Amending the Swinomish Constitution - FAQ

FREQUENTLY ASKED QUESTIONS

Is the Swinomish Tribe amending its Constitution?

Yes. Last year, the Swinomish Indian Tribal Community started working with the Bureau of Indian Affairs (BIA) to make several amendments to the Tribal Constitution in order to bring it into the 21st century. The process the Tribe has followed is set out in the current Swinomish Constitution and in federal regulations, under the direction of the Secretary of the Interior.

Our constitution was written in 1936, by the Federal government. At that time, the United States governed tribes with a heavy hand. Our 1936 Constitution still includes elements of the Federal government’s paternalism of that era. For example, it requires the Tribe to get the BIA’s permission before we can hire an attorney, lease land or perform other routine tasks. Both BIA and the Tribe agree those elements need to be removed from our Constitution.

What is the Swinomish Constitution?

The Swinomish Constitution works much like the United States Constitution by organizing the Tribe’s government. Essentially, the Constitution describes the form of government and the procedures by which the Tribe governs itself and the Swinomish Reservation.

How is the Tribe governed under the Swinomish Constitution?

The Swinomish Constitution established the eleven-member Swinomish Indian Senate, which is the Tribe’s governing body. The Constitution spells out how Senators are elected, how officers of the Senate will be chosen, and provides for Senate committees responsible for various essential governmental functions, such as health, education, welfare, fisheries, law and order, etc.

Will the Tribe’s Constitutional amendments “annex” land onto the Reservation?

No. Amending the Tribe’s constitution does not change the status of land ownership. Neither can a simple amendment of the Tribe’s Constitution change Tribal or County jurisdiction, which are governed by Federal law.

One of our proposed Constitutional amendments specifies that “consistent with applicable federal law” the Tribe’s territory includes the “Swinomish Reservation,” as well as lands owned by the Tribe or by the United States for the Tribe.

Why does Skagit County say that Swinomish will “annex” land?

We believe those statements are based on a misunderstanding of the land status of Indian reservations. Annexation is a process used by cities. But an Indian reservation is not a city. In fact, many reservations in the U.S. overlap with towns or cities.

Fee-simple landowners on the Swinomish Reservation hold the deeds to their land like any other property owner. They pay their property taxes to the County, even though their land is within the Reservation.

But some residents on the Reservation don’t own their land, and instead lease it from the Tribe or individual Native Americans. Our land tenants pay taxes to the Tribe on the value of their homes and other structures. You may have heard about residents of the Shelter Bay neighborhood paying these taxes to the Tribe. That’s because the Shelter Bay development leases land from the Tribe and individual Natives.

Is the Tribe claiming that its taxes now apply to all of the buildings or lands on March Point that are outside of the Executive Order line?

No. Several years ago the Tribe adopted its first tax on the value of buildings on leased trust land within the Reservation. In particular, the Tribe adopted a Use & Occupancy Tax after the Federal Courts ruled that the County and State could not tax buildings on leased trust land. Trust land is owned by the United States in trust for the Tribe or individual Native landowners.

The Tribe’s Use & Occupancy Tax applies to buildings on trust land that is leased from the Tribe or individual Native landowners. The Tribe’s tax does not apply to buildings on land that is owned by individuals in fee simple – that is, the tax does not apply to buildings unless the building is on leased trust land.

The Tribe does not have a tax on land, whether it be trust land or fee simple.

Is the Tribe claiming that it now has jurisdiction over all of the lands or activities on March Point that are outside of the Executive Order line?

No. The jurisdiction of tribes, counties and states in Indian Country are controlled by numerous Federal laws and court rulings over the years.

The jurisdiction of a tribe or county in Indian Country depends upon the circumstances of the particular case, so it is difficult to make generalizations about jurisdiction.

The Swinomish Tribe recognizes that its jurisdiction is subject to Federal law as the supreme law of the land under the United States Constitution. The same is true for Skagit County and the State of Washington. The Tribe’s proposed revisions to its Constitution explicitly state that the Tribe’s jurisdiction must be consistent with applicable Federal law.

