Swinomish angles for more jurisdiction

Skagit County Commissioners stepped into what appears to be a land dispute between two local Native American tribes and warned property owners that they could end up being annexed to the Swinomish Reservation.

At the same time, the commissioners filed an objection with the federal Bureau of Indian Affairs over the Swinomish Indian Tribal Community’s plans to amend its constitution — a move they claim could stretch its reservation boundaries across thousands of acres of privately owned land northwest of the current reservation.

This newspaper reported in September that the Swinomish Indian Tribal Community was preparing to ask its members to vote to amend its constitution to eliminate oversight by the federal Bureau of Indian Affairs and gain a larger reach in its tribal jurisdiction. Information for tribal members was published in the Swinomish newsletter, qyuuqs (formerly Kee-Yoks) in June and in September.

To find out what impact the constitution changes would have on its neighbors, the Samish Indian Nation of Anacortes filed a Freedom of Information Act request with the federal government and obtained a copy of the proposed changes Swinomish was seeking.

“There was certainly no other communication to us from Swinomish that they were planning to expand their reservation,” said Samish Indian Nation General Manager Leslie Eastwood.

For Samish and 347 other property owners, who were contacted by the county on Friday, the most alarming aspect of the Swinomish proposition is that it appears the tribe wants to automatically extend its reservation boundaries across a few thousand acres of privately owned land.

The alleged expansion includes March’s Point, where the Shell and Tesoro refineries are located, a strip of city of Anacortes, the Ford and Chevy dealerships and private homes.

Yesterday afternoon, on Dec. 6, Swinomish sent out a press release stating “the county’s letter seems designed to cause the maximum alarm to our neighbors,” and had been based on a draft of the constitution’s amendments that have since been updated.

According to the documents obtained by Samish, Swinomish was seeking to amend its reservation boundaries to what it considers to be the “original” boundaries set forth in the Treaty of Point Elliott in 1855.

That treaty references “the peninsula at the southeastern end of Perry’s Island,” which is where the Swinomish Reservation has been formally recognized for the past 143 years. Fidalgo Island, where Swinomish, March’s Point and the city of Anacortes are located, was called “Perry Island” in the early 1800s.

According to a map produced by Swinomish and provided in the documents Samish obtained in its records request, Swinomish has drawn the 1855 boundaries to include March’s Point in the peninsula described in the treaty.

However, an 1873 executive order by U.S. President Ulysses S. Grant defined the northern boundary of the Swinomish Reservation, which is on the southeastern peninsula of Fidalgo Island — across the Swinomish Channel from La Conner — and does not include March’s Point.

So, where does this issue stand?

The Swinomish press release states that the tribe still believes its reservation boundaries include March’s Point and takes in the portion of Fidalgo Island bisected by a line that runs from Fidalgo Bay south to Similk Bay, through what is now the Swinomish Links golf course.

But the tribe states that the draft constitutional amendment was revised. According to the press release, the new version “makes it clearer that ... the Tribe’s territory includes the ‘Swinomish Reservation’ as well as lands owned by the tribe or by the U.S. for the tribe.”

In recent years Swinomish has purchased property in the disputed area, including the golf course, the Bayside Fitness land and a gas station.

Stan Speaks, who is the regional director of the Pacific Northwest Agency of the Bureau of Indian Affairs, said last Thursday that proposed changes to the Swinomish constitution have been completed, and “the operations officer has been working with tribal staff trying to get everything lined out so the election can take place.” In an election for Tribal Senate early this year, 311 tribal members voted. The tribe claims an enrollment of around 900.

In the Swinomish quest to diminish oversight by the Bureau of Indian Affairs in much of its tribal business, Speaks said the tribe is “pretty well in a position to assume” control of its own affairs.

The Swinomish press release states that the tribe’s constitution was written in 1936 and has not been amended since 1985.

As presently written, “the Constitution imposes Federal bureaucracy on the Tribe and is out of step with today’s Federal policy of self-determination.”

Speaks would not comment on the notion that the tribe is trying to claim jurisdiction over other people’s lands. That, he said, is an “issue between the tribe and state and the county.”

