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March 23, 1979

UNITED STATES of America et al., Plaintiffs,
STATE OF WASHINGTON et al., Defendants.

The opinion of the court was delivered by: BOLDT


This matter having come on regularly before the Court, and the Court having considered the Pretrial Order (PTO), the testimony and other evidence admitted and the memoranda and oral arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law in addition to those heretofore entered in this case, and on the basis thereof renders the following Decree:


 General Findings

 1. Article 2 of the Medicine Creek Treaty and Article 4 of the Point Elliott Treaty provided that the tribes and bands which were parties thereto agree to remove to and settle upon the reservations within one year after ratification of said treaties if the means were furnished them. In the years following the ratification of those treaties the United States did not enforce those provisions. A number of tribes or parts of tribes or bands which were parties to the treaties did not remove to the reservations and some Indians who did move later left the reservation, often returning to their native areas. Among the reasons for not removing to or remaining on the reservation were: (1) the reservations were too small or otherwise inadequate for the tribes and bands assigned to them; (2) the tribes or bands were not on friendly terms with others assigned to the reservation or with the people in whose territory the reservation was located; and (3) the reservation was too far from their traditional territory. The United States did not adopt or apply a policy of requiring the western Washington tribes or bands who were parties to the treaties to remove to or remain on the reservations. ( PTO Part 2 P 3)

 (2). A number of individual Indian people intermarried with non-Indians, did not accompany their respective tribes to the reservations but took up the habits of non-Indian life, and lived as citizens of the State of Washington in non-Indian communities. (Ex. USA-112; Tr. 10/29/75, 378-379)

 (3). During the latter part of the 19th century and early part of the 20th century it was the policy of the United States Government to encourage the breaking up of Indian reservations and destruction of tribal relations and to settle Indians upon their own allotments or homesteads, acculturate and incorporate them into the national life, and deal with them not as nations or tribes or bands but as individual citizens. ( PTO Part 2 P 4; Exs. USA-123 through 128; Annual Rept. Comm'r of Ind. Affairs, 1890, p. VI)

 (4). This policy was officially changed in the 1930's. (Exs. USA-129 and 130) The Indian Reorganization Act of June 18, 1934, 48 Stat. 984, was directed at implementing a policy of organizing and strengthening Indian tribal entities so as to manage their own affairs and to promote their civic and cultural freedom and opportunity and their own economic rehabilitation. By the Indian Reorganization Act, the descendants of the treaty tribes associated with most of the reservations voted to reorganize pursuant to that Act as Indian tribes and political entities under federally-approved constitutions and bylaws having express and implied governmental and proprietary powers and with original inherent sovereign tribal powers preserved to the extent not restricted by federal law. Except for a brief policy in the 1950's of encouraging termination of federal supervision and administration of Indian affairs, the policy of encouraging tribal organization and greater self-management of internal affairs has continued and increased. ( PTO Part 2 P 4; Ex. USA-130 pp. 418-421; Tr. 12/6/74, 212-214)

 (5). In the period around 1916-1919 the Bureau of Indian Affairs caused an enumeration and enrollment to be made of unattached Indians in western Washington arranged by families and tribes. Special Indian Agent Charles E. Roblin was assigned to make this enumeration and enrollment. He found that a large number of persons claiming enrollment and allotment as Indians were descendants of Indian women who married early non-Indian pioneers and founded families of mixed bloods. He reported that in many cases these applicants and families had never associated or affiliated with any Indian tribe for several decades or even generations. (Ex. USA-112)

 (6). Neither Congress nor the Executive Branch has prescribed any standardized definition for either the term "Indian" or "Indian tribe" in terms of the special federal relationships with Indians. (Ex. USA-110, pp. 138-139) The term "Indian" is used in several contexts including biological descent, cultural identity and legal status. (Id.) The term "tribe" is most commonly used in two senses, an ethnological sense and a political sense although it also may be used in a social sense. (Federal Indian Law United States Department of the Interior (1958) p. 454)

 (7). As a major aspect of the new federal Indian policy adopted in the 1930's Congress enacted the Indian Reorganization Act of 1934. One of its major purposes was to authorize and facilitate the reorganization and revitalization of Indian tribal political entities. (Ex. T-22; Exs. USA-129 and 130) While existing recognized tribes did not have to accept the Act, and many did not, it did provide a means by which tribes which had lost their political authority and recognition could regain it.

 (8). The legislative history of the Indian Reorganization Act of 1934 shows that in determining who was to be considered an Indian for the purpose of such tribal reorganization Congress rejected the Department of the Interior's recommendation that persons who were not members of recognized tribes then under federal jurisdiction or their on-reservation descendants could participate in such reorganization if they were of one-fourth or more Indian blood. Instead Congress required that such persons be of one-half or more Indian blood. Representative Howard, the House sponsor and floor leader for the bill, explained during debate that the definition (now 25 U.S.C. § 479) defines who shall be classed as Indians for the purposes of the Act. He said:

"In essence, it recognizes the status quo of the present reservation Indians and further includes all other persons of one-fourth or more Indian blood. The latter provision is intended to prevent persons of less than one-fourth (later changed to one-half) Indian blood who are not already enrolled members of a tribe or descendants of such members living on a reservation from claiming the financial and other benefits of the act. Obviously the line must be drawn somewhere or the Government would take on impossible financial burdens in extending wardship over persons with a minor fraction of Indian blood." (Ex. T-22; Congressional Record, June 15, 1934, p. 12056)

 (9). As used in (a) these Findings Nos. 1 to 59, inclusive, (b) in the Findings and Judgment awards of the Indian Claims Commission referred to in said Findings and in the requirements for the preparation of rolls for distribution of said Judgment awards, and (c) in the membership requirements of each of these Intervenor entities, the terms "descendant" or "persons of Indian blood" means any person whose lineage includes any ancestor who was an Indian or a member of the referenced Indian tribe, community or other group. This is also true of the term "persons of Indian blood" unless a particular minimum degree of such blood or descent is specifically prescribed.

