[BRIEF STATEMENT AS TO THE GROUNDS FOR USE OF *LUMMI INDIAN NATION
TRIBAL MEMBER IDENTIFICATION CARDS* FOR TRANSPORTING PERSONS & PROPERTY
ACROSS THE INTERNATIONAL US/CANADA BORDER- AS SO MUCH IS GOVERNED OVER
AND CONTROLLED BY THE DEPARTMENT OF HOMELAND SECURITY]{.underline}

FROM THE OFFICE OF

CHAIRWOMAN EVELYN JEFFERSON

LUMMI INDIAN BUSINESS COUNCIL

2616 KWINA ROAD

BELLINGHAM, WASHINGTON 98226

PHONE #360-384-1489/FAX 360-380-1850

Contact: Jewell James, Policy Analyst 07

**[BACKGROUND FACTS]{.underline}**:

The Lummi Indian Nation is Coast Salish. The Coast Salish are indigenous
to the Pacific Northwest region of the United States and the Southwest
region of British Columbia, Canada. The "Xwlemi" (Lummi) People have
historically maintained intercommunity ties with the nations/ tribes/
bands of British Columbia (Vancover Island and mainland BC). The
relationships between the intertribal communities have been based on
in-common economies, inter-tribal politics, inheritance rights,
intercommunity marriages, sharing of traditional spirituality and
cultural practices, dependence upon common natural resources, and
constant systems of communication amongst "relatives of the nations."
These historical, political, legal, societal, familial, spiritual ties
between the native communities have never been extinguished by the
tribes/nations, the United States, or Canada by any national or
international law.

The rights of self-determination and self-government of the Lummi Nation
are recognized by the United States as a binding, legal relationship
maintained as a government-to-government matter. Indian Nations have
jurisdiction over their membership and work cooperatively with the
United States to recognize and process membership identification and
registration. The Lummi work on registration of membership based on the
need to deliver federally funded services and management of treaty
rights (e.g., hunting, fishing, gathering). Screening of qualified
membership is even more arduous than getting state identification- due
to the blood quantum requirements that must be supported by historical
documents (e.g., federal census rolls, land records, probate records,
etc.). The U.S. Supreme has ruled that determination of tribal
membership is right of the nation to determine, control, and manage. In
consequence, the Indian Nations have developed their own "enrollment
offices" that specifically screen, analyze, and document each enrollment
application carefully.

There are several different "treaty negotiation groups of tribes" that
were signatory to ratified treaties with the United States negotiated by
Isaac Stevens. While the Lummi, Nooksack, and Colville Tribes are
immediate border tribes, there are several others that depend upon
border crossings to maintain historical relationships. The Quinault,
Quileute, Makah, Jamestown Sklallum, Port Gamble Sklallum, Lower Elwha
Sklallum, Suquamish, Skokomish, Squaxin Island, Nisqually, Muckleshoot,
Puyallup, Tulalip, Stillaguamish, Snoqualmie, Upper Skagit, Swinomish,
and Sauk Suiattle are all tribes that practice traditional crossings of
the US/Canada Border for cultural purposes and socio-economic exchanges.
All these tribes share common practices of control & management of
enrollment applications- as required by the Bureau of Indian Affairs,
Department of Interior, and the Federal District Court for purposes of
management of treaty hunting & fishing rights, as well as land
inheritance rights (See: Cobell).

All of these tribes are concerned about securing the rights to manage
the identification of their membership for purposes of crossing back and
forth the US/Canada Border. Most all of these tribes are now classified
as "Self-governing" based on federal law.

**[CONSTITUTIONAL FOUNDATIONS FOR GOVERNMENT-TO-GOVERNMENT
RELATIONSHIPS]{.underline}**:

It is a matter of fact that the Department of Homeland Security, as an
entity/agency of the federal/national government, can deal with the
Indian Tribes directly and in line with national plenary powers
associated with the legal/political idea of management of "Indian
Affairs." The government-to-government relationship between the Indian
Tribes and the United States, per the US Constitution, was proclaimed by
the Congress in 1987 (SCR #76) and 1988 (HCR#331).

The fact that management of "Indian Affairs" was not a power of the
colonies but remained a power of the King has translated, post-1787,
into "Indian Affairs is a plenary power of the Nation" and not the
individual states. This then means that the relationships with the
Indians are legally maintained at the federal/national level. We know,
and the record shows, that there are constitutional foundations to the
relationships that exist between the United States and the tribes. This
relationship is with the "Nation" and not just the Bureau of Indian
Affairs. By "Nation" we reference all federal departments, agencies,
institutions, bureaus, commissions and other entities created by the
national government for specific performances, services, benefits,
duties, or responsibilities.

In the Constitutional Convention*, tribal Indians* were identified as
those people that were not included as part of the "*We the People*"
(Popular sovereignty) that were delegating the constitutional power to
the national government or reserving certain inherent, inalienable
rights to themselves. Tribal Indians were not going to be represented or
governed by the People's government. The 'tribal Indians' were defined
as '*excluding Indians not taxed*' (Article I, Section 2, Clause 3)- to
clearly proclaim that they could not be represented (by this constituted
foreign government) nor could they be taxed to support a government that
did not represent them. This was true in 1787 and then the issue came up
after the Civil War. The 14^th^ Amendment was drafted and ratified in
final form to assure that the tribal Indians could not become national
citizens (14^th^ Amd, Section 1- *Subject to the jurisdiction thereof*)
and could not become state citizens (14^th^ Amd, Section 2- *Excluding
Indians not taxed*). And, the 1924 Indian Citizen Act did not amend the
14^th^ Amendment or the original 1787 Constitution language. And, the
16^th^ Amendment did not amend the 14^th^ Amendment or amend the
original language to assure 'tribal Indians' were included under the
16^th^ amendment as a part of the People.

