^L-.r.'.\i--.-.M-JX-'--,,.-V-:,M,-,;."i-..».-:
Salmon Luncheon
Suquamish Tri
uamish , WA
-------
TRIBAL DIVERSITY*
An Environmental Protection Agency Training
Region 10
Presented by
Roberta M. Wilson
Date and Location
September 25 & 26,1995
Suquamish Tribal Center
Readings Compiled by:
Roberta M. Wilson
Oglala Lakota/Nothern Cheyenne
Selma Matte
Gros Ventre
This compilation of documents, primary source materials, and articles is intended for educational
purposes only. It reflects a broad spectrum of materials supporting tribal governments.
-------
Roberta M. Wilson & Associates
TRIBAL DIVERSITY TRAINING
September 25-26, 1995
Index to Training Manual Supplemental
NOTE: The order listed is not necessary. This index simply
lists the articles in the order they currently appear.
1. New Yorker Cartoon on Perception
2. Maslow's Hierarchy of Needs
3. 25 CFR Section 123 Alaska Native Fund, pages 350-355.
Regulations regarding the distribution of all funds from the
Alaska Native Claims Settlement Act (ANCSA). Definition of
Regional Corporations established under the laws of the
State of Alaska.
4. 25 CFR Section 125 - Sioux benefits
5. 25 CFR Section 179.- Fife Estates and Future Interests.
General information to demonstrate the complexity of many
property and trust responsibility rights and duties
regulated by the
6. 25 CFR Section 271 - Indian Self-Determination
25 CFR Section 272 - Grants Under Indian Self-Determination
Act
7. Clinton Letter
8. Federal Register Executive Order on Environmental Justice in
Minority Populations
9. Reagan's Indian Policy Statement
10. current list of BIA Federal Recognized Tribes and Villages
11. Constitution of Native Village of NANWALEK
12. Constitution of Stevens Village
13. Constitution of Native village of Tanana Alaska
14. Minutes of the Plains Congress - Consultation and input of
Plains Tribes on Indian Reorganization Act 1934
-------
Index to Training Manual supplemental - Continued
15. Letters and concerns of petitioners who opposed IRA
16. Memo representing good faith efforts of governmental
agencies to recognize tribal governments
17. Bush's Indian Policy
18. Washington State document
19. Umatilla, Cayuse, Walla Walla, and Nez Perce Cultural
Property Paper. (Note: Excellent paper.)
20. Cross-cultural Management in the Public Sector Indian Tribes
in Washington State
21. Alaska Bar Association Village, Community Associations
22. Nez Perce v. Idaho Power Company (1993 US District Court)
Report and Recommendation
23. U.S., et al v. State of Wash. (1994 Federal District Court)
Consent Decree on Shellfish Sanitation Issue
24. U.S. v. City of Seattle and Municipality of Metropolitan
(1991 U.S. District Court)
25. S.1618 - Bill establishing "Self-Governance" 1993 and Senate
Report
26. Document from Interior stating effort to disinvest millions
of acres of heirship land
27. Personal document used to handle individual trust accounts
28. NCAI - Natural resource, litigation & Trust Responsibilities
Position Paper and resolutions
29. Indian Water Rights - Western Historical Quarterly Article.
Norris'Hundley, Jr.
30. Multi-criterion Decision Making in a Tribal context. Ronald
Trosper, Policy Studies Journal, Summer 1988. (Note:
Important Article)
32. EPA Tribes at risk - Wisconsin Tribes Project
33. EPA - Lauren Wenzel article on Environmental Risk in Indian
Country
34. 1992 Ecology Law Quarterly Article by Robert Ward on Sacred
Sites
-------
Index to Training Manual supplemental - Continued
35. Several EPA documents
36. Browner Memo on Strengthening EPA's Tribal Operations
37. Federal Register Vol. 59, no 144 July 28, 1994 Notice EPA's
Indian Program
38. EPA Indigenous Environmental Protection Executive Order
39. Final EPA/Tribal Agreements Template
40. EPA memo Reg's qualifying Tribes for Program Approval
41. EPA as Regulation
42. EPA Region VII Guide for Indian Nations
43. Washington Law Review article: The Status of Indian Tribes
in American law Today, Wn. Canby, Jr.
44. Journal of Urban and Contemporary Law (Vol. 44:133 1992)
Environmental Regulation of Tribal Lands Douglas Brockman
45. Zarr V. Barlow 1986 U.S. Court of Appeals 9th Circuit.
(Note: Excellent case review of blood quantum eligibility
criterion as compared to "member of a "recognized tribe".)
46. Constitution and B4 - Laws of the Suquamish Tribe
47. Felix S. Cohen paper on Indian Self-Government (1949)
48. John Collier paper on I.R.A.
49. States and Tribes and Equal Protection
50. Puget Sound Environment Article, Chapter 7, Indian
Reservations and Tribal Governments
51. Washington Law Review: The States v. Indian Off-
Reservation: A United States Supreme Court Error, Ralph W.
Johnson, Vol 47, Number 2 1972
52. Northeast Indian Quarterly
AKWE:KON Journal (Cornell Univ.) Winter 1991: Suicide and
Homicide, the Other Costs of Development. Paul A. Kettle
Alaska Natives and the Pipeline. (Note: Most significant
article on Alaska Native situation and environmental
disturbances)
53. Maps and Demographic Data
-------
TRIBAL DIVERSITY TRAINING AGENDA
Vhe following agenda reflects the training activities during the one-day
of training. There will be two workshop facilitators for up to
100 participants in the workshop. There will be a combination of
lecture, presentations, video tape examples, and discussions designed
to move from the general to the specific learning and in the
development of an analytic approach to EPA's mission and objectives
for and with Tribal governments and community.
Time Activities
8:00 a.m. Arrival and Pre-Assessment
8:30 a.m. Introductions
9:00 a.m. Survey of Indian Country Today
10:00 a.m. The Tribal Sector in Gov't to Gov't Relations
11:00 a.m. Critical Incident Activity: Perceptions
12:30 p.m. p.m.Luncheon
1:30 p.m. Regional Diversity and Tribal Infrastructures
2:45 p.m. Break
3:00 p.m. Critical Incident Activity: EPA Projects
4:00 p.m. Wrap-Up and Post-Assessment
-------
"And remember, son,perception isn't reality—money is."
-------
PRE-TRAINING ASSESSMENT
CONFIDENTIALITY OF INFORMATION
Your name is needed on the anser form to match the pre-training assessment
with the post-training assessment. No names will be used in any report or
for any other purpose than for matching .the pre and post training answer
forms for statistical analysis. No copies will be made of the answer forms
and the answer sheets will be destroyed after recording the statistical
information.
INTRODUCTION
You are about to begin a pre-training assessment of your understanding of
American Indian cultures.
It is very important to realize that no one set of training materials will
be able to provide all the information necessary to understand every
behavior and nuance of every Tribe in the United States or the Pacific
Northwest. However, the incidents in this pretraining exercise do provide a
base for greater understanding of Indian cultures, in particular. Northwest
Indian cultures.
The critical incidents for this exercise were taken from the American Indian
Cultural Assimilator prepared by the Florence Rockwood Rluckhohn Center and
then edited and revised for use in cross-cultural training by Joseph Dupris,
Ph.D.
The incidents you will be reading mirror some situations which have
generated confusion, disagreement and misunderstanding between Indians and
non-Indians.
These critical incidents are useful in building communication skills and
better understanding of cultural differences. Do not attempt to be
"politically correct" in determining which interpretation you select after
reading the incident.
SELF-ASSESSMENT
As you read the incidents and then the alternative answers, record your
selections on the answer form. Then, rate your level of confidence for the
interpretation that you have selected.
Please do not make any marks or write on the pre-training assessment
readings packet.
-------
Bill works for a State forest land management agency. Recently, he has been
meeting with representatives from the Tribe to evaluate the impacts of a
clear-cut being planned in an important cultural use site. After hearing
about the plan, the Tribal representatives made it clear that the plan was
unacceptable. Bill then offered to delay the cut for five years, while they
worked out a good plan, ahead of time. Once again, the Tribal
representatives said such an idea was unacceptable. When Bill asked what was
acceptable to the Tribe, he was told that the site would have to be left
undisturbed and in its natural state.
At the end of the final meeting. Bill felt the Tribal representatives were
beins inflexible in their position, while the Tribal people felt Bill and
the agency were being insensitive to the cultural needs of the Tribe.
Why do you think the Tribal leaders resisted Bill's effort to come to
agreement over the management of the cultural site plan?
A. Indian people are primarily anti-development and would, in every case,
choose preservation to development.
B. The response of the Tribal leaders reflects an anti-government attitude
that dates to the signing of the Treaties. It is primarily because of this
attitude that the meeting failed.
C. The inflexibility of the Tribe reflects their desire to get all they can
and to try to get their original lands and resources back under Tribal
control.
D. The Tribal leaders have a moral responsibility to their Tribal members,
to the land, and to their culture, to protect sites such as this one.
-------
Chris is in his mid-twenties end recently completed his doctorate in
archeology. He set up a consulting practice and was contacted by the Tribe
to do some archaeological work in an area that was culturally significant.
He completed his work, which included some sophisticated tests and
laboratory analyses, then gave a presentation to a Tribal committee. Several
people on the committee were the same.people who had expressed concerns
about the area. Chris wanted to make a good impression as a new consultant,
so he spoke at length about his methods. He had found a "pre-contact" camp
site, with various "artifacts" and he told the committee what he believed to
be the uses and significance of the findings. He also used a lot of
technical terminology, for he wanted them to be confident about his
professional abilities. The Tribal people listened politely and thanked him
for his work, but asked few questions. No one contacted him for further
information and recently Chris heard that the Tribe had gone to a Native
American consultant on this matter. Chris was hurt and confused, and
wondered what he had done to alienate the Tribal committee.
What do you think best explains the committee's reaction to Chris?
A. By using technical language and by suggesting he knew how the site should
be managed, he offended the committee members. He probably left the
committee members feeling that he didn't respect them, their knowledge or
their competence in this matter.
B. Tribes are known for being dissatisfied with consultants. They often
switch without any real reason. Chris should not have taken it so
personally.
C. The Tribe would always prefer to go to Native American businesses,
regardless of the quality of work. Their rejection of Chris probably
reflects their preference to always work with Indians.
D. Most Indian people feel that younger people can't be trusted or shouldn't
be listened to. When they first contracted Chris, they probably didn't
realize how young he was. After his presentation, they may have agreed that
an older consultant would be better.
-------
Congressman Devan has just returned from a meeting with a Tribal Chairman.
During the meeting, the Tribal Chairman raised a number of issues, including
Tribal self-government, sovereignty, and the need for additional funds to
carry out projects that would further the Tribe's goal of Self-
Determination. According to the Tribal Chairman, the Federal government was
neglecting its Tribal programs and projects. The Congressman responded by
saying that Congressional appropriations were being cut back and that
everyone, not just Tribal governments, would have to "tighten their belts"
and do more with less money. The Tribal Chairman said that, while he
understood the constraints placed on Congress, Indian Tribes were not just
another "interest group," and that the Tribes had Treaties with the Federal
government. The Congressman told the Tribal Chairman he understood how
important the Treaties were, but that he was only one man and he had to work
with the "Will of Congress." On hearing this the Chairman said he was
frustrated by the views of the Congressman and left the meeting early.
What do you think best explains the Chairman's reaction to the Congressman?
A. The Tribal Chairman was probably upset because he didn't really
understand the Congressional process. Due to limited Tribal funds, he
probably had little direct, face-to-face experience with Congressmen on
matters such as these. If he had this experience, there probably would have
not been a problem.
B. The Tribal Chairman was probably upset because he didn't get his way.
Like most other groups, Indian Tribes will try to get all they can from
Congress for their favorite programs and projects.
C. The Tribal Chairman was probably upset because he felt the Congressman
neither understood nor respected the Treaty relationship. Like other Tribal
leaders, the Tribal Chairman believed that control over Tribal affairs was a
necessary condition for Tribal self-government and sovereignty.
D. Like most other Indian leaders, the Tribal Chairman probably believes the
Federal government has a debt to pay. His frustration is probably caused by
wounded pride at having to ask for what is already his.
-------
Cynthia was doing an oral history project for the State museum, interviewing
elders in the Tribe to learn about their folklore and traditions. Generally,
she found older people to be more than willing to talk about memories from
their childhood. She'd planned three days on the reservation to interview
older Tribal members about their traditions. Using a list from the Tribal
senior center, she sent letters to seven Tribal members, asking them to meet
with her. No one showed up for the interviews on the first day. She called
four elders, who, unlike the others, had phones, and confirmed their
appointments. However, the four interviews she completed were disappointing.
Several of the elders said they really didn't know anything or have much to
say. Another elder seemed suspicious of her, and kept asking her why she was
doing the interviews -- and for whom. Another talked about the treaties and
all that had been lost. Cynthia knew something was wrong in her approach to
the interviews with the elders.
What do you think best explains the elders' responses to Cynthia?
A. The elders probably feel a lot of resentment against non-Indians. No
matter how Cynthia might have approached them, their resentment would have
made the interview difficult.
B. The elders were being honest when they said that they didn't know much
about traditions. Most of the old Tribal traditions were lost or changed
many years ago.
C. The elders probably felt a bit self-conscious about being "in the
spotlight. "Cynthia's mistake may have been in not contacting the elders
directly. Meetings such as these, where they are sharing private knowledge,
should begin with a face-to-face meeting.
D. Most Indians are suspicious of the government or governmental officials.
If Cynthia did not work for the government, the interviews may have gone
very differently.
-------
POST-TRAINING ASSESSMENT
CONFIDENTIALITY OF INFORMATION
Your name is needed on the answer form to match the pre-training assessment
with the post-training assessment. No names will be used in any report or
for any other purpose than for matching the pre and post training answer
forms for statistical analysis. No copies will be made of the answer forms
and the answer sheets will be destroyed after recording the statistical
information.
INTRODUCTION
You are about to begin a post-training assessment of your understanding of
American Indian cultures.
It is very important to realize that no one set of training materials will
be able to provide all the information necessary to understand every
behavior and nuance of every Tribe in the United States or the Pacific
Northwest. However, the incidents in this post-training exercise do provide
a base for greater understanding of Indian cultures, in particular.
Northwest Indian cultures.
The critical incidents for this exercise were taken from the America,n Indian
Cultural Assimilator was prepared by the Florence Rockwood Kluckhohn Center
and then edited and revised for use in cross-cultural training by Joseph
Dupris, Ph.D.
The incidents you will be reading mirror some situations which have
generated confusion, disagreement and misunderstanding between Indians and
non-Indians.
These critical incidents are useful in building communication skills and
better understanding of cultural differences. Do not attempt to be
"politically correct" in determining which interpretation you select after
reading the incident.
SELF-ASSESSMENT
As you read the incidents and then the alternative answers, record your
selections on the answer form. Then, rate your level of confidence for the
interpretation that you have selected.
Please do not make any marks or write on the post-training assessment
readings packet.
-------
1
John was a regional manager for a large private utility. The utility has
been planning the construction of a series of small dams in an area used by
the Tribe for cultural practices. After learning of the proposal, the Tribe
asked John to come to the reservation to discuss the impacts of the
construction projects. John made it a point to arrive early for the 2:00
p.m. meeting, being held in the Tribal administrative offices. John was
shown into the meeting room, where he waited until 2:15 for the first Tribal
member to arrive. A few more Tribal members arrived at around 2:30, but the
meeting could not begin until almost 2:45, when the last of the Tribal
representatives arrived.
What do you think best explains why the Tribal members were late for the
meeting?
A. It's common knowledge that Indians are often lat.e for meetings because
they prefer to take things easy and, as a general rule, live a more
leisurely and relaxed lifestyle than non-Indians.
B. Tribal leaders are often answerable to numerous committees and individual
Tribal members, as well as their families. They probably came as close to
2:00 as they could - but first things come first.
C. In this.case, the Tribal leaders were trying to let John know just where
he stood. By making John wait, they were able 'to build up their
psychological advantage for the meeting.
D. The meeting was probably not a high priority for the Tribal leaders. As a
general rule, if a meeting is really important Tribal leaders will never
show up late.
-------
Peter, a non-Indian, was visiting the reservation and was taken to the
trailer of a Tribal member well known for his carvings in wood, stone, and
bone. The carver was watching a football game on television, putting the
finishing touches on a cedar mask, when Peter came in. The trailer was
filled with traditional masks, soapstone figurines, bone carvings and other
works of Indian art. Peter was impressed at the depth and intensity of
tradition displayed in the work. Peter was surprised to learn that, at
times, the carver would use "non-traditional" tools. When Peter asked the
carver why he didn't use more traditional tools to create his art, the
carver merely shrugged and said: "The best work requires the best tools."
Driving away from the trailer. Peter felt a keen sense of disappointment.
Later that day'he described the experience to a friend. He said that, while
he was impressed with the art work, he questioned whether what he had seen
was traditional Indian art.
What do you believe is the best explanation for the attitude of the Indian
carver about his "tools of the trade?"
A. The carver was probably not a "traditional" artist. According to Tribal
culture, it is necessary to use traditional tools to create traditional art.
B. Time and technology changes us all. The philosophy of the carver probably
reflects the assimilation of Indian art into mainstream American culture.
C. New tools can be used to recreate and maintain past traditions. In the
Tribe, most people would probably agree that tools can and should be adapted
to preserve traditional art.
D. Since most Tribal people prefer to live a leisurely lifestyle, the
carver's attitude is part of a collective belief that, whether in art or in
life, the easy way is the best way.
-------
Doris, a non-Indian, was visiting with some Tribal members at their home on
the reservation. After lunch, she was taken outside where two young men were
working on their new nylon fishing net next to the family garden plot. She
was told that just a month ago the plot had been a tangle of Scotch broom
bushes. The family had cleaned out the bushes, rototilled the land and
fertilized the soil to prepare it for planting.
Although she said nothing at the time, Doris was surprised to learn her
Indian friends did not use more traditional practices in the cultivation of
their garden plot.
What do you think best explains the behavior of the Tribal members?
A. This family was probably an exception in the community. Most Tribal
members would not chose to use modern techniques or technologies in growing
food for themselves.
B. This family, like most other Indian families, have probably changed their
way of thinking about the land. Like most of the rest of us, they believe
that people should do all they can to use the land to suit their own
individual needs.
C. Since most Indians would rather do things the easy way, it only makes
sense that they would do whatever they could to save time and energy.
D. Most Tribal members value practical knowledge. Whether it is fishing,
gardening or planning a business, they believe it is important to be aware
of and learn how to best apply new ideas.
-------
Allan works with a member of the Tribe, Dave, in a local bank. Dave and his
wife live in town instead of on the reservation, and they go to the Catholic
Church near their house. Dave told Allan that his family has always been
devoutly Catholic, and many of his relatives no longer live on the
reservation. When Allan asked him about "the old ways," Dave said that most
of the people he knew didn't know much any more. He said that he wanted his
kids to know a little about their culture, but knowing how to get around in
the world was more important.
Recently Allen heard an interview with another Tribal member, Frank, who has
been involved in a struggle to protect fishing rights in the area. Frank
said that people in his family, like many Tribal people, valued the
traditional ways. The older people still remembered a lot of the culture,
and many younger'people now want to learn. After hearing the interview,
Allan was confused. He wondered which of the two members was "telling it
like it is."
What do you think best-explains why Frank and Dave say such different things
about the Tribe?
A. Frank is trying to hold on to a dying past out of nostalgia or
sentimentality. Most people in the Tribe would probably agree with Dave,
especially the younger people.
B. There are some traditional values in the Tribe, but Frank is exaggerating
them for his cause. He is afraid that if non-Indians knew that most Tribal
people were no longer interested in tradition, it would be harder to protect
fishing rights.
C. Dave is probably an oddity. By becoming educated and moving away from the
reservation, he has become alienated from his culture.
D, Different families in the Tribe have different histories and different
relationships to traditional culture. Dave's family has probably been away
from some of the "old ways" of the Tribe for some time; while Frank's family
has remained active in traditional life.
-------
TRIBAL DIVERSITY TRAINING
September 25-26, 1995
Pre/Post Test Results
I. Answers with highest response from Tribes;
Pre-Test
D
A
C
C
II. PRE-TEST
Tribes
93.3%
86.7%
76.7%
82.3%
III. POST-TEST
Tribes
63.3%
93.1%
93.1%
96.0%
Post-Test
B
C
D
D
EPA Staff
92.6%
95.3%
84.2%
90.5%
EPA Staff
61.1%
71.6%
86.3%
86.3%
Confidence
Level
2 47.4%
3 53.7%
3 53.7%
3 45.3%
Confidence
Level
3 47.4%
3 35.8%
2 43.2%
2 36.8%
NOTE: Pre/Post test results based on 95 EPA participants in the
training.
-------
G
R
O
W
T
H
Realizing
One's Own
Potential,
Self-Development
Activities, Behaving
Creatively, Problem-centered
Orientation to Life, Identifying
with the Problems of Humanity,
and Acceptance of Self and Others
SELF-ACTUALIZATION
Self-Confidence, Independence,
Achievement, Competence, Knowledge,
Status, Personal Recognition and Respect
SELF-ESTEEM
Love and Affection, Friendship,
Association with Others and Affiliation
SOCIAL
G
R
O
W
T
H
B
A
&
Shelter and Protection from Immediate or Future threat to
Physical, Psychological or Economic Well-Being
SAFETY
Hunger, Thirst, Sex, Sleep, Rest, Exercise,
Elimination, Pain Avoidance and Oxygen Consumption
PHYSIOLOGICAL NEEDS
B
A
S
Maslow's Hierarchy of Motives
The basic needs in the hierarchy are dominant. Only when these are satisfied is the
individual free to pursue the satisfaction of growth needs.
-------
§ 122,7
25 CFR Ch. I (4-l-*4 Edition)
Bureau of Indian Affairs, Interior
§123.4
5122.7 Budget.
(a) By August 1 of each year, the
Osage Tribal Education Committee
will submit a proposed budget to the
Assistant Secretary or to his/her des-
ignated representative for formal ap-
proval. Unless the Assistant Secretary
or his/her designated representative in-
forms the committee in writing of
budget restrictions by September 1, the
proposed budget is considered to be ac-
cepted.
(b) The investment principal, com-
posed of the one million dollars appro-
priated by the Act and reverted funds,
must be invested in a federally insured
banking or savings Institution or In-
vested in obligations of the Federal
Government. There are no provisions
in this part which shall limit the right
of the Osage Tribal Education Commit-
tee to withdraw interest earned from
the investment principal; however, ex-
penditures shall be made against only
the interest generated from investment
principal and reverted funds.
(c) All funds deposited will accumu-
late interest at a rate not less than
that generally available for similar
funds deposited at the same banking or
savings institution or invested in the
same obligations of the United States
Government for the same period of
time.
§122.8 Administrative costs for man-
agement of the fund.
Funds available for expenditures may
be used by the Osage Tribal Education
Committee in the performance of its
duties and responsibilities. Record-
keeping is required and proposed ex-
penditures are to be attached with the
August 1 proposed annual budget to the
Assistant Secretary or his/her des-
ignated representative.
§ 122.9 Annual report.
The Osage Tribal Education Commit-
tee shall submit an annual report on
OMB approved Form 1076-0106, Higher
Education Annual Report, to the As-
sistant Secretary or his/her designated
representative on or before November
1, for the preceding 12 month period.
5122.10 Appeal.
The proceduri
sion regarding*!
^appealing any deci-
.warding of funds
under this part shall be made in ac-
cordance with 25 CFR part 2, Appeals
from Administrative Action.
8122.11 Applicability.
These regulations shall cease upon
determination of the legal and appro-
priate body to administer the fund and
upon the establishment of succeeding
regulations.
PART 123-ALASKA NATIVE FUND
Sec.
123.1 Scope and purpose.
123.2 Definitions.
123.3 Payment of shares of the Fund In the
absence of recognition of an assignment.
123.4 Recognition of assignments.
123.5 Register of recognized assignments.
123.6 Sub-assignment.
123.7 Multiple assignments.
123.6 Disclaimer.
123.9 Cancellation of assignments.
123.10 Decision; finality.
AUTHORITY: Sees. 25 and 31. Pub. L. 92-203,
65 Stat. 715, as amended by Pub. L. 95-178. 91
SULt. 1370 (43 U.S.C. 1624. 1628).
SOURCE: 43 FR 20003, May 10, 1978. unless
otherwise noted. Redesignated at 47 FR 13327,
Mar. 30, 1982.
$123.1 Scope and purpose.
(a) The regulations in this part shall
apply to all future distributions of the
Alaska Native Fund pursuant to sec-
tion 6 of the Alaska Native Claims Set-
tlement Act (43 U.S.C. 1605), except
money reserved for the payment of at-
torne" and other fees as provided in
section 20 of the Act (43 U.S.C. 1619).
(b) These regulations are not in-
tended (1) to alter the distribution for-
mula of section 6 of the Act (43 U.S.C.
1605), or the redistribution formulas of
sections 7(j) or 7(m) of the Act (43
U.S.C. 16060), (m)); or (2) to require the
distriuation of money in the Fund
when not authorized by the Act, or
when the money has been set aside in
an escrow or reserved account pursuant
to an order of a court of competent Ju-
risdiction.
(c) The regulations in this part are
intended to implement section 31 of the
Act (43 U.S.C. 1628) which authorizes
the Secretary to recognize validly exe-
cuted assignments of a Regional Cor-
poration's rights to receive payments
from the Fund.
{123.2 Definitions.
