Treaty of Point Elliott

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The Treaty of Point Elliott of 1855, or the Point Elliott Treaty,^[1]—also known as Treaty of Point Elliot (with one t) / Point Elliott Treaty^[2]—is the lands settlement treaty between the United States government and the nominal Native American tribes of the greater Puget Sound region in the recently-formed Washington Territory (March, 1853), one of about thirteen treaties between the U.S. and Native Nations in what is now Washington.^[3] The treaty was signed on 22 January 1855, at Muckl-te-oh or Point Elliott, now Mukilteo, Washington, and ratified 8 March and 11 April 1859. Lands were being occupied since settlement in what became Washington Territory began in earnest from about 1845.^[4]

Signatories to the Treaty of Point Elliott included Chief Seattle (si'áb Si'ahl) and Territorial Governor Isaac Stevens. Representatives from the Duwamish, Suquamish, Snoqualmie, Snohomish, Lummi, Skagit, Swinomish, (in order of signing) and other tribes also signed. The treaty established the Suquamish Port Madison, Tulalip, Swin-a-mish (Swinomish), and Lummi reservations. The Native American signers included: Suquamish and Dwamish (Duwamish) Chief Seattle, Snoqualmoo (Snoqualmie) and Sno-ho-mish Chief Patkanim as Pat-ka-nam, Lummi Chief Chow-its-hoot, and Skagit Chief Goliah. The Duwamish signatories to the Point Elliott Treaty of 22 January 1855 were si'áb Si'ahl as Chief Seattle, and Duwamish si'áb Ts'huahntl, si'áb Now-a-chais, and si'áb Ha-seh-doo-an. The treaty guaranteed both fishing rights and reservations.^[5] Reservations for the Duwamish, Skagit, Snohomish, and Snoqualmie are conspicuously absent.

Contents 1 Context 2 Governor Stevens and the U.S. government 2.1 Staff for the U.S. government 3 Native Americans 3.1 Signatory tribes 3.2 Non-signatory tribes 3.3 Selected articles 4 After the treaty 5 See also 6 Notes and references 7 Bibliography 8 Further reading

[edit] Context

How were new settlers to stake their claims and hold clear title to their lands? The Intercourse Act of 1834 specifically prohibited White American intrusion into Indian territories. The Oregon Donation Land Claim Act of 1850 specifically opened Oregon Territory; Washington Territory had similar law. The law sunset 1 December 1855; settlers had to file by that date, so White leaders had a tremendous incentive to get treaties signed as speedily (if not as properly) as possible. Each male settler could homestead and receive 160 acres (0.65 km²) free for himself and 160 with his wife (women could not individually hold property). Settlers arriving before 1850 could receive 640 acres (2.6 km²), or 1 Regular Section, one square mile. No explanation has been provided for how this property could be titled before Indian claims were extinguished (using the legal term). The effective means of doing so was by unilateral occupation, implicitly backed by militia if not military. The response was disconcertion, sometimes as extreme as raids and uprisings, whiche were followed by White lynch law.

The intentional pell mell, headlong pace of Westward Expansion [" 'Westward Expansion' article neutrality may be compromised by 'weasel words' "; cites only minimal sources] and Manifest Destiny by American exceptionalism throughout the 19th century effectively precluded other than a freebooter development model.

By and large, Native leaders were willing to sell (having at the time no cultural comprehension of individuals or people owning land), but they were very unwilling to move out of Puget Sound country. Only comparatively recently are present occupants only beginning to understand why.^[6]

The courts have said that the power of Congress in Indian affairs is plenary (full and complete)—great but under present law not absolute. The federal government and tribes are co-equal sovereign entities; the tribal governments predated the existence the United States. One of the most basic principles underlying Indian nations is that they retain all the inherent powers of any sovereign nation, retaining all original sovereign rights and powers which have not been given up or taken away by due process of law. Courts have ruled that the "intent of Congress to limit the sovereign powers of Indian governments by legislation must be clearly expressed in the law in order to be effective" (in legal terminology, per Saito, Georgia State University College of Law). [Emphasis added.]^[7]

This leaves many of the mid-19th century treaties in an interesting legal status.

The U.S. Constitution, Article 6, states:

This Constitution, and the laws of the United States which shall be made in persuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. [Emphasis added.]

(Treaties must comply with the Constitution.) Treaties are international agreements by definition. The Supreme Court has ruled that there are "canons of construction" for interpreting treaties; of the two principal canons, one is that they are to be interpreted as they would have been understood by the signatories. The Supreme Court has ruled, in a manner remarkably like the Bill of Rights, Tenth Amendment, that "Treaties are to be construed as a grant of rights from the Indians, not to them—and a reservation of those not granted."