If the Congress wanted to have relationships with the Indian tribes then
it could do so by enacting *trade & commerce* laws governing the U.S.
citizens and member states' economic relationships with the Indian
nations (Article I, Section 8, Clause 3). If the national government
wanted peace and friendship and to secure legal title to the surplus
Indian lands then it could use the treaty-making powers of the President
& Senate (Article II, Section 2, Clause 2). If anyone had a legitimate
problem with the acts of commerce or treaties-made then the Supreme
Court had jurisdiction to hear the cases (Article III, Section 2, Clause
1).

Prior debts and engagements that were entered into with the tribes were
still binding (in 1787, per Article VI, Clause 1) under the new (1787)
constitution. And, treaties-made or which shall be made became a part of
the 'supreme Law of the Land' (Article VI, Clause 2). And, all state and
national legislators and public officers were required to take an oath
or affirmation to support the 1787 Constitution as ratified and amended
(Article VI, Clause 3).

Eventually, new states were created and admitted into the Union (based
on the 1787 N.W. Ordinance and Article IV, Section 3), and were required
to 'disclaim jurisdiction' over Indian Affairs (via state constitution
required per national policy governing the Article IV, Section 4
qualification process), since Indian Affairs was a matter of national
plenary power. The individual states absolutely could not enter any
treaties with the Indian Nations (Article I, Section 10, Clause 1)- not
even with the consent of congress. However, the individual states may be
able to, based on the Cherokee case finding that the Cherokee) tribe
established itself as a state, enter 'compacts' with the tribes (Article
I, Section 10, Clause 3), with the Consent of Congress.

**[FOREIGN CLAIMS TO ANCIENT NATIVE LANDS OF THE PACIFIC
NW:]{.underline}**

There was no "US/Canada Border" at the time of contact or at the time
that treaties with the United States were negotiated, at least not any
border that was recognized or understood by the Indian Nations as
legitimately existing and dividing their traditional territories between
"foreign" countries. At this time, the location of trading posts was a
matter of foreign visitors operating within Indian Country, not Indians
conducting trade in "foreign country."

The Trading Posts of British Columbia, in the Fraser Valley and on
Vancover's Island, became centers for the Indians of Puget Sound to
bring their trade goods and make exchanges. The fur trade was the big
reason for the trade centers. Over time, the trade jurisdictional area
became what is now Washington State. On this side of the mountain range,
the language used by the Indians and traders was commonly called Coastal
Chinook Jargon. It was composed of words that came from the Spanish,
French, English, Russian, and Indian languages (of which several tribal
languages and different dialects were borrowed from). The jargon was
limited to about three hundred words. The "trade" exchanges and
conversations between the races were conducted by the use of this
jargon. Not very many Indians or non-Indians could use the jargon, and
were forced to rely upon the few that did speak it. Later on, this
jargon would be used as the foundation for the negotiation of several
treaties between the United States and the Coast Salish Indian Nations.
In the beginning, however, the "Americans" were competing with the
British, Spanish, and Russians over the trade with the Indians, in the
native territories of the northwest.

The United States and Britain had a joint occupancy convention of 1818
that lasted until finalization of the Oregon Treaty of 1846. This treaty
was result of the United States taking a more aggressive stance and
demanding a border more fixed rather than somewhere between the 42^nd^
and 54^th^ parallels. During that time, many Coast Salish Nations around
the Straits of Georgia and Straits of Juan de Fuca, and South Puget
Sound, became accustomed to trading with the non-Indians at the forts in
British Columbia. The luxury of the commercial trade activity at
Vancover Island would, later, be restricted by treaty agreement between
the United States and the Indian Nations, simply as a means to limit the
influences of Great Britain and its trade goods in the northwest. This,
also, had the background idea that the US would meet and exceed the
trade benefits surrendered by treaty and accepted by the Nations.

The  United  States claimed the Pacific  Northwest  under the doctrine
of Discovery. In the leading case of [M\'Intosh]{.underline}, the United
States asserted that it had inherited the \"discovery claim.\" The
concept of \"first Christian nation\" to discover an unoccupied land was
entitled to it and their claim was superior to all claims of other
subsequent Christian nations making the same discovery. Discovery, in
accordance to the Christian nations, gave them superior title to the
lands, even when it was occupied by natives. This, of course, was a
legal fiction generated to their own benefit. There were no Indians or
Indian Nations involved in M\'Intosh. See: [Johnson v.
M\'Intosh]{.underline}, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681 (U.S.
Sup.Ct.1823)).

Another vehicle for asserting territorial claims was by settlement &
extinguishment of claims of foreign nations by treaty. In the Oregon
Territory more and more \"Americans\" had moved into the territory.
Thus, in national interests and that of the settlers, the U.S. began to
assert a superior claim to the territory. Rather then entering a state
of war with Great Britain and other foreign interests, the United States
chose to enter treaty negotiations to diplomatically secure the orderly
withdrawal of competing foreign claims. In order of negotiated
settlement, the following countries withdrew: Spain under  the Treaty
 of February 22, 1819, 8 Stat. 252; Russia under the  Con­vention of
April 17, 1824, 8 Stat. 302; and then Great Britain by Treaty of June
15, 1846, 9 Stat. 869. These countries had established trade
relationships with the Indian Nations,  and in recognition of their
obligations to the Indians, required the United States to promise to
treat the Indians honorably as a part of the withdrawal treaty
commitments. As mentioned above, the Oregon Treaty of June 15, 1846 had
settled the disputed boundary line between British Columbia & Vancover
Island and the United States. After the foreign treaties were settled,
the United States then initiated treaty-making with the Indian Nations,
as empowered by the constitution, authorized by act of congress, and
guided by the N.W. Ordinance of 1787.