As used in the regulations in this
part.
Act means the Alaska Native claims
Settlement Act, as amended (Pub. L.
92-203, 85 Stat. 715, 43 U.S.C. 1601 et
seq.; Pub. L. 95-178, 91 Stat. 1370).
Assignee means the person or entity
receiving from a Regional Corporation
an assignment of certain of the cor-
poration's future interests In the Fund.
Assignor means a Regional Corpora-
tion which has assigned to another cer-
tain of Its future interests in the Fund.
Assistant Secretary means the Assist-
ant Secretary for Indian Affairs, U.S.
Department of the Interior, or his au-
thorized representative.
Fund means the Alaska Native Fund
created by section 6 of the Act (43
U.S.C. 1605).
Payee means the recipient of a dis-
tribution from the Fund. The payee
must be a financial corporation such as
a bank, credit union, or savings and
loan association which is insured under
the Federal Deposit Insurance Corpora-
tion, the National Credit Union Admin-
istration, or the Federal Savings and
Loan Insurance Corporation, respec-
tively. The payee must be capable of
receiving payment through the U.S.
Treasury's Financial Communication
System.
Regional Corporation means an Alaska
Native Regional Corporation estab-
lished under the laws of the State of
Alaska in accordance with the provi-
sions of the Act.
Secretary means the Secretary of the
Interior.
} 123.3 Payment of shares of the Fund
in the absence of recognition of an
assignment.
(a) All money in the Fund shall be
distributed by the Assistant Secretary
at the end of each three months of the
fiscal year among the Regional Cor-
porations on the basis of the relative
numbers of Natives enrolled in each re-
gion.
(b) Except as otherwise authorized fn
the regulations in this part, a Regional
Corporation's quarterly share of the
Fund shall be made payable to the Re-
gional Corporation through a payee
designated by the Regional Corpora-
tion.
(c) A Regional Corporation may des-
ignate a payee of its quarterly share at
any time, and may change that des-
ignation at any time, Provided, That
the Assistant Secretary receive written
notification of any such designation or
change in designation at least ten (10)
days before the quarterly distribution
date. Any such designation must in-
clude the name and address of the
payee and the identifying American
Banking Association number.
} 123.4 Recognition of assignments.
(a) Upon application of a Regional
Corporation, as provided in paragraph
(c) of this section, the Assistant Sec-
retary shall recognize a validly exe-
cuted assignment of that portion of a
furture interest in the Fund not sub-
ject to the redistribution provisions of
sections 7(j) and 7(m) of the Act. A fu-
ture Interest which is not subject to
those redistribution provisions shall be
referred to in this section as an "as-
signable future interest" or the "as-
signable portion of a quarterly dis-
tribution."
(b) Such assignments shall only be
recognized to the extent that the Re-
gional Corporation Involved is not re-
quired to distribute funds pursuant to
subsections (J) or (m) of section 7 of the
Act.
(c) Upon recognition of such an as-
signment, the Assistant Secretary
shall distribute the amount assigned to
the payee designated by the parties to
the assignment, and shall continue to
pay the amount assigned to that payee.
except as provided by §§123.6(b) and
123.9.
(d) A Regional Corporation's applica-
tion for recognition of an assignment
of a future interest in the Fund
(1) Shall be addressed to the Assist-
ant Secretary for Indian Affairs, Attn.:
Assistant Director, Financial Manage-
ment, Bureau of Indian Affairs, U.S.
Department of the Interior. Washing-
ton. D.C. 20240;
(2) Shall specifically request that the
Assistant Secretary recognize an as-
signment of a fixed sum to which the
Regional Corporation may be entitled
from the Fund;
(3) Shall designate^fepayee of the
amount assigned;
-------
§123.5
(4) shall be accompanied by a duly-
adopted resolution of the Board of Di-
rectors of the Regional Corporation,
which resolution authorizes the mak-
ing: of the assignment and the applica-
tion for recognition of that assignment
by the Secretary of the Interior, or evi-
dence of stockholder approval when re-
quired by Alaska state law; and
(5) Shall be accompanied by one exe-
cuted copy and three facsimile copies
of a valldly executed assignment of all
or a portion of the Regional Corpora-
tion's assignable future interest in the
Fund, which assignment shall contain
the following language:
(1) The parties to this assignment agree to ,
seek recognition of this assignment by the
Secretary of the Interior, as authorized by
section 4 of the Act of November 16, 1977,
Pub. L. 95-178 (91 Stat. 1369.1370).
(11) It Is understood by the parties to this
assignment that in the event the Secretary
of the Interior recognizes this assignment.
the United States reserves the right to as-
sert against the assignee and successors of
the assignee, any setoff or counterclaim
which the United States has, or may have,
against the Assignor Corporation.
(e)(l) An assignment may provide
that: (i) All of the assignable portion of
each quarterly distribution be paid to
the payee designated in the application
for recognition of assignment;
(11) A fraction of the assignable por-
tion of each quarterly distribution be'
paid to the designated payee; or that
(ill) The assignable portion of each
quarterly distribution, up to a stated
maximum amount, be paid to the des-
ignated payee.
(2) Other formulas for assignment of
assignable future interests may be rec-
ognized if (i) such a formula clearly
identifies what portion of each affected
quarterly distribution is to be paid to
the designated payee, and (11) the for-
mula will permit the Assistant Sec-
retary to set priorities in accordance
with §123.7 when subsequent applica-
tion is made for recognition of addi-
tional assignments.
§123.5 Register of recognized assign-
ments.
The Assistant Secretary shall main-
tain and make available for inspection
by the public a register of requests for
recognition of assignments and assign-
ments recognized by him pursuant to
25 CFR Ch. I (4-1-94 Edition)
the regulations in this part. Such reg-
ister shall list the name of the Re-
gional Corporation; the name and ad-
dress of the assignee; the name, ad-
dress, American Banking Association
number, and account number for de-
posit of the payee of the amount as-
signed; the amount assigned; the
amount paid at each quarterly dis-
tribution under the terms of the as-
signment; and the date of the Assistant
Secretary's recognition.
§ 123.6 Sub-assignment
(a) Nothing in the regulations in this
part shall prohibit an assignee from
making a valid sub-assignment of a Re-
gional Corporation's rights to receive
payments from the Fund. However, the
Assistant Secretary has no authority
and shall not recognize any sub-assign-
ment by the assignee of any future in-
terest of a Regional Corporation in the
Fund.
(b) The Assistant Secretary may ac-
cept a re-designation of a new payee of
an assignment recognized by the As-
sistant Secretary, upon application of
an authorized official of the assignee in
accordance with §123.3(c).
$ 123.7 Multiple assignments.
(a) The Assistant Secretary may rec-
ognize more than one assignment of a
Regional Corporation's future interests
in the Fund. A second or later assign-
ment of a Regional Corporation's fu-
ture interest in the Fund, when recog-
nized in accordance with §123.4, shall
be recognized subject to assignments
already recognized.
(b) The Assistant Secretary shall not
recognize an assignment of a Regional
Corporation's future interest in the
Fund if he has more than one outstand-
ing application from that Corporation
seeking recognition of such future in-
terests. If more than one application
from a Regional Corporation is pending
before the Assistant Secretary, he shall
notify both the Regional Corporation
and the assignees of the assignments
sought to be recognized, and seek a
written consensus on the priorities to
be established. In the Absence of such a
consensus, the Assistant Secretary
shall not recognize any such assign-
ment.
Bureau of Indian Affairs, Interior
§123.8 Disclaimer.
The Assistant Secretary does not
guarantee by any action taken pursu-
ant to the regulations in this part that
the entitlement of a Regional Corpora-
tion to any quarterly distribution of
the Fund shall be of any given amount,
or that the cumulative entitlement of
that Corporation will reach any given
sum.
{123.9 Cancellation of assignments.
(a) The Assistant Secretary shall
cancel his recognition of an assignment
upon Joint application of the assignee
and Regional Corporation involved.
Such application must Include a reso-
lution of the Board of Directors of the
Regional Corporation, and a validly ex-
ecuted agreement between the Re-
gional Corporation and assignee can-
ceiling the assignment and authorizing
the Secretary of the Interior to cancel
his recognition of the assignment.
(b) Such cancellation of recognition
of an assignment shall be reflected in
the register compiled by the Assistant
Secretary as provided in §123.5.
{123.10 Decision; finality.
(a) A decision of the Assistant Sec-
retary not to recognize an assignment
of a future interest in the Fund shall
inform the Regional Corporation what
defects, if any, remain in Its applica-
tion for recognition, and shall provide
the corporation with an opportunity to
cure those defects.
(b) A decision of the Assistant Sec-
retary to recognize an assignment of a
Regional Corporation's future interest
in the Fund shall not be subject to re-
consideration or administrative appeal,
and shall therefore be final for the De-
partment.
PART 124-PROCEDURES FOR DE-
POSITING FUNDS TO THE CREDIT
OF 14X6140-DEPOSITS OF PRO-
CEEDS OF LANDS WITHDRAWN
FOR NATIVE SELECTION, BIA
Sec.
124.1 Purpose.
124.2 Proceeds received by Federal agencies.
124.3 Proceeds received by the State of
Alaska.
AUTHORITY: 89 Stat. 1145.
§ 124.2
SOURCE: 42 PR 32229, June 24, 1977, unless
otherwise noted. Redesignated at 47 FE 13327.
Mar. 30. 1982.
§124.1 Purpose.
The purpose of the regulations in this
part is to describe the procedures to be
used by all Departments and Agencies
of the Federal Government and the
State of Alaska for the deposit of pro-
ceeds derived from contracts, leases,
permits, and rlghts-of-way or ease-
ments pertaining to affected lands or
'resources In affected lands withdrawn
for Native selection pursuant to the
Alaska Native Claims Settlement Act.
§124,2 Proceed* received by Federal
agencies.
(a) Direct deposits. (1) Agency will pre-
pare Deposit Ticket (SF 215), using
Agency Accounting Station Code 14-20-
0650.
(2) In Block (6) Fund Symbol 14X6140
will be inserted as well as the follow-
ing:
Credit to Bureau of Indian Affairs,
Branch of Finance and Accounting,
P.O. Box 127, Albuquerque, New Mexico
87103.
(3) Memorandum copy and confirmed
copy of Deposit Ticket will be mailed
to above address, immediately upon
completion and confirmation.
(4) Agency will provide information
(lease, contract or other identification)
which will permit depositing agency to
identify deposit with particular plot of
land at time distribution of the funds
is to be made. This Information can be
shown in Block (6) if space permits, or
on an attached listing.
(b) Periodic deposits. (I) In some cir-
cumstances, collection from With-
drawn Lands will be in such small
amounts and such frequency as to be
administratively burdensome to make
Individual deposits to the fund, or col-
lections may be mixed with collections
to be credited to other funds. In such
instances depositing agencies may ini-
tially deposit the collections to their
own suspense accounts. Such deposits
will then be transferred to Fund
14X6140 no less frequently than month-
ly. The "Pay to" side of the SF 1081
will be completed as follows:
Department, Interior.
Bureau. Indian Affairs.
352
353
-------
§124.3
\geney Station Symbol, 14-20-0650.
\ddreas, Albuquerque, NM 87103.
\pproprlatlon or F^nd .Symbol, 14X6140.
md will be supported by sufficient de-
•ail to permit future Identification by
lepositlng agency. An advance copy of
.he SP 1081. with supporting docu-
nentatlon will be forwarded to the BIA
it Albuquerque immediately.
(2) Agencies not using the SP 1081
procedures will issue a check made
payable to the Treasurer of the United
States, and forward It to:
luneau Area Office, Bureau of Indian Affairs.
P.O. Box 8000—B, Juneau, Alaska 99802.
accompanied by a listing in sufficient
detail to permit the collecting agency
to identify the collections with each
parcel of land at the time distribution
of the funds is to be made.
§ 124.3 Proceeds received by the State
of Alaska.
The State agency responsible for
making collections will deposit the
proceeds to the credit of the State of
Alaska. A check will then be Issued,
payable to the Treasurer of the United
States, and will be forwarded to the Ju-
neau Area Office, Bureau of Indian Af-
fairs, accompanied by a detailed listing
providing information which will per-
mit identification of the funds with
each particular parcel of land at the
time distribution of the funds is to be
made. The Juneau Area Office will de-
posit all such receipts to the credit of
Fund Symbol 14X6140. forwarding the
memorandum copy to the Branch of Pi-
nance and Accounting immediately, to-
gether with a copy of the detail pro-
vided by the State of Alaska.
PART 125-PAYMENT OF SIOUX
BENEFITS
Sec.
125.1 Scope.
125.2 Purpose.
125.3 Definitions.
125.4 Eligibility.
125.5 Application procedure.
125.6 Administration.
125.7 Information collection.
AUTHORITY: Act of March 2,1889, c. 405, 517.
25 Slat. 888, 695; Act of June 10, 1896. c. 396.
29 Stat. 321, 334; Act of May 21. 1928. c. 662. 45
Stat. 984; Act of June IB. 1934. c. 576. 114. 48
Stat. 987. 25 U.S.C. 474.
25 CFR Ch. I (4-1-94 Edition)
SOURCE: 46 PR 36136. July 14, 1981. unless
otherwise noted. Redeslgnat/ed at 47 FR 13327,
Mar. 30. 1982.
} 125.1 Scope.
The regulations in this part govern
the payment of "Sioux benefits" to al-
lotted Sioux Indians under the Act of
March 2, 1889. c. 405, §17, 25 Stat. 888.
895; the Act of June 10. 1896. c. 398. 29
Stat. 321, 334; and the Act of May 21,
1928. c. 662, 45 Stat. 984; and to
unallotted Sioux Indians on the Chey-
enne River Indian Reservation under
the Act of June 18, 1934, c. 576, §14, 48
Stat. 987. 25 U.S.C. 474.
5125.2 Purpose.
The purpose of these regulations is to
Implement the provisions of federal
statutes which provide for the payment
of "Sioux benefits" to Sioux Indians by
setting forth the criteria governing eli-
gibility for and entitlement to "Sioux
benefits" and. by establishing proce-
dures governing application for and
payment of "Sioux benefits."
$ 125.3 Definitions.
As used In this part, the term—
(a) "Area Director" means the Area
Director, Aberdeen Area Office, BIA, or
his/her delegate.
(b) "Bureau" or "BIA" means the Bu-
reau of Indian Affairs, Department of
the Interior.
(c) "Commissioner" means the Com-
missioner of Indian Affairs, BIA, or his/
her delegate.
(d) "Sioux benefits" means the allot-
ment of stock and farming equipment
plus $50.00 cash as provided for by the
Act of March 2, 1889. c. 405, §17, 25 Stat.
888, 895, or its commuted cash value as
provided In the Act of June 10, 1896, c.
398, 29 Stat. 321, 334.
(e) "Sioux Indian" means a member
of any of the bands or tribes compris-
ing the Sioux Nation of Indians to
which the Act of March 2, 1889. c. 405. 25
Stat. 888, applied.
(f) "Single person" Includes all un-
married persons (other than an unmar-
ried person under the age of eighteen
years) and any person who is legally
separated, divorced, or widowed.
(g) "Head of a family" means only:
(1) A married person who meets the re-
quirements of §125.4(c)(l) or (2) (if llv-
Bureau of Indian Affairs, Interior
ing with his/her spouse) or §125.4(c)(3)
(if not living with his/her spouse), and
(2) an unmarried person under the age
of eighteen years who meets the re-
quirements of § 125.4(c)(3).
(h) For the purpose of determining
family support under §§125.4(c)(2) and
125.4(c)(3), "family" means two or more
persons (including the applicant) relat-
ed by blood, through marriage, or by
adoption to the applicant and who live
together In the same household and are
dependent upon the applicant for all or
part of their support.
} 126.4 Eligibility.
(a) Allotted Sioux Indians. The eligi-
bility of allotted Sioux Indians for
Sioux benefits Is governed by the Act
of March 2. 1889, c. 405, §17, 25 Stat. 888,
895; the Act of June 10. 1896, c. 398, 29
Stat. 321. 334; and the Act of May 21.
1928, c. 662, 45 Stat. 984. The Act of
June 18. 1934, c. 576 §14. 48 Stat. 987, 25
U.S.C. 474. is Inapplicable to any Sioux
Indian to whom an allotment of land
has been made under the provisions of
the Act of May 29, 1908. c. 216, §19, 35
Stat. 444, 451, or any prior federal stat-
ute. Under the applicable statutes, an
allotted Sioux Indian is eligible for
Sioux benefits if—
(1) He/she received a valid allotment
of land under the provisions of the Act
Of May 29, 1908, c. 216, §19, 35 Stat. 444,
451, or any prior Federal statute (re-
gardless of whether such allotment is
still held by the applicant);
(2) He/she Is either a single person
over the age of eighteen (18) years or a
head of a family (as provided in
§125.4(0);
(3) He/she has duly made application
for Sioux benefits, and such application
has been approved during his/her life-
time (as provided In §125.5); and
(4) He/she has not previously been
paid Sioux benefits in his/her own right
(as provided in §125.4(d)).
(b) Unallotted Sioux Indians. The Act
of June 18. 1934, c. 576, §14, 48 Stat. 987,
25 U.S.C. 474, applies only to Sioux In-
dians who, but for the provisions of
section 1 of that Act, 25 U.S.C. 461,
would have been eligible for an allot-
ment of land under the provisions of
the Act of May 29, 1908. c. 216, §19. 35
Stat. 444, 451, or any prior Federal stat-
ute, and have not, in fact, been allotted
354
§125.4
lands under the provisions of such Fed-
eral statutes. That Act has current ap-
plication only to unallotted members
of the Cheyenne River Sioux Tribe be-
cause of the proviso that the payment
of Sioux benefits under that Act would
continue only until such time as the
lands available for allotment on each
reservation as of June 13, 1934, would
have been exhausted by the allotment
of eighty (80) acres of land to each per-
son receiving Sioux benefits under that
Act. Under this statute a member of
the Cheyenne River Sioux Tribe Is eli-
gible for Sioux benefits If—
(1) He/she would be eligible, but for
the provisions of the Act of June 18,
1934, c. 576, §1. 48 Stat. 984, 25 U.S.C.
461, for an allotment of land under the
provisions of the Act of May 29.1908. c.
216, §19, 35 Stat. 444. 451, or any prior
Federal statute, and has not been allot-
ted lands under the provisions of such
Federal statutes;
(2) He/she is either a single person
over the age of eighteen (18) years or a
head of a family (as provided in
§125.4(c));
(3) He/she has duly made application
for Sioux benefits and such application
has been approved during his/her life-
time (as provided in §125.5);
(4) He/she has not previously been
paid Sioux benefits in his/her own right
(as provided in §125.4(d)); and
(5) The hypothetical allotment of 80
acres of tribal land to the applicant
would not exhaust the lands available
for allotment on the Cheyenne River
Indian Reservation as of June 18, 1934,
considering the allowance of similar
hypothetical allotments to other such
Indians previously receiving Sioux ben-
efits under such Act.
(c) Head of a Family. The following
criteria apply in determining head of
family status under both §§125.4(a) and
125.4(b,.
(1) Except as provided in § 125.4(c)(2),
when an applicant for Sioux benefits is
married and living with his/her spouse,
the applicant will be deemed to be a
head of a family if designated as such
by both the applicant and his/her
spouse.
(2) When an applicant for Sioux bene-
fits is married and living with his/her
spouse, but the applicant's spouse (i)
does not concur In the j^^lcant's des-
355
-------
§178.9
value of each tract at the time it was
acquired. If information as to the price
paid for any specific tract Is not avail-
able, or If for any reason It Is con-
cluded that the consideration paid by
the United States for the land is not
acceptable evidence as to value for this
purpose, the Secretary shall cause the
tracts to be appraised to determine
their comparability. The appraisals of
lands shall be made on the basis of cur-
rent market values. The lands shall be
considered to be substantially the same
value If the differences in values do not
exceed 10 percent of the greater value.
J178.9 Land* formerly held subject to
reatrictiotiB against alienation.
Former Indian owners who held title
to the lands which were acquired for
the gunnery range subject to restric-
tions against alienation without the
approval of the Secretary of the Inte-
rior shall be conveyed title to the reac-
quired lands in a trust status in the
same manner as though they had held
trust title to the lands taken.
PART 179-LIFE ESTATES AND
FUTURE INTERESTS
Sec.
179.1 Purpose, scope, and Information col-
lection.
179.2 Definitions.
1T9.3 Application of State law.
179.4 Distribution of principal and Income.
179.5 Value of life estates and remainders.
179.6 Notice of termination of life estate.
AUTHORITY: 88 Stat. 530; 88 Stat. 744; 94
Stat. SSI; 96 Stat. 2515; 25 U.S.C. 2, 9. 372, 373,
487, 607, and 2201-11.
SOURCE: 53 FB 25953, July 8, 1988, unless
otherwise noted.
CROSS REFERENCE: For regulations pertain-
ing to Income, rents, profits, bonuses and
principal from Indian lands and the record-
ing of title documents pertaining thereto,
see parts 150, Land Records and Title Docu-
ments; 152, Issuance of Patents in Fee, Cer--
tlficates of Competency. Removal of Restric-
tions, and Sale of Certain Indian Lands; 162,
Leasing and Permitting; 163, General Forest
Regulations; 166, General Grazing Regula-
tions; 169, Rlghts-of-Way over Indian Lands;
170. Roads of tne Bureau of Indian Affairs;
212, Leasing of Allotted Lands for Mining;
213, Leasing of Restricted Lands of Members
of the Five Civilized Tribes, Oklahoma, for
Mining; 215. Lead and Zinc Mining Oper-
ations and Leases, Quapaw Agency.
25 CFR Ch. I (4-1-94 Edition)
$179.1 Purpose, scope, and informa-
tion collection.
(a) These regulations set forth the
authorities, policy and procedures gov-
erning the administration of life es-
tates and future interests in Indian
lands by the Secretary of the Interior.
These regulations do not apply to any
use rights assigned by tribes, in the ex-
ercise of their Jurisdiction over tribal
lands, to tribal members.
(b) These regulations do not contain
information collection requirements
which require the approval of the Of-
fice of Management and Budget under
44 U.S.C. 3501 et seq.
{179.2 Definitions.
"Agency" means an Indian Agency or
other field unit of the Bureau of Indian
Affairs having the Indian land under
its immediate Jurisdiction.
"Contract Bonus" means cash con-
sideration paid or agreed to be paid as
incentive for execution of the contract.
"Income" means the rents and prof-
its of real property and the interest on
Invested principal.
"Indian Land" means all lands held
in trust by the United States for indi-
vidual Indians or tribes; or all lands, ti-
tles to which are held by individual In-
dians or tribes, subject to Federal re-
strictions against alienation or encum-
brance.
"Principal" means the corpus and
capital of an estate, including any pay-
ment received for the sale or diminish-
ment of the corpus, as opposed to the
income.
"Secretary" means the Secretary of
the Interior or authorized representa-
tive.
"Superintendent" means the des-
ignated officer in charge of an Agency.
$ 179.3 Application of State law.
In the absence of Federal law or Fed-
erally-approved tribal law to the con-
trary, the rules of life estates and fu-
ture interests in the State in which the
land is located shall be applied on In-
dian land. State procedural laws con-
cerning the appointment and duties of
private trustees shall not apply.
Lireou of Indian Affairs, Interior
(179.4 Distribution of principal and
income.
In all cases where the document cre-
ating the life estate does not specify a
distribution of proceeds; or where the
vested remainderman and life tenant
have not entered into a written agree-
ment approved by the Secretary pro-
riding: for the distribution of proceeds;
or where, by such document or agree-
ment or by the application of State
law, the open mine doctrine does not
apply; the Secretary shall:
(a) Distribute all rents and profits, as
income, to the life tenant.
(b) Distribute any contract bonus
one-half each to the life tenant and the
remal nderman.
(c) In the case of mineral contracts,
invest the principal, with interest in-
come to be paid the life tenant during
the life estate, except in those in-
stances where the administrative cost
of investment is disproportionately
high, in which case §179.4(d) shall
apply. The principal will be distributed
to the remainderman upon termination
of the life estate.
(d) In all other instances, distribute
the principal immediately according to
the formulas set forth in §179.5, invest-
ing all proceeds attributable to any
contingent remainderman in an ac-
count, with disbursement to take place
upon determination of the contingent
remainderman.
1179.6 Value of life estates and re-
mainders.
(a) The value of a life estate shall be
determined by the formula: Value of
Life Estate = P x L, where P = Value of
principal, and L = Life estate factor for
the age and sex of the life tenant, as
shown in Column 2 on Tables Ad) and
A(2).
(b) The value of a remainder shall be
determined by the formula: Value of
Remainder = P x R, where P = Value of
principal, and R = Remainder factor for
the age and sex of the life tenant, as
shown in Column 3 on Tables Ad) and
A(2).
§179.5
TABLE A{i>—SINGLE LIFE MALE, 6 PERCENT,
SHOWING THE PRESENT WORTH OF A LIFE
ESTATE INTEREST. AND OF A REMAINDER IN-
TEREST
py-Age
0
}
2
3 ,„. ...
4 . .. .
c
6
7 4t
B
9
10
It
12
13
14
15
16
17
18
19
20
21
22 .....
23 „..,.,
24 . .
25
26 .... .
27 . 4. ,
28
29 , .,..
30
31
32
33
34
35
36
.37
38 ,
39
40
41
42 .
43
44 .„, .,..„.
45
46
47
43 ,
49
50
51
52
53
54
55
56
57
58 .
