in many textbooks.

“What About Those Promises?” brings to life the realities of—and the emotional trauma stemming from—the unfulfilled promises of the Treaty of Point Elliott of 1855. (Lummi Nation)
“What About Those Promises?” brings to life the realities of—and the emotional trauma stemming from—the unfulfilled promises of the Treaty of Point Elliott of 1855. (Lummi Nation)

 

Here, Chowitshoot and other Lummi representatives raise concerns about how the treaty will affect their rights to fish, hunt, harvest, and continue their way of life. Chief Si’ahl, or Seattle, leader of the Duwamish and Suquamish peoples, urges his peers to not sign the treaty.

The treaty was signed under duress, Hillaire said. “Sign or walk knee deep in blood—those were the words. We had no choice. We were forced to sign.”

The play brings to life the ongoing struggles of the Lummi people to see the promises of the treaty fulfilled, and gives voice to the people involved in those struggles.

The scenes take place when the United States was in the “fever of the termination era” and terminating its treaty responsibilities owed to tribes, Jewell James wrote in Whatcom Watch; he is director of the Lummi Nation’s Sovereignty and Treaty Protection Office. The region’s First People were jailed for trying to fish and harvest in their traditional grounds, as promised in Article 5 of the treaty; their rights to fish and harvest were upheld in 1974 in the U.S. District Court case, U.S. v. Washington, also known as the Boldt decision.

“What About Those Promises?” also reveals to the audience the emotional toll the post-treaty years have had—the residential schools, the termination era, and the continuing fight to protect rights, the environment and sacred places.

“We’ve been treated like animals, actually,” Hillaire said. “I believe we are one of the most regulated people in the whole country. We’re treated like prisoners of war; we’ve never gone to war [against the U.S.], we never surrendered either, but they treat us like a conquered people.”

“What About Those Promises?” brings to life the realities of—and the emotional trauma stemming from—the unfulfilled promises of the Treaty of Point Elliott of 1855. (Lummi Nation)
“What About Those Promises?” brings to life the realities of—and the emotional trauma stemming from—the unfulfilled promises of the Treaty of Point Elliott of 1855. (Lummi Nation)

 

Hillaire and his wife, Lutie, who also has a role in the play, have been participating in workshops to help them deal with the emotional impacts of historical trauma.

“I have a difficult time right off trying to deal with the anger,” he said. “I have kind of mixed emotions—some of it anger, some of it sadness.”

What producer Darrell Hillaire hopes people take away from his play: “That their word is good. Anybody. All people. All cultures. To keep our word to one another. We have such diverse peoples living in this country, in our communities. How do we best learn to live together? Well, you keep your promises first. From there, you learn to live together.”

State Rep. John McCoy, D-Tulalip, one of two Native Americans in the state House of Representatives, authored laws that require the history and culture of Washington’s First Peoples is taught in the state’s public schools, and allow tribes to open their own schools and create their own curriculum.

“This would be a great production to be out there [in schools],” he said. “You bring in your youngsters and your current leadership and your elders, and then do this production. If every tribe would do that, we’d really educate the state of Washington.”

He added, “Youngsters, you have to listen—listen to the stories of the elders, so we know where we’ve been, so you know where to go.”

The next staging of the production will be October 18 at Seattle University’s Pigott Hall at 7:30 p.m. Tickets are available at BrownPaperTickets.com.

 

Read more at http://indiancountrytodaymedianetwork.com/2013/09/23/failed-treaty-point-elliott-promises-spotlighted-play-151321