North Cascades An Ethnographic Overview and Assessment of North Cascades National Park Service Complex

The history of Native American policy in the United States features a complex set of laws and administrative actions that have variously affected the way in which Native people access natural and cultural resources on public lands. Three types of legal actions have characterized the relationship between federal and state governments and Native tribes. First, constitutional law which empowers the United States federal government to engage in treaties with Native tribes and reserves the responsibility for interaction with tribes to the federal government. Second, legislative and executive actions in the forms of acts of Congress, Presidential orders, and administrative decisions which have implemented policies and created non-treaty reservations. Third, adjudicated policy, which has characterized much of the controversy in recent years over tribal off-reservation rights to natural resources. In addition the National Park Service has implemented its own management guidelines in accordance with the legally-mandated requirements.

4.1 Treaties and Agreements

In 1846 the Treaty of Oregon established the boundary between the United States and British North America west of the Rocky Mountains at the 49th degree of north latitude. While American immigration to the Northwest had begun three years earlier the extension of United States jurisdiction into what is now Washington and Oregon states stimulated it even more. Many settlers were claiming lands with no legal basis to do so and it was not until 1852 when Congress passed the Oregon Land Donation Act that homesteading was sanctioned in the newly acquired territory. The federal government realized that the transference of Native rights to the land must be conveyed before homesteading had proceeded too far. In 1853 Washington was separated from Oregon Territory and Isaac I. Stevens was appointed Governor and Superintendent of Indian Affairs of Washington Territory (Richards 1981). One of Stevens's directives was to enter into treaties with the Native people of Washington Territory, which at the time included northern Idaho and western Montana. In all Stevens negotiated ten treaties including the Treaty of Point Elliott 22 January 1855 (12 Stat. 927), and the Treaty With the Yakama, 9 June 1855 (12 Stat. 951). Both of these treaties contain somewhat similar provisions, some of which are important considerations for the management of federal lands. The most important of these is what is referred to as the "subsistence clause." While the treaties conveyed title of the land to the United States government (referred to as "ceded lands") some lands were set aside as reservations and the signatory tribes reserved the right to fish at all "usual and accustomed" places and hunt and gather on "open and unclaimed" lands. (the ceded areas conveyed by treaty are identified in Figure 8). The relevant treaty articles follow. For the ceded lands:

Article 1. The said tribes and bands of Indians hereby cede, relinquish, and convey to the United States all their right title, and interest in and to the lands and county occupied by them, bounded and described as follows: Commencing at a point on the eastern side of Admiralty Inlet, known as Point Pully, about midway between Commencement and Elliott Bays; thence eastwardly, running along the north side of lands ceded to the United States by the Nisqually, Puyallup, and other Indians, to the summit of the Cascade range of mountains; thence northwardly, following the summit of said range to the 49th parallel of north latitude; thence west along said parallel to the middle of the Gulf of Georgia; thence through the middle of said gulf and the main channel through the Canal de Arro to the Straits of Fuca. . . . (Treaty of Point Elliott; italics added)

Article I. The aforesaid confederated tribes and bands of Indians hereby cede, relinquish, and convey to the United States all their right, title, and interest in and to the lands and county occupied and claimed by them, and bounded and described as follows, to wit: Commencing at Mount Rainier, thence northerly along the main ridge of the Cascade Mountains to the point where the northern tributaries of Lake Chelan and the southern tributaries of the Methow River have their rise; thence southeasterly on the divide between the waters of Lake Chelan and the Methow River to the Columbia River; thence, crossing the Columbia River on a true east course. . . . (Treaty With the Yakama; italics added)

The subsistence clauses:

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, 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. (Treaty of Point Elliott, 12 Stat. 927)

Article III. The exclusive right taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing them; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle on open and unclaimed land. (Treaty With the Yakama, 12 Stat. 951)