(2>-Ute
«$talo
0.9305
96217
96170
06093
95905
.95732
.95640
.95331
95195
.94661
94599
94316
94019
93708
.93391
93069
.92746
92419
.92089
.9)751
.91403
91046
.90678
.90292
89684
.89445
88972
88465
87925
87353
86750
86117
85451
84752
.64020
83255
.82455
.81622
80755
79654
78923
77960
76967
75944
74891
.73808
72695
71552
.70365
69198
67997
66785
65560
64320
63060
61776
60466
59131
.57778
(3HR.-
maindar
0.06295
03763
03830
03947
04095
.04266
.04460
.04669
.04895
.05139
.05402
05684
.05981
.06292
.06609
.06931
.07254
.07561
.07911
.08249
.08597
.08954
.09702
.10116
.10555
.11028
11535
.12075
12647
.13250
.13883
.14549
15248
.15980
.16745
.17545
.18376
19245
20146
21077
22040
23033
24056
25109
.26192
27305
28448
29615
30802
32003
33215
.34440
35680
36940
.38224
39534
40669
.42222
488
489
-------
§ 179.5
TABLE A(1>—SINGLE LIFE MALE. 6 PERCENT,
SHOWING THE PRESENT WORTH OF A LIFE
ESTATE INTEREST, AND OF A REMAINDER IN-
TEREST—Continued
25 CFR Ch. I (4-1-94 Edition)
TABLE A(2>—SiNGLE LIFE FEMALE, 6 PERCENT,
SHOWING THE PRESENT WORTH OF A LIFE
ESTATE INTEREST, AND OF A REMAINDER IN-
TEREST—Continued
.97372
.97308
.97217
.97110
44348
.46313
.47679
.49046
.50415
.51788
.53164
.54542
.55923
.57311
.55052
.53687
.52321
.50964
.49585
.48212
.46636
.45458
.44077
.42689
.96853
.96703
.96541
63
64
.96365
.96176
.95975
.95764
.95543
.95314
.95076
.94829
.94572
.94303
.58706
.60111
.61526
.62949
.64376
.65806
.67239
.68673
.70105
.71519
71
.38474
.37051
.35624
.34194
.32761
.31327
.29895
.28481
.94021
.93724
.93412
.93085
.82739
.92375
.91993
.91591
.91168
.90725
.90259
.72902
.74227
.75473
.76646
.77783
.78930
.80045
.81130
.82178
.83169
.27098
55773
54527
53354
52217
51070
.19955
.18870
.17822
.16831
.69773
.69265
.88733
.88176
.87593
.84078
.84903
.85650
.86319
.86919
.87465
.88002
.88513
.89001
.69468
.15922
.15097
.14350
.13681
.13081
.12535
.11998
.11487
.10999
.10532
.86349
.85687
.84998
.84281
.83536
.82764
.81962
.81131
.80269
,79374
.78448
.77*88
.76498
.75476
.89913
.90339
.90750
.91154
.91561
.92000
.92529
.93282
.94574
.97170
.10087
.09661
.09250
.08846
.08439
.08000
.07471
.06718
.05426
.02830
TABLE A(2>—SINGLE LIFE FEMALE, 6 PERCENT.
SHOWING THE PRESENT WORTH OF A LIFE
ESTATE INTEREST, AND OF A REMAINDER IN-
TEREST
estate
0.95383
.97370
(Si-Re-
mainder
0.04617
.02630
51
52
53
54 ..
55 .
56 .
57 .
58 .
59 .
60 .
61 .
62
63
.74423
.73339
.72220
.71062
.69859
.68612
.67320
.64622
.63226
.61803
.60352
.58871
Bureau of Indian Affairs, Interior
TABLE A(2)—SINGLE LIFE FEMALE. 6 PERCENT.
SHOWING THE PRESENT WORTH OF A LIFE
ESTATE INTEREST. AND OF A REMAINDER IN-
TEREST—Continued
-Re-
nd*
)2628
J2692
J2783
32890
33011
rvM47
0329?
03469
03824
ftlJCT
04686
nU9g
,05697
.09275
.09741
.11267
.11824
.12407
.13015
.13651
.14313
.15002
.15719
.16W
.172%
.18038
.16869
.19731
506»
51552
22512
23502
54524
55577
56661
57780
58931
.3014
.31388
.3280
.3401
.3537
.3877
.3819
.3964
.4113
(l>-Aoe
64
65
66.
87 .
68 ..
69
70 ...
71
72
73 ..
74
75
76
77
76
79
80 ...
81
K
83
84
85
86
87
88
89
W
91
92
93
94
!2>— Ule
estate
57355
55803
5421 1
52583
50924
49241
47540
45623
44068
42341
40587
38833
37073
35307
33546
31811
30117
28469
26935
25439
23956
22441
21010
19674
18431
17265
16241
15301
14470
13741
13103
(3J-R9-
maindflf
44197
45789
47417
49076
50759
52460
54177
57659
59413
62927
64693
66454
68189
69883
.71511
73065
74561
76044
77559
78990
80326
81569
82715
63759
64699
85530
86259
86897
§179.6
TABLE A(2)—SINGLE LIFE FEMALE, 6 PERCENT,
SHOWING THE PRESENT WORTH OF A LIFE
ESTATE INTEREST, AND OF A REMAINDER IN-
TEREST—Continued
(1>-A08
95 :
96
97
98
99
100
101
102
103
104
105
106
107
108
109
(2}-U8
estate
.12535
11998
11487
10999
10532
10087
09661
09250
08848
08439
08000
.07471
.06718
.05426
.02830
(3)-Re-
mainder
.87465
88002
88513
89001
89468
89913
90339
.90750
91 154
91561
92000
.92529
.93282
.94574
.97170
§ 179.6 Notice of termination of life es-
tate.
Upon receipt of a renunciation of in-
terest or notice of death of an Indian or
non-Indian who died possessed of a life
estate In Indian land, the Superintend-
ent having jurisdiction shall file a copy
of the renunciation or death certificate
or other evidence of death with the ap-
propriate Bureau of Indian Affairs'
Land Titles and Records Office for re-
cording.
490
491
-------
§271.1
25 CFR Ch. I (4-1-94 Edition)
Bureau of Indian Affairs. Interior
§271.
M-INDIAN SELF-DETERMINATION AND
EDUCATION ASSISTANCE ACT PROGRAM
PART 271-CONTRACTS UNDER
INDIAN SELF-DETERMINATION ACT
Subpart A—General Provisions
Sec.
271.1 Purpose and scope.
271.2 Definitions.
271.3 Revision or amendment of regulations.
271.4 Statement of policy.
271.5 Information collection.
Subpart B-AppUcatton Process
271.11 Eligible applicants.
271.12 Contractable Bureau programs.
271.13 Application Information.
271.14 Contents of contract application.
271.15 Criteria for declining to contract.
271.16 Access to Bureau records.
271.17 Pre-appllcatlon technical assistance.
271.18 Tribal request for initial contract.
271.19 Status of contracts in effect before ef-
fective date of regulations.
271.20 Racontractinf.
271.21 Submission of requests to contract.
271.22 Review and action by Superintend-
ent.
271.23 Review and action by Area Director.
271.24 Area Director's recommendation to
decline.
271.25 Review and action by Commissioner.
271.26 [Reserved]
271.27 Technical assistance after declina-
tion.
231.28 Failure of Bureau Agency or Area Of-
fice to act.
Subpart C—Additional Requirements for
Trust Responsibilities
271.31 Applicability.
271.32 Contractable functions or programs.
271.33 Content of application.
271.34 Criteria for declining to contract.
Subpart D—General Contract
Requirements
271.41 Advance payments.
271.42 Use of government property.
271.43 Wage and labor standards.
271.44 Indian preference.
271.45 Liability and motor vehicle insur-
ance.
271.46 Recordkeeplng.
271.47 Record*-access to and retention.
271.48 Freedom of information.
271.49 Annual reporting.
271.50 Penalties.
271.61 Federal contracting laws and regula-
tions.
271.52 Term of contract.
271.53 Performing personal services.
271.54 Contract funds.
271.55 Savings under contract.
271.56 Privacy Act requirements.
Subpart E—Contract Revision or
Amendment
271.61 Requesting revision or amendment.
271.62 Review and action by contracting of-
ficer.
271.63 Contracting officer's recommenda-
tion to decline.
271.64 Review and action by Area Director
or Commissioner.
271.65 [Reserved]
271.66 Revisions or amendments proposed by
Bureau.
Subpart F—Retrocession and Reassumptlon
271.71 Retrocession.
271.72 Full retrocession procedures.
271.73 Tribal assumption of retroceded con-
tracts.
271.74 Reassumptlon.
271.75 Cancellation of contract for cause.
271,76 Bureau operation of retroceded,
rea.ssume
-------
. 2
(J) "Previously private school"
means a school (other than a Federal
school formerly operated by the Bu-
reau) that la operated primarily for In-
dian students in any grade or grades
from age 3 years through grade(s) 12;
and, which at the time of application is
controlled, and sanctioned or chartered
by the governing body(s) of an Indian
tribe(s).
(k) "Recontracting" means the en-
tering into a contract with a tribal or-
ganization which holds a contract for
the same program.
(1) "Resolution" means the formal
manner In which the tribal government
expresses its legislative will in accord-
ance with its organic documents. In
the absence of such organic document,
a written expression adopted, pursuant
to tribal practices will be acceptable.
(m) "Secretary" means the Secretary
of the Interior.
(n) "Superintendent" means the offi-
cial in charge of a Bureau of Indian Af-
fairs agency office except that:
(1) The term means the chief, Indian
Technical Assistance Center, for mat-
ters regarding contracting for all or
part of the Indian action team program
whenever a tribal governing body
elects to submit such a contract appli-
cation through the Indian Technical
Assistance Center and so indicates in
its resolution pursuant to §27].18(b).
(2) The term means the Chief. Divi-
sion of Facilities Engineering, for mat-
ters regarding contracting for all or
part of the construction, building, and
utilities program which is contractable
under this part and which is within the
responsibility of the Division of Facili-
ties Engineering.
(o) "Tribal Chairman" means tribal
chairman, governor, chief or other per-
son recognized by the tribal govern-
ment as its chief executive officer.
(p) "Tribal government," "tribal gov-
erning body" and "tribal council"
means the recognized governing body
of an Indian tribe.
(q) "Tribal governmental fuaction"
means all programs authorized to be
administered by the Bureau for the
benefit of Indians enumerated as line
items in the Bureau's annual budget
requests under the Activities of Edu-
cation and Indian Services, the
Subactlvities of Direct Employment
25 CFR Ch. I (4-M4 Edition)
and Road Maintenance, and those pro-
grams related to Irrigation and Power
Operation and Maintenance identified
as a part of the subactivity minerals,
mining, irrigation and power under the
Activity of Tribal Resources Develop-
ment.
(r) "Tribal organization" means the
recognized governing body of any In-
dian tribe; or any legally established
organization of Indians or tribes which
is controlled, sanctioned, or chartered
by such governing body or bodies or
which is democratically elected by the
adult members of the Indian commu-
nity to be served by such organization
and which includes the maximum par-
ticipation of Indians in all phases of its
activities; Provided, That a request for
a contract must be made by the tribe
that will receive services under the
contract; Provided further. That in any
case where a contract is let to an orga-
nization to perform services benefiting
more than one Indian tribe, the ap-
proval of each such Indian tribe shall
be a prerequisite to the letting of such
contract.
(s) "Trust resources" means natural
resources, land, water, minerals, funds
or property, asset, or claim, including
any Intangible right or interest in any
of the foregoing, which is held by the
United States in trust for any Indian
tribe or any Indian individual or which
is held by any Indian tribe or Indian In-
dividual subject to a restriction on
alienation imposed by the United
States.
(t) "Trust responsibility" means, for
the purposes of this part only, to pro-
tect, manage, develop and approve au-
thorized transfers of Interests in trust
resources held by Indian tribes and In-
dian individuals to a standard of the
highest degree of fiducary responsibil-
ity.
(u) "Assistant Secretary—Indian Af-
fairs" means the Assistant Secretary-
Indian Affairs who discharges the au-
thority and responsibility of the Sec-
retary for activities pertaining to Indi-
ans and Indian Affairs.
(40 FR 51286, Nov. 4, 1975, as amended at 41
PR 5098, Feb. 4. 1976: 43 FR 37440, Aug. 23.
1916-, 45 FB. 13448. Feb. 29, 1980}
Bureau of Indian Affairs, Interior
$271.3 Revision or amendment of reg-
ulations.
In order to make any substantive re-
visions or amendments to the regula-
tions in this part, the Secretary shall
take the following actions:
(a) Consult with Indian tribes and na-
tional and regional Indian organiza-
tions to the extent practicable about
the need for revision or amendment
and consider their views in preparing
the proposed revision or amendment.
(b) Present the proposed revision or
amendment to the Committees on Inte-
rior and Insular Affairs of the United
States Senate and House of Represent-
atives.
(c) Publish the proposed revisions or
amendments in the FEDERAL REGISTER
as proposed rulemaking to provide ade-
quate notice to, and receive comments
from, all interested parties.
(d) After consideration of all com-
ments received, publish the regulations
in the FEDERAL REGISTER in final form
not less than 30 days before the date
they are made effective.
(e) Annually consult with Indian
tribes and national and regional Indian
organizations about the need for revi-
sion or amendment, and consider their
views in preparing the revision or
amendment.
(f) Nothing in this section shall pre-
clude Indian tribes or national or re-
gional Indian organizations from initi-
ating request for revisions or amend-
ments subject to paragraphs (a), (b), (c)
and (d) of this section.
$ 271.4 Statement of policy.
(a) The Congress has recognized the
obligation of the United States to re-
spond to the strong expression of the
Indian people for self-determination by
assuring maximum Indian participa-
tion in the direction of educational as
well as other Federal services to Indian
communities so as to render such'serv-
ices more responsive to the needs and
desires of those communities.
(b) The Congress has declared its
commitment to the maintenance of the
Federal Government's unique and con-
tinuing relationship with and respon-
sibilities to the Indian people through
the establishment of a meaningful In-
dian self-determination policy which
will permit an orderly transition from
644
§271.
Federal domination of programs fo
and services to Indians to effective an
meaningful participation by the India
people in the planning, conduct, an
administration of those programs an
services.
(c) It is the policy of the Bureau t
facilitate the efforts of Indian tribes t
plan, conduct, and administer prt
grams, or portions thereof, which th
Bureau Is authorized to administer fo
the benefit of Indians and to facilitat
the coordination of all Federal an^
other programs on Indian reservations
(d) It is the policy of the Bureau t-
continually encourage Indian tribes t
become increasingly knowledgeabl
about Bureau programs and the oppoi
tunlties Indian tribes have regardini
them; however, it Is the policy of th
Bureau to leave to Indian tribes th>
initiative in making requests for con
tracts and to regard self-determlnatio>
as including the decision of an India)
tribe not to request contracts.
(e) It is the policy of the Bureau no
to impose sanctions on Indian tribe
with regard to contracting or not con
tracting; however, the special re
sources made available to facilitate th«
efforts of those Indian tribes which di
wish to contract should be made know]
to all tribes, as should the current re
alities of funding and Federal person
nel limitations.
(0 Contracting is one of severa
mechanisms by which Indian tribes cai
exercise their right to plan, conduct
and administer programs or portion:
thereof which the Secretary is author
ized to administer for the benefit of In
dians. Another mechanism afforded In
dian tribes is the use of a grant, as pro
vided in part 272 of this chapter, o)
other resources, to plan the manner it
which it wishes the Bureau to operati
a program or portion thereof.
(g) Contracting by its very natun
places Bureau officials in the dual posl
tion of assisting Indian tribes, in man}
instances, by furnishing technical as
sistance in preparation of contract pro
posals, and of carrying out their fiscal
and administrative responsibilities a*
officials of the Federal Government, It
is recognized that very often these twt
positions are in opposition to each
other. The Act and these regulation
are designed to address this problem to
645
-------
§271.5
the degree prTcticable. The Commis-
sioner. Area Directors and Super-
intendents, as line officers of the Bu-
reau, are expected to balance these two
positions within the framework of the
regulations in this part.
(h) The regulations In this part are
not meant to and do not change the eli-
gibility criteria which individuals
must meet to be eligible for any pro-
gram currently operated by the Bu-
reau. The eligibility criteria for each
Bureau program is given in the part of
25 CFR chapter I, which deals with that
program. A contractor shall use the ex-
isting Bureau eligibility criteria in op-
erating all or parts of a Bureau pro-
gram under a contract under this part
unless a waiver is obtained from the
Commissioner. The Commissioner may
not waive eligibility criteria estab-
lished by statute. The Commissioner
may waive eligibility criteria estab-
lished by regulation in 25 CFR chapter
I.
§ 271.5 Information collection.
The Office of Management and Budg-
et has approved, under 44 U.S.C. 3501 et
seq.. the information collection re-
quirements in §§271.14, 271.17. 271.18.
and 271.21 under assigned control num-
ber 1076-0088; §271.33 under control
number 1076-0090; and §§271.41. 271.42.
271.44, 271.46. 271.47, and 271.49 under
control number 1076-0091. The informa-
tion for #1076-0088 Is being collected to
determine the eligibility of applicants.
to protect the service population, and
safeguard Federal funds and other.re-
sources. The Information Is used to de-
termine eligibility and to permit the
Bureau to administer, monitor and
evaluate contract programs. The infor-
mation for #1076-0090 is being collected
to ensure that the trust responsibil-
ities are not abrogated and to protect,
preserve and perpetuate the resources
of an Indian tribe or individual. The in-
formation will be used to determine
eligibility of trust related activities or
functions under proposed contract ap-
plications, to protect tribal resources,
to Insure fair return on such resources
and to assure a satisfactory standard of
contract performance. The Information
for #1076-0091 is being collected to in-
sure proper administration, monitoring
and evaluation of contracts, as well as
25 CFR Ch. I (4-1-94 Edition)
to protect Federal funds and the serv-
ice recipient population. The informa-
tion will be used to assess program per-
formance, to monitor contract expendi-
tures, and to insure fairness and uni-
formity of services, including the
maintenance of current and accurate
records which allow for clear audit fa-
cilitating data. Responses are required
to obtain a benefit.
[S3 FR 21995. June 13, 1988]
Subpart B—Application Process
§ 271.11 Eligible applicants.
Any tribal organization is eligible to
apply for a contract or contracts with
the Bureau to plan, conduct, and ad-
minister all or parts of Bureau pro-
grams under section 102 of the Act.
However, before the Bureau can enter
Into a contract with a tribal organiza-
tion, it must be requested to do so by
the Indian tribe or tribes to be served
by the contract in accordance with
§271.18.
§271.12 Contractable Bureau pro-
grams.
(a) Tribal organizations are entitled
to contract with the Bureau to plan,
conduct, and administer all or parts of
any program which the Bureau is au-
thorized to administer for the benefit
of Indians, All or parts of any program
include:
(1) Any part of a Bureau program
which is divisible from the remainder
of the program so long as the contract
does not significantly reduce benefits
to Indians served by the non-con-
tracted part(s) of the program. How-
ever, to the extent that it is within the
Bureau's existing authority and the
program or part thereof involves only
one tribe and one Bureau Agency or
Area Office, the benefits provided to
Indians by the non-contracted part(s)
of the program may be reduced at the
request of the tribe. When the program
or part thereof serves more than one
tribe, the benefits provided by the non-
contracted part(s) of the program may
be reduced when all of the tribes served
consent to a reduction.
(2) A single employee position only
when the functions to be performed
provide a direct service to Indians and
Bureau of Indian Affairs, Interior
meets the criteria in paragraph (a) of
this section.
(3) Programs or parts of programs or
services that are authorized but not
currently operated or provided by the
Bureau.
(4) Operation of. or services provided
by. previously private schools.
(5) Alterations and repairs in direct
support of a contracted program. Indi-
vidual construction projects are not
contracted under title I of the act, but
can be contracted under other authori-
ties.
(6) Architect and engineer services.
(b) Paragraph (a) of this section also
applies to trust resources programs or
portions thereof. Additional criteria
for contractable trust resources pro-
grams, or portions thereof, are given in
§271.32.
[40 FR 51286, Nov. 4. 1975, as amended at 43
FR 37440. Aug. 23. 1978)
5271.13 Application information.
Application instructions and related
materials may be obtained from Super-
intendents, Area Directors, and the
Commissioner.
§271.14 Contents of contract applica-
tion.
Application for a contract under this
part shall contain the following infor-
mation in sufficient detail to permit
evaluation of the application in light
of the declination criteria set forth In
§271.15. No further detail is, or shall be,
required.
(a) Full name, address and telephone
number of the tribal organization
which Is applying for the contract.
(b) Full name of tribe(s) with which
the tribal organization is affiliated.
(c) Full name of trlbe(s) directly ben-
efiting or receiving services from the
proposed contract.
(d) Documentation of the tribal re-
quest to contract as required in §271.18.
(e) Date of submission to the Bureau
and the name of the office where the
application was submitted.
(0 Signature by the authorized rep-
resentative of the tribal organization
and the date thereof.
(g) Estimated number of Indian peo-
ple who will receive benefits or services
from the contract, based on available
data including tribal records.
§271.1
(h) Descriptive "THErrative of whi
functions. Bureau programs, or po
tions of programs the tribal organiz;
tion wants to contract for.
(i) Plan of operations, which shall i>
elude but is not limited to:
(1) A statement of tribal goals ar
objectives to be obtained by the coi
tract.
(2) The organization, methods ar
procedures to be used to accompli*
the tribal goals and objectives.
(3) [Reserved]
(4) The budget showing the amoui
and sources of funding and other n
sources required for the contract.
(5) Staffing plan, Including extent,
any. that Bureau personnel may be ut
lized. (See part 275 of this chapter ft
staffing options the applicant ma
wish to consider).
(6) The evaluation criteria and coi
trol systems that the tribal organiz;
tion will use to measure progress an
accomplishment and to assure that th
quality and quantity of actual perforn
ance conforms to the requirements <
the plans.
(j) Statement of tribal organization
substantive knowledge of the progran
part of a program or functions to b
contracted.
(k) Description of personnel systei
and position descriptions for key pei
sonnel.
(1) Listing of equipment, facilitie!
and buildings needed to carry out th
contract and how the tribal organize
tion intends to obtain them.
(m) Certification by a licensed at
countant that the bookkeeping and ac
counting procedures which the tribe
organization presently uses meet th
standards of §276.7 of this chapter. 1
place of the certification; the tribal ot
ganization may submit a wrltte
agreement to establish a bookkeepin
and accounting system that meets th
standards of §276.7 of this chapter an>
to have the bookkeeping and account
ing system certified before the Burea1
disburses any funds under a contrac
awarded as a result of the application
The accounting system shall provid
for the accumulation of costs through
out the contract term or performanc'
period in such a manner as to facilitate
audit or review of the financial records
When a certification has been submit
646
647
-------
§271.15
ted In connection with a previous ap-
plication, the applicant may state this
fact instead of submitting a new cer-
tification.
(n) Proposed system for managing
property and keeping records or agree-
ment to establish within 90 days of
contract execution, a satisfactory sys-
tem for managing property and keep-
Ing records.
(o) Any advance payments required
by the tribal organization for contract
including the type of advance, time pe-
riod, and Justification for the advance
payments.
(p) Term of contract requested and
proposed starting date of contract.
(q) A listing of the procedures which
the applicant has in place to assure
that services and assistance shall be
provided to the Indians affected by the
contract in a fair and uniform manner.
If the applicant does not have such pro-
cedures but agrees to establish them, a
statement to that effect should be in-
cluded in the application. Such proce-
dures include eligibility criteria for
tribal members to receive services, rec-
ordkeeping adequate to verify the fair-
ness and uniformity of services in case
of formal complaints, an adequate
complaint procedure available to all
Indians affected, and an explanation of
what rights an individual will retain
pending resolution of a complaint.
(r) A statement that the applicant
agrees to keep such records as required
pursuant to §271.46, to make reports re-
quired by §271.49, and to make such in-
formation and reports available to In-
dian clients as required by §271.48.
(s) Identification of any
subcontractor(s); the amount and
purpose of the subcontract; the manner
in which the subcontractor was se-
lected; and the basis for the cost of the
subcontract. If a subcontract has not
yet been awarded the contract applica-
tion should include a statement that
the applicant agrees to comply with 41
CFR 14H-70.409 In awarding any sub-
contracts; except that in the case of a
tribal organization applying for a con-
tract under S 273.11 the statement
should be that the applicant agrees to
25 CFR Ch. I (4-1-94 iditton)
comply with §273.36 In awarding any
subcontracts.
[40 FR 51286, Nov. 4, 1975, as amended at 41
FR 5098. Feb. 4. 1976; 43 FR 37440. Augr. 23.
1978)
S 271.16 Criteria for declining to con-
tract.
(a) The Commissioner may decline to
contract only for the specific causes
given In paragraph (b) of this section.
The burden of proof Is on the Commis-
sioner to demonstrate, through sub-
stantial evidence, that one of the spe-
cific grounds for declination exists and
that, therefore, the application must
be declined.
(b) The Commissioner may decline to
contract when:
(1) The services to be provided to the
intended Indian beneficiaries of the
particular program or function to be
contracted will not be satisfactory.
(i) It will be presumed by the Bureau
that the program plan and budget set
forth by the tribal organization pro-
vides a basis for the delivery of satis-
factory services to the Indian people
unless It can be demonstrated by the
Bureau by substantial evidence that
the program will yield results which
will be deleterious to the welfare of the
Indian people to be served.