A treaty broken is not rescinded. Only a following treaty or agreement can relieve signatories of the original treaty. When the U.S. breaks a treaty, doing so reflects upon the integrity of the country. "Treaties are as old and as venerable as the Constitution of the United States. Age does not impair their validity or legality." [Deloria, 1994]^[8]

Indian tribes, for the most part, were not parties to and rarely agreed with the diminuation in their sovereign powers by the laws of the colonizer and the alien tradition of European law. With significant justification they often claim to retain far greater sovereign powers than federal Indian law is prepared to concede. The resulting political dynamic is of tensions and disputes among tribal, federal, and state governments about sovereign powers and jurisdiction denied to tribes by the colonial justifications underlying federal law, which tribes and members point out they never voluntarily surrendered.^[9] Diminuation of soverignty is usually absent from accession of lands.

[edit] Governor Stevens and the U.S. government

Governor Stevens dealt dishonestly in treaties, among other things making oral promises that were not matched by what was written down. The Native tribes were all oral cultures. When Stevens, in drafting treaties, acted in a manner that Judge James Wickerson would characterize forty years later as "unfair, unjust, ungenerous, and illegal", Natives were quite unprepared for such behavior by the official representatives of the white man's power. The local natives had at least a thirty-year history of dealing with the "King George's men" of Hudson's Bay Company (HBC), who had developed a reputation for driving a hard bargain, but sticking honestly to what they agreed to, and for treating Whites and Indians impartially. This continued through the dealings of the local Bureau of Indian Affairs (BIA) Superintendent General, Joel Palmer, who (along with David 'Doc' Maynard's brother-in-law, Indian Agent Mike Simmons) was among the few even-handed men in the BIA.^[10][11]

The unjust and deliberately confusing western Washington Territory treaties such as that of the Treaty of Medicine Creek of 1854 (26 December) and this Treaty of Point Elliott of 1855 (22 January) were followed by the yet more provocative Treaty of Walla Walla of 1855 (21 May). Governor Stevens pointedly ignored federal government instructions to stick to sorting out the areas where natives and settlers found themselves immediately adjacent to one another, or, from the other perspective, where settlers moved right in on Native places. After thirty years of dealings with King George's men of the HBC, having this behavior by the "Bostons" (U.S. settlers and government), Natives were, not surprisingly, angered, some to the point of war, particularly since the Native concept of war had more to do with resources and complex concepts of prestige than with conquest or annihilation, which were not even considered.^[12]

Due to a documented mix of motivations, Territorial Governor Isaac Stevens appointed chiefs of tribes in order to facilitate goals of his administration. The Treaty of Point Elliott is further complicated by the style of governor Stevens, and the gulf of misunderstanding between the parties.^[13]

"The salient features of the policy outlined [by Governor Stevens to his advisers] were as follows:

1. To concentrate the Indians upon a few reservations, and encourage them to cultivate the soil and adopt settled and civilized habits.

2. To pay for their lands not in money, but in annuities of blankets, clothing, and useful articles during a long term of years.

3. To furnish them with schools, teachers, farmers and farming implements, blacksmiths, and carpenter, with shops of those trades.

4. To prohibit wars and disputes among them.

5. To abolish slavery.

6. To stop as far as possible the use of liquor.

7. As the change from savage to civilized habits must necessarily be gradual, they were to retain the right of fishing at their accustomed fishing-places, and of hunting, gathering berries and roots, and pasturing stock on unoccupied land as long as it remained vacant.

8. At some future time, when they should have become fitted for it, the lands of the reservations were to be allotted to them in severalty." [Emphasis added]^[14]

Note that these are significantly different from the verbal assurances provided during negotiations, and that all the Native Nations were oral cultures.

Indian tribes believed the treaties became effective when they were signed. But United States law required Congress to approve all treaties after they were negotiated.^[15] Consequently, there was no legal foundation for occupation from the time settlement began in earnest about 1845 until April 1859.

The commitments made by the U.S. government in the Treaty have never been implemented for the Duwamish, and several other tribes.

[edit] Staff for the U.S. government

Initial Treaty Advisers, Washington Territory

• James Doty, Secretary
• George Gibbs, Surveyor [witness at treaty signing. Gibbs also kept extensive records and made expansive reports through his career; became a prominent historical primary source.]
• H. A. Goldsborough, Commissary
• B. F. Shaw, Interpreter
• Colonel M. T. Simmons

Point Elliott Treaty, advisers to Washington Territory

• M. T. Simmons, Special Indian Agent, [witness at treaty signing]
• H. A. Goldsborough, Commissary, [remaining member of the initial staff, witness at treaty signing]
• B. F. Shaw, Interpreter, [remaining member of the initial staff, witness at treaty signing]
• James Tilton, Surveyor-General, Washington Territory
• F. Kennedy
• J. Y. Miller
• H. D. Cock, [witness at treaty signing]^[16]

[edit] Native Americans

This section requires expansion.