The  Oregon Territory was established by official Act of Congress on
 August 14, 1848, 9 Stat. 323. The  enactment provided that "*nothing
shall be construed to impair the rights of  person or property now
pertaining to the Indians in said  Territory,  so long as such rights
shall remain unextinguished by treaty between the United States and such
Indians \* \* \*"* Section 14 of the act applied  the Northwest
Ordinance of 1787, 1 Stat. 51, which  pro­vided that: "*good  faith shall
always be  observed  toward  the Indians;  their  lands and property
shall never  taken  from  them without their consent*." And, of course,
it was a territorial/property right that was exercised by the Indians,
as pertains to crossing back & forth over the newly established
US/Canada Border. The Indians had historical rights on each side of the
border that remained un-extinguished to the present, although modified
by applicable international politics.

The  United  States authorized negotiations of  treaties  with Indian
Nations first in the Oregon Territory (Act of June 5, 1850, 9  Stat.
437). Within three years the Congress would divide this territory and
create Washington Territory (Act of March 2,  1853, 10  Stat. 172).
Section 2 of this act allowed for the appointment of  a Territorial
Governor to serve concurrently as the Superin­tendent of Indian Affairs.
In the Appropriation Act of 1854  (Act of  July 31, 1854, 10 Stat. 315,
330) authorization  was  granted for the use of appropriations to
negotiate treaties in the sever­al territories, including Washington
Territory, to be  completed prior to July 1, 1855.

In [Worcester v. Georgia]{.underline} (31 U.S. (6 Pet.) 515,U.S. Sup.
Ct. 1832), the Court held that *\"the Indian nations had always been
considered as distinct, independent political communities, retaining
their original natural rights, as the undisputed possessors of the soil,
from time immemorial, with the single exception of that imposed by
irresistible power, which excluded them from intercourse with any other
European potentate than the first discoverer of the coast of the
particular region claimed: and this was a restriction which those
European potentates imposed on themselves, as well as the Indians. The
very term \"nation,\" so generally applied to them, means \"a people
distinct from others.\" The constitution, by declaring treaties already
made, as well as those to be made, to be the supreme law of the land,
has adopted and sanctioned the previous treaties with the Indian
nations, and consequently admits their rank among those powers who are
capable of making treaties. The words \"treaty\" and \"nation\" are
words of our own language, selected in our diplomatic and legislative
proceedings, by ourselves, having each a definite and well understood
meaning. We have applied them to Indians, as we have applied them to
other nations of the earth. They are applied to all in the same
sense.\"*

These Indian Nations were important to their trade partners (Great
Britain, Russia, and Spain, United States) and the protection of the
native rights, diplomatically were a part of the treatied agreements
that the United States entered. These treaties are foundational to the
government-to-government relationship the United States has with the
Indian nations. The treaties are a recognition of the inherent
sovereignty of the signatory Indian nations. The treaty commitments made
by the US is a part of the "laws amongst nations" and the constitutional
"Supreme Law of the Land, and is of central importance to the "sacred
trust of civilization duties" the US owe to the tribes in perpetuity as
consideration for the exchange for the substantial treaty territorial
concessions.

**[ESTABLISHED TREATY RELATIONSHIPS WITH THE UNITED
STATES]{.underline}**:

The problem confronting the United States was that it had laid claim to
vast territories (the Oregon Territory) and extinguished vast & multiple
foreign claims to lands that were still owned by the Indian nations. The
Congress authorized its citizens to move into the territory without
entering any treaty relationships with the Indians- which was
foundational to any legitimate authorization for settlement and
territorial expansion. Setters were arriving and staking claims to lands
that were authorized by Congress but of which Congress had not right to
authorize until the legal title was secured from the Indian nations via
negotiated and ratified treaty.

The Lummi Indian Nation, as well as the other Indian nations that were
treaty signatories, entered treaty relationships with  the United
 States at the Point Elliot Treaty negotiations (1855), arranged by
 Washington  Territorial Governor Isaac Stevens.  This [Treaty With The
Duwamish, Suquamish, ETC]{.underline}. (12 Stat. 927) was ratified by
the U.S. Senate in 1859. The treaty was based on the [Treaty  With the
 Omaha,]{.underline} as negotiated in 1854 by Commissioner of Indian  
Affairs  George Manypenny  (1853-1857). It was  one  of the numerous
treaties drafted to initiate the "colonialization of the Indian." It
resulted in placing the Indian People on isolated, reservations of
lands, as their perma­nent homes. This \"colonialization\" of the
American Indian was a part of the federal Indian Policy being
implemented through the Department of Interior, Bureau of Indian
Affairs- which assumed jurisdiction over Indian Affairs, as of 1848,
taking jurisdiction from the Department of War.

Commissioner  Manypenny appointed Oregon  Territorial  Governor Joel
Palmer and Washington Territorial Governor Isaac Stevens  as Indian
 agents  (Superintendents) and directed  they immediately initiate
negotiations  with the Indian tribes in the  respective territo­ries.  In
 about eighteen (18) months the two Governors would negotiate sixteen
(16) treaties  and cover the whole of Washington and Oregon Territo­ries.
The Governors would use either in-land or coastal  Chinook Jargon to
negotiate with the tribes. The jargons were a mixture of French,
 Spanish, Russian, English, and Indian words.  Both  were limited to
about 300 words and understood by very few persons  of the fur trade
era. Governor Stevens used B.F. Shaw as the  inter­preter for his
negotiations. Some Indians spoke Chinook Jargon and were used as
interpreters for those tribes whose language they spoke.

Besides the Dwamish Treaty (cited above), other treaties negotiated by
Stevens (a couple jointly with Joel Palmer of Oregon Territory) were the
treaties known as the Treaty with the Nisqually, Puyallup, etc. (1854,
10 Stat. 1132), Treaty with the S'Klallam (1855, 12 Stat. 933), Treaty
with the Makah (1855, 12 Stat. 939), Treaty with the Yakima (1855, 12
Stat. 951), Treaty with the Nez Perces (1855, 12 Stat. 957), Treaty with
the Quinaielt (1855, 12 Stat. 971), Treaty with the Flatheads (1855, 12
Stat. 975), Treaty with the Blackfeet (1855, 11 Stat. 657), Treaty with
the Wallawalla, Cayuse (1855, 12 Stat. 945). Most all of these tribes,
party to these specific Stevens' treaties, were of the nature to cross
over, routinely, into what is now Canada. Each had established
territorial interests and intertribal relationships established over the
course of centuries of constant communication and exchanges amongst
nations. The flight of Chief Joseph and his people toward Canada is an
example of the Indians view of Canada, at the time.