(ii) The service to be provided shall
be deemed satisfactory if the contract
application Indicates that the appli-
cant has or will establish procedures to
assure that services and assistance
shall be provided to the Indians af-
fected by the contract in a fair and uni-
form manner. Such procedures include
eligibility criteria for a tribal member
to receive services; recordkeeping ade-
quate to verify the fairness and uni-
formity of services in case of formal
complaints; an adequate complaint
procedure available to all Indians af-
fected; and those rights the individual
will retain following the complaint.
(2) Adequate protection of trust re-
sources Is not assured. Criteria for de-
termining if there Is adequate protec-
tion of trust resources are given in
§271.34.
(3) The proposed project or function
to be contracted cannot be properly
completed or maintained by the pro-
posed contract.
Bureau of Indian Affairs, Interior
(4) The application is not within the
purview of §271.1(a).
(c) In arriving at his finding, the
Commissioner shall consider whether
the tribal organization would be defi-
cient In performance under the con-
tract with respect to the factors listed
in this paragraph.
(1) Equipment, buildings and facilities.
No higher standards with regard to
buildings, facilities, or equipment shall
be applied to tribal organizations than
have previously been applied to the Bu-
reau. As provided In §271.42, the Bureau
shall make available the use of all
equipment which has been allocated to
the operation of the program by the
Bureau In the past, unless the Bureau
proves the provision of the equipment
will seriously interfere with the Bu-
reau's ability to provide services to In-
dian people in non-contracted pro-
grams. Where equipment is shared by
the programs to be contracted and
other non-contracted programs, equip-
ment-sharing or other suitable ar-
rangements shall be stated in the con-
tract.
(2) Bookkeeping and accounting proce-
dures. It must be clearly demonstrated
by the Bureau that the tribal organiza-
tion which will undertake the contract
does not have or cannot set in place,
using the contract funds, an account-
ing and bookkeeping system which will
be adequate.
(3) Substantive knowledge of the pro-
gram to be contracted. (1) Where the trib-
al organization proposing to contract
Is the tribal governing body and the
program or function to be contracted Is
a tribal governmental function, there
shall be an absolute presumption that
the tribal governing body has sub-
stantive knowledge of the program or
function to be contracted.
(11) Where the tribal organization
proposing to contract Is not the tribal
governing body or the program or func-
tion to be contracted Is not a tribal
governmental function, the tribal orga-
nization shall be presumed to have sub-
stantive knowledge of the program to
be contracted if the tribal organization
meets one or more of the following con-
ditions:
(A) The tribal organization has ade-
quately managed a similar program be-
fore through grant or contract.
§:
(B) The tribal organization wh
to manage the project possesses I
tue of its knowledge and/or expe
substantive knowledge of the pr<
to be contracted.
(C) The tribal organization ha.1
a consumer of such services in th
and thus has developed an under:
ing of the Issues involved with th
gram sufficient to enable it to
tively carry out the contract
atlon; and, the tribal organizatic
secure through the resources (
contract, Bureau staff or othi
sources, the training in the part
subject area which will develop it
stantive knowledge of the prograi
(4) Community support. Before tl
reau can enter Into a contract
must be a request made in accoi
with §271.18. The tribal gov<
body's resolution under §271.18 si
presumed to demonstrate that tl
community support for the pn
contact. Unless it can be demons
by substantial evidence that the)
lack of community support for th
tract and the lack of support w
suit in unsatisfactory services,
equate protection of trust resour
Impossibility of service malnte>
the tribal governing body's reso
shall be deemed conclusive. Tho
sorting that there Is a lack of cc
nity support for a proposed co
must demonstrate that they ha
hausted their tribal remedies
the matter is considered by th
reau. In any event, there will
finding by the Bureau of a lack o
munity support that would res
deficiencies in performance und>
contract until those asserting it
exhausted all their tribal remedlc
(5) Adequacy of trained personm
adequacy of trained personnel
able to the tribal organization to
out the proposed contract will L
sumed if any of the following
tions exist:
(i) If the tribal organization
personnel system that prescribes
mum occupational qualification
ards which insure equal access
qualified tribal members; proc<
for the selection of personnel <
basis of such standards; and the p
nel to be used under the propose
648
649
-------
§271.16
tract are to be employed under the per-
sonnel system.
(li) If there is no tribal personnel sys-
tem, it will be assumed that the per-
sonnel to be employed under the pro-
posed contract are adequately trained
if the tribal organization has estab-
lished position descriptions for key
personnel to be employed under the
contract and agrees to establish a per-
sonnel system similar to the one de-
scribed in paragraph (c)(5)(i) of this
section.
(6) Other necesssary components of con-
tract performance, (i) All other nec-
essary components of contract per-
formance will be deemed to be met un-
less a tribal organization:
(A) Does not agree to develop an ade-
quate personnel system that provides
selection standards which insure equal
access to all qualified tribal members;
(B) Has not agreed to establish and
maintain a property management sys-
tem which will adequately account for
and protect government property.
(C) Has not agreed to keep such
records as required pursuant to §271.46,
make reports required by §271.49, or to
make such reports and information
available to Indian clients as required
by §271.48.
(D) Has not submitted a completed
contract application.
(li) All "other necessary compo-
nents" have been specifically identified
in this section. No other components
shall be defined which may serve as a
basis for declination unless they are
added to these regulations by revision
or amendment of the regulations.
(d) Program plans and designs of trib-
al organizations for contract operation
of Bureau programs or parts may be in-
consistent with other parts of this
chapter if a waiver is obtained from the
Commissioner. Inconsistencies between
such plans and designs and Bureau
manuals, guidelines or other proce-
dures that are appropriate to programs
or parts of programs operated by the
Bureau are not grounds for declination.
(e) Tribes; or tribal organizations
acting under delegated authority pur-
suant to §271.18(c)(2)(vii); may request
from the Commissioner a waiver under
25 CFR 1.2 of any regulations in this
chapter.
25 CFR Ch. I (4-1-94 Edition)
(0 Bureau officials may not decline
to enter Into a contract with a tribal
organization because of any objection
that could be overcome through the
contract.
[40 FR 51286, Nov. 4, 1975, as amended at 43
FR 37441. Aug. 23. 1978)
5271.16 Access to Bureau records.
(a) Upon the request of a tribal orga-
nization, the Superintendent or Area
Director shall make available any in-
formation requested and such other in-
formation as the tribal organization
may need to prepare a contract appli-
cation or carry out a contract. Tribal
organizations, other than the govern-
ing body of an Indian tribe (except
when operating under a contract au-
thorized under the Act), shall seek
such information through that tribe's
chairman or other official(s) des-
ignated by the tribal governing body,
unless the tribal resolution under
§271.18(0(2) or subsequent resolution
sets forth another procedure. Requests
for information are subject only to the
limits of the Freedom of Information
Act (5 U.S.C. 552) as amended by the
Act of November 21, 1974 (Pub. L. 93-
502, 88 Stat. 1561), the Privacy Act (5
U.S.C. 552a) and other applicable laws.
Information to be made available shall
Include, but not be limited to:
(1) Data on program services to in-
tended beneficiaries;
(2) Reports on Bureau program oper-
ations for the past three years;
(3) Present Bureau staffing pattern
and grade levels, existing vacancies
and position deceptions;
(4) Data on the amount of funds
which have been provided for the direct
operation of the specific program(s) or
portions thereof by the Bureau during
the past fiscal year and proposed con-
tract period;
(5) Existing appraisals, Inventories,
and assessment of trust resources.
rlbe to be served under the contract.
The tribe's request shall be in the form
)f a resolution by the tribal governing
>ody. If the tribal organization is ap-
plying for a contract to perform serv-
ces benefiting more than one tribe, an
authorizing resolution from each tribal
rovernlng body must be obtained be-
ore submitting the application to the
§'<
Bureau for approval. A tribal govi
body may pass a single resoluti<
thorizing a tribal organization to
for, negotiate, and execute more
one contract if the resolution sp<
for each contract the same inforn
required in paragraphs (b) and
this section.
(b) The resolution of the triba
erning body shall authorize the
cant tribal organization to appl
negotiate and contract with th
reau, subject to the specific terms
ditions and limitations of the r
tion and applicable tribal laws, <
and regulations. The resolution
Include the results of the vote
number for and against), the dat
resolution was approved, and sigr
of the person authorized to certi:
accuracy of the information con<
In the resolution. If the contract
cation is for all or part of the I
Action Team program and the
governing body elects to submit fc)
plication through the Indian Tecl
Assistance Center, instead of th
the Agency, this choice shall be
cated in the resolution.
(c) The tribal governing body
quest (resolution) should includ
following:
(1) When the tribal organizati
the tribal governing body:
(i) A brief statement of the coi
scope.
(11) The tribal official authoriz
negotiate the contract and any ai
ments thereto.
(Hi) The tribal official authoriz
execute the contract and any ai
ments thereof.
(iv) The expiration date of th
thorities granted by the resolutloi
(v) The extent and procedure, ii
for review of the contract and
amendments thereto by the triba)
erning body before execution.
(vl) The proposed date for cor
commencement.
(vli) The proposed term of the
tract.
(2) When the tribal organizati
other than the tribal governing bo
(i) The name of the tribal orgi
tion.
(il) A brief statement of the cor
scope.
650
651
-------
§271.19
(ill) The extent and procedure for re-
view by the tribal governing body of
the contract and any amendments
thereto prior to execution by the tribal
organization.
(iv) The tribal office or official to
which the Bureau should send copies of
contract documents and correspond-
ence.
(v) The proposed term of the con-
tract.
(vi) The proposed date for contract
commencement.
(vii) Any delegations of authority
and any limitations on authorities
granted the tribal organization. Includ-
ing those in regard to:
(A) Access to Bureau records under
§271.16. Unless specified otherwise in
the tribal resolution under thia-sectlon
or in a subsequent resolution, a tribal
organization which is not the govern-
ing body of an Indian tribe is required
to seek access to Bureau records
through that tribe's chairman or other
offlclal(s) designated by the tribal gov-
erning body.
(B) Recontracting under §271.20.
(C) [Reserved]
(D) Requests to revise or amend a
contract under §§271.61 and 271.62.
(E) Requests for contract retroces-
sion under §§271.71 and 271.72.
(F) Right to appeal under §§271.81 and
271.82.
(G) Requests for waivers of the regu-
lations in this chapter under §271.15(e).
(vili) The expiration date of the au-
thorities granted by the resolution. If
applicable, a statement that the au-
thorities granted continue until re-
voked by the tribal governing body will
be sufficient.
(d) Any procedures given in this sec-
tion concerning the manner in which a
tribal governing body passes a tribal
resolution shall apply except where in-
consistent with the tribe's organic doc-
uments or in the absence of such or-
ganic documents the tribal practice.
(40 PR 51286. Nov. 4. 1975. as amended at 43
FR 37441. Aug. 23, 1978; 45 FU 13448. Feb. 29,
1980]
§271.18 Status of contract* in effect
before effective date of regulation*.
(a) Contracts between the Bureau and
tribal organizations, which were en-
tered into before the effective date of
25 CfR Ch. I (4-1-94 Edition)
these regulations and are still in effect,
shall continue until expiration of that
contract. Any revisions or amendments
requested during the contract period
shall be subject to the provisions of
subpart E of this part.
(b) Upon completion of contracts in
effect before the effective date of the
regulations, one of the following will
occur:
(1) Where the tribal organization was
authorized to enter into its existing
contract by a tribal resolution, even if
the resolution was passed before the ef-
fective date of these regulations, the
tribal organization shall have the right
to recontract subject to the provisions
given in §271.20.
(2) Where the tribal organization did
not have a tribal resolution authoriz-
ing it to enter into the existing con-
tract. It shall not be entitled to
recontract, but must obtain a tribal re-
quest as provided in §271.18 and submit
an application as provided in §271.14.
§271.20 Recontracting.
The Bureau will recontract for the
same function(s) or program(s) (as de-
fined in 41 CFR 14H-70.104) as the origi-
nal contract at the written request of
the tribal organization designated in
the tribal resolution. Requests for
recontracting shall be made as follows
unless restricted by the resolution
under §271.18{c)(2) or subsequent reso-
lutions:
(a) If the original contract provided
services to only one Indian tribe, writ-
ten applications to recontract shall be
sent by the tribal organization to the
Area Office as follows:
(1) Directly, when the tribal organi-
zation involved is the governing body
of the tribe.
(2) Through the governing body of
the tribe for review when the tribal or-
ganization is not the governing body of
the tribe. Submission shall be made to
the governing body at least 120 days be-
fore the original contract expires. Cop-
ies of the submission shall be sent to
the Superintendent and Area Director
at the time of submission to the tribal
governing body. The tribal organiza-
tion shall promptly notify the Area Di-
rector in writing of the date the tribal
governing body received the applica-
tion. If, within 45 days after receiving
Bureau of Indian Affairs, Interior
the application, the tribal governing
body does not provide the Area Direc-
tor with a formal resolution objecting
to the application to recontract, the
absence of receipt of such resolution
shall constitute the tribe's request to
recontract.
(b) If the original contract provided
services to more than one Indian tribe,
the tribal organization must give a
copy of the written application to
recontract to each tribal governing
body 120 days before the original con-
tract expires. The tribal organization
shall promptly notify the Bureau of-
fice, where the application is to be sub-
mitted under §271.21, in writing of the
date the tribal governing bodies re-
ceived copies of the application. If,
within 45 days after receiving copies of
the application, none of the tribal gov-
erning bodies provide the appropriate
Bureau office with a formal resolution
objecting to the application to
recontract, the absence of receipt of
such resolutions shall constitute the
tribe's request to recontract. If one or
more of the tribal governing bodies in-
volved object to the contract, they
may withdraw from the contract. In
such case those withdrawing can stipu-
late how they wish the previously con-
tracted services to be rendered and the
remainder may be recontracted at the
option of the tribes involved.
[40 FR 51286. Nov. 4. 1975, as amended at 43
FR 37441. Aug. 23. 1978)
$271.21 Submission of requests to con-
tract.
(a) Tribal requests to contract and
contract applications shall be submit-
ted to the Bureau, as follows:
(1) To the Superintendent when the
tribe(s) or Indians to be served by the
contract are within the jurisdiction of
that Agency office. However, whether
in the past they have been submitted
to the Superintendent, Area Director.
or the Commissioner, tribal requests
and the related applications to con-
tract for all or part of the Indian Ac-
tion Team program may be submitted
to the Chief, Indian Technical Assist-
ance Center, at the option of the tribal
governing body when so Indicated in its
resolution pursuant to §271.18(b). All
tribal requests and the related applica-
tions to contract for all or part of the
652
§2
Construction, Building and Utl
program which is contractable i
this part and which is within th
sponsibility of the Division of F
ties Engineering must be submitt
the Chief, Division of Facilities
neering, instead to the Superinten
Area Director, or Commissioner.
(2) To the Area Director whei
tribe(s) or Indians to be served b:
contract are within the jurisdictl<
more than One Agency office in
same Bureau Area.
(3) To the Commissioner when
tribe(s) or Indians to be served bj
contract are within the jurisdictii
more than one Area Office.
(b) An application for a con
under this part may be submitte
any time. However, when the proj
contract may result in the disp
ment of Bureau personnel, the app
tion must be submitted to the aj
priate Bureau official at least 120
before the contract's proposed stai
date so the Bureau can comply wit
Civil Service Commission requirem
which apply to separation and/or i
slgnment of Federal employees
these required actions can be <
pleted in less than 120 days, the
tract may begin at an earlier date.
(40 FR 51286, Nov. 4. 1975, as amended
FR 37441. Aug. 23. 1978]
S 271.22 Review and action by Su
intendent.
The Superintendent shall take
following actions after receiving
contract application:
(a) Within five days of receipt,
Superintendent shall notify the aj
cant and the tribal governing bod.
different from the applicant, that
application was received.
(b) Within 15 days of receipt, the
perintendent shall review the app]
tlon for completeness and request
additional information from the aj
cant or from the requesting tribe i
Is needed to satisfy the requirement
§271.14. If the application involves <
tracting for all or parts of the Inc
Action Team program, the Su
intendent shall also contact the C
of the Indian Technical Assistance (
ter for the necessary information
funding. The funding information s)
653
-------
§271.22
25 CFR Ch. I (4-1-94 Edition)
be obtained without sending the appli-
cation to the Center.
(c) Within 30 days of receipt, the Su-
perintendent shall review the applica-
tion to determine whether funds are
available at the Agency to finance the
proposed contract, the effect of serv-
ices to be provided by the proposed
contract, the effect of the proposed
contract on other services or programs
provided by the Agency, and whether
any deficiencies exist which could pos-
sibly result in declination.
(1) If funds are not available at the
Agency to adequately finance the pro-
posed contract without significantly
reducing services under the '
noncontracted programs or parts of
programs, the Superintendent shall so
notify the applicant in writing and
offer alternative solutions to the fund-
ing problem. The applicant may pro-
pose alternative solutions to solve the
funding problem. Upon receiving writ-
ten notice of the applicant's choice of
alternative(s), the Superintendent
shall determine whether the
alternative(s) chosen will solve the
funding problem. If the applicant's
choice of alternatlve(s) is sufficient to
solve the funding problem, or if the so-
lution involves reprogramlng which re-
quires congressional action, the Super-
intendent shall take the actions in
paragraph (c)(2), (d), or (e) of this sec-
tion, as appropriate. If the applicant's
choice of alternative^) will not solve
the funding problem, the applicant
shall be notified in writing and will be
asked to reconsider the'matter and se-
lect another choice. After the applicant
has reconsidered and notified the Su-
perintendent in writing of its second
choice of alternative(B), the Super-
intendent shall determine whether the
applicant's choice is sufficient to solve
the funding problem. If the Super-
intendent determines that the appli-
cant's second choice of alternative^)
will not solve the funding problem, or
if the applicant refuses to make a se-
lection, the Superintendent will refer
the funding problem to the Area Direc-
tor for a decision. The Superintendent
shall notify the applicant of the refer-
ral in writing. An additional 15 days
shall be allowed for the Superintendent
to try to resolve the funding problem.
The alternatives offered by the Super-
intendent may include the following
which can be used alone or in combina-
tion to solve the funding problem:
(1) The Bureau may make available
additional funds resulting from savings
in other Bureau programs, subject to
established reallocation or
reprograming procedures.
(11) The trlbe(s) may obtain grant
funds under part 272 of this chapter to
cover any initial "start up" costs in-
cluded in the proposal.
(ill) The Bureau may redesign or con-
solidate operations involving
noncontracted programs or parts of
programs.
(iv) The tribe(s) may redesign the
contract proposal or consolidate all or
parts of the proposal with other tribal
programs.
(v) The tribe(s) may obtain addi-
tional funds from sources outside the
Bureau to supplement the Bureau
funds available to finance the proposal.
(vi) The tribe(s) may accept lower
service levels under the proposed con-
tract or under the noncontracted pro-
grams or parts of programs, except
where such lower levels are inconsist-
ent with the requirements of regula-
tions or statutes, through reallocation
or reprograming of Bureau funds.
(vil) The tribe(s) may choose to with-
draw the contract proposal and allow
the Bureau to continue to operate the
program either as presently operated
or as redesigned by the tribe(s).
(2) If funds are available at the Agen-
cy to adequately finance the proposed
contract without significantly reduc-
ing services under the noncontracted
programs or parts of programs, the Su-
perintendent shall make in writing to
the applicant and the tribal governing
body those recommendations which he
determines are needed in order to avoid
possible declination and shall indicate
the technical assistance available from
the Agency Office to correct any defi-
ciencies. This action shall also be
taken within 30 days after receiving
the application.
(d) The Superintendent shall provide
the technical assistance offered in the
written recommendation as requested
by the tribal organization and tribal
governing body.
(e)(l) The Superintendent shall for-
ward the appliction to the area Office
654
Bureau of Indian Affairs, Interior
§27
with his comments and recommenda-
tions. The recommendations shall in-
clude: •
(i) A statement on the availability of
Bureau equipment, facilities, and
buildings requested in the application.
(it) A recommendation on who should
be the Contracting Officer's Represent-
ative.
(ill) A citation of funds to be charged.
(iv) A certification of the amount of
funds actually available for the con-
tract, if the agency funds available are
less than the amount requested in the
application, the Superintendent must
state his efforts and extent of his suc-
cess or failure in resolving the funding
problems.
(2) The Superintendent shall forward
the application and his comments and
recommendations within the following
time limits:
(1) Within 30 days after receiving the
application when the Superintendent
has no recommendations to make to
the applicant.
(11) Within 10 days after making writ-
ten recommendations to the applicant
if the applicant does not respond, re-
quest additional time in which to re-
spond, or refuses the technical assist-
ance offered.
(f) Within 15 days after receiving an
application to contract for all or part
of the Indian Action Team Program.
the Chief, Indian Technical Assistance
Center shall contact the Superintend-
ent for the tribe(s) or Indians to be
served by the contract concerning the
availability of the equipment, facili-
ties, and .buildings requested In the ap-
plication. This contact shall be made
without sending the application to the
Superintendent. The Chief, Indian
Technical Assistance Center, shall then
forward the application to the Direc-
tor, Office of Tribal Resources Develop-
ment, with his comments and rec-
ommendations within the time frame
prescribed in paragraph (e) of this sec-
tion.
(g) Within 15 days after receiving an
application, to contract for all or part
of the Construction, Building and Utili-
ties program, the Chief of the Division
of Facilities Engineering shall contact
the Superintendent for the tribe(s) or
Indians to be served by the contract
concerning the availability of the
equipment, facilities, and buildings
quested in the application. This <
tact shall be made without sending
application to the Superintendent.
Chief, Division of Facilities Engin
Ing, shall then forward the applicai
to the Director, Office of Admlnis
tion. with his comments and
ommendatlons within the time fr;
prescribed In paragraph (e) of this
tion.
[40 PR 51286. Nov. 4. 1975. as amended t
FR 37441. Augr. 23. 1978)
S 271.23 Review and action by Area
rector.
(a) Upon receipt of a contract ai
cation submitted directly to the >
Director as provided for in §271.21,
Area Director shall obtain the ap;
priate Superintendents' recommei
tions within 10 days. The Area Dlre<
shall then proceed as required by p.
graphs (c) and (d) of this section.
(b) Upon receipt of a contract ar
cation fowarded by a Superintend'
the Area Director will review the ap
cation and the Superintendent's
ommendations and then proceed as
quired by paragraphs (c) and (d) of
section, except that:
(1) After receiving an applicatioi
contract for all or part of the Int
Action Team program and the c
ments and recommendations of
Chief, Indian Technical Assista
Center, on the application, the Di
tor, Office of Tribal Resources Deve
ment, shall take all actions require
an Area Director by paragraphs (c)
(d) of this section.
(2) After receiving an applicatioi
contract for all or part of the Consti
tion, Building.' and Utilities prog)
which is contractable under this i
and which is within the responsibi
of the Division of Facilities Engin
ing and the comments and
ommendations of the Chief. Divisio
Facilities Engineering, on the appl
tion, the Director, Office of Admi
tration, shall take all action requ
of an Area Director by paragraphs
and (d) of this section.
(c) The Area Director shall notify
applicant and the tribal goverr
body, if different from the appllci
that the application was recel<
within 5 days of its receipt.
655
-------
271.23
25 CFR Ch. I <4-l-*4 EdIHon)
(ch Within 30 days, the Area Director
all review the contract application.
e recommendations of the Super-
tendent, any responses from the con-
act applicant or the tribal governing
)dy and the criteria for declination
t forth in §271.15 to determine wheth-
• any declination or funding issues
cist which must be addressed and at
ie completion of the review take one
r the actions specified below in para-
raphs (d)(l), (d)(2). (d)(3), (d)(4) or
0(5). as appropriate.
(1) The applicant will be notified In
riting If the Area Director rec-
mmends that the proposed contract
annot be entered Into because of the
eclination issues. The Area Director's
^commendation may be appealed to
tie Commissioner, and the notice shall
aclude a statement to that effect. The
ppllcant shall have 30 days from re-
eipt of notice of the Area Director's
ecommendation in which to exercise
IB appeal rights by providing the Area
)irector with a notice in writing to
hat effect. Upon receipt of notice of
.ppeal and If an Informal conference is
equested, a conference shall be con-
lucted by the Commissioner or by an
ifficial designated by him. The purpose
if the informal conference will be to
ittempt to resolve Issues without
joing through the formal hearing pro-
cedure. Interested parties, entitled, to
present their positions, shall be limited
M authorized representatives of the
Bureau, the tribal organization and the
cribal governing body(s). If the tribal
jrganlzatlon and the tribal governing
oody(s) are not satisfied with the infor-
mal conference or do not request one,
the tribal organization and the tribal
governing body(s) are entitled to a for-
mal hearing in accordance with
§271.81(c).
(2) If the contract application was
submitted directly to the Area Direc-
tor as provided for in §271.21, or if the
Superintendent has forwarded an appli-
cation with funding problems which
could not be resolved at the Agency
level, the Area Director will also re-
view the application to determine
whether funds are available within the
Area to finance the proposed contract,
the effect of services provided by the
proposed contract, the effect of the
proposed contract on other services or
programs provided by the Area and any
deficiencies which could possibly result
in declination. At the completion of
the review, the Area Director will take
one of the following actions as appro-
priate:
(i) If funds are not available to ade-
quately finance the proposed contract
without significantly reducing services
under the noncontracted programs or
parts of programs, the Area Director
shall so notify the tribal organization
and the tribal governing body(s) in
writing and offer alternative solutions
to the funding problem. The alter-
natives offered by the Area Director
may include those given In subdivi-
sions (i) through (vil) of §271.22(c)(l)
which can be used alone or in combina-
tion to solve the funding problem. The
tribal organization and tribal govern-
ing body(s) may also propose alter-
native solutions to solve the funding
problem. Upon receiving written notice
pf the applicant's choice of
alternative(s), the Area Director shall
determine whether the alternative(s)
chosen will solve the funding problem.