Chiefs, as such, were appointed by Governor Stevens, though the treaty states "on behalf of said tribes, and duly authorized by them."

[edit] Signatory tribes

Dwamish (Duwamish)

Suquamish

Sk-kahl-mish (Skokomish)

Sam-ahmish (Samamish)

Smalh-kamish

Skope-ahmish

St-kah-mish

Snoqualmoo (Snoqualmie)

Skai-wha-mish

N'Quentl-ma-mish

Sk-tah-le-jum

Stoluck-wha-mish (Stillaguamish)

Sno-ho-mish

Lummi

Skagit

Kik-i-allus

Swin-a-mish (Swinomish)

Squin-ah-mish

Sah-ku-mehu

Noo-wha-ha

Nook-wa-chah-mish

Mee-see-qua-guilch

Cho-bah-ah-bish^[17]

[edit] Non-signatory tribes

For various reasons, the Nooksack, Samish, Semiahmoo, Lower Puyallup and Quileute tribes did not take part in the treaty councils, though the rights of the Nooksack were signed over by the Lummi chief Chow-its-hoot, without their presence. Several of them, like the Duwamish and Samish tribes, continue working toward official recognition.^[11] See also, for example, Duwamish (tribe).

[edit] Selected articles

The treaty contains the now-famous provision cited by Judge George Boldt in the Boldt Decision (1974, upheld 1979) (see also the Treaty Article via link, below):

ARTICLE 5.

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,

The treaty contains provisions that would raise concern by an attorney in the employ of the Natives during negotiations:

ARTICLE 7.

The President may hereafter, when in his opinion the interests of the Territory shall require and the welfare of the said Indians be promoted, remove them from either or all of the special reservations hereinbefore make to the said general reservation, or such other suitable place within said Territory as he may deem fit, on remunerating them for their improvements and the expenses of such removal, or may consolidate them with other friendly tribes or bands; and he may further at his discretion cause the whole or any portion of the lands hereby reserved, or of such other land as may be selected in lieu thereof, to be surveyed into lots, and assign the same to suc[h] individuals or families as are willing to avail themselves of the privilege, and will locate on the same as a permanent home on the same terms and subject to the same regulations as are provided in the sixth article of the treaty with the Omahas, so far as the same may be applicable.

[...]

ARTICLE 12.

The said tribes and bands further agree not to trade at Vancouver's Island or elsewhere out of the dominions of the United States, nor shall foreign Indians be permitted to reside in their reservations without consent of the superintendent or agent.

The complete treaty, unabridged can be found on Wikisource.

[edit] After the treaty

Fishing rights were increasingly restricted after 1890. State repression increased through the 1950s. Protest fish-ins began in the 1960s, with successful public, peaceful outmaneuvering of police, garnering wide media attention. The Boldt Decision in 1974 was followed by extraordinary repression by the state and resistance by non-Indians, until the Supreme Court upheld the decision in 1979. Nooksacks, Upper Skagits, Sauks-Suiattles, and Stillaguamishes won federal recognition in the 1970s, largely due to participation in treaty-rights struggles. Federal courts denied Samish, Snohomish, Snoqualmie, Steilacoom, and Duwamish, because they were not recognized as polities (civil governments).^[18]

[edit] See also

• Duwamish (tribe) # History
• History of Seattle before 1900 # Relations with the natives
• Histories of other Puget Sound Native American tribes
• Quinault Treaty