We learn some about Stevens in \"[American Indian
Treaties]{.underline}\" by Francis P. Prucha (1994, pp.250-55). Isaac
Stevens was very paternalistic. He was not going to negotiate with the
Indians. He was simply going to impose the treaties upon them (using
Chinook Jargon). He organized a commission to help design the approach
based on the treaty pattern evident in the nation. This commission met
December 7, 1854. Using Chinook Jargon the treaties were explained point
by point. He was at Point Elliot January 22, 1855, at Point No Point on
January 26 and at Neah Bay on January 31. He and Joel Palmer covered the
near equivalent of four states (original Oregon Territory) in eighteen
months and secured sixteen treaties (eleven by Stevens, five by Palmer).
An example of Stevens\' paternalism is found in the Point No Point
records, as follows: \"*This paper \[the treaty\] is such as a man would
give to his children and I will tell you why. This paper gives you a
home. Does not a father give his children a home? This paper gives you a
school. Does not a father send his children to school? It gives you
Mechanics and a Doctor to teach and cure you. Is not this fatherly? This
paper secures your fish. Does not a father give food to his children?
Besides fish you can hunt, gather roots and berries. Besides it says you
shall not drink whiskey, and does not a father prevent his children from
drinking the \"fire water?\" besides all this, the paper says you shall
be paid for your lands as have been explained to you.\"* (See: pp.
250-55, [American Indian Treaties]{.underline}, F.P. Prucha, 1994)

In [U.S.vs. Washington]{.underline} (384 Fed. Supp. At 330), the Court
found \"*to the great advantage of the people of the United States, not
only in property but also in saving lives of citizens, and to expedite
providing for what at the time were immediate and imperative national
needs, Congress chose treaties rather than conquest as the means to
acquire vast Indian lands. It ordered that treaty negotiations with the
plaintiff tribes and others in the Northwest be conducted as quickly as
possible. Isaac I. Stevens, Governor of Washington Territory, proved
ideally suited to that purpose for in less than one year during
1854-1855 he negotiated eleven different treaties, each with several
different tribes, at various places distant from each other in this
rugged and then primitive area. The treaties were written in English, a
language unknown to most of the tribal representatives, and translated
for the Indians by an interpreter in the service of the United States
using Chinook Jargon, which was also unknown to some tribal
representatives. Having only about three hundred words in its
vocabulary, the Jargon was capable of conveying only rudimentary
concepts, but not the sophisticated or implied meaning of treaty
provisions about which highly learned jurists and scholars differ.\"*

The  Omaha Treaty was the model and under the  diverse  condi­tions and
amongst the multitude of tribes called to conference at each
 encampment, the negotiators, using Chinook Jargon, were allegedly able
to get all tribes to agree to  basically  the same words, paragraphs,
and cessions in each of the treaties. Each treaty would reference the
Omaha Treaty language pertinent to creation of the reserva­tions  and
restricted assignments of land to individual heads  of households.  Each
 treaty  would give the U.S. claim to  large aboriginal territories,
 reserving very little for the tribes'  present  and future  uses. For
the established Indian reservations, the treaties gave the U.S. rights
of way across  the reserves. The treaties assured citizen/foreign
violators of the laws would be surrendered up  to  the proper U.S.
authorities. The treaties promised the U.S. would provide education and
health services to the people. Most importantly, the treaties reserved
certain essential rights to hunt, fish, and gather at usual and
accustomed grounds and stations. And, the treaty declared the condition
of peace and friendship shall exist between the United States and the
Indian tribes.

The U.S.  Supreme  Court recognizes that the  tribes  did  not
understand, most often, what was being conveyed in the treaty
negotiations. There­fore, the Court has developed canons of construction
of Indian treaties that requires interpretation of the treaties in favor
of the tribes. (See:  [Choc­taw  Nation  v]{.underline}.
[Oklahoma]{.underline}, 397 W.S. 620, 630,  (1970), [Jones  v.
Meinan]{.underline}  175  U.S. 1, 10-11 (1899), [Worcester v.
Georgia]{.underline},  31  515 (1832), [Tulee v.]{.underline}
[Washington]{.underline}, 315 U.S. 681, 685-86 (1942)). The
interpretation of treaties was addressed in the 1905
[Winans]{.underline} Case (198 U.S. p. 380, 25 S.Ct. p.664) in which the
Court stated: \"*And we have said we will construe a treaty with the
Indians as \'that unlettered people\' understood it, and \'as justice
and reason demand, in all cases where power is exerted by the strong
over those to whom they owe care and protection,\' and counterpoise the
inequality,\' by the superior justice which looks only to the substance
of the right, without regard to technical rules.\"*

In the 1871 Appropriation Bill the House inserted a \"rider\" that
claimed to limit the President\'s and Senate\'s treaty making power (16
Stat. 567). The House nullified the President\'s and Senate\'s ability
to honor the treaty commitments. Theoretically the measure was not to
affect treaties already made with the Indians. The 'rider' was codified
in Title 25- Indians, United States Code, Section 71: Future Treaties
with Indian Tribes. It provided: "*No Indian nation or tribe within the
territory of the United States shall be acknowledged or recognized as an
independent nation, tribe, or power with whom the United States may
contract by treaty; but no obligation of any treaty lawfully made and
ratified with any such Indian nation or tribe prior to March 3, 1871,
shall be hereby invalidated or impaired*."