If the applicant's choice of
alternative(s) is sufficient to solve the
funding problem, or if the solution in-
volves reprogramming which requires
congressional action, the Area Director
shall take the action in paragraph
(d)(3). (d)(4), or (d)(5) of this section, as
appropriate. If the applicant's choice of '
alternative^ will not solve the fund-
ing problem, the applicant shall be no-
tified in writing and will be asked to
reconsider the matter and make a sec-
ond choice. After the applicant has re-
considered and notified the Area Direc-
tor in writing of its second choice of
alternatlve(s), the Area Director shall
decide whether that choice is sufficient
to solve the funding problem. If the
Area Director determines that the ap-
plicant's second choice of
alternative(s) will not solve the fund-
ing problem, or if the applicant refuses
to make a selection, the proposed con-
tract cannot be entered into due to the
limitation that monies obligated on
contracts cannot exceed available ap-
propriations (31 U.S.C. 665(a)),
(ii) The tribal organization and the
tribal governing body(s) will be noti-
fied In writing if the Area Director de-
cides that the proposed contract can-
656
Bureau of Indian Affairs, Inferior
not be entered into because of unre-
solved funding problems. The Area Di-
rector's decision may be appealed to
the Commissioner, and the notice shall
include a statement to that effect. The
applicant shall have 30 days from re-
ceipt of notice of the Area Director's
decision in which to exercise its appeal
rights by providing the Area Director
with a notice In writing to that effect.
Upon receipt of notice of appeal, an in-
formal conference shall be conducted
by the Commissioner or by an official
designated by him. The purpose of the
Informal conference will be to attempt
to resolve Issues without going through
the formal hearing procedure. Inter-
ested parties entitled to present their
positions, may attend the Informal
conference and present their position.
If the applicant Is not satisfied with
the Informal conference, the applicant
is entitled to a formal hearing in ac-
cordance with §271.81(c).
(3) If the tribal organization and trib-
al governing body(s) choice of alter-
natives includes the reprogramming of
funds, the Area Director shall forward
the reprogramming request, the rea-
sons for the request, and his rec-
ommendations to the Commissioner for
further action as given In §271.25(0(1).
The Commissioner or an official des-
ignated by him may hold an Informal
conference with the applicant prior to
making a final decision on a
reprogramming request If the con-
ference is requested by the applicant. If
appropriate congressional committees
grant the reprogramming request, the
Area Director shall take the actions in
paragraph (d)(4) or (d)(5) of this section
as appropriate. If Congress does not
grant the reprogramming request, the
contract cannot be made and the Area
Director shall so notify the applicant
in writing.
(4) If funds are available to ade-
quately finance the proposed contract
without significantly reducing services
under the noncontracted programs or
parts of programs and there are no dec-
lination issues, the Area Director will
notify the contract applicant in writ-
ing of this fact. Before the negotiations
take place, the Area Director shall give
the applicant a copy of any documents
to be used by the Bureau during nego-
tiations. The Area Director shall nego-
§271.
tlate and award the contract within
days of notifying the applicant unles:
later date is requested by the apr
cant.
(5) If the funds are available to a<
quately finance the proposed contrr
without significantly reducing servh
under the noncontracted programs
parts of programs but it Is felt tl
there are declination Issues whi
must be resolved, the Area Direct
will notify the tribal organization a
tribal governing body(s) of this fact
writing. The notice shall include a 1
of the declination Issues identified
the Area Director, the reason(s) )
such determination, a. copy of any d<
uments used in arriving at the Issu
recommendations for resolving the
sues, and the technical assistar
available for this purpose.
(1) If the applicant accepts the Ai
Director's offer of technical assistant
It shall be provided in accordance wi
the applicant's request. At such tii
as the Issues are thus resolved, t
Area Director will so advise the apt
cant and offer to enter into negot
tions within 30 days of resolution
unless the applicant requests ad'
tional time.
(ii) If the applicant declines the Ai
Director's offer of technical assistar
and the matter is not otherwise :
solved, the Area Director shall proce
In accordance with §271.24.
(Ill) If the applicant does not respo
within 30 days of receipt of the Ai
Director's recommendation and offer
assistance, and does not request ad
tional time In which to respond, t
Area Director shall proceed in accoi
ance with §271.24.
(iv) If the applicant does not agj
with the Area Director's recommen<
tlons and the matter is not resolv
within 30 days of the Area Directo
recommendations, the Area Direct
shall proceed in accordance wi
§271.24,
[43 PR 37442. Aug. 23. 1978, as amended at
PR 13449. Feb. 29. I960]
{271.24 Area Director5* recommenc
tlon to decline.
(a) If the Area Director, the applies
and the tribal governing body fail
resolve the declination issues, the Ai
657
-------
§271.25
Director shall prepare a written rec-
ommendation to decline.
(b) This recommendation shall con-
tain, at a minimum, the following in-
formation:
(1) Identification of specific objec-
tions, categorized under one or more of
the declination factors set forth in
§271.15.
(2) Specific recommendations on ac-
tions required by the applicant or tribe
to overcome objections.
(3) Description of the nature, scope,
and source of the technical assistance
which has been provided or offered by
the Bureau to assist the tribal organi-
zation to overcome declination objec-
tions.
(4) Copies of all correspondence be-
tween the Agency, area, and applicant,
and/or tribe, and all responses thereto,
including any reports of meetings be-
tween the parties relative to the appli-
cation.
(5) Copy of original application.
(c) The Area Director shall send the
written recommendation to the Com-
missioner within 15 days after the time
period provided in §271.23(d)(5) (iii) and
(lv). At the same time, he shall send a
copy of the written recommendation to
the tribal organization and tribal gov-
erning body.
(d) Within 15 days of receipt of the
Area Director's recommendation to de-
cline, the applicant may notify the
Commissioner and the Area Director
that it accepts the offer of technical
assistance described in paragraph (b)(3)
of this section, thereby staying the
declination process. To reconstitute
the application process the applicant
must notify the Area Director, at
which time the Area Director shall pro-
ceed in accordance with §271.23.
[40 FR 51286, Nov. 4. 1975, as amended at 43
FR 37444, Aug. 23. 1978; 45 FR 13450. Feb. 29,
1980]
$271.25 Review and action by Commis-
sioner.
(a) Within five days after receiving a
contract application, submitted di-
rectly under §271.21, or after receiving
a contract application with either the
Area Director's recommendation to de-
cline or the Area Director's decision
that the' contract cannot be entered
into because of unresolved funding
25 CFR Ch. I (4-1-94 Edition)
problems, the Commissioner shall no-
tify the tribal organization (unless re-
stricted by the tribal resolution under
§271.18(c)(2) or subsequent resolutions).
and tribal governing body(s) in writing
of the receipt of the application.
(b) An application submitted directly
to the Commissioner under §271.21(a)(3)
will be handled by the Directorate^)
within the Bureau in whose sub-
stantive jurisdiction the subject mat-
ter of the proposed contract falls. That
Director will perform all of the actions
of the Area Director specified in
§271.23.
(c) For an application referred by an
Area Director, the Commissioner will
perform one of the following actions as
required by §271.23.
(1) In case of insufficient funds, the
Commissioner shall within 30 days re-
view the factual record developed in
the formal hearing. The Commissioner
shall consider whether funds are avail-
able to finance the proposed contract.
• If the solution to the funding problem
chosen by the applicant involves
reprogramming, the Commissioner, if
he concurs, will forward the
reprogramming request with the rea-
sons for the request through the De-
partment to the Office of Management
and Budget for referral to the appro-
priate congressional committees for
approval. The applicant shall be noti-
fied in writing if the Commissioner de-
cides that the proposed contract can-
not be made because of unresolved
funding problems.
(2) When the Commissioner does not
accept the Area Director's advice of in-
sufficient funding, following the review
of the factual record developed under
§271.81, notice shall be given that the
recommendations are not accepted and
that the Bureau shall negotiate and
award the contract within 45 days, un-
less the applicant requests additional
time.
(3) If the Commissioner determines
that the application cannot be accept-
ed, the Insufficient funding notice shall
be issued as follows:
(i) Within 30 working days as pro-
vided under §271.81(d).
(ii) The advice of insufficient funding
notice shall be in writing and shall
contain:
Bureau of Indian Affairs, interior
(A) Identification of the specific ob-
jections that the contract cannot be
entered into due to the limitation that
monies obligated cannot exceed appro-
priations under 31 U.S.C. 665(a).
(B) Specific recommendations on ac-
tions required by the applicant to over-
come objections and a description of
the nature, scope, and source of the
technical assistance which will be
available to overcome objections.
(C) Copies of the transcript of the for-
mal hearing and all documentary evi-
dence introduced as provided under
§271.81(c)(vi).
(d) When declination issues are in-
volved, within 15 days after receiving
the formal hearing record, the Bureau
shall notify the tribal organization
(unless restricted by the tribal resolu-
tion under §271.18(c)(2) or subsequent
resolutions) or tribal governing body(s)
and the Area Director(s) of the Com-
missioner's decision.
(1) When the Commissioner does not
accept the Area Director(s) rec-
ommendation to decline, following the
review of the factual record developed
under §271.81(c)(l), notice shall be given
that the recommendations are not ac-
cepted and that the Bureau shall nego-
tiate and award the contract within 45
days unless the applicant requests ad-
ditional time.
(2) If the Commissioner determines
under §271.81(d) that the application
should be declined, the declination no-
tice shall be issued as follows:
(i) Within 30 working days as pro-
vided under §271.81(d).
(11) Within 30 days after notifying the
applicant under paragraph (d)(2) of this
section when the applicant has not
used the right under paragraph (d)(2).
(3) The declination notice shall be in
writing and shall contain:
(i) Identification of specific objec-
tions, categorized under one or more of
the declination criteria set forth In
§271.15.
(ii) Specific recommendations on ac-
tions required by the applicant to over-
come objections and a description of
the nature, scope, and source of the
technical assistance which will be
available to overcome declination ob-
jections.
(iii) Copies of the transcript of the
formal hearing and all documentary
§27
evidence introduffiff as provided ui
§271.81(c)(vii).
[45 PR 13450, Feb. 29. 1980)
$271.26 [Reserved]
§271.27 Technical assistance after-
lination.
If the Commissioner's decision to
cline to contract is not appealed o
upheld on appeal, the Commissk
shall immediately offer technical
siatance to the tribal governing b
for the purpose of overcoming the i
lination issues. Within 30 days of
tribal governing body's acceptanc<
this offer, the Commissioner will m
technical assistance available to
tribal governing body for the deve
ment of a plan for overcoming the
jections that resulted In the decisio
decline.
{271.28 Failure of Bureau Agencj
Area Office to act.
Whenever a Bureau Agency or /
Office official fails to take action c
contract application within the t
limits established in this part, the t
al organization that submitted the
plication, may, at its option, reqi
action by the next higher Bureau <
cial. In such cases, the official t
failed to act shall immediately forw
the application and all material pe
nent thereto to the official to wl
the request for action was made.
Subport C—Additional Requi
ments for Trust Responsible
§271.31 Applicability.
This subpart gives additional requ
ments applicable to the applicat
and approval process for contn
under this part which involve the
reau's trust responsibilities in the £>
of natural resources, such as ass
ments, irrigation, real estate, fores
range management, wildlife and pa'
water Inventories, and hunting
fishing.
$271.32 Contractable functions or j
grams.
Contractable trust resources )
grams, or portions thereof, include
following:
658
659
-------
§271.32
(a) Assessments: Inventories of exist-
ing resources In trust for Individuals
and for tribes-
(b) Soil and moisture conservation:
Basic soil- and water conservation, wa-
tershed protection, flood prevention.
cooperative surveys and investigations.
and resource conservation and develop-
ment.
(c) Irrigation; Development, construc-
tion, recordkeeplng. rehabilitation, op-
erations, and maintenance.
(d)(l) Real estate: Land use planning
and zoning, maintenance of land
records, preparation of abstracts of
title, research programs to determine
heirshlp and inventory of estates, col-
lection of technical data, and studies
to be used in determinations of tribal
claims to real property, collection of
data leading to ascertainment of sur-
face and subsurface resources, and ad-
ministration of leases.
(2) Advice and technical assistance
provided Individual landowners in con-
nection with lease negotiations ini-
tially will be made concurrently by the
contractor and an appropriately des-
ignated Federal official.
(e) Forestry: Forest management and
planning, including the making of in-
ventories, management plans and
maintenance, tribal or individual In-
dian consultation services, administra-
tion of timber sales and Indian permit
cutting, conduct of timber stand im-
provement projects, protection of the
forest against wildfire, trespass, dis-
ease, or Insect infestation, and partici-
pation in cooperative programs with
other Federal, State, or tribal organi-
zations related to programs of the Bu-
reau. Activities which already are pro-
vided Indian forests from non-Bureau
sources, as part of the management of
a forested area larger than the reserva-
tion, are not contractable under provi-
sions of this part. Advice and technical
assistance provided individual land-
owners in connection with forestry pro-
grams will be made concurrently by
the contractor and an appropriately
designated Federal official.
(0 Range management: (1) Range re-
source inventories, range utilization
inspections, and trend studies.'
(2) Range management plans.
(3) Development of contract stipula-
tions for agricultural leases and per-
25 CFR Ch. I (4-1-94 Edition)
mits (land use stipulations or conserva-
tion standards necessary to define each
use shall be incorporated in and made a
part of such lease or permit).
(4) Supervision of compliance, to in-
clude:
(i) Establishment of range units.
(ii) Establishment of grazing capac-
ity and season of use.
(Hi) Preparation, assignment, modi-
fication, and cancellation of grazing
permit contracts.
(iv) Preparation of Authority to
Grant Crazing Privileges on Allotted
Lands. Obtain approval of
landowner(s).
(v) Development of allocation of
grazing privileges.
(vi) Processing of competitive and
negotiated sales of grazing privileges.
(vii) Proposal of revision to grazing
permit forms.
(viii) Determination of kind of live-
stock to be grazed on tribal and Gov-
ernment land, and recommendation of
kind of livestock to be grazed on indi-
vidually owned land.
(ix) Establishment of grazing fees on
tribal lands, recommendation of graz-
ing fees on individually owned lands
not containing stipulated rates, and to
non-Indian owned livestock which allo-
cated permittees may be authorized to
graze on tribal lands.
(x) Prescription of duration of graz-
ing permits.
(xi) Establishment of bonding and in-
surance requirements.
(xii) Determination of ownership of
range improvements.
(xiii) Investigation and processing of
livestock trespass action.
(xiv) Requirement of participation in
control of livestock diseases.
(5) Fee collection and disposition as
directed by the Bureau, to include:
(1) Tribal fees and taxes.
(ii) Annual grazing fees.
(Ill) Annual permit preparation fees.
(iv) Liquidated damages for excess
stocking.
(v) Livestock trespass damage to
property injured or destroyed, trespass
penalty, and value of forage consumed.
(6) Watershed management.
(7) Wildfire prevention and control.
(g) Wildfire and parks: (1) Game, fish.
and outdoor recreation Inventories.
(2) Game and fish management plans.
Bureau of Indian Affairs, Interior
(3) Outdoor recreation planning, de-
velopment, and management.
(4) Conservation, use. development,
and management of fish and wildlife
resources,
(5) Preservation of natural beauty,
historical sites, and archuological re-
mains.
(6) Wildlife prevention and control.
(h) Water inventories and other appro-
priate programs for protection of water
rights, (i) Hunting and fishing: pro-
grams to regulate and enforce, on- and
off-reservation hunting and fishing and
programs to provide data supporting
litigation concerning hunting and fish-
ing issues.
(40 FR 51286. Nov. 4. 1915. as amended at «
FR 37«4. Aug. 23. 1978)
5 271.33 Content of application.
In addition to the information re-
quired in §271.14, the following addi-
tional information shall be Included in
the contract application when a trust
resource or responsibility is involved:
(a) A statement of the Impact of pro-
posed activity on trust resources relat-
ed to:
(1) Maintenance of inventory levels
and values to tribes and to Individuals:
and.
(2) Income to individuals and tribe.
The statement must also demonstrate
a thorough assessment of the trust re-
sources Issues, positive steps to protect
the trust resources, provisions that
limit or eliminate potential for con-
flicts-of-lnterest, and that no delega-
tion of trust responsibility is re-
quested.
(b) A statement of the special skills
and qualifications required of person-
nel attached to program activity im-
pacting on trust resources and trust re-
sponsibility.
$271.34 Criteria fur declining to con-
tract.
If a contract application Includes a
project or function which is related to
the Bureau's performance of a trust re-
sponsibility in the area of natural re-
sources as given in §271.32, the Com-
missioner shall decline to contract if
he finds that:
(a) The contract application provides
for or would necessarily require the
delegation to the tribal organization of
660
§27
a trust responsibility vested by la
the Secretary or the Commissioner
(b) The contract application pro'
for the termination of a trust ret
sibillty.
(c) The contract application pro^
for completion or maintenance ol
project or function to a lesser stan
than under Bureau adminlstra
However, a tribal proposal to raise
formance standards shall not be
as a reason for declination.
(d) The proposed activity reqi
special skills for its performance
the proposed key staff does not >
Civil Service Commission or exce
qualification standards, other acce
professional standards appropriat
the discipline involved, or are not
erwise recognized as technically q
fled.
(e) If the contract application 1-
range management and includes \
performed under paragraph (0(4
(0(5) of §271.32, the applicant i
agree in the contract application tt
Contracting Officer's review and
proval of such work.
[43 FR 37444. Auf. 23, 1978]
Subpart D—General Contrac
Requirements
$271.41 Advance payments,
(a) At the request of a tribal com
tor, the Bureau contracting of'
shall make advance payments u
contracts as provided in this seci
The requirements given in this sec
and in Chapter 2000 of the Trea
Fiscal Requirements Manual, as rr
fied or supplemented, apply to ma'
the advance payments.
(b) Any request for advance payr
by a. tribal contractor shall specify
amount(s) required and the dates ;
advance(s) will be required and sha
supported by a schedule of estlm
expenditures.
(c) An initial advance will be lim
to the amount of estimated expt
tures for a sufficient period of tim<
quired to effect payment, based on
perience In the locality. The initial
vance may be made in amounts an
times determined suitable to sai
the minimum essential needs of
contractor.
661
-------
§271.42
(d) Later advances may be made at
times and in amounts determined nec-
essary to insure availability of funds
for timely payment of the tribal con-
tractor's obligations and to minimize
the time between withdrawal from the
Treasury and expenditure. Bequests for
advances after an initial advance shall
be accompanied and supported by a re-
port of expenditures to date and the
amount of funds on hand. For advance
payment methods other than the Let-
ter of Credit method, requests for ad-
vances made after an initial advance
shall be accompanied and supported by
a report of expenditures to date, the
amount of funds on hand, and the an-
ticipated needs until receipt of pay-
ment.
(e) Advance payments shall be made
as follows:
(1) When the annual advance to a
tribal contractor is expected to exceed
$120,000 in the aggregate and the con-
tract term is for at least one year, the
letter-of-credit method normally shall
be used. The requirements contained in
Chapter 2000 of the Treasury Fiscal Re-
quirements Manual, as modified or sup-
plemented, shall apply to making these
advance payments.
(2) Except as provided in paragraph
(ej(l) of this section, advance payments
shall be made by check made payable
to the tribal contractor and handled as
follows:
(i) Advance payments may be made
directly to the tribal contractor when
the contractor is a tribal governing
body, a non-profit Indian organization
serving as a governmental instrumen-
tality of an Indian tribe or an inter-
tribal council. However, when the con-
tractor is not one of the above, the ad-
vance payment may be made directly if
all of the following conditions exist:
(A) The advance payment does not
exceed $2,500.
(B) It is the only advance payment
involved in the contract,
(C) The performance time is less than
90 days.
(D) The advance payment does not
exceed 85 percent of the amount of the
contract.
(ii) Checks for advance payments
which cannot be made directly to the
tribal contractor, as given in para-
graph (e)(2)(i) of this section, shall be
25 CFR Ch. I (4-1-94 Edition)
marked for deposit in a special bank
account established for the contract.
No part of the funds deposited in the
special bank account shall be mingled
with other funds of the tribal contrac-
tor before the funds are withdrawn to
meet obligations under the contract.
(f) Tribal contractors shall not be
held accountable for interest earned on
funds advanced pending disbursement.
However, bank balances must be main-
tained at the minimum level consist-
ent with program requirements. Re-
quests for advances shall be reviewed
to insure that excess funds are not ad-
vanced.
(g) Sub-advances may be made when
predetermined as a part of contracted
programs or when specifically author-
ized in writing by the contracting offi-
cer. Sub-advances will not be made to
individuals except for approved travel.
In such cases, the sub-advances shall
not exceed the minimum required for
one trip and shall be settled by voucher
or repayment within 30 days.
[40 PR 51286, Nov. 4. 1975, as amended at 43
FR 37444, Aug. 23. 1978]
} 271.42 Use of government property.
(a) In carrying out a contract made
under this part, the Superintendent,
Area Director or Commissioner shall,
wherever possible, permit a tribal con-
tractor to use existing buildings, facili-
ties, and related equipment and other
personal property owned by the Bureau
within his Jurisdiction. To the extent
possible, arrangements on the use of
Bureau property shall be provided for
in the contract agreement. In deter-
mining whether real or personal prop-
erty can be provided, the Bureau shall
determine whether it can provide com-
parable services for any of the
uncontracted part(s) of the program.
(b) Requests for the use of Bureau
property which arise after signing of
the contract shall be submitted to the
relevant Bureau official by the tribal
organization. Such requests should be
granted and the contract appropriately
amended unless such use will seriously
interfere with the administration of ex-
isting Bureau programs. The property
at the time of transfer must conform
to the minimum standards established
by the Occupational Safety and Health
Bureau of Indian Affairs, Interior
Act of 1970 (84 Stat. 1590). as amended
(29 U.S.C. 651).
§ 271.43 Wage and labor standards.
(a) All laborers and mechanics em-
ployed by tribal contractors or- sub-
contractors in the construction, alter-
ation, or repair of buildings or other fa-
cilities in connection with contracts
under this part shall be paid wages not
less than those on similar construction
in the locality as determined by the
Secretary of Labor in accordance with
the Davis-Bacon Act of March 3, 1931
(46 Stat. 1494), as amended. However,
this requirement does not apply where
the tribal contractor is the recognized
governing body of the tribe or a non-
profit Indian organization serving as a
governmental instrumentality of an In-
dian tribe and the construction, alter-
ation, or repair work is being per-
formed by the tribal organization or
the tribe with its own employees.
§271.44 Indian preference.
(a) Any contract made by the Bureau
with a tribal organization shall provide
that the tribal contractor shall, to the
greatest extent feasible, give pref-
erence in and opportunities for employ-
ment and training to Indians.
(b) Any contract made by the Bureau
with a tribal organization shall provide
that the tribal contractor shall, to the
greatest extent feasible, give pref-
erence in the award of subcontracts to
Indian organizations and to Indian-
owned economic enterprises.
(c) All subcontractors employed by
the tribal organization shall, to the ex-
tent possible, give preference to Indi-
ans for employment and training and
shall be required to Include in their bid
submission a plan to achieve maximum
use of Indian personnel.
(d) In the performance of contracts
under this part 271 and subject to the
provisions of Part 14H-70 of title 41, a
tribal governing body may develop its
own Indian preference requirements to
the extent that such requirements are
not inconsistent with the purpose and
intent of paragraphs (a), (b), and (c) of
this section.
§271
'motor vehicle i
$271.46 Liability^
•urance.
(a) Tribal organizations shall obta
public liability Insurance under co
tracts entered with the Bureau und
this part. However, where the contrac
ing officer determines that the risk
death, personal injury or proper'
damage under the contract is small ai
that the time and cost of procuring tl
Insurance IB great in relation to t)
risk, the contract may be exempt)
from this requirement.
(b) Notwithstanding paragraph (a)
this section, any contract which r
quires or authorizes, either express
or by implication, the use of motor v
hides must contain a provision requi
ing the tribal organization to provi<
liability insurance, regardless of he
small the risk.
$271.46 Recordkeeplng.
A tribal contractor will be require
to maintain a recordkeeping syste<
which will allow the Bureau to meet i
legal records program requirement
under the Federal Records Act (•
U.S.C. 3101 et seq.) and to facllltat
contract retrocession or reassumptic
under Subpart F of this part. Such
record system shall:
(a) Fully reflect all financial tran
actions involving the receipt and e:
penditure of funds provided under tt
contract in a manner which will pn
vide accurate, current and complet
disclosure of financial status; correli
tion with budget or allowable cot
schedules; and clear audit facilitatin
data.
(b) Reflect the amounts and source
of funds other than contract fun<
which may be included In the operatic
of a program.
(c) Provide for the creation, malnti
nance and safeguarding of records c
lasting value, including those Involvin
individual rights, such as permaner
student records and transcripts.
(d) Provide for orderly retirement <
records used or created under the cor
tract. Such records shall be returned t
the Bureau for disposition according t
the General Records Schedules and th
Bureau Records Control Schedules.