Will the proposed Swinomish Constitutional amendments expand the size of the Reservation?

No. The boundaries of the Swinomish Reservation are a matter of Federal law. Those boundaries cannot be changed by a Swinomish Constitutional amendment.

The boundary of the Swinomish Reservation was established by the 1855 Treaty of Point Elliott, which reserved “the peninsula at the southeastern end of Perry's (now Fidalgo Island), called Shais-quihl.”

Maps created at Treaty time show clearly that the western boundary of the Swinomish Reservation is a north-south line between Fidalgo and Similk bays. This boundary line runs through the middle of Swinomish Golf Links.

In 1873, President Grant issued an Executive Order which attempted to unilaterally change the boundaries of the Reservation. But the United States Supreme Court has repeatedly ruled that only Congress – and not a President – can reduce the size of a reservation. The Supreme Court unanimously re-affirmed this rule earlier this year.

Based on the repeated decisions of the Supreme Court, the Tribe believes that President Grant’s Executive Order did not and could not lawfully diminish the Swinomish Reservation as it was established in the Treaty of Point Elliott. But this is a question of Federal law, and not something that could be resolved through amendments to the Swinomish Constitution.

So, rather than refer to the 1855 Treaty Reservation or the 1873 Executive Order, proposed revisions to the Swinomish Constitution simply make clear that, “consistent with applicable federal law” the Tribe’s territory includes the “Swinomish Reservation,” as well as lands owned by the Tribe or by the United States for the Tribe.

What about businesses on March Point? How does the information given above apply to them?

The answers above apply regardless of whether the land is residential or commercial.

Why am I hearing so much about this now?

The Tribe has long opposed President Grant’s Executive Order and the violation of our Treaty.

It’s no secret that the United States has broken its promises to Indian Tribes across the country time and time again. The President’s attempt to take away part of our Reservation and other violations of our Treaty are a painful part of our history. It is a story we have been telling for generations to anyone who would listen.

We can’t be sure why the County has decided to publicize our issues with the Reservation boundary now. But we believe it’s important for others to know this shameful history, and we are grateful that the County has focused public attention on this.

What about the map of the Swinomish Reservation that includes March Point, mailed out by the County?

We did not create the map for use in connection with our Constitutional amendments. We created the map to illustrate the Reservation boundaries that were defined by our Treaty with the United States. We’re not sure why the County referenced it in the context of our Constitutional amendments. But the map is useful to help understand the boundary of the Swinomish Reservation as it was established in 1855 by the Treaty of Point Elliott, and then the line that was contained in President Grant’s 1873 Executive Order.

What does Swinomish Tribe’s Code of its laws say about Tribal civil jurisdiction now?

The Swinomish Tribal Code states that the Tribal Court’s subject matter jurisdiction is limited to civil matters that arise within the exterior boundaries of the Reservation or lands outside the boundaries of the Reservation held in trust by the United States for the Tribe or tribal members. As just discussed, the boundary of the Swinomish Reservation is a question of Federal law.

I have read that the Tribe is claiming all authority over any area where it has fishing or hunting rights. This seems like a huge area. Is it true?

The Tribe has jurisdiction to regulate the Treaty fishing, hunting, and gathering activities of Swinomish Tribal members or other Native Americans. This Tribal jurisdiction was recognized by the Federal courts in the 1970s and has been exercised by the Tribe ever since. The Swinomish Tribal Code spells out the jurisdiction of the Tribal Court in criminal and civil matters that involve or are related to Treaty fishing, hunting and gathering activities as limited to all usual and accustomed fishing grounds and stations of the Tribe, all open and unclaimed lands reserved by treaty for hunting or gathering and on such other lands and waters as is necessary for access to such fishing, hunting and gathering sites.

Amending the Swinomish Constitution - FAQ

CONTACT

Stephen LeCuyer
(360) 466.1058
slecuyer@swinomish.nsn.us