Stevens had been directed to consolidate tribes and to "admit as few reservations as possible" and as a result reservations are often a confederation of tribes rather then single tribes. The Confederated Tribes and Bands of the Yakama Reservation is composed of fourteen named groups including the Wenatchi. In addition, signatures on the Yakama treaty can be traced to Entiat and Wenatchi leaders (Ray 1957:21). Certain Sauk-Suiattle and Upper Skagit were signators to the Treaty of Point Elliott and were expected to remove to the Swinomish or Tulalip Reservations. The Nooksack did not participate in the negotiations of the Treaty of Point Elliott but were later included as a treaty tribe and expected to remove to the Lummi Reservation. Few individuals from these tribes actually moved to the reservations, rather they persisted in their traditional areas and later many took out homesteads under the provisions of the Indian Homestead Act of 1884 or Section 4 of the General Allotment Act of 1887. Reservations were not established in their traditional territories until 1973 for the Nooksack, 1981 for the Upper Skagit and 1985 for the Sauk-Suiattle. Tribes party to the Treaty of Point Elliott brought suit against the federal government in 1927 to adjudicate unfulfilled treaty obligations. This case [Duwamish, et al. v. United States, 79 Ct. Cl. (1934)] offered testimony that is of interest ethnohistorically. Elderly tribal members who had been present at the treaty negotiations were sought out to testify and other tribal members were questioned concerning use areas. Evidence was submitted on behalf of the Nooksack and Upper Skagit. The evidence concerning NOCA areas is somewhat vague but reinforces data presented by ethnographers. Most of the direct evidence concerned the locations of villages at treaty time and the value of resources on the ceded land. References germane to NOCA include hunting "in the mountains" and the use of mountain areas for plant gathering.

The Chelan and Methow were never party to a treaty but were later expected to move to the Colville Reservation. Many of the tribes of the northern part of eastern Washington were never treated with by Stevens because shortly after the Treaty With the Yakama was concluded war broke out between disillusioned Natives and the Euroamerican settlers. Consequently the treaty-making process was halted and never resumed leaving the Chelan and Methow out of the process entirely, even though part of the ceded lands of the Yakama treaty include the Chelan area. In an apparent reinterpretation of this conclusion reached in the Indian Claims Commission deliberations the court determined in the 1995 Colville case that the Chelan and Entiat were party to the Treaty With the Yakama and to the Agreement creating the Columbia Reservation. The determination that the Chelan and Entiat were party to the Yakama Treaty was decided, so far as I can determine, on the fact that the Yakama ceded lands extended into their territory. Nevertheless the treaty rights are vested in the Yakama Nation not to individuals who trace their ancestry to any particular tribe. The Yakama and Colville Tribes, as governmental entities, determine who exercises rights as tribal members. The treaty rights the Yakama enjoy are not distinguished by membership in any particular tribe but by membership in the confederation of the Yakama Nation. Similarly, although the Colville can determine descent from specific tribes, rights are extended to individuals based on membership in the Colville Nation.

In 1871 Congress put an end to treaty negotiations with Native tribes and therefore subsequent interactions between the federal government and Native tribes took other forms. By agreement several tribes accepted the creation of the Colville Reservation established by Executive Order in 1872. However the Columbia band was dissatisfied with the reservation and their leader Chief Moses personally traveled to Washington, D.C. to negotiate for a separate reservation in their homeland. The result was the creation of the Columbia Reservation by Executive Order in 1879. An 1880 Executive Order expanded the reservation land base. The Columbia Reservation included some NOCA lands (see Figure 9). Later, when gold was discovered in the northern portion of the reservation lands a fifteen mile strip parallel to the Canadian border was removed. Subsequent pressure from non-Native settlers prompted the federal government to abolish the Columbia reservation in 1886. The Native people of the Columbia Reservation were to remove to the Colville Reservation except for the holders of thirty-seven allotments made to individuals. The allotments were shifted to the policy of the Indian Homestead Act of 1884 (Kappler 1904:905). As Executive Order reservations the Colville and Columbia tribes did not acquire the same rights as treaty tribes. Executive Orders are silent concerning of f- reservation rights to resources and thereby do not carry the same authority over ceded lands that treaties do.

As consequence of the above actions the Yakama extend claims into NOCA through their incorporation of the Chelan, Entiat and Wenatchi and the proximity of their ceded lands to NOCA. The Colville Tribe extend claims into NOCA through incorporation of the Chelan, Entiat and Methow bands by the creation of an Executive Order reservation.