Still, even after this enactment, the treatied-Indians never understood
that their rights to cross the border were impaired by any specific part
of or intent of words inserted in the treaties by the treaty
commissioner (Stevens). In fact, the foreign treaties, entered into by
the US (cited above), sought to secure the rights of the natives, to
limit the United States in its relationships with the Indians and the
subsequent claims of the United States over the territory defined. The
right to cross over the international boundary is a reserved right of
the specified Indian Nations, it was never surrendered, and is routinely
exercised by tribal members enroute to their relatives homes and
communities.

**[REGULATION POWERS ARE FEDERAL OR TRIBAL NOT STATE:]{.underline}**

The Coast Salish Indian Nations are better equipped to issue
identifications to their membership. This aspect of tribal government is
a joint effort between the tribes and the Department of Interior (BIA)
that is highly regulated in light of the fishing rights court battles
(See: Boldt Decision) and the trust land rights (See: Cobell) issues.
The state is a non-Indian government that exercises its authority over
its non-Indian citizens. The tribes regulate their authority over
qualified tribal members. This is their sovereign right and power. The
Indian nations are modern governments that are well equipped to handle
all applications and assure proper documentation of membership prior to
acceptance of that membership and their certification by issuance of
tribal identification cards.

The State of Washington was recognized under the Enabling  Act of
 February 22, 1889, 25 Stat. 676. This enactment, as  was  the usual
case of new statehood proceedings per the N.W. Ordinance of 1787, had a
precondition  that the people of the State forever disclaim all right
and title  to all lands owned or held by any Indian or Indian tribes and
until the  title thereto shall have been extinguished  by  the  United
States,  the same shall be and remain subject to the  disposition of
 the United States and shall remain under the absolute  juris­diction
 and  control of Congress. Washington  conceded  and  was admitted into
the Union on November 11, 1889 (26 Stat. Proclamations No.  8).  The
State abided by this admission precondition by inclusion within it\'s
 consti­tution a  Second Section under Article XXVI-  [COMPACT  WITH  THE
UNITED STATES]{.underline}. This has commonly been called the
\"constitutional disclaimer clause.\" (See: pp.315-16, The Evergreen
Citizen, C.H. Hef­felfinger, 1943 Caxton Printers, ltd.).

The United States depended upon entering treaty relationships to free up
lands owned by the aboriginal tribes. Even though it claimed to have
inherited the rights asserted by Britain under the Doctrine of
Discovery, after the Revolution of 1776. It still did not have actual
dominion or ownership over the Indian territories outside the original
thirteen colonies. As it moved westward, toward the South Seas (the
Pacific Ocean), it would come to assert rights under the Doctrine of
Manifest Destiny (destined to rule all the way to the Pacific Ocean).
But, first, Lewis and Clark would have to pave the way with exploration
of the unknown territories and identification of un-contacted Indian
nations. They were commissioned by President Jefferson to explore the
western lands and report back. They went all the way to the mouth of the
Columbia, into the territory of the Chinook- who was a prominent trading
tribe amongst the Indians of the northwest (thus, Chinook Jargon). Their
journey would open up the trail to Oregon and the eventually the flood
of \"Americans\" seeking settlement or new gold fields (stimulated by
the California Gold Rush, the Alaska Gold Rush, the Frazer River Gold
Rush, which caused a movement toward the Manifest Destiny proclamation).

It is important to take notice that the United States, as shown above,
held it imperative that the National Government control Indian Affairs
and not the individual territories or new member states. As the people
moved west, in search of gold or land, the federal government mandated
that the individual territorial governments/state governments
acknowledge that "Indian Affairs" is plenary to the national government,
based on established constitutional foundations. Washington Territory
(like Idaho, Montana, South Dakota, North Dakota, Wyoming) had to insert
a constitutional disclaimer in their new state constitution, a mandated
price paid for authorization to join the Union on an equal footing with
the prior member states.

**[TRIBAL TREATY RIGHTS RECOGNIZED AS MATTER OF NATIONAL
LAW-]{.underline}** **[Post-Treaty:]{.underline}**

In 1948, the U.S. Congress authorized the creation of the Indian Claims
Commission (25 U.S.C. Sections 70 to 70w) to hear the cases by the
Indians against the United States. It was a political forum with
qausi-judicial power. It was controlled by the United States- for
protecting its interests and not that of the Indians. In the end, Indian
tribes would not receive justice. They would receive promises to pay for
their lands at pennies-on-the-dollar of their value. The Lummi claim was
referenced as \"[The Lummi Tribe of Indians vs. United States of America
(]{.underline}1951). This case was an attempt to clearly identify the
aboriginal territory of the Lummi People, which evidence showed clearly
included the area of Point Roberts and the lands surrounding Boundary
Bay. Other Pacific NW Tribes, that had funds and access to legal
representation, filed their claims as well. In this document, Lummi is
the primary focus and example.

The Lummi case was supposedly settled in 1972, on terms that the United
States demanded. The BIA, as the guardian, asserted that the Lummi would
have to accept the United States offer of \$57,000 for all of the San
Juan Islands and Whatcom County, Washington. And, the US ignored any
lands or water ways that the Lummis owned that were outside the
boundaries of the United States and located in Canada. These aboriginal
lands included lands up at Point Roberts, around the boundary bay and
back down into the United States. The tribe has continuously rejected
the US offer for payment for the lands- believing it was a substantial
and damaging miscarriage of justice amongst nations. To the Lummis,
their islands and mainland territory had been illegally confiscated.
Allegedly included in the taking was all the marine and riverine water
territories (which went up into the Fraser River). The federal
government paid the lawyer that \"represented\" the Lummis from the
alleged settlement, contrary to the Lummi position. The Lummi were
insulted because their lawyer was dictated to by the U.S. Attorneys, and
he failed to represent their best interests. Still, today, the Lummi
Council passes a resolution each year rejecting the alleged settlement,
as a means to continue to educate all new tribal leadership at to the
unlawful taking of their territory. (See: [History of Lummi Legal Action
Against the United States]{.underline} by Ann Nugent, 1980).