(e) Provide recordkeeping adequat
to verify the fairness and uniformity c
662
663
-------
j 271.47
lervices provided to the Indians af-
fected by the contract in case of formal
complaints.
[40 FR 51286, Nov. 4, 1975, as amended at 43
FR 37444, Aug. 23, 1978]
(271.47 Records—access to and reten-
tion.
(a) During the term of a contract
under this part and for three years
after the project or undertaking is
completed, the Comptroller General,
the Secretary and the Commissioner or
any of their duly authorized represent-
atives shall have access, for audit and
examination purposes, to any of the
tribal contractor's books, documents,
papers, and records which are related
or pertinent to the contract or any
subcontract, with the following excep-
tions:
(1) The records shall be retained be-
yond the three year period if audit
findings have not been resolved.
(2) When records are transferred to or
maintained by the Bureau, the three
year retention requirement does not
pertain to the contractor for those
records.
(b) The tribal contractor will be re-
sponsible for maintaining all docu-
ments such as invoices, purchase or-
ders, cancelled checks, balance sheets
and all other records relating to finan-
cial transactions in a manner which
will facilitate auditing. The tribal con-
tractor will be responsible for main-
taining files of correspondence and
other documents relating to the admin-
istration of the program or project
properly separated from general
records or cross-referenced to general
files.
5271.48 Freedom of Information.
(a) Unless otherwise required by law.
the Bureau shall not place restrictions
on tribal contractors which will limit
public access to the tribal contractors'
records except when records must re-
main confidential
(b) A tribal contractor under this
part shall make all reports and infor-
mation concerning the contract, in-
cluding the report required under
$271.49, available to the Indian people
which the contractor serves or rep-
resents. ReooEta and information may
25 CFR Ch. I (4-1-94 Edition)
be withheld from disclosure only when
both of the following conditions exist:
(1) The reports and information fall
within one of the following exempt cat-
egories:
(1) Specifically required by statute or
Executive Order to be kept secret.
(11) Related solely to internal person-
nel rules and practices of the Bureau.
(ill) Commercial or financial infor-
mation obtained from a person or firm
or a privileged or confidential basis.
(iv) Memoranda or letters between
agencies of the Federal Government
which would not be available by law to
a party other than the Federal Govern-
ment in litigation with the Federal
Government.
(v) Personnel, medical, and similar
files where disclosure would be a clear-
ly unwarranted invasion of personal
privacy.
(vi) Investigatory records compiled
for law enforcement purposes when
production of the records would:
(A) Interfere with enforcement pro-
ceedings;
(B) Deprive a person of a right to a
fair trial;
(C) Be an unwarranted invasion of
personal privacy;
(D) Disclose the identity of a con-
fidential source and confidential infor-
mation furnished only by the confiden-
tial source;
(E) Disclose investigative techniques
and procedures; or
(F) Endanger the life or physical
safety of law enforcement personnel.
(vii) Contained in or related to exam-
ination, operating, or condition reports
prepared for the use of an agency of the
Federal Government responsible for
the regulation or supervision of finan-
cial institutions.
(viii) Geological and geophysical in-
formation and data concerning wells.
(2) Disclosure is prohibited by statute
or Executive Order or sound grounds
exist for using the exemption given in
paragraph (b)(l) of this section.
(c) A request to inspect or copy re-
ports and information shall be in writ-
ing and must reasonably describe the
reports and information requested. The
request may be delivered or mailed to
the tribal contractor. Within ten work-
ing days after receiving the request,
the tribal contractor shall determine
Bureau of Indian Affairs, Interior
whether to grant or deny the request.
The requester shall be notified imme-
diately of the determination.
(d) The time limit for making a de-
termination may be extended up to an
additional ten working days for good
reason. The requester shall be notified
In writing of the extension, reasons for
the extension, and date on which the
determination is expected to be made.
5 271.49 Annual reporting.
(a) For each fiscal year during which
a tribal organization receives or ex-
pends funds pursuant to a contract
under this part, the tribe which re-
quested the contract must submit a re-
port to the Commissioner. The report
shall include, but not be limited to, an
accounting of the amounts and pur-
poses for which the contract funds were
expended, the tribe's evaluation of the
contract performance using the cri-
teria submitted in the contract appli-
cation, and information on the conduct
of the program or services involved.
The report shall include any other con-
tract-related information requested by
the Commissioner and may be submit-
ted as follows:
(1) When the contract is with the
governing body of an Indian tribe, the
tribe shall submit the report to the
Area Director.
(2) When the contract is with a tribal
organization other than the governing
body of the tribe, the tribe has the op-
tion of having the tribal organization
prepare the report and submit it to the
tribe for review and approval before the
tribe submits it to the Area Director or
Commissioner as appropriate.
(3) When the contract benefits more
than one tribe, the tribal organization
shall prepare and submit the report to
each of the tribes benefiting under the
contract. Bach tribe shall endorse the
report before submitting it to the Area
Director or Commissioner as appro-
priate. Should any of the tribes fail to
endorse the report within 75 days of its
receipt, the tribal organization may
submit the report with the endorse-
ments that have been received.
(b) The annual report shall be sub-
mitted to the Area Director or Com-
missioner as appropriate within 90 days
after the end of the fiscal year in which
the contract was performed. However,
§271.51
upon receipt of a written request, the
period for submitting the report may
be extended by the Area Director or
the Commissioner if there is Just cause
for such extension.
(c) In addition to the yearly report-
ing requirement given in paragraphs
(a) and (b) of this section, the contract
shall provide that the tribal contractor
will make available monthly, to mem-
bers of the trlbe(s) affected, an ac-
counting of the amounts and the pur-
poses for which the contract funds were
expended during the previous monthly
period in the following manner:
(1) By posting a notice containing
such information on or before the
tenth of each month, at a conspicuous
place readily accessible to members of
the tribe(s) affected; or,
(2) By such other means as is mutu-
ally agreed to by the tribal contractor
and the Bureau.
(d) In addition to the requirements
contained in paragraphs (a), (b) and (c)
of this section, the tribal contractor
shall furnish other contract-related re-
ports when and as required by the Area
Director or Commissioner.
§271.50 Penalties.
If any officer, director, agent, or em-
ployee of, or connected with, any con-
tractor or subcontractor under this
part embezzles, willfully misapplies,
steals, or obtains by fraud any of the
funds or property connected with the
contract or subcontract, he shall be
subject to the following penalties:
(a) If the amount involved does not
exceed $100 he shall be fined not more
than $1,000 or imprisoned not more
than one year, or both.
(b) If the amount involved exceeds
$100, he shall be fined not more than
$10,000 or imprisoned for not more than
two years, or both.
S 271.51 Federal contracting laws and
regulations.
(a) Contracts with a tribal organiza-
tion under this part shall comply with
the Bureau procurement regulations
contained in 41 CFR part 14H-70, except
as provided in paragraph (b) of this sec-
tion.
(b) The Commissioner may waive any
Federal contracting laws, executive or-
ders, regulations, rules and other ad-
664
665
-------
j 271.47
lervices provided to the Indians af-
fected by the contract in case of formal
complaints.
[40 FR 51286, Nov. 4, 1975, as amended at 43
FR 37444, Aug. 23, 1978]
(271.47 Records—access to and reten-
tion.
(a) During the term of a contract
under this part and for three years
after the project or undertaking is
completed, the Comptroller General,
the Secretary and the Commissioner or
any of their duly authorized represent-
atives shall have access, for audit and
examination purposes, to any of the
tribal contractor's books, documents,
papers, and records which are related
or pertinent to the contract or any
subcontract, with the following excep-
tions:
(1) The records shall be retained be-
yond the three year period if audit
findings have not been resolved.
(2) When records are transferred to or
maintained by the Bureau, the three
year retention requirement does not
pertain to the contractor for those
records.
(b) The tribal contractor will be re-
sponsible for maintaining all docu-
ments such as invoices, purchase or-
ders, cancelled checks, balance sheets
and all other records relating to finan-
cial transactions in a manner which
will facilitate auditing. The tribal con-
tractor will be responsible for main-
taining files of correspondence and
other documents relating to the admin-
istration of the program or project
properly separated from general
records or cross-referenced to general
files.
5271.48 Freedom of Information.
(a) Unless otherwise required by law.
the Bureau shall not place restrictions
on tribal contractors which will limit
public access to the tribal contractors'
records except when records must re-
main confidential
(b) A tribal contractor under this
part shall make all reports and infor-
mation concerning the contract, in-
cluding the report required under
$271.49, available to the Indian people
which the contractor serves or rep-
resents. RepOEj^and information may
25 CFR Ch. I (4-1-94 Edition)
be withheld from disclosure only when
both of the following conditions exist:
(1) The reports and information fall
within one of the following exempt cat-
egories:
(1) Specifically required by statute or
Executive Order to be kept secret.
(11) Related solely to internal person-
nel rules and practices of the Bureau.
(ill) Commercial or financial infor-
mation obtained from a person or firm
or a privileged or confidential basis.
(iv) Memoranda or letters between
agencies of the Federal Government
which would not be available by law to
a party other than the Federal Govern-
ment in litigation with the Federal
Government.
(v) Personnel, medical, and similar
files where disclosure would be a clear-
ly unwarranted invasion of personal
privacy.
(vi) Investigatory records compiled
for law enforcement purposes when
production of the records would:
(A) Interfere with enforcement pro-
ceedings;
(B) Deprive a person of a right to a
fair trial;
(C) Be an unwarranted invasion of
personal privacy;
(D) Disclose the identity of a con-
fidential source and confidential infor-
mation furnished only by the confiden-
tial source;
(E) Disclose investigative techniques
and procedures; or
(F) Endanger the life or physical
safety of law enforcement personnel.
(vii) Contained in or related to exam-
ination, operating, or condition reports
prepared for the use of an agency of the
Federal Government responsible for
the regulation or supervision of finan-
cial institutions.
(viii) Geological and geophysical in-
formation and data concerning wells.
(2) Disclosure is prohibited by statute
or Executive Order or sound grounds
exist for using the exemption given in
paragraph (b)(l) of this section.
(c) A request to inspect or copy re-
ports and information shall be in writ-
ing and must reasonably describe the
reports and information requested. The
request may be delivered or mailed to
the tribal contractor. Within ten work-
ing days after receiving the request,
the tribal contractor shall determine
Bureau of Indian Affairs, Interior
whether to grant or deny the request.
The requester shall be notified imme-
diately of the determination.
(d) The time limit for making a de-
termination may be extended up to an
additional ten working days for good
reason. The requester shall be notified
In writing of the extension, reasons for
the extension, and date on which the
determination is expected to be made.
5 271.49 Annual reporting.
(a) For each fiscal year during which
a tribal organization receives or ex-
pends funds pursuant to a contract
under this part, the tribe which re-
quested the contract must submit a re-
port to the Commissioner. The report
shall include, but not be limited to, an
accounting of the amounts and pur-
poses for which the contract funds were
expended, the tribe's evaluation of the
contract performance using the cri-
teria submitted in the contract appli-
cation, and information on the conduct
of the program or services involved.
The report shall include any other con-
tract-related information requested by
the Commissioner and may be submit-
ted as follows:
(1) When the contract is with the
governing body of an Indian tribe, the
tribe shall submit the report to the
Area Director.
(2) When the contract is with a tribal
organization other than the governing
body of the tribe, the tribe has the op-
tion of having the tribal organization
prepare the report and submit it to the
tribe for review and approval before the
tribe submits it to the Area Director or
Commissioner as appropriate.
(3) When the contract benefits more
than one tribe, the tribal organization
shall prepare and submit the report to
each of the tribes benefiting under the
contract. Bach tribe shall endorse the
report before submitting it to the Area
Director or Commissioner as appro-
priate. Should any of the tribes fail to
endorse the report within 75 days of its
receipt, the tribal organization may
submit the report with the endorse-
ments that have been received.
(b) The annual report shall be sub-
mitted to the Area Director or Com-
missioner as appropriate within 90 days
after the end of the fiscal year in which
the contract was performed. However,
§271.51
upon receipt of a written request, the
period for submitting the report may
be extended by the Area Director or
the Commissioner if there is Just cause
for such extension.
(c) In addition to the yearly report-
ing requirement given in paragraphs
(a) and (b) of this section, the contract
shall provide that the tribal contractor
will make available monthly, to mem-
bers of the trlbe(s) affected, an ac-
counting of the amounts and the pur-
poses for which the contract funds were
expended during the previous monthly
period in the following manner:
(1) By posting a notice containing
such information on or before the
tenth of each month, at a conspicuous
place readily accessible to members of
the tribe(s) affected; or,
(2) By such other means as is mutu-
ally agreed to by the tribal contractor
and the Bureau.
(d) In addition to the requirements
contained in paragraphs (a), (b) and (c)
of this section, the tribal contractor
shall furnish other contract-related re-
ports when and as required by the Area
Director or Commissioner.
§271.50 Penalties.
If any officer, director, agent, or em-
ployee of, or connected with, any con-
tractor or subcontractor under this
part embezzles, willfully misapplies,
steals, or obtains by fraud any of the
funds or property connected with the
contract or subcontract, he shall be
subject to the following penalties:
(a) If the amount involved does not
exceed $100 he shall be fined not more
than $1,000 or imprisoned not more
than one year, or both.
(b) If the amount involved exceeds
$100, he shall be fined not more than
$10,000 or imprisoned for not more than
two years, or both.
S 271.51 Federal contracting laws and
regulations.
(a) Contracts with a tribal organiza-
tion under this part shall comply with
the Bureau procurement regulations
contained in 41 CFR part 14H-70, except
as provided in paragraph (b) of this sec-
tion.
(b) The Commissioner may waive any
Federal contracting laws, executive or-
ders, regulations, rules and other ad-
664
665
-------
§271.56
part shall not be considered as savings
for the purposes of this section. Excess
social services grant funds will be
deobllgated from the contract.
[40 FR 51286. Nov. 4, 1976, as amended at 43
FR 37445. Aug. 23,1978]
§ 271.66 Privacy Act requirement*.
(a) When a tribal contractor operates
a system of records to accomplish a
Bureau function, the contractor shall
comply with subpart D of 43 CFR part
2 which implements the Privacy Act (5
U.S.C. 652a). Examples of the tribal
contractor's responsibilities are:
(1) To continue maintaining those
systems of records declared by the Bu-
reau to be subject to the Privacy Act
as published in the FEDERAL REGISTER.
(2) To make such records available to
individuals involved.
(3) To disclose an individual's record
to third parties only after receiving
permission from the individual to
whom the record pertains. 43 CFR 2.56
lists exceptions to this procedure.
(4) To establish a procedure to ac-
count for access, disclosures, denials.
and amendments to records.
(5) To provide aafeguards for the pro-
tection of the records.
(b) The tribal contractor may not:
(1) Discontinue or alter any estab-
lished systems of records without prior
approval of the appropriate Bureau sys-
tems manager.
(2) Deny requests for notification or
access of records without prior ap-
proval of the appropriate Bureau sys-
tems manager.
' (3) Approve or deny requests for
amendments of records without prior
approval of the appropriate Bureau sys-
tems manager.
(4) Establish a new system of records
without prior approval of the Depart-
ment of Interior and the Office of Man-
agement and Budget.
(5) Collect Information about an indi-
vidual unless It is relevant or nec-
essary to accomplish a purpose of the
Bureau as required by statute or Exec-
utive Order.
(c) The tribal contractor is subject to
the penaltietuvided In section (1) of
5 U.S.C.
25 CFR Ch. I (4-1-94 Edition)
Subpart E—Contract Revision or
Amendment
(271.61 Requesting revision or amend-
ment.
(a) Any contract made under this
part may be revised or amended as
deemed necessary to carry out the pur-
poses of the program, project or func-
tion being contracted.
(b) The contractor shall submit pro-
posed revisions and amendments to the
Bureau as follows:
(1) To the contracting officer in the
Area Office when the tribe(s) or Indians
served by the contract are within the
Jurisdiction of that Area Office.
(2) To the contracting officer in the •
Bureau's headquarters in Washington,
D.C. when the tribe(s) or Indians served
are within the jurisdiction of more
than one Area Office.
(c) The contractor shall send copies
of all requests for revisions or amend-
ments to the designated representative
of the tribal governing body at the
same time as they are sent to the ap-
propriate contracting officer.
{271.62 Review and action by con-
tracting officer.
Upon receipt of the proposed revision
or amendment from the contractor, the
contracting officer shall, unless the
tribal resolution under §271.18(c)(2) or
any subsequent amendment restricts
such action, proceed as follows:
(a) Within five days, notify in writing
the contractor and the tribal governing
body(s) if different from the contrac-
tor, of receipt of the proposed revision
or amendment and that the tribal gov-
erning body(s) shall have 15 days from
receipt of the notice to send any writ-
ten objections to the contracting offi-
cer. If the tribal governing body(s) ob-
ject to the proposed revision or amend-
ment, the contracting officer shall so
notify the contractor and the proceed-
ings under this subpart shall cease.
(b) Within 30 days after the tribal
governing body(s) received the notice,
if no objections are received, review
the proposed revision or amendment
and the criteria for declination given
in $271-15. At the completion of the re-
view, the following action will be
taken as appropriate:
Bureau of Indian Affairs, Interior
(1) If there are no declination issues,
the contracting officer will notify the
contractor and the tribal governing
body(s) in writing of this fact and re-
vise or amend the contract within 30
days of issuing the notice or at their
convenience.
(2) If it is felt that there are declina-
tion issues that must be resolved, the
contracting officer will notify the con-
tractor and the tribal governing
body(s) of this fact and the extent of
the issues, recommend a course of ac-
tion to resolve the issues and offer
technical assistance to resolve the is-
sues within 30 days after issuing the
notice,
(i) If the contractor and the tribal
governing body(s) accept the technical
assistance, it shall continue in accord-
ance with their request. At such time
as the Issues are thus resolved the con-
tracting officer will so advise the con-
tractor and the tribal governing
body(s) and revise or amend the con-
tract within 15 days of resolution or at
their convenience.
(11) If the contractor and the tribal
governing body(s) decline the contract-
ing officer's offer of technical assist-
ance and the matter is not otherwise
resolved, the contracting officer shall
proceed in accordance with §271.63.
(Hi) If the contractor and the tribal
governing body(s) do not respond with-
in 30 days of receipt of the contracting
officer's recommendations and offer of
assistance and do not request addi-
tional time in which to respond, the
contracting officer shall proceed in ac-
cordance with §271.63.
(iv) If the contractor and the tribal
governing body(s) do not agree with
the contracting officer's recommenda-
tions and the matter is not resolved
within 30 days of the contracting offi-
cer's receipt of their response to the
contracting officer's recommendations,
the contracting officer shall proceed in
accordance with §271.63.
$271.63 Contracting officer's rec-
ommendation to decline.
(a) If the contracting officer, the con-
tractor, and the tribal governing body
fail to resolve the declination issues,
the contracting officer shall prepare a
written recommendation to decline.
§271.64
(b) This recommendation shall con-
tain, at a minimum, the following in-
formation:
(1) Identification of specific objec
tions, categorized under one or more oi
the declination factors set forth ir
§271.15.
(2) Specific recommendations on ac
tions required by the contractor 01
trlbe(s) to overcome objections.
(3) Description of the nature, scope
and source of the technical assistants
which has been provided or offered bj
the Bureau to assist the contractor ant
the tribal governing body(s) to over
come the declination objections.
(4) Copies of all correspondence be
tween the contracting officer and con
tractor and tribal governing body(s
and all responses thereto, including
any reports of meetings between th<
parties relative to the proposed revi
si on or amendment.
(5) Copy of original proposed revisloi
or amendment.
(c) The contracting officer shal
make written recommendations to:
(1) The Area Director when thi
tribe(s) or Indians served by the con
tract are within the jurisdiction o
that Area Office.
(2) The Commissioner when the tribes
or Indians served are within the juris
diction of more than one Area Office.
J 271.64 Review and action by Area Di
rector or Commissioner.
(a) Within five days after receiving i
proposed revision or amendment am
the contracting officer's recommenda
tions to decline, the Area Director 01
Commissioner as given in §271.61 shal
notify the contractor and the trlba
governing body(s) in writing of the re
ceipt of the proposed revision o:
amendment.
(b) Within 15 days after receiving th«
contracting officer's recommendations
the Area Director or Commissione
shall review the application, the con
tracting officer's recommendations
and the declination criteria in §271.16.
(c) Within 15 days after receiving th<
contracting officer's recommendations
the Area Director or Commissione
shall notify the contractor, the appro
priate tribal governing body(s), and th-
contracting office of one of the follow
ing:
669
-------
§271.65
(1) When the Area Director or Com-
missioner does not accept the contract-
in? officer's recommendations to de-
cline or to recommend not to contract
because of funding problems, notice
shall be given that the recommenda-
tions are not accepted and that the Bu-
reau shall revise or amend the contract
as requested by the contractor and the
tribal governing body(s).
(2) When the Area Director or Com-
missioner accepts the contracting offi-
cer's recommendations and believes
the Bureau should not revise or amend
the contract as requested, notice shall
be given that the Area Director or
Commissioner plans to issue a declina-
tion notice and that the contractor and
the tribal governing body(s) have the
right to appeal under §271.81.
[40 FR 61286. Nov. 4. 1975. aa amended at 45
FR 13450. Feb. 29,1980)
S 271.66 [Reserved]
{271.66 Revision* or amendment* pro-
posed by Bureau.
r ,
(a) Where the Bureau proposes a revi-
sion or amendment to a specific con-
tract, it shall notify the contractor and
the tribal governing body(s) in writing
of the following:
(1) The specific revision or amend-
ment which Is proposed.
(2) The rationale for the proposal.
(b) Except as provided in paragraph
(c) of this section, all amendments pro-
posed by the Bureau must be agreed to,
in writing, by the contractor, the trib-
al governing body(s) and the Bureau. If
such agreement cannot be obtained,
the proposed amendment shall not be
adopted by the Bureau.
(c) When the Bureau finds through
fiscal analysis that a redistribution of
excess social services grant funds
should be made in order to meet finan-
cial assistance needs in other Bureau
jurisdictions, or in other social services
grant program components within the
same Bureau Jurisdiction, the bureau
has the right to revise the amount of
social services grant funds designated
in a contract without obtaining agree-
ment by the contractor and tribal gov-
erning body(s). However, the Bureau
must notify the contractor and tribal
25 CFR Ch. I (4-1-94 Edition)
governing body(s) in writing as re-
quired by paragraph (a) of this section.
(40 FR 51286. Nov. 4. 1975. aa amended at 43
FR 37445. Aug. 23. 1978]
Subpart F—Retrocession and
Reassumptlon
$271.71 Retrocession,
(a) Tribal governing bodies not only
have a right to contract for Bureau
programs or portions thereof, as they
choose, but.also have a right to return
responsibility for the operation of a
contracted program or portion thereof
to the Bureau for any reason they
deem appropriate. Retrocession specifi-
cally recognizes the Federal Govern-
ment's unique and continuing relation-
ship with and responsibility to Indian
people.
(b) When a tribal organization experi-
ences specific problems with the oper-
ation of a contract and Is considering
the possibility of retrocession, it 'may
request the Bureau to assist it to avoid
retrocession. In the event of such a re-
quest,.the Bureau will:
(1) Meet with appropriate officials of
the tribal organization and the tribe,
where the tribal governing body is not
the contractor, to develop a plan to
avoid retrocession.
(2) Provide, to the extent possible,
special technical assistance to assist
the tribal organization to satisfac-
torily operate the program and enable
it to avoid retrocession.
5 271.72 Full retrocession procedures.
(a) Whenever an Indian tribe requests
retrocession of a contract, retrocession
shall be effective upon a date specified
by the Commissioner or Area Director
as appropriate but no later than 120
days after the date of the request from
the tribe(s), except when the trlbe(s)
and the Commissioner mutually agree
on a later date.
(b) When the contract is with a tribal
organization other than the tribal gov-
erning body and the tribal resolution
required under §27l.l8(c)(2) does not
vest in the tribal governing body the
sole right to request retrocession, the
tribal governing body shall consult
with the tribal organization and, if so
requested, offer it an opportunity to be
Bureau of Indian Affairs, Interior
heard in accordance with tribal proce-
dures before requesting retrocession of
the contract.
(c) When the contract is with a tribal
organization which is performing serv-
ices benefiting more than one Indian
tribe, all or any of the tribes may re-
quest a retrocession in accordance with
the procedures provided for in the trib-
al resolution required for the initial
contract §271.18(c)(2). When all of the
tribes request retrocession, the ret-
rocession shall be accomplished as pro-
vided for in this section. When one or
more, but not all of the tribes request
retrocession, the contract will con-
tinue until the end of the contract
term or the fiscal year, whichever
comes first. In such case the Bureau
shall assess its available resources and
capabilities to provide such services
independently of and in addition to
that being provided under the contract
and inform the tribes requesting ret-
rocession of the level of services that
will be available to them upon ret-
rocession. The fact that these services
may necessarily be at a reduced level
will not constitute cause to cancel the
existing contract providing services to
tribes not retroceding. The existing
contract will be modified as appro-
priate to reflect the nonparticlpation
to the tribes no longer being served.
The Bureau will, however, provide suf-
ficient resources to maintain the exist-
ing level of services under the contract
to the tribes that did not request ret-
rocession.
(d) Within 15 days after receipt by
the Commissioner or Area Director of a
request for retrocession, representa-
tives of the tribe(s), the tribal organi-
zation when appropriate, and the Com-
missioner or Area Director as appro-
priate shall meet and take the follow-
ing actions:
(1) Mutually agree on a plan for or-
derly transfer of responsibilities.
