Swinomish proposed expansion picked apart

The Summit Park Grange in Anacortes was the place to be last Wednesday night for people with a stake in the land disputes that have put the Swinomish tribe at odds with some property owners and leaders from the Samish tribe, City of Anacortes and Skagit County.

A panel of seven representing the city, county and Samish sat onstage, facing a room so crowded that people without seats leaned against the walls and spilled out the back door. Organizers counted 220 attendees.

Landowners are worried the Swinomish Indian Tribal Community could assert jurisdiction over their land by expanding their reservation boundaries to include the March’s Point area.

In December, the Skagit County commissioners sent a letter to nearly 350 property owners notifying them that the Swinomish proposed tribal constitution amendments included language that could expand the reservation boundaries across the property owners’ lands.

“A lot of people had questions,” Skagit County Commissioner Ron Wesen said. “The homeowner’s association out there thought it’d be better than all of them calling in one at a time to instead have all of us come out and answer questions,” he said.

The meeting kicked off with a brief history lesson from homeowner organizer Dan Dubbel. He explained the 1855 Treaty of Point Elliott and the Swinomish position that an 1873 presidential executive order clarifying the northern reservation boundaries was illegal and diminished their reservation.

Dubbel said most of the property in the disputed area is fee-simple land, which means it is privately owned. He noted that federal laws allow tribes great authority within their reservation boundaries.

“What that means for non-Indian owned fee-simple land within a reservation is an important question for property owners,” he said. “Now, there are a number of interested parties. We’ve got the county, the city, the Samish, the business owners, including the two refineries. And, of course, the individual property owners.”

The purpose of the meeting, Dubbel said, was to allow property owners to hear from the county and city because they’d already heard the Swinomish perspective several weeks ago, when that tribe hosted an invite-only informational dinner. That event was closed to the press.

“The requested historical boundary would include all of March’s Point, Summit Park and the property along Highway 20, east of the golf course,” Anacortes Mayor Laurie Gere said. “Property owners in that area are concerned about ownership, their property, the jurisdiction and their property values.”

Anacortes City Attorney Darcy Swetnam said that in original Swinomish applications to the Bureau of Indian Affairs, they asserted their territory should include the March’s Point area, but the federal agency rejected the proposed constitutional amendment. Swetnam explained that the BIA indicated the amendment “would change the territory, conflicts with existing law and cannot move forward as presented.”

The Swinomish constitution was last updated in 1985, and the proposed amendments mostly deal with lessening the BIA’s regulatory authority over the tribe.

An updated version of the amended constitution that does not reference the expansion is said to be moving forward, and if it is sanctioned by the federal agency, will be put to Swinomish tribal members for a vote.

The city of Anacortes has been doing a lot of research since becoming aware of the dispute, Swetnam said.

She discussed several legal instances, including a 1971 case before the Indian Claims Commission, where Swinomish’s assertion of a larger boundary was denied after a review of historical documents.

Recently, the Swinomish tribe has applied to put their purchased, fee-simple properties — the Swinomish Golf Links golf course and a Shell gas station across Christianson Road from it — into federal trust, meaning it will become part of its reservation. Both properties are in Anacortes, outside the Swinomish Reservation.

When Swinomish applied to put the properties in trust, they applied as though those properties were located within the reservation boundaries, Swetnam said, and that’s why the city objected to the application.

When the Samish Indian Nation applied to the federal government to take land it purchased into trust, the Swinomish tribe objected, claiming that the property was located within the original boundaries of the Swinomish Reservation.

Wednesday’s meeting was held at the Grange hall directly across from the Samish’s 15 acres, currently an empty grass field.

Both Swetnam and the mayor emphasized that the city has had a good working relationship with Swinomish in the past and appreciate the financial contributions Swinomish has made to the city’s emergency services.

Will Honea, senior civil attorney with the Skagit County Prosecutor’s Office, said the law is clear that the disputed land is not and never was part of the Swinomish territory.

“We feel very confident that if this were brought forward, that the facts and the law are on our side,” he said. “Ultimately, we all want to get along with each other. We’re all here long-term, nobody’s going away. So how do we figure out long-term perspective when dealing with these issues?”

Commissioner Wesen described the financial fallout in La Conner, after a state Department of Revenue advisory prompted the county to take 931 tax parcels in Shelter Bay and the Pull & Be Damned Road neighborhood off county property tax rolls. The advisory document was crafted with input from tribal lawyers after the federal Great Wolf Lodge decision.

County commissioners Wesen and Lisa Janicki both expressed bitterness over the Department of Revenue’s tax advisory, saying the department was not transparent with the county and was heavily influenced by Swinomish lawyers.

Janicki said that before Wednesday’s meeting, she and Wesen met with Swinomish Chairman Brian Cladoosby, and he asked her to tell everyone, “nothing is going to change.”

But Janicki said she isn’t prepared to believe that.

“I remember Chairman Cladoosby, very clearly telling me that the Great Wolf Lodge decision was a surprise to him, he had no idea the Department of Revenue was coming out with the guidance to everybody,” Janicki said, “and then we find out later that he actually met with the Department of Revenue. So, I like the man, I’m just not sure I like the politics.”

“Brian is charming and engaging, but I don’t know what else he has up his sleeve—what other cards he has un-played,” she said.

Samish Chairman Tom Wooten said when his tribe discovered that the Swinomish’s proposed constitutional amendments could be a problem for them, they brought the issue to light because it also impacted the wider public.

He said while Swinomish has the right to update their tribal constitution, “unfortunately, that’s not the place to change the boundaries of the reservation,” he said.

Samish tribal attorney Craig Dorsay said the Samish no longer agree with Swinomish’s assertion of the larger reservation boundary. The Samish’s own historical research shows the 1873 executive order by President Ulysses S. Grant actually enlarged the reservation by nearly 60 acres.

When answering questions on what legal power the Swinomish could assert over landowners should their reservation be expanded, Dorsay said. “The law is not clear—these kinds of cases go on all over the country,” he said. “The Supreme Court keeps changing its position on what’s allowed or not allowed. The bottom line is that there’s a fair amount of uncertainty.”

The future may be uncertain, but Wooten said if the BIA approves the Samish’s fee-to-trust application for their property, it will effectively conclude the boundary dispute because the law says no tribe can have land put into trust within another tribe’s reservation without their permission.

One man stood up from the audience to implore all attendees to make decisions based on what is “ethical and just,” rather than being motivated by anger or money—and to keep in mind that generations down the line must deal with the outcome.

“I’m well aware of how resentments can become generational and grow and build over time,” he said. “I hope both sides take into consideration the other side and not create a division between native and white.”