Prior to the 1951 lawsuit, the Lummis participated in the case of
[Duwamish et.al. v. United States of America]{.underline}, 1927. The
United States passed a Jurisdictional Act (February 12, 1925) that
allowed Indian Tribes to bring suit in the Court of Claims. Out of the
155 Indians that testified, ten were Lummis. The lawsuit was all about
the violations of the promises made in the treaty (12 Stat. 927).
However, this was an adjudication proceeding that substantiated the
Indian aboriginal lands and rights in dispute. The difficult part of
these cases was the fact that the US controlled access to legal
representation as well as the historical evidence and documentation
acceptable to the court.

In the Pacific N.W., an Indian treaty fishing rights case (cited above
as [U.S. v]{.underline}. [Winans]{.underline}, 198 U.S. 371  (1905))
came before the Court at petition of the Yakama Indian Nation. Article
III of their treaty (12 Stat. 951) included the protection of their
fishing rights (which was a common article in all the Stevens'
treaties). They were being denied access to their sites and the
harvests, as were all the other tribes with the same treaty rights. The
Supreme Court interpreted the treaty  to guarantee certain rights  to
the Indian tribes/nations, and a reservation of  those rights  not
surrendered to or given to the United States.  The Court ruled, \"*The
right to resort to the fishing places in controversy was a part of
larger rights possessed by the Indians, upon the exercise of which there
was not a shadow of impediment, and which were not much less necessary
to the existence of the Indians than the atmosphere they breathed. New
conditions came into existence, to which those rights had to be
accommodated. Only a limitation of them, however was necessary and
intended, not a taking away. In other words, the treaty was not a grant
of rights to the Indians, but a grant of rights from them- a reservation
of those not granted.\"* This was an important case for treaty rights
and the fishing tribes of Washington State. In this light, we never
surrendered our rights to visit our relatives of British Columbia or
Vancover's Island. It was reserved, with the US simply attempting to
limit the 'trade' aspect of the relationship for the benefit of its own
chartered companies. We fished in common with our British Columbia
native relatives and this has been politically hampered by the US/Canada
agreements.

For the "Sockeye Tribes" the adjudication of the rights to fish Fraser
River salmon stocks further established their rights up to and around
Point Roberts. Of course, prior to the Boldt Decision, these tribes
culturally practiced fishing for the salmon right up at the mouth of the
Fraser River. The prevention of US tribal fishers from going into the
Fraser River mouth is a modern fishery management limitation that came
out of the court case; but, it is primarily a compromised result of the
US Commissioners involved in the International Pacific Salmon Fish
Treaty that deals with Fraser River stocks.

As is evident, for Indian people in the northwest, there were special
concerns about their rights to fish. \"*The right of taking* *fish at
usual and accustomed  fishing 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....*" (Article 5 of
Pt. Elliot Treaty  of  1855) was essential to making the treaty right
real. Denial of access and opportunity was a means to destroy the right,
just as massive prior interception by the more mobile state fleet would
after the turn of the century, with the perfection of the canning
industry and their sponsored fleets. All the Stevens\' treaties
specifically provided protections  for the abundant fish resources so
treasured and respected by  the  tribal peoples. These resources served
a functional role in their diets, their spiritual/ceremonial
observances, as well as their trade & economy ([U.S. v.
Washington]{.underline} 384  F. Supp. 350 (1974)).

The Lummi, and other tribes signatory to the Stevens Treaties, would
continue to assert their rights in court. In July of 1979, in the case
[Washington v. Washington State Commercial Passenger Fishing Vessel
Association]{.underline} (443 U.s. 658-708), the Supreme Court confirmed
[U.S. v. Washington]{.underline} in favor of the tribes. The tribes did
see the inclusion of on-reservation salmon harvests for ceremonial and
subsistence purposes, as a part of the fifty/fifty sharing formula, as a
lost. And, the Court saw the fifty percent share as the minimum the
treaty harvests could be reduced to unless there were unforeseen future
circumstances necessitating a reduction for conservation of the species.

We know that the first settlers depended upon a surplus supply of fish
resources being secured from the Natives. This is what allowed the
settlers to survive their first winters, until they became accustomed to
the environments and could earn their own means of subsistence. However,
what the settlers failed to learn was the deep respect the natives held
for the salmon resources. Dr. Barbara Lane testified that: \"*The
symbolic acts, attitudes of respect and concern for the well-being of
the salmon reflected a wider conception of the interdependence and
relatedness of all living things which was a dominant feature of native
world view. Such attitudes and rites insured the salmon were never
wantonly wasted and that water contamination was not permitted*\" (Dr.
Lane, \"Political and Economic Aspects of Indian-White Culture Contact
in Western Washington in the Mid 19^th^ Century.\" Anthropological
Report submitted to U.S. v. Washington, May 10, 1973).

The Lummis had to bring earlier lawsuits to challenge for protection of
their treaty rights. Alaska Packers Association had destroyed their
rights of access. In [United States, Hillaire Crocket, Captain Jack vs.
Alaska Packers Association and Kate]{.underline} [Waller
(1897)]{.underline}, the judge ruled the non-Indian interceptions of the
salmon before they reached the Lummi Reefnets was no impact to the
Lummis. More than eighty Lummi Indians petitioned the Commissioner of
Indian Affairs for protection of their rights but never received
assistance. The Lummi illegally lost their rights at Point Roberts (via
federal neglect) and the same was happening to their reefnet sites at
Village Point on Lummi Island (See: History of Lummi Indian Fishing
Rights, Ann Nugent, 1979). Of course, this bad decision was over-ruled
by the Supreme Court (1979), but only after the salmon stocks have been
driven to near extinction levels.

