Snoqualmie tribal offices were closed Friday to honor the death of Chief Andy de los Angeles, who led the tribe’s decades-long effort to regain federal recognition. But the fight wasn’t over.
(CN) — Members of the federally recognized Snoqualmie Indian Tribe trace their family lines back to Chief Pat Kanim, who in 1855 signed the Treaty of Point Elliott and ceded all Snoqualmie land to the federal government. But the state of Washington argued in court on Friday that, despite the guarantees in the treaty, the Snoqualmie have no right to hunt and gather traditional food on the land they ceded.
In the 1855 treaty, Snoqualmie Chief Pat Kanim ceded land stretching from Snoqualmie Pass, where today I-90 crests the North Cascade mountain range, down to the Puget Sound, where the city of Everett now sprawls.
But the treaty didn’t only address who would occupy the land. Before they signed the treaty, the tribes negotiated to make sure they and their descendants would retain the right to hunt, fish and gather food in the land where they had lived for thousands of years.
According to Article V of the Treaty of Point Elliott: “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, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands.”
Those rights were heavily and sometimes violently contested until 1974, when U.S. District Judge George Boldt issued a landmark decision finding the government bound by Article V.
Boldt ruled that 14 tribal nations in Washington state still had fishing rights under the Treaty of Point Elliott, and other so-called “Stevens Treaties,” which tribes signed in 1854 and 1855 with Territorial Governor Isaac Stevens. Boldt, an Eisenhower appointee, ruled that tribes who had signed the treaties should get half of the available catch of salmon and other fish regulated by the government.
The decision revamped regulation of salmon in the Pacific Northwest and forced the government to dramatically increase its protection of the various species and seasonal runs, in order to meet its legal obligations under the treaty — half of nothing wouldn’t meet that threshold.
But the Snoqualmie were not among those 13 tribes. The federal government didn’t recognize the Snoqualmie in 1974, and Judge Boldt found that the tribe hadn’t maintained a continuous cultural or political entity since Chief Kanim and a dozen other Snoqualmie leaders had signed the treaty. In a split ruling, the Ninth Circuit affirmed that decision.
In 1999, after a decades-long fight, the Snoqualmie secured the federal recognition to formally recognize it as a sovereign nation. The decision allowed them to establish a reservation on 16 acres they purchased in their original territory.
It was the culmination of efforts that began when the tribe lost recognition in 1953 — during the era of federal termination policy aimed at assimilating tribes into U.S. society and absolving the government of treaty obligations.
In its 1999 decision granting recognition, the government used the exact opposite finding that Boldt had found: that the Snoqualmie had demonstrated a continuous existence since 1855. The U.S. Department of Interior noted in the final determination of federal acknowledgement of the Snoqualmie” “The Snoqualmie tribe was acknowledged by the Treaty of Point Elliott in 1855 and continued to be acknowledged after that point.”
Judge Boldt’s ruling dwelled only on fishing rights and did not explicitly mention the Snoqualmie’s treaty rights to hunt and gather roots and berries in their usual spots. State recognition of those rights was long standing practice.
It was memorialized in a 1969 letter from Walter Neubrech, then head of enforcement for the Washington Department of Game, that Washington state recognized the Snoqualmie’s hunting rights.
“The above described lands were ceded to the United States Government by the Snoqualmie and other tribes,” Neubrech wrote. “It is on this land that tribes who were a party to the Elliott Treaty may hunt or fish without first acquiring a license but who are required to abide by all other necessary conservation laws.”
But in 2019, Washington state reversed course. As part of a state overhaul of the process for designating the traditional territories where treaty tribes can hunt and fish without a license, Washington Department of Fish & Wildlife Director Kelly Susewind declared that the Snoqualmie had no such right.
“The Snoqualmie Tribe does not have off-reservation hunting and fishing rights under the Treaty of Point Elliott,” Susewind wrote in a letter to the tribe.