Indian homesteads existing in the ceded lands also extend jurisdiction of the Colville and Yakama Tribes to areas proximal to NOCA. The Indian Homestead Act enabled Native people to stake homestead claims in the public domain. To do so they had to sever tribal relations and prove up the claim. If the claim was proven by putting the land into production the homesteader could patent the land and acquire title. Until such time the land was held in trust by the federal government. Most homesteads that are still held by Native Americans are still in trust status and are in effect like little reservations although they belong to an individual. The initial intent of Indian homesteads was to sever tribal relations but that provision was relaxed and in practice the tribes extend jurisdiction over homesteads in their ceded lands.

Indian homesteads were established by the Nooksack, Upper Skagit, Sauk-Suiattle, Chelan, Entiat, Methow and Wenatchi. With the exception of the one Skagit homestead within the boundaries of the Ross Lake Recreation Area none are within NOCA. The homesteads were established in areas adjacent to NOCA, most notably in the Skagit River Valley and Lake Chelan. By their proximity these homestead allotments enabled Native groups to maintain ties with NOCA lands outside of the confines of the reservations.

In the late 1800s and early 1900s the federal government shifted policy to a stated goal of assimilation of Native people into the dominant society. These actions were facilitated by congressional acts and administrative decisions in the Bureau of Indian Affairs. Beginning with the General Allotment Act of 1887, the belief of the federal government was that the road to assimilation was through encouraging Native people to become farming, English-speaking Christians. The forces of assimilation were facilitated by government-run boarding schools, the administrative decision to discourage the practice of Native religions (Department of Interior Circular No. 1665), and the efforts to discourage off-reservation movements, especially those that involved the practice of traditional activities. As a result off-reservation movements were often restricted and the use of ceded lands curtailed. The reason for the lack of information on Native use of the North Cascades in the post-reservation period may be attributed to these governmental actions.

Throughout the 1900s the relationship between Native tribes and the federal government has been characterized by increasing control over their lives through increasing government intervention. The Indian Reorganization Act of 1934 [48 Stat. 984] established tribal constitutions and elected forms of government. On reservations of confederated tribes the formerly semi-autonomous bands were united into a single tribal government, although many of the bands maintained a distinct identity. Today the successors of various bands belonging to reservations is the elected tribal council government.

The termination policies of the 1950s eroded many of the rights of Native people in the federal government's attempt to terminate the federal relationship with tribes. One of the actions of this period was the Indian Claims Commission Act of 1946. The purpose of this act was to settle grievances of tribes concerning the loss of lands and resources or unfulfilled treaty promises. One of the results was the creation of a huge data base concerning the traditional and post-contact culture of Native tribes for use in adjudicating the claims. The Indian Claims Commission Dockets discussed above provide much of the ethnographic background of the tribes discussed here, but as we have seen they are inadequate for contemporary park needs.

The Indian Self Determination Act of 1975 [88 Stat. 2203] attempted to return some power of self-governance to the tribes. Native policy of the last one hundred years has been characterized as like a "pendulum" swinging from the extremes of individualism and tribalism (Boxberger 1989), but the underlying ideology has always been to incorporate Native people into the mainstream of American society. This has resulted in some paradoxical decisions on the part of the federal government, at some points in time Native rights have gained strength and at other points in time they have eroded.

The Indian Self Determination Act of 1975 [88 Stat. 2203] attempted to return some power of self-governance to the tribes. Additional legislative policy has specified certain requirements of federal land management agencies to comply with certain needs of Native American tribes. The last few years have seen some of the most important government actions concerning Native access to federal and other off-reservation lands. These actions have centered around access to off-reservation resources, the use of areas for religious purposes, and the incorporation of Native people into the decision making process that may affect traditional cultural properties on federal lands.