The Pacific Salmon populations and non-anadromous fish populations
 served the same functional basics of life to  the coastal
tribes/nations  as  did  the buffalo herds for  the Plateau  and Plains
cultures. The early explorers and traders noted the  value of  the
abundant salmon resources; but, non-Indian interest was not
 commer­cially  generated until the perfection of the canning  industry.
Once this emerged, then the newly emerging Washington State (1889) and
its citi­zens  quickly proceeded to over-harvest the stocks to the  point
of  near extinction of all the species, under state made laws and
contrary to  the treaties and constitutional mandates that were intended
to protect the treaty rights of the Indians. Harvests by Canadian
non-native fleets were even more deadly to the species.

For the Indian tribes this meant starvation and the  resulting rapid
decline in their tribal population base. Laws passed by the individual
 states (e.g., Washington and Oregon) and the corre­sponding  neglect  of
 the United States to  fulfill  its  treaty committed  word, resulted in
the Indian people being deprived  of their fishing resources. They were
restricted to the reservations and denied access to their usual  and
 accustomed fishing grounds and stations as well their traditional
hunting territories. Both the United States and Canada were 'starving
the Indians" into submission, much as was leveled against the
Plains/Plateau Indians and their dependency upon the Buffalo. Poor and
hungry Indians did not cross borders easily or readily.

Settlers claimed and homesteaded the traditional Lummi lands and quickly
imposed \"private property Keep Out\" as the law. Along the shorelines
the Indians were denied access to the traditional fishing sites, as
non-Indians claimed the marine uplands. The reserva­tion economy and
traditional subsistence society collapsed because of its dependency on
access to the off-reservation natural resources. Without access there
could be no harvests (See: U.S. v. Winans, 1905). The Indians could no
longer even gather basic subsistence levels off the treaty rights. The
Pacific N.W. became a haven  for the new settlers- who lived and boomed
off the fat of the land and waters while the natives were starved into
 submis­sion. The very Indians that were considered some of the
wealthi­est  in  the United States upon "discovery" were  left  in  total
impoverishment under U.S. and state laws and economies at  the turn of
the century, lasting until the Boldt Decision (1974).

The Point Roberts area, which is now a part of the United States, was a
common meeting grounds of the tribes that exercised fishing rights on
both sides of the International Border. This site was extremely valuable
when it came to the intertribal interests in salmon harvesting. Tribal
peoples from many of the Coast Salish nations would gather, fish, and
celebrate their common ancestry and ceremonial inheritance at this site,
erecting temporary shelters all along the shoreline. As noted in the
Alaska Packers case, the Lummi held major rights and interests to the
area. The Boldt Decision, as confirmed by the US Supreme Court, imposed
management burdens upon the Washington Tribes as regards identification
of membership for purposes of exercising modern fishing rights in the
area of the international border, and throughout their usual and
accustomed fishing/hunting/gathering grounds and stations.

**[INTERNATIONAL RIGHTS OF CROSSING FOR SPIRITUAL PRACTICES AND CULTURAL
EXCHANGE IS A NECESSITY]{.underline}**:

A people's understanding of the religious and spiritual tends to help
form and mold their concepts of the sacred. The complexity and beautify
of the complex world around us moves us, as human beings, toward
believing that someone or something build and created all that we see
and experience. All people were tribal at one time and lived with the
earth. At one time they were connected with their immediate environment.
Their songs, dances, ceremonials, and systems used to transfer sacred
knowledge to subsequent generations and this knowledge became the
foundations for their cosmic awareness. These common aspect of human
social-thought process helps develop the respective society's sacred
philosophy over the long-term. Translated into the written word it
becomes the foundation for their religious experience in that it, now,
manifests the written word of 'god.' But, before that these experiences
and sacred concepts of awareness molded the 'spiritual umbilical cord
that tied the human being to the earth.' The evolution, as many writers
will tell, of the recent 'Father/Son God Religions' has done much to
disconnect us (Native American Indians) from our 'Mother Earth
Spirituality.' Eventually, ethnocentrically, we began to see the
'others' as being 'blind' to what we know is the 'whole truth.'
Euro-Americans came to understand that 'god' gave 'their race' dominion
over the whole earth, superior to all others. The others become the
"infidel" (in this case, the Native Americans/Canadian Aboriginals).

It is not simple to explain the difficulties faced by Pacific Northwest
Indians, when it concerns their traditional, ceremonial practices and
concepts of the sacred. However, what is true is that there has been a
lot of damage caused by the contacts between native society and the
non-Indian Euro-American societies. Preceding actual contact, of course,
was the devastating affects of European diseases that spread from
village to village, all across the continent, from the east to the
western shores (Atlantic to the Pacific Ocean). The diseases were
carried from one tribal group to another, as natives fled from village
to village trying to escape the death that came to the people. This, in
turn, spread the diseases more rapidly. Whole strands of knowledge were
taken out of the traditional communities by the frequency of death- that
struck the elders, children, and adults quickly. Whole villages were
devastated or vacated as the people fled from this invisible killer of
women, children, elders, and warriors. Life in the Pacific N.W. was
already changing before the first physical contacts were made between
the races.

Going back to our point of departure, contact with white (foreign)
societies would institute rapid change in technology of the tribes- per
the introduction of metal and other trade goods. However, the tribes
continued to prosper on the harvest of their traditional foods and
maintained their interdependence on the rich natural environment. Their
traditional culture was based on an indigenous cosmology that
incorporated respect for the natural balance of relationships. Song,
dance, ceremony, and sacred knowledge was a part of the intertribal
collective knowledge system that assured no one person over-harvested or
took to much from nature or made an permanent, damaging impact upon it.