Susewind wouldn’t relent, so the Snoqualmie sued in federal court in Tacoma, claiming that only Congress could take away their rights under a congressionally ratified treaty.
But U.S. District Judge Ronald Leighton issued a ruling last year that was in line with what Judge Boldt found decades ago: regardless of their federal recognition, the Snoqualmie hadn’t maintained an organized structure since its members signed the 1855 treaty.
Leighton, a George W. Bush appointee, wrote that even though the federal government found sufficient “political continuity” to formally recognize the tribe, that didn’t mean that Boldt’s opposite finding decades earlier was “inadequate,” though he did note that the inconsistency was “disconcerting.”
And Leighton went further, finding that Judge Boldt’s decision barring the Snoqualmie from treaty fishing rights also applied to hunting and gathering, calling the matter “a distinction without a difference.”
“The Snoqualmie do not explain how the factual issues necessary to determine signatory status with respect to fishing rights could differ from those required to determine hunting and gathering rights, all of which are described in the same article of the Treaty,” Leighton wrote. “This is because they do not differ; as the Ninth Circuit recognized, both issues hinge on the same question of identity between the original signatories and the present-day tribe.”
Leighton dismissed the case and the Snoqualmie appealed.
On Friday, a three-judge panel for the Ninth Circuit Court of Appeals heard their arguments.
Appearing on behalf of the Snoqualmie, Rob Roy Smith with the Seattle law firm Kilpatrick Townsend took issue with Judge Leighton’s inclusion of hunting and gathering rights as an implied part of Boldt’s decision regarding fishing rights.
“The district court said it was a distinction without difference, but it’s the distinction,” Smith said, emphasizing the word “the” near the end of the phrase. “It’s a critical distinction and it allows Snoqualmie to be able to present this case.”
The Samish Indian Nation intervened in the appeal, as another tribe that gained federal recognition after Judge Boldt’s 1974 ruling. Their attorney, Craig Dorsay, noted at Friday’s hearing that the original lawsuit filed by the U.S. government on behalf of the tribes, U.S. v. Washington, hadn’t asked Judge Boldt to clarify hunting and gathering rights. It only discussed fishing rights.
Attorney Amy Dona explained Washington state’s position: that the Snoqualmie hadn’t shown that the state’s actions had caused actual harm that their lawsuit might remedy.
“We are not saying the tribes couldn’t have standing if they had formulated it differently,” Dona said. “But their two alleged injuries — one is a statement in a letter, essentially conveying the state’s view that the tribes don’t have these rights, and the second is not inviting the tribes to give input on some guidance that’s being considered for being redrafted. Neither of those cause an injury to hunting rights. There is nothing concrete here.”
Circuit Judge M. Margaret McKeown, a Clinton appointee, questioned that line of thinking.
“If they don’t have any rights, according to the state, doesn’t that give them standing to say ‘we do have some rights?’” McKeown asked. “You may not agree that they do, but doesn’t that at least get you past that threshold?”
Dona said that wasn’t enough.
“Our view is that it’s not sufficient, because there is no concrete injury,” Dona said. “The state of Washington recognizes that this is an important issue for the Snoqualmie Tribe, which worked for years to obtain federal recognition, but the district court correctly dismissed the complaint and it should be affirmed.”
On rebuttal, Smith called that argument “absurd.”
“There clearly was an injury in fact here, as Director Susewind, the director of WDFW said in a letter that he disclaimed Snoqualmie’s treaty status,” Smith told the court. “He said they did not have treaty hunting and gathering rights.”
Smith also defended the inclusion of Washington Governor Jay Inslee as a defendant.
“The governor is the executive of the state, your honors,” Smith said. “We believe he has some authority over the decisions Director Susewind would make.”
The panel also included Circuit Judge Richard Paez, a Clinton appointee, and U.S. District Judge William H. Orrick, an Obama appointee sitting by designation from the Northern District of California. The judges did not indicate when they would issue a ruling in the case.