 (10). The Court of Claims has determined and held that the Indian Claims Act of 1946, 60 Stat. 1049, allows claims to be prosecuted under that Act on behalf of Indian tribes, bands or communities that have ceased to exist as such, if brought as a representative action on their behalf by a group whose members can be identified as members or descendants of members of a previously existing tribe. ( Thompson v. United States, 122 Ct.Cl. 348 (1952))

 (11). These five Intervenor tribes are not the beneficial owners of the Judgments that have been awarded under the Indian Claims Act on the claims prosecuted by them. Such Judgment Awards of the Intervenor Duwamish, Samish, Snohomish, and Snoqualmie tribes have been or will be distributed, pursuant to Acts of Congress dealing with such judgments, on a per capita basis to persons determined by the Secretary of the Interior to be descendants of members of the treaty-time tribes. (80 Stat. 910, 85 Stat. 83, 87 Stat. 466, 41 F.R. 5140) Distribution of the Steilacoom award has yet to be determined. (87 Stat. 466; Ex. USA-107, p. 4)

 (12). None of the five Intervenor entities whose status is considered in these Findings is at this time a political continuation of or political successor in interest to any of the tribes or bands of Indians with whom the United States treated in the treaties of Medicine Creek and Point Elliott.

 Specific Findings as to Intervenor Duwamish Tribe *fn1"

 (13). The Intervenor Duwamish Tribe of Indians (herein referred to as the Intervenor Duwamish Tribe) is composed primarily of persons who are descendants in some degree of Indians who in 1855 were known as Dwamish Indians and who were party to the Treaty of Point Elliott, 12 Stat. 927. The 1855 Dwamish Indians were named in said treaty and four signatories were identified as signing for that tribe including the Suquamish chief, Seattle, who signed as chief of the Dwamish and Suquamish. (PTO Part 2 PP 1 & 2; Ex. USA-102 p. 23; Ex. USA-73 p. 9; Ex. G-17a pp. 5-120 5-121) Estimates of the number of Dwamish at treaty time vary but Agent Paige reported 375 in November 1856, most of whom were on the Fort Kitsap (Port Madison) Reservation. (Ex. USA-102 pp. 4-5)

 (14). Originally the Dwamish were intended to be settled on the Port Madison Reservation (aka Fort Kitsap) located in Suquamish territory. They objected to being moved there and recommendations of government officials for a separate reservation for them were not acted upon. (Ex. USA-102 pp. 3-12; Ex. G-17a pp. 5-118 5-125) Some of the Dwamish moved to the Port Madison, Muckleshoot or other reservations and some of their descendants now reside with and are members of those reservation communities. (Ex. USA-102 pp. 2, 4-5)

 (15). The Intervenor Duwamish Tribe prosecuted a claim against the United States before the Indian Claims Commission in Docket No. 109 which resulted in a monetary judgment award. (Ex. G-17(a)) The Act of October 14, 1966, 80 Stat. 910; 25 U.S.C. §§ 1131-1135, provided for the Secretary of the Interior to prepare a roll of then living descendants of the Duwamish Tribe as it existed in 1855, and to distribute the funds so awarded to the persons on such roll. A judgment roll of 1166 persons was prepared for this purpose. (Tr. 10/29/75, 301; Tr. 10/30/75, 432)

 (16). The Intervenor Duwamish Tribe exercises no attributes of sovereignty over its members or any territory. It is not recognized by the United States as an Indian governmental or political entity possessing any political powers of government over any individuals or territory. None of its organizational structure, governing documents, membership requirements or membership roll has been approved or recognized by the Congress or the Department of the Interior for purposes of administration of Indian affairs. ( PTO Part 2 P 2; Ex. USA-107) Said Intervenor has a constitution and bylaws and purports to operate as an identifiable and distinct entity on behalf of its members. (Ex. DU-19) It has, pursuant to said constitution and bylaws, a tribal council and a tribal chairman. The Intervenor tribe uses as a base for its membership the above-referenced judgment roll. (Tr. 12/18/74, 131-142; Tr. 10/29/75, 300-312) It has no current roll approved by the tribe but claims to be working on such a roll. (Tr. 10/29/75, 305-312)

 (17). The Duwamish constitution requires members to be persons of Indian blood only, and descendant of the Duwamish Tribe. (Ex. DU-19) The tribe has consistently interpreted this as not requiring full-blood Indian (Tr. 10/29/75, 301), and most members are less than that. (Tr. 12/18/74, 131-132) The tribe has made no determination whether to exclude Canadians of Duwamish descent from membership. (Tr. 10/29/75, 304-305) About 50 to 60 persons pay yearly membership dues on a voluntary basis. (Tr. 12/18/74, 154)

 (18). The members of the Intervenor Duwamish Tribe and their ancestors do not and have not lived as a continuous separate, distinct and cohesive Indian cultural or political community. Present members have no common bond of residence or association other than such association as is attributable to the fact of their voluntary ...

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