Fishing rights have been the most visible of these actions. Fishing rights issues in the Northwest actually harken back to the 1890s but court decisions that stimulated policy shifts began with the Tule case of 1942. The Tule case involved a Yakama fisher who was convicted of fishing without a state license. Eventually this case was heard by the Supreme Court of the United States [315 U.S. 681 (1942)] which concluded that "treaty takes precedence over state law and state conservation laws are void and ineffective insofar as their application would infringe on rights secured by treaty." Tule was the criteria by which of reservation rights were generally determined until controversies in the 1960s sparked a series of cases on both sides of the Cascade Mountains that attempted to clarify treaty fishing rights. Of a series of cases (see Boxberger 1979:16-18) two stand out as most influential. Sohappy v. Smith [302 F. Supp. 899 (1969)], the "Belloni Decision" or "Fair Share Doctrine" involved the Yakama tribe. This case determined that the states must regulate the salmon fishery in a manner that enables the tribes to take their fair share of the resource. It further decided that the state may not regulate treaty fisheries except as "reasonable and necessary for conservation." Five years later the treaty tribes of western Washington and the Yakama filed suit to clarify fishing rights further. The "Boldt Decision" [United States v State of Washington, 384 F. Supp. 312 (1974)] further upheld treaty fishing rights and adjudicated the fair share to be 50 percent of the allocation. While these cases were focused on the salmon, and subsequently other fisheries, they nonetheless are logically inclusive of other off-reservation resources included in the subsistence articles of the treaties (most notably the rights to treaty shellfish harvest were confirmed in 1994). While treaty fishing rights are not specific to any species, salmon have been at the center of the controversy. Treaty fishing rights for salmon are exercised on the Skagit River from the town of Newhalem to the mouth. It appears that few salmon made it past the gorge of the Skagit River prior to the construction of Gorge, Diablo and Ross Dams but they were limited in number and none migrated beyond Stetattle Creek at the town of Diablo (Robert Mierendorf, personal communication). Treaty fishing for salmon does take place within Ross Lake National Recreation Area from the town of Newhalem to the NOCA boundary at Bacon Creek but it appears that salmon were not present elsewhere in NOCA. There are resident populations of chinook and kokanee that have been established in Lake Chelan.

In the treaties fishing rights are distinguished from hunting and gathering rights. Fishing rights are reserved at all "usual and accustomed" places, presumably this would include National Park lands. To the best of my knowledge Native people have not expressed an interest in exercising treaty fishing rights on NOCA lands beyond the Skagit River, possibly because the most desirable species -- salmon -- are absent elsewhere. This of course does not mean that they will not express an interest in other species in the future.

Hunting and gathering rights are treated differently. Hunting and gathering was a privilege the treaties protected on "open and unclaimed" lands. This calls to question whether National Parks are open and unclaimed. While this issue has not come up in NOCA a case at Olympic National Park offers some insight into the interpretation of this treaty right. In 1982 two members of the Quinault Tribe were cited for killing elk within the boundaries of Olympic National Park. They sought to dismiss the citations based on Article III of the Treaty of Olympia which contains similar provisions to Article III of the Yakama Treaty and Article 5 of the Point Elliott Treaty. The court upheld the conviction based on the determination that by the enactment of legislation creating Olympic National Park the land ceased to be open and unclaimed. Further, since hunting is prohibited in the park it is an activity incompatible with park use. (United States v. Hicks, 587 F. Supp. 1162 [1984] ).

The construction of "open and unclaimed lands" that best accommodates Indian hunting as settlement occurs and matures is that "open and unclaimed lands" include public lands put to uses consistent with an Indian hunting privilege. Lands cease to be "open and unclaimed" when they are put to uses incompatible with hunting.

More recently a celebrated case involved hunting on National Forest lands in Wyoming. A member of the Crow Tribe of Montana was cited for killing an elk within Big Horn National Forest without a hunting license. The defense argued that the Crow Treaty of 1868 reserved rights to hunt on "unoccupied" lands. The Tenth Circuit Court of Appeals upheld the conviction based in part on the determination that the National Forest Lands have been "occupied" since the creation of Big Horn National Forest in 1887 (Crow Tribe v. Repsis, 866 F. Supp. 520 [1995]). This case is presently being appealed to the Supreme Court of the United States.