[edit] Notes and references

1. ^ See, for example, Treaty of Point Elliott, 1855, HistoryLink.org (accessed 2009-04-09); Treaty of Point Elliott, Washington State Historical Society (accessed 2009-04-09); Treaty of Point Elliott, 1855, US GenWeb Archives (accessed 2009-04-09).
2. ^ See for example Treaty of Point Elliot on the site of the University of Oregon (accessed 2009-04-09); History of The Samish Indian Nation on the site of the Samish Indian Nation (accessed 2009-04-09), which uses both spellings; McDermott Introduces Legislation Seeking Federal Recognition For The Duwamish Tribe, February 8, 2007 on the site of Congressman Jim McDermott (accessed 2009-04-09).
3. ^ (1) Lange
   (2) Thirteen treaties, 26 December 1854–7 July 1883, most in 1855.
   (2.1) Fraley
4. ^ (1) Morgan (1951, 1982), p. 14
   (2) ""Page 10"". Treaty between the United States and the Duwamish, Suquamish, and other allied and subordinate tribes of Indians in Washington Territory: January 22, 1855, ratified April 11, 1859.. University of Washington Libraries: Digital Collections. 1999-05-21. http://content.lib.washington.edu/cgi-bin/docitemview.exe?CISOROOT=/lctext&CISOPTR=9878. Retrieved 2006-07-21. 
5. ^ Long (20 January 2001, Essay 2951)
6. ^ (1) Furtwangler (1997), pp. 6–9, 110–111, 162
   (2) Donaldson pp. 295–296 in Ibid, p. 110
7. ^ Saito
8. ^ Deloria in Davis (1994), pp. 645–9
9. ^ Clinton in Davis (1994), pp. 645–9
10. ^ (1) Speidel (1967), (1978)
    (2) Morgan (1951, 1982), pp. 39–51
11. ^ ^{a b} ""Treaties and Councils: Introduction"". The Treaty Trail: U.S. - Indian Treaty Councils in the Northwest. Washington State History Museum. 2004. http://washingtonhistoryonline.org/treatytrail/treaties/index.htm. Retrieved 2006-07-21. 
12. ^ (1) Morgan (1951, 1982)
    (2) Speidel (1978)
    (3) Holm in Hoxie
13. ^ Morgan (1951, 1982), pp. 20–54
14. ^ (1) Stevens, Hazard (son) (1901). Life of Isaac Ingalls Stevens, Volume 1 of 2. Boston: Houghton, Mifflin, Copyright expired.
    (1.1) NB: Not verified by a Wikipedia editor. Referenced in ""Treaties and Councils: Stevens' Entourage"". The Treaty Trail: U.S. - Indian Treaty Councils in the Northwest. Washington State History Museum. 2004. http://washingtonhistoryonline.org/treatytrail/treaties/entourage.htm. Retrieved 2006-07-21. 
15. ^ ""Treaties and Councils: What is a Treaty?"". The Treaty Trail: U.S. - Indian Treaty Councils in the Northwest. Washington State History Museum. 2004. http://washingtonhistoryonline.org/treatytrail/treaties/whatis.htm. Retrieved 2006-07-21. 
16. ^ ""Treaties and Councils: Stevens' Entourage"". The Treaty Trail: U.S. - Indian Treaty Councils in the Northwest. Washington State History Museum. 2004. http://washingtonhistoryonline.org/treatytrail/treaties/entourage.htm. Retrieved 2006-07-21. 
17. ^ ""January 22, 1855: Treaty of Point Elliott"". The Treaty Trail: U.S. - Indian Treaty Councils in the Northwest. Washington State History Museum. 2004. http://washingtonhistoryonline.org/treatytrail/treaties/timeline/treaty_2.htm. Retrieved 2006-07-21. 
18. ^ Harmon in Hoxie (1996), pp. 522–3