(2) Mutually agree on a plan for
Inventorying and accounting for mate-
rials and supplies on hand, equipment,
facilities and real property.
(3) Establish an accounting of funds,
current and anticipated obligations.
and costs of operation until the ret-
rocession date.
§271
(4) Identify all r^Brda relating to i
contract and to the contracted fu<
tion.
(e) On the date of retrocession, i
tribal contractor will deliver to the 1
reau all property that was acquii
with contract funds and all materia
supplies and records of whatever i
ture which have been identified as n
essary for the continuation of the p
gram, project or function.
(f) Within 60 days after retrocessit
the tribe(s) and the Bureau will join1
develop a report to the Commissloi
outlining the reasons why retrocessi
was requested.
(g) Retrocession of a contract by
Indian tribe shall be without prejud
to:
(1) Any other contract to which It
a party.
(2) Any other contract It may
quest.
(3) Any future request to contract i
the programs or services covered
the retroceded contract. Insofar as t
conditions which led to retrocessi
are no longer a factor and the tribal'
ganization is the same one that hi
the retroceded contract.
§ 271.73 Tribal assumption
retroceded contracts.
Wherever an Indian tribe chooses
retrocede a contract operated by a tr
al organization other than the tri)
governing body, the tribal governl
body pursuant to §271.18 may centre
for the program. In such a case, t
tribal governing body shall submit
contract application pursuant
§271.14; Provided, That the tribal g(
erning body may submit the contri
application directly to the Area Din
tor or Commissioner, as appropriate.
§ 271.74 Reassumption.
(a) A contract made under this p;
may be terminated, and control or <
eration of the program or function i
sumed by the Commissioner or Ai
Director as appropriate, in whole or
part, when the Commissioner or Ar
Director determines that the tribal <
ganization's performance under t
contract involves:
(1) The violation of the rights of a
persons can be identified as a patte
or practice, or
670
671
-------
§271.75
(2) The endanger men t of the health,
safety and welfare of any persons, or
(3) Gross negligence or mismanage-
ment in the handling or misuse of
funds provided under the contract.
(b) If the Commissioner or Area Di-
rector as appropriate finds there is an
immediate threat to safety, he may,
upon written notice to the tribal orga-
nization, Immediately suspend the con-
tract and resume control or operation
of the program. In such an event, the
Commissioner or Area Director will
hold a hearing within 10 days. The
hearing shall be conducted as provided
in §271.8l(c). The decision issued pursu-
ant to §271.81(d) shall Include a state-
ment of the corrective action needed to
be taken by the tribal organisation be-
fore it can assume operation of the
contract.
(c) If there is no immediate threat to
safety, the Commissioner or Area Di-
rector as appropriate shall provide
written notice to the tribal organiza-
tion of intent to terminate the con-
tract. The notice shall give the reasons
for the proposed termination, the cor-
rective measures necessary, and a rea-
sonable time period in which corrective
action must be taken. The Commis-
sioner or Area Director shall also hold
a hearing in accordance with $271.81
within 10 days of Issuance of the no-
tice.
(d) A decision to terminate the con-
tract and reassume control or oper-
ation may be appealed as provided in
§271.81.
(e) The Commissioner may decline to
enter into a new contract and may re-
tain control of the program or function
until he is satisfied that the conditions
which caused the contract to be termi-
nated have been corrected.
[40 FR 51286, Nov. 4, 1975, as amended at 15
FR 13450. Feb. 29, 1980)
5271.76 Cancellation of contract for
cause.
(a) Any contract with a tribal organi-
zation entered into under this part
may be cancelled for cause when the
tribal organization falls to perform
within the terms and conditions of the
contract.
(b) Before cancellation of the con-
tract, the^rea Director or Commis-
sioner sl^Htdvlsa the tribal organlza-
25 CFR Ch. I (4-1-94 Edition)
tion and the tribal governing body(s) if
different than the tribal organization
In writing of the following:
(1) The reasons why the Area Direc-
tor or Commissioner is considering
cancelling the contract.
(2) That the tribal organization will
be given at least 45 days to present an
acceptable plan to overcome the defi-
ciencies in its contract performance.
(3) That the Bureau will furnish tech-
nical advice and assistance to help
overcome the deficiencies in the con-
tract performance, when requested.
(c) When the contract is with other
than the governing body of the Indian
tribe, the tribe(s) receiving services or
benefits under the contract will be no-
tified when a cancellation for cause is
contemplated. The notice shall include
the reasons why a cancellation for
cause is contemplated and any support-
ing documents used by the Area Direc-
tor to reach his conclusions. The notice
shall also offer to held a meeting with
the tribe(s) to discuss the issues and
explore any options available to the
tribe(s). The Area Director and the
tribe(s) will mutually consider the rel-
evant Issues before the Area Director
proceeds with any cancellation action.
(d) If the tribal organization does not
present an acceptable plan to overcome
the deficiencies in its contract per-
formance within 45 days of its receipt
of the notice of deficiencies or does not
request the Commissioner to review
the Area Director's decision as pro-
vided in paragraphs (e) and (f) of this
section, the Area Director will cancel
the contract for cause. The contracting
officer will notify the tribal organiza-
tion, in writing, of the cancellation.
The notice shall give the reasons for
the cancellation and the right of the
tribal organization to appeal under
§§271.81 and 271.82.
(e) When the Area Director deter-
mines the contract should be cancelled
for cause the decision shall state as a
minimum: The reasons for the decision;
the actions that must be taken to
achieve satisfactory performance; the
technical assistance the Bureau will
provide; notice that the tribal organi-
zation will be given at least 60 days to
correct ita performance deficiencies;
and the tribal organization's right of
appeal under §§271.81 and 271.82. The de-
Bureau of Indian Affairs, Interior
cision shall also advise the tribal orga-
nization that it may request the Com-
missioner to review the decision and
that such request must be made within
30 days of receipt of the decision.
(f) The Commissioner's review will be
conducted and the tribal organization
advised of the results within 30 days of
receiving the request. If the Commis-
sioner concurs in the Area Director's
decision, the tribal organization will be
so advised in writing and of its right to
appeal the Area Director's decision
pursuant to §§271.81 and 271.82. If the
Commissioner decides that the Area
Director's decision is not supported by
the record, he will so advise both the
Area Director and the tribal organiza-
tion and the cancellation action will
cease. In no case shall an Area Director
cancel a contract until the review re-
quested by a tribal organization has
been completed by the Commissioner
and results thereof have been received.
(g) When a contract is cancelled for
cause, the Bureau will either perform
the work with its own forces or by an-
other contract, as appropriate.. When
the Bureau does not have sufficient
forces on hand to immediately perform
the work, it may, for temporary peri-
ods of the shortest duration possible,
contract with a contractor that is not
a tribal organization. However, in such
cases, the advice of the tribe(s) will be
obtained to determine how they desire
the services to be rendered.
(h) Excess costs resulting from a can-
cellation that are required to operate
the program will be provided by the
Bureau to the extent that funds are
available for that fiscal year. However,
if current funds are not sufficient to
maintain the program at its planned
level, the program may be reduced
until funds become available for the re-
mainder of the fiscal year, at which
time the program will be resumed at
its planned level.
(i) Any tribal organization that has a
contract cancelled for cause must dem-
onstrate that the causes which led to
the cancellation have been cured before
it will be considered for another con-
tract. In addition, there must be a new
resolution and a new request from the
§271
Indian tribe(s) that will receive se
ices or benefits under the contract.
[40 FR 51286. Nov. 4, 1975, as amended at
FR 5098, Feb. 4, 1976; 45 FR 13451, Feb.
1980J
$ 271.76 Bureau operation
retroceded, reassumed or cancel
for cause contract*.
(a) The Bureau shall provide to
tribe(s) and Indians served by a c
tract which is retroceded, reassumed
cancelled for cause not less than
same quantity and quality of serv
that would have been provided at
level intended by the contract or 01
ated previously by the Bureau.
(b) The Bureau shall provide to
trlbe(s) and Indians served by a c
tract which is retroceded, reassuir
or cancelled for cause not less than
same quantity and quality of pen
nent and temporary personnel t
meet the U.S. Civil Service qualifi
tions that would have been provided
the level intended by the contract
previously operated by the Bureau.'
procedures in §271.77 will be foJlowe(
obtain personnel to operate progr?
or parts of programs previously un
contract with a tribal organization
returned for operation by the Bur
because the contract was eit
retroceded, reassumed or cancelled
cause.
(c) This section does not apply
contracts for the operation of Bur
programs or parts of programs j
viously entered into under the autl
ity of the Buy Indian Act (25 U.S.C.
and in effect on the effective date
the regulations, since ceiling and p
tions were not reserved at the t
those contracts were awarded. H
ever, the Bureau will provide, as ne;
as possible, the same quantity
quality of service and permanent
temporary personnel that meet
U.S. Civil Service qualifications I
would have been provided at the 1>
Intended by the Buy Indian Act <
tract or as operated previously by
Bureau.
(d) Actions under this section s
not cause a reduction In the qua
and quantity of services to trlbe(8
Indians not served by contracts wl
672
673
-------
§271.77
are retroceded, reassumed or cancelled
for cause!
[10 FR 51286, Nov. 4. 1975. as amended at 43
PR 37446. Aug. 23.1978)
(271.77 Authorized position and end-
of-year employment ceiling reserve
for Bureau operation of retroceded,
reaMumed, or cancelled contracts.
(a) When authorized permanent and
other positions and permanent and
other end-of-year employment • ceiling
are not required for the operation of all
or parts of a Bureau program because
the program or parts of a program are
under contract with a tribal organiza-
tion under this part, the positions and
ceilings shall be reserved. The posi-
tions and celling reserved, shall be
available only for the same program or
parts of a program at the same loca-
tions if the Bureau must operate the
program or parts of a program because
a tribe has retroceded the contract or
because the Bureau has reassumed or
cancelled the contract for cause.
(b) The Bureau shall establish a posi-
tion and ceiling reserve for all con-
tracts for the operation of all or parts
of Bureau programs initially entered
into on or after the effective date of
these regulations.
Subpart G—Hearings and Appeals
§271.81 Informal conference and for-
mal hearing.
(a) A tribal organization (unless
retricted by the tribal resolution under
§271.18(0(2) or subsequent resolutions)
or tribal governing body will be noti-
fied in writing of the Area Director's
recommendation or decision. The. Area
Director's recommendation or decision
may be appealed to the Commissioner
and the notice shall include a written
statement to that effect. The applicant
shall have 30 days from receipt of no-
tice of the Area Director's decision in
which to exercise Its appeal rights by
providing the Area Director with a no-
tice in writing to that effect.
(b) Upon receipt of notice of appeal
and if an informal conference has been
requested, a date, time, and place for
the informal conference will be ar-
ranged. The informal conference will
be conducted within 30 calendar days of
receipt of the appeal notice, or at such
25 CFR Ch. I (4-1-94 Edition)
time as may be agreed upon. The Bu-
reau of Indian Affairs will authorize
payment of transportation costs and
per diem to allow adequate representa-
tion of the applicant if the meeting is
more than SO miles from the office of
the applicant. The conference shall be
conducted by the Commissioner or by
an official designated by him. The pur-
pose of the Informal conference is to
attempt to informally resolve issues
without a formal hearing. Interested
parties, entitled to present their posi-
tions shall be limited to authorized
representatives of the Bureau, the trib-
al organization and the tribal govern-
ing body(s). If the applicant is not sat-
isfied with the informal conference, or
does not request a conference, the ap-
plicant is entitled to a formal hearing
in accordance with §271.81(c).
(c) The formal hearing, if requested
in writing, will be convened within 30
days of the Commissioner's receipt of
the request, or at such date and place
as agreed upon. If the hearing is more
than 50 miles from the applicant's of-
fice, the Bureau of Indian Affairs will
authorize payment of transportation
costs and per diem to allow adequate
representation. The Bureau shall be re-
sponsible to arrange all aspects of the
formal hearing. The hearing will be
conducted by an official from the Of-
fice of Hearings and Appeals, the De-
partment of the Interior, and shall ac-
cord the tribal governing body or appli-
cant the following rights:
(1) The right to written notice of is-
sues to be considered;
(2) The right to be represented by
counsel;
(3) The right to have the Department
provide witnesses who are capable of
providing testimony on the issues;
(4) The right to cross examine wit-
nesses;
(5) The right to produce oral and doc-
umentary evidence;
(6) The right to require testimony
under oath;
(7) The right to a copy of the tran-
script of the bearings and all documen-
tary evidence Introduced.
(d) The written decision of the Com-
missioner shall be rendered within 30
working days after receipt of the tran-
script. The decision of the Commis-
sioner may be appealed to the Assist-
Bureou of Indian Affairs, Interior
ant Secretary—Indian Affairs as pro-
vided under §271.82.
• [45 FR 13451. Feb. 29. 1980]
§271.82 Appeals from decision or ac-
tion by Commissioner.
(a) The applicant or the tribal gov-
erning body (unless restricted by the
tribal resolution under §271.18(0(2) or
subsequent resolutions) may appeal the
Commissioner's decision made under
§271.81 to the Assistant.Secretary—In-
dian Affairs. A notice of appeal must be
sent to the Assistant Secretary—In-
dian Affairs within 30 days of receipt of
the Commissioner's decision. The writ-
ten decision of the Assistant Sec-
retary—Indian Affairs shall be ren-
dered within 30 working days following
the receipt of appeal.
(b) The decision by the Assistant Sec-
retary—Indian Affairs is final for the
Department. The tribal governing body
or the applicant is deemed to have ex-
hausted its administrative remedies
following rendering of the decision.
[45 FR 13451. Feb. 29. 1980)
PART 272-GRANTS UNDER INDIAN
SELF-DETERMINATION ACT
Subpart A—General Provisions
Sec.
272.1 Purpose and scope.
272.2 Definitions.
272.3 Effect on existing- Indian rights.
272.4 Revision or amendment of regulations,
272.5 Statement of policy.
Subpart B—Application Process
272.11 Eligibility requirements.
272.12 Purposes of grants.
272.13 Obtaining application Instructions
and materials.
272.14 Content of application.
272.15 Assistance in developing and com-
pleting grant applications.
272.16 Request from tribal governing body.
272.17 Grant approval limitations.
272.18 Submitting application to Agency Of-
fice.
272.19 Agency Office review and rec-
ommendation.
272.20 Deadline for Agency Office action.
272.21 Area Office review and action.
272.22 Deadline for Area Office action.
272.23 Central Office review and decision.
272.24 Deadline for Central Office action.
272.25 Grant execution and administration.
272.26 Subgrants and subcontracts.
§27
272.27 Acceptance of tribal plans for the
eration of Bureau programs.
272.28 Information collection.
Subpart C—General Grant Requlremer
272.31 Applicability.
272.32 Reports and availability of Infor
tlon to Indians.
272.33 Matching share.
272.34 Performing personal services.
272.35 Fair and uniform services.
272.36 Penalties.
Subpart D—Grant Revision, Canceltatlc
or Assumption
272.41 Revisions or amendments of grant:
272.42 Assumption.
Subpart E—Hearings and Appeals
272.51 Hearings.
272.52 Appeals from decision or action
Superintendent.
272.53 Appeals from decision or action
Area Director.
272.54 Appeals from decision or action
Commissioner.
272.55 Failure of Agency or Area Office
act.
AUTHORITY: Sec. 104, Pub. L. 93-638, 88 S'
2207 (25 U.S.C. 450h).
SOURCE: 40 FR 51300. Nov. 4, 1975, un'
otherwise noted.
Subpart A—General Provision!
§ 272.1 Purpose and scope.
The purpose of the regulations in t
part is to provide the application s
approval procedures for the award
the Bureau of grants under sect)
104(a) of Title I of the Indian Self-1
termination and Education Assistai
Act (Pub. L. 93-638, 88 Stat. 2203). Ti
I is known as the Indian Self-Del
mination Act.
$272.2 Definitions.
As used in this part:
(a) "Act" means the Indian Self-1
termination and Education Assistai
Act (Pub. L. 93-638. 88 Stat. 2203).
(b) "Applicant" means a tribal g<
erning body applying for a grant un<
this part.
(c) "Area Director" means the ol
cial In charge of a Bureau of Indian i
fairs Area Office.
(d) "Bureau" means the Bureau of )
dian Affairs.
674
fiTK
-------
§272.3
(e) "Commissioner" means the Com-
missioner of Indian Affaire, under the
direction and supervision of the Assist-
ant Secretary—Indian Affairs, who is
responsible for the direction of day-to-
day operations of the Bureau of Indian
Affairs.
(0 "Days" means calendar days.
(g) "Economic enterprise" means any
commercial, industrial, agricultural,
or business activity that is at least 51
percent Indian owned, established, or
organized for the purpose of profit.
(h) "Grant" means a written agree-
ment between the Bureau and a tribal
governing body where the Bureau pro-
vides funds to carry out specified pro-
grams, services, or activities and where
the administrative and programmatic
provisions are specified.
(i) "Grantee" means the tribal gov-
erning body which is responsible for ad-
ministration of the errant.
(j) "Indian tribe" means any Indian
Tribe, Band. Nation. Rancheria, Pueb-
lo. Colony, or Community. Including
any Alaska Native village or regional
or village corporation as defined in or
established pursuant to the Alaska Na-
tive Claims Settlement Act (85 Stat.
688) which is federally recognized as el-
igible by the United States Govern-
ment through the Secretary for the
special programs and services provided
by the Secretary to Indians because of
their status as Indians.
(k) "Indian" means a person who is a
member of an Indian tribe.
(1) "Resolution" means the formal
manner in which the tribal government
expresses its legislative will pursuant
to its organic documents. In the ab-
sence of such organic documents a
written expression adopted pursuant to
tribal (current) practices will be ac-
ceptable.
(m) "Secretary" means the Secretary
of the Interior.
(n) "Superintendent" means the offi-
cial in charge of a Bureau of Indian Af-
fairs Agency Office.
(o) "Subcontracts" means contracts
undertaking some of the obligations of
primary grants.
(p) "Subgrants" means secondary
grants undertaking some of the obliga-
tions of primary grants.
(q) "Tribal government," "tribal gov-
erning b' and "tribal council"
25 CFR Ch. I (4-1-94 Edition)
means the recognized governing body
of an Indian tribe.
(r) "Trust resources" means natural
resources, land, water, minerals, funds
or property, asset, or claim, including
any intangible right or Interest in any
of the foregoing, which is held by the
United States in trust for any Indian
tribe or Indian individual subject to a
restriction on alienation Imposed by
the United States.
(s) "Trust responsibility" means for
the purposes of this part only the re-
sponsibility assumed by the United
States Government, by virtue of trea-
ties, statutes and other means, legally
associated with the role of trustee, to
protect, manage, develop, and approve
authorized transfers of interest in trust
resources held by Indian tribes and In-
dian individuals to a standard of the
highest degree of fiduciary responsibil-
ity.
(t) "Assistant Secretary—Indian Af-
fairs" means the Assistant Secretary—
Indian Affairs who discharges the au-
thority and responsibility of the Sec-
retary for the activities pertaining to
Indians and Indian Affairs.
HO FR 51300, Nov. 4, 1975, as amended at 43
FR 37445. Aug. 23. 1978; 45 FR 13451. Feb. 29.
1980]
§ 272.3 Effect on existing Indian rights.
The regulations in this part are not
meant to and do not:
(a) Affect, modify, diminish, ojr oth-
erwise Impair the sovereign immunity
from suit enjoyed by an Indian tribe; or
(b) Authorize, require or permit the
termination of any existing trust re-
sponsibility of the United States with
respect to the Indian people.
i 272.4 Revision or amendment of reg-
ulations.
Before making any substantive revi-
sions or amendments to the regula-
tions in this part, the Secretary shall
take the following actions:
(a) Consult with Indian tribes and na-
tional and regional Indian organiza-
tions to the extent practicable about
the need for revision or amendment
and consider their views in preparing
the proposed revision or amendment.
(b) Present the proposed revision or
amendment to the Committees on Inte-
rior and Insular Affairs of the United
Bureau of Indian Affairs, Interior
States Senate and House of Represent-
atives.
(c) Publish any proposed revisions or
amendments in the FEDERAL REGISTER
as proposed rulemaking to provide ade-
quate notice to, and receive comments
from all interested parties.
(d) After consideration of all com-
ments received, publish the regulations
in the FEDERAL REGISTER in final form
not less than 30 days before the date
they are made effective.
(e) Annually consult with Indian
tribes and national and regional Indian
organizations about the need for revi-
sion or amendment, and consider their
views in preparing the revision or
amendment.
(O Nothing in this section shall pre-
clude Indian tribes or national or re-
gional organizations from initiating re-
quests for revisions or amendments,
subject to paragraphs (a), (b;, (c) and
(d) of this section.
§ 272.5 Statement of policy.
(a) The Indian Self-Determination
and Education Assistance Act (Pub. L.
93-638) is intended to facilitate in-
creased self-determination for Amer-
ican Indians by providing a means
through which they may plan, conduct.
and administer programs and services
to Indian people. These programs and
services are essentially those author-
ized by the Act of April 16, 1934 (John-
son-O'Maley Act); the Act of November
2. 1921 (Snyder Act) and other subse-
quent Acts.
(b) A most Important aid available to
assist Indians in achieving this objec-
tive of increased self-determination is
the grant authority provided in section
104 of the Act. This grant authority
will assist Indian tribes in improving
their governing capabilities, increase
their ability to effectively administer
programs under contract, and enable
them to provide direction to the Fed-
eral programs Intended to serve Indian
people.
(c) Under this grant authority the
Bureau of Indian Affairs will admin-
ister a program of Indian self-deter-
mination grants which shall be subject
to parts 272 and 276 of this chapter. In
the administration of this grant pro-
gram, it shall be the Bureau's policy
that approval of applications for these
§272
grants shall include a determinal
that there is a direct and reason:
relationship between the appllca
proposal and the provisions of seel
104a of the Act and of §272.12,
(d) In accordance with this policj
shall be the responsibility of the ap
cant to establish that such a grant •
improve the tribe's governing capa)
ties, enhance the tribe's ability to
minister Federal programs under (
tract, or enable the tribe to provide
rection to Bureau programs and
other Federal programs serving It.
(e) Emphasis on planning and tr;
ing in relation to the purposes c
grant given in paragraph (d) of this :
tion is considered in keeping with
intent of section 104(a) of the Act.
plications which include these
ments are encouraged.
Subpart B—Application Proce;
&272.11 Eligibility requirements.
The governing body of any Int.'
tribe or tribes may apply for a gi
under this part.
J 272.12 Purposes of grants.
Grants are for the purpose of:
(a) Strengthening and improving
ministration of tribal government.
amples in this specific regard are
follows:
(1) Developing the capability of
executive, legislative, and judi<
branches of tribal government in s
areas as administration of planning
nancial management, or merit pen
nel systems.
(2) Improvement of tribally fun
programs or activities.
(3) Development, construction,
provement, maintenance, preservat
or operation of tribal facilities or
sources.
(4) Training of tribal officials
employees in areas relating to
planning, conduct and administrat
of tribal programs.
(5) Design and Implementation of i
tribal government operations.
(6) Development of policy-mak
legislative and judicial skills.
(b) Planning, training, evaluatioi
other activities designed to impr
the capacity of an Indian tribe to ei
into a contract or contracts pursu
676
677
-------
§272.13
to section 102 of the Act and the addi-
tional costs associated with the initial
years of operation under such a con-
tract or contracts. Examples of use of
grants by Indian tribes, as indicated in
this paragraph, are as follows:
(1) Evaluation of programs and serv-
ices currently being provided directly
by the Bureau in order to determine:
(i) Whether it is appropriate for the
Indian tribe to enter into a contract
pursuant to section 102 of the Act for a
program or a portion of a program.
(11) Whether the Indian tribe can im-
prove the quality or quantity of the
service now available.
(Ill) Whether certain components
should be redesigned but the program
should continue to be operated by the
Bureau.
(iv) Whether the program as cur-
rently administered by the Bureau is
adequate to meet tribal needs and.
therefore, the Indian tribal organiza-
tion does not wish to contract or mod-
ify the program.
(2) Planning or redesigning a Bureau
program before the Indian tribe con-
tracts for It, and development of an'
operational plan for carrying out the
anticipated contract in order to facili-
tate the transition of the program from
Bureau to tribal operation.
(3) Training of tribal officials and
employees in areas related to the con-
duct and administration of programs of
the Bureau which the Indian tribe may
wish to operate under contract.
(4) Costs associated with contracting
to enable tribal contracting. Examples
of such costs include curriculum devel-
opment In support of tribal contracting
of schools, in-service training programs
to develop the skills of employees of
the Indian tribe on a continuing basis,
special on-the-job training activities in
support of tribal members being pre-
pared to assume program responsibil-
ities.
(c) Acquisition of land in connection
with paragraphs (a) and (b) of this sec-
tion. Procedures for acquisition of land
are prescribed in §276.11 of this chap-
ter.
(d) Planning, designing, monitoring,
and evaluating Federal programs serv-
ing the Indian tribe. An example of this
regard is assisting the tribal govern-
ment to influence Federal programs
25 CFR Ch. I (4-1-94 Edition)
presently offered or those that could be
offered to the tribe to assure that they
are responsive to the needs of Indian
tribes. A tribal government may mon-
itor and evaluate the operations of
such programs which now serve tribal
members and replan and redesign those
programs to better respond to their
needs. Bureau programs which are
planned, replanned, designed or rede-
signed in accordance with this para*
graph shall be implemented by the Bu-
reau as prescribed in §272.27.
