County pushes back at tribal jurisdiction expansion

The Swinomish Indian Tribal Community’s contention that its reservation is actually a third larger than its boundaries indicate and includes thousands of acres of private property has about 350 landowners very worried, Skagit County Commissioners have said.

In a letter to Swinomish Chairman Brian Cladoosby, the commissioners asked to have the matter settled in federal court for, “a binding decision on this matter.”

That probably won’t happen, however. Essentially tribal governments don’t go to court unless they agree to go to court – they are immune from lawsuits unless they waive their sovereign immunity.

Swinomish’s response to a query from this newspaper came from Tribal Attorney Emily Haley who wrote, “The tribe has received the letter. After the Senate has a full opportunity to review the letter, it will respond to the County. We do not have a timetable for when that will be done.”

But the county would be happy to go to court, said Will Honea, Senior Deputy Civil Attorney with the Skagit County Prosecutor’s Office. “The bottom line is, from our perspective, they don’t have a leg to stand on.”

This issue bubbled up to the surface late last year when the Samish Indian Nation received a response to its Freedom of Information Act request regarding the Swinomish Tribe’s efforts to amend its constitution.

An early draft of the constitution indicated that the tribe would claim jurisdiction over the March’s Point area, where there are two refineries, two car dealerships, many businesses and homes – all on privately owned land and some within the city of Anacortes.

Samish owns two parcels in the area that Swinomish says is within its original reservation boundaries and wants to develop a casino and gas station on 15 acres it owns near the intersection of Thompson Road and Highway 20. The Samish casino site is almost exactly two miles down the road from the existing Swinomish Casino and Lodge.

Swinomish has filed objections with the Bureau of Indian Affairs over the Samish efforts. To build a casino, Samish must first have the federal government take its land into trust, making it reservation land.

In its objections, Swinomish has maintained that Samish can’t build there, because the land is actually part of the Swinomish Reservation as defined in the 1855 Treaty of Point Elliot. To back up its claim, Swinomish has circulated a map drawn in April 1871, showing an area somewhat resembling March’s Point as part of its reservation.

To counter that, Samish conducted extensive research and produced a survey done in October 1871, showing the reservation boundaries where they are today. The Swinomish Reservation’s northern boundary was defined in an 1873 executive order by President Ulysses S. Grant, and is closely aligned with what is shown in that survey.

Based on communication that Samish and the county have seen, it is apparent that the Bureau of Indian Affairs, and thus, the federal government, has no intention of expanding the Swinomish Reservation to include the disputed land.

However, because Swinomish has been declaring that the land is part of its reservation, there is a cloud over land titles. “We’re getting calls from lots of landowners saying “what are we going to do?’ Nobody wants to buy our land,” said county attorney Honea.

In other situations, property owners can go to court and sue for defamation of title to clear it up, he said, but the tribe’s sovereign immunity prevents that solution in this case.

County Commissioner Ron Wesen said there is so much uncertainty for the property owners, the county hopes Swinomish will allow the courts to resolve it.

Meanwhile, the county on Tuesday contacted the Bureau of Indian Affairs with an even bigger land and jurisdiction issue it wants solved. In a letter from the commissioners, the county is taking issue with a tribal constitutional amendment Swinomish proposes that would give it jurisdiction over all “persons, subjects, property and activities” occurring in its traditional hunting and fishing grounds.

The commissioners argue that clause could put the tribe in charge of just about the entire county, not just its reservation. Further, the county says it’s unclear whether the tribe wants to have police power as well as land use jurisdiction over everyone who lives on those many thousands of acres.

The county’s letter to the Bureau of Indian Affairs lists several arguments against Swinomish asserting jurisdiction over most of the county. And, it notes that in the 1855 Treaty of Point Elliot signed by the ancestors of today’s tribal leaders, article nine states that the Swinomish promised to be friendly to U.S. citizens, “and they pledge themselves to commit no depredation on the property of such citizens.”

Swinomish is preparing to hold an election, so its tribal members can decide whether to adopt the proposed changes to its tribal constitution – the main change would remove the paternalistic role of the Bureau of Indian Affairs concerning tribal business.

Other tribes, including Samish, have adopted rules eliminating federal oversight over their day-to-day gov-ernance and the Bureau of Indian Affairs has sanctioned such moves toward greater independence.