As it now stands Native American hunting on National Park lands is permissible if hunting is not incompatible with the Park's purpose. Some National Parks do allow Native hunting, most notably in Alaska where subsistence activities are managed by Parks in conjunction with the U.S. Fish and Wildlife Service. It appears that Native uses are determined on a Park by Park basis. The Parks in Alaska provide for Native subsistence in their enabling legislation. Since hunting is not allowed in North Cascades National Park it would appear that treaty hunting would be incompatible and the lands no longer "open and unclaimed" for that purpose. Hunting is allowed within Ross Lake and Lake Chelan National Recreation Areas and since these areas fall within ceded lands the exercise of treaty hunting rights seems assured.

The Yakama, Upper Skagit, Sauk-Suiattle and Nooksack therefore enjoy treaty-assured fishing rights to off-reservation resources in their usual and accustomed places and hunting and gathering rights on open and unclaimed lands throughout their traditional use areas. The rights of non-treaty tribes, however, are not so clear. The Colville Tribe attempted to claim treaty fishing rights under Sohappy v. Smith based on the fact that some of their tribal members are descended from Nez Perce and Yakama treaty bands (notably the Chelan, Entiat and Wenatchi). This claim was denied [29 F. 3d 481 (1994)].

The Colville have asserted hunting rights over former reservation lands based on Article 6 of the 1891 Agreement reducing the size of the Colville Reservation. In Antoine v. Washington (95 S CT 944 [1975]) the conviction of two Colville cited for hunting deer out of season was overturned because Article 6 reserved the right to hunt on those lands.

. . . and that the right to hunt and fish in common with all other persons on lands not allotted to said Indians shall not be taken away or in anywise abridged.

In 1995 the Colville Tribal Council passed a resolution permitting tribal members to hunt on the former Columbia Reservation. This action was based on the assertion that aboriginal hunting rights to the Columbia Reservation were never ceded. It is not clear what impact this action will have; to date it has not been contested. Potentially this issue could involve NOCA lands as part of the former Columbia Reservation is within NOCA.

Gathering rights are included in the same treaty provision as hunting rights but they have not been as contentious an issue. Many gathering activities involve medicines and materials for ritual paraphernalia and so are included under the American Indian Religious Freedom Act discussed below.

4.2 Legislative Actions

The following are some of the more important legislative actions that apply to Native use of federally-managed lands.

National Historic Preservation Act of 1966
National Environmental Policy Act of 1969
Archaeological and Historic Preservation Act of 1974
American Indian Religious Freedom Act of 1978
Archaeological Resources Protection Act of 1979
Native American Graves Protection and Repatriation Act of 1990

The National Historic Preservation Act of 1966 is the legislation that established policy for the identification, evaluation and protection of archaeological and historic resources. The NHPA established the National Register of Historic Places which lists properties which have been documented and evaluated as significant. This offers properties recognition and consideration in planning projects. The National Register is administered by the National Park Service.

Section 106 of the NHPA [36 CFR 60.4] outlines the criteria by which properties may be eligible for inclusion on the National Register. Section 106 requires agencies to assess effects on eligible or potentially eligible properties. The criteria are as follows.

a. Sites that are associated with events that have made a significant contribution to the broad patterns of our history.

b. Sites that are associated with the lives of persons significant in our past.

c. Sites that embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction.

d. Sites that have yielded, or may be likely to yield, information important in prehistory or history.

See National Register Bulletin Number 15 How to Apply the National Register Criteria for Evaluation (1991), and Bulletin Number 16A How to Complete the National Register Registration Form (1991).

Section 106 requires federal agencies to take into account the effects of their actions and programs on historic properties, that is, any property that is eligible for inclusion on the National Register.

For Native American uses an important component of the National Register process is the identification and evaluation of traditional cultural properties. Traditional cultural property is the term that refers to a specific property that possesses cultural significance to a particular community. A traditional cultural property is generally defined as one that is eligible for listing on the National Register of Historic Places, based on criteria that demonstrate the significance of the property to a community's continuing history, customs or practices.

See National Register Bulletin Number 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties (1991).