But, this relationship with nature was contrary to Christian doctrines
that advocated dominance over nature- that man was to inherit dominion
over all things. Indian beliefs systems were considered heathenistic,
athenistic, agnostic, and if not the work of the devil then at least the
beliefs of the uninstructed savage. Thus, missionary zeal was to
overcome this state of affairs- to force or voluntarily secure the
conversion of the savage tribal member, and to assure that they did not
roam throughout the territory and especially into Canada. This was
believed a necessity that dates back to the debates that transpired
right after Columbus discovered the Western Hemisphere. The conversion
system was well entrenched by the time the Euro-Americans began to
arrive in the Pacific Northwest. Forced conversion to the Christian
dogmas were central to Indian/Non-Indian relationships for the prior
three hundred years (1492-1792) and now entered the northwest.

Over time with post-contact shock, colonial and then federal and state
non‑Indian governments, and their churches, would force drastic and
rapid changes in the Pacific Northwest Natives' concepts and
understandings of the spiritual, the ceremonial, and the sacred. Each
generation of tribal Indians have confronted complex and vicious social,
political, legal, theological, and economical cycles of oppression that
seemed to always target destroying the last fragments of native
spiritual beliefs and practices- tribally and intertribally. If there
really was a socio-cultureal shock caused by the contact and interaction
between the two races, then it was a shock created by the forced changes
that transpired in tribal societies- especially in the concepts of the
sacred and the value, rules, and ethics that governed over tribal
peoples' relationships with the real world around them and between the
nations.

There are parts of the treaties that are not written and the Indians
have those rights that were not included in the treaty. These are
reserved rights and this is as important to the Indians as must as the
reserved rights the citizens (US and states) hold in relation to their
delegation of powers under the respective popular sovereignty
constitutions (state and national). Our rights to believe in our own
religious way and to practice this spiritual freedom was not
surrendered. At the treaty negotiations, Chief Seattle continued: "*We
will ponder your proposition, and when we have decided we will tell you.
But should we accept it, I here and now make this first condition: that
we will not be denied the privilege, without molestation, of visiting at
will the graves of our ancestors and friends. Every part of this country
is sacred to my people. Every hill-side, every valley, every plain and
grove has been hallowed by some fond memory or sad experience of my
tribe. Even the rocks that seem to lie dumb as they swelter in the sun
along the silent shore in solemn grandeur thrill with memories of past
events connected with the fate of my people, and the very dust under
your feet responds more lovingly to our footsteps than to yours, because
it is the ashes of our ancestors, and our bare feet are conscious of the
sympathetic touch, for the soil is rich with the life of our kindred."*

Neither the boiler-plate treaty of the Omahas, or the concluded Stevens
(Washington Territory) or Palmer (Oregon Territory) treaties, included
any articles that sought to limit the religious or spiritual freedom to
the Coastal Indians. Nor did such treaties limit the intertribal,
international communication and sharing that transpired pre-contact
amongst the tribes of "Washington" and "British Columbia." Chief Seattle
demanded acknowledgement of these were inalienable rights. Stevens
promised to address it and assure it was included but he subsequently
died at the Battle of Gettysburg (Civil War). But, still, it remains an
inherent and reserved right that was obvious and noted in the acceptance
speech of Chief Seattle. This right was never surrendered by the tribes'
leadership.

For this to be understand as important in the native border crossing
conflict, you must understand that the United States never convinced the
Indian Nations to surrender their spiritual rights, beliefs,
ceremonials, and practices. No civic leader could ever make an agreement
for the tribal populace to surrender inherent rights to seek the divine
truth. The same applies to the relationship between the Canadians and
the Aboriginals. We, as Coast Salish, practice our ancestral ways and
culture and being free to cross over the border and back again,
unmolested, is essential to traditional cultural practices and
continuity.

To be "molested" is key to understanding the importance of the access to
border crossings by natives, from each side of the border. The use of
sacred gear and regalia is the part of the process of practicing
ancestral ceremonials. For the traditional people to have their gear
striped off and gone through is best understood when you imagine the
shame and disgrace the Romans sought to impose on 'Jesus' by striping,
and then mocking him with a Crown of Thorns.

It should not be impossible to develop a system in which the "searches"
can transpire in times of absolute fear that some type of "terrorist
activity" is involved. The same hold true in the area of drug smuggling.
If the 'drug dogs' do not detect anything then the traditionalists
should be released without further molestation.

In Conclusion, we believe the Department of Homeland Security has the
power to work with the Indian Nations directly for the following
reasons:

1)  The US/Canada Indian nations, each and everyone, have historical,
    sovereign rights to cross over the border unmolested;

2)  The US Indian Nations have a government-to-government relationship
    based on the 1787 US Constitution;

3)  The US, under the NW Ordinance, has a duty to honor and respect the
    Indian Nations and their rights;

4)  The US has historical treaty obligations to Great Britain, Spain,
    and Russia that requires they honor and respect the rights of the
    Indians, and these duties were inherited as much as the US had
    inherited it's claims under the Doctrine of Discovery;

5)  The Indian Nations located in modern Washington State have
    established treaties with the United States, and what is not
    surrendered therein is reserved to the Indian nations and their
    people;

6)  The Indian Treaties are binding upon the United States as Supreme
    Law of the Land as well as pertains to the Laws Amongst Nations;

7)  The government-to-government relationship between the Indian Tribes
    and the Unites States is binding upon the Department of Homeland
    Security being it is a agency/entity of the US government, and the
    Indian Treaties are approved by the President and Congress;

8)  The Indian Nations, as regards identification & certification of
    membership, have the complete right to issue tribal identification,
    and that their tribal administrative competency has been found
    acceptable by the Department of Interior (BIA), the Federal District
    Courts, and the State of Washington, per treaty fishing rights;

9)  The Presidency and the US Congress have, as a matter of national
    law, recognized the rights of the Indian Nations to be
    Self-determining and Self-governing;

10) The rights of the Indian Nations to cross over the US/Canada Border
    is a matter that is important not only to their societal, familial,
    economic, and intertribal political relationships but is central to
    the continuity of their spiritual belief systems and ceremonial
    practices.