First in line with an objection to the proposed changes in the Swinomish Constitution was the Samish Indian Nation, which is also a federally recognized tribe and one of the property owners in the area Swinomish claims is within the original boundaries of its reservation.

Samish owns 15 acres on the southeast side of the intersection of Thompson Road and Highway 20. It purchased the land in 2008 and has been trying to have the federal government take it into trust as reservation land so it can develop a casino and gas station there. In the meantime, Samish has been paying taxes on the land — nearly $43,000 in taxes last year.

In October Samish purchased another three acres a short distance to the west, the old log homes sales place on Highway 20.

Samish General Manager Eastwood said that Swinomish has been objecting to Samish having the land they own taken into trust. She said amending the Swinomish constitution to put Samish land in the Swinomish Reservation could be another delaying tactic to thwart the Samish development plans.

Samish already has an agreement with the county to contribute money in lieu of taxes when the land goes into trust.

“We recognize the impact of land coming off the tax rolls,” Eastwood said. She said the tribe doesn’t have the capacity to provide many of the public services it relies on. “That’s why we enter into agreements with the county and city,” she said.

Meanwhile, in the Swinomish constitution controversy, the county has weighed in on the side of taxpayers.

County Commissioner Ron Wesen, who, along with commissioners Lisa Janicki and Ken Dahlstedt, signed the letter that went out warning property owners that Swinomish “may annex your property into the reservation” said he wants Swinomish to explain the tribe’s plans to county officials.

Wesen said on Tuesday that there still had been no communication from Swinomish, and the county has yet to see a copy of the tribe’s revised draft constitution.

The county found out about Swinomish’s plan to amend its constitution through the Samish Indian Nation. Officials at Samish alerted the county to the potential conflicts after its lawyers examined documents obtained in a Freedom of Information Act request.

Wesen said the county learned a lesson with the impacts the Great Wolf Lodge decision had on La Conner area taxpayers and “is being more proactive in notifying the public,” he said.

In 2015 the county followed an advisory from the state Department of Revenue that resulted in parcels generating $1.8 million in property taxes being taken off the county tax rolls. Swinomish then began levying its own taxes on the parcels, with most of the money it collects going toward tribal services.

Swinomish and Revenue claim the federal court’s Great Wolf Lodge decision required the tax shift. But the impetus behind the tax shift, which resulted in huge tax increases for property owners whose parcels remained on the tax rolls, was an “advisory” from the Department of Revenue. The elected assessors in Skagit and Snohomish counties, which were most affected, were unaware that tribal lawyers played a large role in crafting that “advisory.”

In their letter to the Bureau of Indian Affairs objecting to the Swinomish constitution amendments, the commissioners referenced the earlier tax shift and noted: “for 2015 alone, the two refineries generated $9,709,990 in tax revenue, which would be a disastrous loss for our community’s basic services if transferred” to Swinomish.

In lawyer-speak, the six-page objection states that expanding the Swinomish jurisdiction is “unlawful,” would infringe on the Samish sovereignty and “would violate the Constitutional rights of our citizens.”

Still, Swinomish claiming that the refineries, car dealerships and dozens of private homes and businesses are part of its reservation, doesn’t necessarily make it so, Samish and county officials acknowledge.

But they worry that should the Bureau of Indian Affairs give tacit approval to such an assertion in the Swinomish Constitution by approving and legitimizing the election, they could have a tougher time fighting it in federal court.

Swinomish, in its press release, stated that its process to amend its constitution is something decided only by its tribal members and, “The process does not involve state or local government, or other tribes.”

Further, the release states that Grant’s “1873 Executive Order did not change the Reservation boundary, exclude March Point, or diminish the Reservation.” Swinomish holds that only an act of Congress, rather than a presidential order “can diminish a reservation.”

The Swinomish map showing the reservation encompassing March’s Point, does not constitute an expansion of the boundaries, the release states. “It is simply the Swinomish Reservation established by the Treaty of Point Elliott in 1855. As Chairman (Brian) Cladoosby has said, ‘A deal is a deal is a deal.’”