[edit] Bibliography

• Black, Henry Campbell; Garner, Bryan A. (1999). Law dictionary. St. Paul, MN: West Group. ISBN 0-314-24130-2 (deluxe), ISBN 0-314-22864-0. 
• Clinton, Robert N. (1994). "Sovereignty". in Davis, Mary B.. Native America in the twentieth century: an encyclopedia. Garland reference library of social science; v. 452. New York: Garland. pp. 611. 
• Deloria, Vine, Jr. (1994). "Treaty". in Davis, Mary B.. Native America in the twentieth century: an encyclopedia. New York: Garland. pp. 645–9. ISBN 0-8240-4846-6 (alk. paper). 
• Fraley, Kevin, Washington Archives Manager (2000). ""Washington Indian Treaties"". US GenWeb Archives. http://www.rootsweb.com/~usgenweb/wa/indians/treaties.htm. Retrieved 2006-04-21. 
• Furtwangler, Albert (1997). Answering Chief Seattle. Seattle and London: University of Washington Press. ISBN 0-295-97633-0 (alk. paper). 
• Harmon, Alexandra (1996). "Puget Sound Tribes". in Hoxie, Frederick E.. Encyclopedia of North American Indians. Boston: Houghton Mifflin. pp. 522–4. ISBN 0-395-66921-9. 
• Holm, Tom (Cherokee, Creek) (1996). "Warriors and warfare". in Hoxie, Frederick E.. Encyclopedia of North American Indians. Boston: Houghton Mifflin. pp. 666–8. ISBN 0-395-66921-9. 
• ""January 22, 1855: Treaty of Point Elliott"". The Treaty Trail: U.S. - Indian Treaty Councils in the Northwest. Washington State History Museum. 2004. http://washingtonhistoryonline.org/treatytrail/treaties/timeline/treaty_2.htm. Retrieved 2006-07-21. 
• Lange, Greg (2003-02-19). ""U.S. President Millard Fillmore establishes Washington Territory on March 2, 1853."". HistoryLink.org Essay 5244. http://www.historylink.org/essays/output.cfm?file_id=5244. Retrieved 2006-04-21. 
  Lange referenced Thomas W. Prosch, "A Chronological History of Seattle From 1850 to 1897" Typescript dated 1900-1901, Northwest Collection, University of Washington Library, Seattle, 36-37;
  Edmond S Meany, "The Cowlitz Convention: Inception of Washington Territory" The Washington Historical Quarterly, Vol. 13, No. 1 (January 1922), 3-19.
• Long, Priscilla (2001-01-20). ""Duwamish Tribe wins federal recognition on January 19, 2001, but loses it again two days later."". HistoryLink.org Essay 2951. http://www.historylink.org/essays/output.cfm?file_id=2951. Retrieved 2006-07-21. 
  Long referenced Hector Castro and Mike Barber, "After Decades, Duwamish Tribe Wins Federal Recognition", Seattle Post-Intelligencer January 20, 2001, (www.seattlep-i.com);
  Bernard McGhee, "Duwamish Tribe Wins Recognition", The Seattle Times, January 20, 2001, (www.seattletimes.com);
  Bureau of Indian Affairs, "BIA Issues Final Determination on the Recognition of the Duwamish Tribal Organization", News Release, January 19, 2001 (http://www.doi.gov/bia);
  Sara Jeanne Greene, "Chief Seattle's Tribe Clings to its Identity", The Seattle Times, June 18, 2001 (www.seattletimes.com);
  Susan Gilmore, "Duwamish Denied Tribal Status", Ibid., September 29, 2001 (http://seattletimes.nwsource.com/html/localnews/134347559_duwamish29m.html).
  Note: This file was revised on 3 August 2001 and again on 20 January 2001.
• Morgan, Murray (1982 (originally published 1951, 1982 revised and updated, first illuntrated edition)). Skid Road: an Informal Portrait of Seattle. Seattle and London: University of Washington Press. ISBN 0-295-95846-4. 
• ""Page 10"". Treaty between the United States and the Duwamish, Suquamish, and other allied and subordinate tribes of Indians in Washington Territory: January 22, 1855, ratified April 11, 1859.. University of Washington Libraries: Digital Collections. 1999-05-21. http://content.lib.washington.edu/cgi-bin/docitemview.exe?CISOROOT=/lctext&CISOPTR=9878. Retrieved 2006-07-21. 
• Saito, Natsu Taylor (2006). ""Introduction to American Indian Sovereignty: Indian Rights to Sovereignty"". Georgia State University College of Law. http://law.gsu.edu/nsaito/law7278/AIS/ClassInfo.htm. Retrieved 2006-07-21. 
• Speidel, William C. ("Bill") (1978). Doc Maynard: the man who invented Seattle. Seattle: Nettle Creek Publishing Company. pp. 196–197, 200. ISBN 0-914890-02-6. 
  Speidel provides a substantial bibliography with extensive primary sources.
• Speidel, William C. ("Bill") (1967). Sons of the profits; or, There's no business like grow business: the Seattle story, 1851-1901. Seattle: Nettle Creek Publishing Company. pp. 196–197, 200. ISBN 0-914890-00-X, ISBN 0-914890-06-9. 
  Speidel provides a substantial bibliography with extensive primary sources.
• ""Treaties and Councils: Introduction"". The Treaty Trail: U.S. - Indian Treaty Councils in the Northwest. Washington State History Museum. 2004. http://washingtonhistoryonline.org/treatytrail/treaties/index.htm. Retrieved 2006-07-21. 
• ""Treaties and Councils: Stevens' Entourage"". The Treaty Trail: U.S. - Indian Treaty Councils in the Northwest. Washington State History Museum. 2004. http://washingtonhistoryonline.org/treatytrail/treaties/entourage.htm. Retrieved 2006-07-21. 
• ""Treaty of Point Elliott, 1855"". Governors Office of Indian Affairs, State of Washington. http://www.goia.wa.gov/Treaties/Treaties/pointelliot.htm. Retrieved 2006-07-21. 

[edit] Further reading

Wikisource has original text related to this article: Treaty of Point Elliott

• Washington State History Museum, Treaty of Point Elliott in PDF format.