The National Environmental Policy Act of 1969 requires that federal actions that might significantly affect the quality of the human environment, including historic and cultural properties, consider the impact of those actions. Often NEPA and NHPA compliance is conducted at the same time although one does not substitute for the other. Both NEPA and NHPA require public participation in the review process. NHPA specifically includes Indian Tribes in this process [36 CFR 800.1]. When a federal agency seeks to identify historic properties, regulations require that the agency "seek information . . . from Indian Tribes . . . likely to have knowledge of or concerns with historic properties in the area" [36 CFR 800.4]. If the information is of a sensitive nature agencies are allowed to withhold the information from disclosure to the public.

The American Indian Religious Freedom Act of 1978 is designed to insure that federal agencies do not impede the right of Native Americans to practice traditional religions. These rights include access to and use of sacred sites on public lands such as spirit quest sites, areas that contain medicinal plants, sites associated with myth, and other such sites as can be determined in consultation with the affected tribes.

A set of legislative actions are concerned with archaeological remains. The Archaeological and Historic Preservation Act of 1974 protects archaeological and historic sites from destruction by Federal construction or federally licensed projects. This law primarily applies to sites on non federal lands. The Archaeological Resources Protection Act of 1979 protects archaeological resources on federal and Indian lands and implements a permit process to insure excavation is conducted by qualified individuals. It further requires that Indian tribes be notified of possible harm or destruction of sites that have religious or cultural importance.

The Native American Graves Protection and Repatriation Act of 1990 provides for the repatriation of human remains and burial objects held by federally-funded museums and other repositories. NAGPRA identifies a consultation process to be followed for sites inadvertently discovered during construction. NAGPRA also provides protection for grave sites on federal and tribal land by recognizing that Indian tribes having a cultural affiliation with the remains and objects should exercise ownership and control over those sites and their contents.

These legislative acts are often the impetus behind site- specific research. In order to implement management plans the federal agency must be aware of the types of sites they are likely to encounter, the integrity of those sites, their importance in history and the specific tribal groups that must be involved in the consultation process.

4.3 Federal Indian Policy and Land Management Law

Unlike any other ethnic group in the United States federally recognized Indian tribes possess certain rights and privileges to lands and resources that relate to their traditional uses for subsistence, religious and ceremonial purposes. These rights are protected by treaty or federal legislation and have been upheld by numerous federal court decisions. As expressed in its 1988 Management Policies the National Park Service recognizes these rights and its responsibility to manage park lands in ways that are compatible with Native American uses.

Recognizing that its resource protection mandate affects . . . human use and cultural context of park resources, the National Park Service will plan and execute programs in ways that safeguard cultural and natural resources while reflecting informed concern for the contemporary peoples and cultures traditionally associated with them.

Further, the purpose of research such as this report will assist the park in meeting management needs in the following ways:

1. to meet needs for information about park-associated groups;

2. to develop inventories of traditional ethnographic resources associated with these groups;

3. to determine the effects of traditional ceremonial and consumptive uses of park resources;

4. to evaluate the factors guiding traditional systems for managing natural resources and creating cultural properties;

5. to define traditional and contemporary relationships to these resources;

6. to assess the effects of National Park Service activities on these groups.

While fulfilling these goals is a long way off this report is one step along the way. The preceding discussion has demonstrated the lack of specific information needed to meet park management guidelines and federal resource management law. Previous ethnographies of NOCA have proven inadequate for this task. As Smith concludes in Ethnography of the North Cascades what is needed is a:

. . . systematic canvassing of peripheral and ephemeral data sources, both published and archival, for information relating to the traditional high-altitude lifeways of the four tribes. (Smith 1988:308)

This research is a step towards that goal but has also demonstrated the need for further research that goes beyond the documentary evidence called for by Smith. Smith's approach, somewhat reminiscent of the Boasian tradition, was to attempt to recreate the traditional culture of the Chilliwack, Lower Thompson, Upper Skagit and Chelan. While it was an admirable job federal land management requirements extend beyond the traditional culture and incorporate contemporary and historical land and resource use. This overview and assessment has shown that beyond identifying trails and some place names site-specific information is lacking in the ethnographic and historic published and archival literature. Therefore it becomes necessary to pursue this information outside of the available published and archival data base.