(e) Funds made available for grants
for the purposes described above may
be applied as matching shares for other
Federal or non-Federal grant programs
as prescribed in §272.33.
$272.13 Obtaining application Instruc-
tions and materials.
Application instructions and related
application materials may be obtained
from Superintendents, Area Directors,
and the Commissioner.
i 272.14 Content of application.
Application for a grant under this
part shall Include:
(a) Name and address of Indian tribal
governing body(s) applying for a grant.
(b) Descriptive name of project.
(c) Federal funding needed.
(d) Population directly benefiting
from the project.
(e) Length of project.
(0 Beginning date.
(g) Project budget categories or
Items.
(h) Program narrative statement.
(i) Certification or evidence of re-
quest by Indian tribe.
(j) Name and address of Bureau office
to which application is submitted.
Ck) Date application is submitted to
Bureau.
(1) Additional information pertaining
to grant applications for funds to be
used as matching shares will be re-
quested as prescribed in §272.33.
$272.15 Assistance in developing and
completing grant applications.
(a) Technical assistance and support
necessary to develop and complete
grant applications under this part shall
be provided by the Superintendents,
Area Directors and their designated
Bureau of Indian Affairs, Interior
representatives upon request of the ap-
plicant.
(b) Applicants may apply for initial
planning grants to cover the costs of
developing and completing larger grant
applications. Such initial planning
grants will be made from funds which
may be budgeted for grants under this
part for tribal governing bodies. Appli-
cations for these initial planning
grants shall be made as follows:
(1) An application for an initial plan-
ning grant may be accomplished by
submission of a tribal request as pre-
scribed in §272.16, together with an ac-
companying letter from the tribal gov-
erning body requesting an Initial plan-
ning grant in a specific amount. This
letter shall include a brief description
of the proposed initial planning
project, its purpose or objective as re-
lated to development or completion of
a larger grant application, and the ini-
tial planning project budget categories
or items.
(2) This initial planning grant shall
be no more than 10% of total grant
funds which may be budgeted for
grants under this part for the tribal
governing body, up to a maximum of
$20,000.
(3) An application for an initial plan-
ning grant shall be submitted directly
to the appropriate officer having grant
approval authority as prescribed in
§272.17(a) or (b) and shall be acted upon
by that office within 30 days.
§272.16 Request from tribal governing
body.
The Bureau shall not make a grant
under this part unless specifically and
officially requested to do so by a tribal
governing body. This request may be in
the form of a tribal resolution, an en-
dorsement included in the grant appli-
cation or such other forms as the tribal
constitution or current practice re-
quires.
$272.17 Grant approval limitations.
(a) Area Office approval. Authority
for approval of a grant application
under this part shall be with the Area
Director when the intent, purpose and
scope of the grant proposal pertains
solely to an Indian tribe or tribes lo-
cated within that Area Director's ad-
ministrative jurisdiction.
§27
(b) Central Office approval. Aut
ity for approval of a grant applica
under this part shall be with the C
missioner when the intent, purpose
scope of the grant proposal pertain
Indian tribes representing diffe
Area Office administrative juris
tions but located within the Com
sioner's overall administrative ji
diction.
(c) Grant approvals under this
tion shall be subject to availabillt
funds. These funds will Include t'
which are:
(1) Directly appropriated for in
mentation of this Act.
(2) Appropriated under other Acti
Bureau programs which are relate
the purposes prescribed in §272.12.1
ever, this does not include funds ap
priated for Indian Business Deve
ment Fund grants which'are admi
tered under part 286 of this chapter.
$272.18 Submitting application
Agency Office.
An application for a grant under
part shall be Initially submitted to
appropriate Superintendent for re'
and recommendation as prescribe
§272.19. This does not include appl
tlons for Initial planning grants tc
velop and complete larger grant a)
cations. Such initial planning grant
plications are submitted and a
upon as prescribed in §272.15(b).
$272.18 Agency Office review and
ommendation.
(a) Recommendation for approve
disapproval of a grant under this
shall be made by the Superinten.
when the intent, purpose and scop
the grant proposal pertains to or
volves an Indian tribe or tribes loc:
within that Superintendent's adm1
trative jurisdiction.
(b) Upon receipt of an applicatioi
a grant under this part, the Su
intendent shall:
(1) Acknowledge in writing receij
the application within 10 days of it:
rival at the Agency Office.
(2) Review the application for t
pleteness of information and prom
request any additional informa
which may be required to make a
ommendation.
678
679
-------
§272.20
(3) Assess the completed application
for appropriateness of purpose as pre-
scribed in §272.12, and for overall fea-
sibility.
(4) Inform the applicant, in writing:
and before any final recommendation,
of any special problems or impedi-
ments which may result in a rec-
ommendation for disapproval; offer any
available technical assistance required
to overcome such problems or impedi-
ments; and solicit the applicant's writ-
ten response.
(5) Recommend approval or dis-
approval following full assessment of
the completed application and forward
the application and recommendation to
the Area Director for further action.
(6) Promptly notify the applicant in
writing as to the final recommenda-
tion. If the recommendation is for dis-
approval, the Superintendent will in-
clude in the written notice to the ap-
plicant the specific reasons therefor.
(7) In instances where a joint applica-
tion is made by tribes representing1
more than one Agency Office adminis-
trative Jurisdiction, copies of the appli-
cation shall be provided by the appli-
cants to each Involved Superintendent
for review and recommendation as pre-
scribed in this section.
§ 272.20 Deadline for Agency Office ac-
tion.
Within 30 days of receipt of an appli-
cation for a grant under this part, the
Superintendent shall take action as
prescribed in §272.19. Extension of this
deadline will require consultation with
and written consent of the applicant.
1272.21 Area Office review and action.
(a) Upon receipt of an application for
a grant requiring Area Office approval,
the Area Director shall:
(1) Review the application following
the applicable review procedure pre-
scribed in §272.19.
(2) Review the Superintendent's rec-
ommendation as pertains to the appli-
cation.
(3) Approve or disapprove the applica-
tion.
(b) In instances where a joint applica-
tion is made by tribes representing
more than one Area Office administra-
tive jurisdiction, the Area Director
shall add ^^recommendation for ap-
25 CFR Ch. I (4-1-*4 Edition)
proval or disapproval to that of the Su-
perintendent and shall forward the ap-
' plication and recommendations to the
Commissioner for further action.
(c) Upon taking action as prescribed
in paragraph (a) or (b) of this section,
the Area Director shall promptly no-
tify the applicant in writing as to the
action taken. If the action taken is dis-
approval or recommendation for dis-
approval of the application, the Area
Director will include in the written no-
tice the specific reasons therefor.
§272.22 Deadline for Area Office ac-
tion.
Within 30 days of receipt of an appli-
cation for a grant under this part, the
Area Director shall take action as pre-
scribed in §272.21. Extension of this
deadline will require consultation with
and written consent of the applicant.
(272.23 Central Office review and de-
cision.
Upon receipt of an application for a
grant requiring Central Office ap-
proval, the Commissioner shall:
(a) Review the application following
the applicable review procedures pre-
scribed in §272.19.
(b) Review Agency and Area Office
recommendations as pertain to the ap-
plication.
(c) Approve or disapprove the appli-
cation.
(d) Promptly notify the applicant in
writing as to the approval or dis-
approval of the application. If the ap-
plication is disapproved, the Commis-
sioner will include in the written no-
tice the specific reasons therefor.
S 272.24 Deadline for Central Office ac-
tion.
Within 30 days of receipt of an appli-
cation for a grant under this part the
Commissioner shall take action as pre-
scribed in §272.23. Extension of this
deadline will require consultation with
and written consent of the applicant.
§272.25 Grant execution and adminis-
tration.
(a) Grants approved pursuant to
§272,17(a) shall be executed and admin-
istered at the Area Office level.
(b) Grants approved pursuant to
§272.17(b) shall be executed and admin-
Bureau of Indian Affairs, interior
Istered at the Central Office level pro-
vided that the Commissioner may des-
ignate an Area Office to execute or ad-
minister such a grant.
§272.26 Subgrants and subcontracts.
The grantee may make subgrants or
subcontracts under this part provided
that such subgrants or subcontracts
are for the purpose for which the grant
was made and that the grantee retains
administrative and financial respon-
sibility over the activity and the funds.
§ 272.27 Acceptance of tribal plans for
the operation of Bureau programs.
Any Bureau program, excluding any
trust resources program, which is
planned, replanned, designed or rede-
signed by a tribe under a grant pro-
vided under this part, or from any
other resource, shall be implemented
by the Bureau if requested by the tribe
through resolution. However, before
Implementation the program shall
meet the following requirments:
(a) Funding, staffing and other re-
sources are available to implement the
plan.
(b) The implementation of the plan
would not cause a reduction in the
quality or quantity of services to Indi-
ans.
(c) The plan meets the administra-
tive planning requirements of the Bu-
reau. However, the plan need not meet
the planning requirements for the par-
ticular program.
(d) The plan provides a basis for the
delivery of satisfactory services to In-
dian people, unless it can be dem-
onstrated by the Bureau by substantial
evidence that the plan will yield re-
sults which will be deleterious to the
welfare of the Indian people to be
served.
(e) The Commissioner may waive any
regulatory requirements given else-
where In this chapter or any other re-
quirements not Inconsistent with law.
Inconsistencies between tribal plans
and Bureau manual, guidelines, or
other non-regulatory procedures are
not constraints on the tribal plans.
§ 272.28 Information collection.
The Information collection require-
ments contained in 25 CFR part 272 are
those necessary to comply with the ap-
§272.
plication requirements of the Office
Management and Budget (OMB) C
cular No. A-102. The Standard Form
and attachments prescribed by su
circular are approved by OMB under
U.S.C. 3501 et seq, and assigned appro'
number 0348-0006. Section 272.14 i
scribes the types of information t)
satisfy the application requirements
Circular A-102 for the self determii
tlon grant/program. Information n<
essary for an application for Fede
assistance will be submitted on Stai
ard Form 424 which may be obtait
with application materials In acco
ance with 25 CFR part 272. This inf
mation is collected for the purpose
making application for Federal assl
ance. The information is needed
proper administration of the grant p
gram and is required to obtain a be'
fit.
(52 FR 36, Jan. 2, 1987]
Subpart C—General Grant
Requirements
} 272.31 Applicability.
The general requirements for gr;
administration in this subpart are .
pllcable to all Bureau grants provl<
to tribal governing bodies under t
part, except to the extent Inconsisti
with an applicable Federal statute
regulation.
§272.32 Reports and availability of
formation to Indiana.
Any tribal governing body receivl
a grant under this part shall make
formation and reports concerning t)
grant available to the Indian peo
which it serves or represents. Access
these data shall be requested in writ
and shall be made available by t
tribe within 10 days of receipt of t)
request, subject to any exceptions p
vided for In the Freedom of Inforr
tlon Act (5 U.S.C. 552), as amended
the Act of November 21, 1974 (Pub.
93-502; 88 Stat. 1561).
§272.33 Matching share.
(a) Specific Federal laws notwi
standing, grant funds provided to tri
governing bodies under this part n
be used as matching shares for e
other Federal or non-Federal gr:
680
681
-------
§272.34
programs which contribute to the pur-
poses specified in §272.12.
(b) Superintendents, Area Directors.
and their designated representatives
will, upon tribal request, assist tribes
in obtaining information concerning
other Federal grantor agencies with
matching fund programs and will, upon
tribal request, provide technical assist-
ance to tribes in developing applica-
tions for submission to those Federal
grantor agencies.
J 272.34 Performing personal services.
Any grant provided under this part
may include provisions for the per-
formance of personal services which
would otherwise be performed by Fed-
eral employees.
9 272.35 Fair and uniform services.
Any grant provided under this part
shall include provisions to assure the
fair and uniform provision by the
grantee of services and assistance to
all Indians Included within or affected
by the intent, purpose and scope of
that grant.
{272.36 Penalties.
If any officer, director, agent, or em-
ployee of. or connected with, any recip-
ient of a grant, subgrant, contract or
subcontract under this part, embezzles,
willfully misapplies, steals, or obtains
by fraud any of the money, funds, as-
sets, or property which are the subject
of such a grant, subgrant, contract, or
subcontract, he shall be subject to the
following penalties:
(a) If the amount involved does not
exceed $100, he shall be fined not more
than $1,000 or imprisoned not more
than one year, or both.
(b) If the amount involved exceeds
$100, he shall be fined not more than
$10,000 or imprisoned for not more than
two years, or both.
Subpart D—Grant Revision,
Cancellation, or Assumption
$272.41 Revisions or amendments of
grants.
(a) Requests for budget revisions or
amendments to grants awarded under
this part shall be made as provided in
§276.14 of this chapter.
25 CFR Ch. I (4-1-94 Edition)
(b) Requests for revisions or amend-
ments to grants provided under this
part, other than budget revisions re-
ferred to in paragraph (a) of this sec-
tion, shall be made to the Bureau offi-
cer responsible for approving the grant
in its original form. Upon receipt of a
request for revisions or amendments to
grants, the responsible Bureau officer
shall follow precisely the same review
procedures and time specified in
§272.19.
§ 272.42 Assumption.
(a) When the Bureau cancels a grant
for cause as specified in §276.15 of this
chapter, the Bureau may assume con-
trol or operation of the grant program.
activity or service. However, the Bu-
reau shall not assume a grant program.
activity or service that it did not ad-
minister before tribal grantee control
unless the tribal grantee and the Bu-
reau agree to the assumption.
(b) When the Bureau assumes control
or operation of a grant program can-
celled for cause, the Bureau may de-
cline to enter into a new grant agree-
ment until satisfied that the cause for
cancellation has been corrected.
Subpart E—Hearings and Appeals
$272.51 Hearings.
Hearings referred to in §276.15(c)(3) of
this chapter shall be conducted as fol-
lows:
(a) The grantee and the Indian
tribe(s) affected shall be notified, in
writing, at least 10 days before the
hearing. The notice should give the
date, time, place, and purpose of the
hearing.
(b) A written record of the hearing
shall be made. The record shall include
written statements submitted at the
hearing or within 5 days following the
hearing.
(c) The hearing will be conducted on
as informal a basis as possible.
$272.52 Appeals from decision or ac-
tion by Superintendent.
(a) A grantee may appeal any deci-
sion made or action taken by a Super-
intendent under this part. Such appeal
shall be made to the Area Director as
provided in part 2 of this chapter.
Bureau of Indian Affairs, Interior
(b) The appellant shall provide its
own attorney or other advocates to
represent it during the appeal process.
§272.53 Appeals from decision or ac-
tion by Area Director.
(a) A grantee may appeal any deci-
sion made or action taken by an Area
Director under this part. Such appeal
shall be made to the Commissioner as
provided in part 2 of this chapter.
(b) The appellant shall provide its
own attorney or other advocates to
represent it during the appeal process.
§272.54 Appeals from decision or ac-
tion by Commissioner.
(a) A grantee may appeal any deci-
sion made or action taken by the Com-
missioner under this part only as pro-
vided in part 2 of this chapter.
(b) The appellant shall provide its
own attorney or other advocates to
represent it during the appeal process.
$ 272.55 Failure of Agency or Area Of-
fice to act.
Whenever a Superintendent or Area
Director fails to take action on a grant
application within the time limits es-
tablished in this part, the applicant
may at its option, request action by
the next higher Bureau official who has
grant approval authority as prescribed
in this part. In such instances, the Su-
perintendent or Area Director who
failed to act shall immediately forward
the application and all related mate-
rials to that next higher Bureau offi-
cial.
PART 273-EDUCATION CON-
TRACTS UNDER JOHNSON-
O'MALLEY ACT
Subpart A—General Provisions
Sec.
273.1 Purpose and scope.
273.2 Definitions.
273.3 Revision or amendment.of regulations.
273.4 Policy of maximum Indian participa-
tion.
Subpart B—Application Process
273.11 Eligible applicants.
273.12 Eligible students.
273.13 Proposals eligible for contracts.
273.14 Preparing the education plan.
§272
273.15 Establishment of Indian Educai
Committee.
273.16 Powers and duties of Indian £
cation Committee.
273.17 Programs approved by Indian E
cation Committee.
273.18 Additional requirements for c
cation plan.
273.19 Obtaining application forms.
273.20 Content of application to contract
273.21 Tribal request for contract.
273.22 Application approval officials,
273.23 Submitting application >x> Area
flee.
273.24 Area Office review and decision.
273.25 Deadline for Area Office action.
273.26 Submitting application to .Central
flee.
273.27 Central Office review and decision.
273.28 Deadline for Central Office action.
273.29 Negotiating the contract.
Subpart C—Funding Provisions
273.31 Distribution formula.
273.32 Pro rata requirement.
273.33 Use of funds for operational suppc
273.34 Use of other Federal, State and lo
funds.
273.35 Capital outlay or debt retirement.
273.36 Eligible subcontractors.
273.37 Use of funds outside of schools.
273.38 Equal quality and standard of e
cation.
Subpart 0—General Contract
Requirements
273.41 Special program provisions to be
eluded in contract.
273.42 Civil Rights Act violations.
273.43 Advance payments.
273.44 Use and transfer of Government pr<
erty.
273.45 Indian preference.
273.46 Liability and motor vehicle ins
ance.
273.47 Recordkeeping.
273.48 Audit and inspection.
273.49 Freedom of information.
273.50 Annual reporting.
273.51 Penalties.
273.52 State school laws.
273.53 Applicable procurement regulation:
273.54 Privacy Act requirements.
Subpart E—Contract Revision or
Cancellation
273.61 Contract revision or amendment.
273.62 Cancelling a contract for cause.
Subpart F—Appeals
273.71 Contract appeal.
273.72 Appeal from decision to cancel cc
tract for cause.
273.73 Other appeals.
682
683
-------
THE WHITS HOUSE
Office of the Press Secretary
Immediate Release April 29, 1994
April 29, 1994
EKORANDUM FOR THL -1~.-XZ CT ttlir.Trvr DEPARTMENTS AND AGENCIES
(JBJECT: Govfir.-..-.ant-ro-'.;ov«rnE«r.t Peidticns with
Native American Tribal Governments
ho United States Government has a unique legal relationship
ith Native American tribal governments aa »«t forth in
he Constitution of th« Unit»d States, treaties, statutes,
nd courr decisions. Ac executive departments and agencies
ndertaka activities affecting Hative American tribal right*
r trust rtsources, such activities should be implemented in a
nowl»dg«abli, siniitivc nann«r r*tp«ctful of tribal sovereignty.
»day, as part at an historic meeting, I an outlining principles
at executive departments and agencies, including «v«ry con-
onent bureau and office, are to follow in thoir interactions
ith Native Anerican tribal governaents. The purpo«e of thase
rincipl«g ig to clarify our responsibility to ensure that the
ederal Government op«rat«s within a government-to-government
elationship with federally recognized Native American tribas.
aa strongly connittad to building a more effective day-to-day
orking relationship reflecting respect for the rights of self-
overnoent due tha sovereign tribal governments.
n ordtr to ensure that the rights of sovereign tribal
overnmtnta aro fully respected, executive branch activities
hall be guided by the following:
(a) Tha head of each executive department and agency
hall be respcnsibl* for anauring that the department or agency
paratea within a government-to-government relationship with
ederally recognized tri&al governments.
(b) Each executive department and agency shall consult,
o the greatest extent practicable and to the extent permitted by
aw, with tribal governments prior to taking actions that atfeot
. ederally recognized tribal governments, All suah consultations
WAFDA Exhibit No.
-------
re to be op«n and candid so that all int*r«sted parties may
valuate tor tnamselvos tha potential inpact of relevant
reposals.
(C) Each exacutive dspartiaent and agency Shall assets
ha impact o£ Federal Government plane, projects, program*,
nd activities on tribal trust resources and asaure that
ribal gcvernaant rights and concerns ar« considered during
ha dovelopaent of such plans, projects, programs, and
ctivities.
(d) Each executive department and agency shall taJcs
ppropriate steps to r«»ove any procedural impediments to working
irectiy and effectively with tribal governments on activities
hat affact tha trust property and/or govarnaental right* o£ tha
(a) 2»ch axecutive dapartaent and agency ohall
oop«ratively with other Federal departments and agencies to
nlis't thair interest «nd support in cooperative «f forts, whcra
opropriate, to aocompliah the goals of this memorandum.
(£) 2aoh executive department and agency shall apply
le racruirementa of Exocrutiva Orders Hoa. 12879 ("Enhancing the
itergovernmental Partnership") and 12866 ("Reo^ilatory Planning
id Review") to design solutions and tailor Federal program*, in
ppropriata circumstances, to addreea specific or unique needs of
ribal ccasunities.
2* head of each executive departaent and agency ahall ansure
lat the department or agency's bureaus and components are fully
fare of this xemorandua, through publication or other **ans, and
lat they are in compliance vith its requirements,
tis memorandum is intended only to iaprove the internal
mageaant of the executive branch and is not intended to,
id does not, create any right to administrative or judicial
iviev, or any other right or benefit or trust responsibility,
ibatantiva or procedural, enforceable by a party against the
litod States, its agencies or inntrvmentalities, its officers
employees, or any other person.
ie Director of the Office of Management and Budget is authorized
td directed to publish this memorandum in the Federal
WILLIAM J. CLIHTOH
-------
Federal Register
VoL 59, No. 32
Wednesday. February 16. 1994
rozg
Presidential Documents
Tide 3—
The President
Executive Order 12898 of February 11, 1994
Federal Actions To Address Environmental Justice in
Minority Populations and Low-Income Populations
By the authority vested in me as President .by the Constitution and the
laws of the United States of America, it is hereby ordered as follows:
Section 1-1. IMPLEMENTATION.
1-101. Agency Responsibilities. To the greatest extent practicable and per-
mitted by law, and consistent with the principles set forth in the report
on the National Performance Review, each Federal agency shall make achiev-
ing environmental justice part of Its mission by identifying and addressing.
as appropriate, disproportionately high and adverse human health or environ-
mental effects of its programs, policies, and activities on minority populations
and low-income populations in the United States and its territories and
possessions, the District of Columbia, the Commonwealth of Puerto Rico,
and the Commonwealth of the Mariana Islands.
1-102. Creation of an Interagency Working Group on Environmental Justice
(a) Within 3 months of the date of this order, the Administrator of the
Environmental Protection Agency ("Administrator") or the Administrator's
designee shall convene an interagency Federal Working Group on Environ-
mental Justice ("Working Group"). The Working Group shall comprise the
heads of the following executive agencies and offices, or their designees:
(a) Department of Defense; (b) Department of Health and Human Services:
(c) Department of Housing and Urban Development; (d) Department of Labor;
(e) Department of Agriculture: (f) Department of Transportation: (g) Depart-
ment of Justice; (h) Department of the Interior; (i) Department of Commerce;
(j) Department of Energy; (k) Environmental Protection Agency; (1) "Office
of Management and Budget; (m) Office of Science and Technology Policy;
(n) Office of the Deputy Assistant to the President for Environmental Policy;
(o) Office of the Assistant to the President for Domestic Policy: (p) National
Economic Council; (q) Council of Economic Advisors; nixl (r) such olhur
Government officials as the President may designate. The Working Group
shall report to the President through the Deputy Assistant to the President
for Environmental Policy and the Assistant to the President for Domestic
Policy.
(b) The Working Group shall: (l) provide guidance to Federal agencies
on criteria for identifying disproportionately high and adverse human health
or environmental effects on minority populations and low-income popu-
lations;
(2) coordinate with, provide guidance to, and serve as- a clearinghouse
for, each Federal agency as it develops .an environmental justice strategy
as required 'by section 1-103 of this order.' in order to ensure that 'the
administration, interpretation and enforcement of programs, activities and
policies are undertaken in a consistent manner;
(3) assist in coordinating research by, and stimulating cooperation among.
the Environmental Protection Agency, the Department of Health and Human
Services, the Department of Housing and Urban Development, and other
agencies conducting research or other activities in accordance with section
3-3 of this order; -
(4) assist in coordinating data collection, required by this order:
-------
7630 Federal Register / Vol. 59. No. 32 / Wednesday. February 15. 1994 / Presidential Documents
(5) examine existing data and studies on environmental justice;
(6) hold public meetings as required in section 5-502(d) of this order;
and
(7) develop interagency model projects on .environmental justice that evi-
dence cooperation among Federal agencies.
1-103, Development of Agency Strategies, (a) Except as provided in section
6-605 of this order, each Federal agency shall develop an agency-wide
environmental justice strategy, as set Torth in subsections (bHe) of this
section that identifies and addresses disproportionately high and adverse
human health or environmental effects of Hs programs, policies, and activities
on minority populations and low-income populations. The environmental
justice strategy shall list programs, policies, planning and public participation
processes, enforcement, and/or rulemakings related to human health or the
environment that should be revised to. at a minimum: (1) promote enforce-
ment of all health and environmental statutes in areas with minority popu-
lations and low-income populations; (2j ensure greater public participation;
(3) Improve research and data collection relating to the health of and environ-
ment of minority populations and low-income populations; and (4) identify
differential patterns of consumption of natural resources among minority
populations and low-Income populations. In addition, the environmental
justice strategy shall include, where appropriate, a timetable for undertaking
identified revisions and consideration of economic and social implications
of the revisions.
(b) Within 4 months of the date of this order, each Federal agency shall
Identify an internal administrative process for developing Its environmental
justice strategy, and shall Inform the Working Group of the process.
(c) Within 6 months of the date of this order, each Federal agency shall
provide the Working Group with an outline of its proposed environmental
justice strategy.
(d) Within 10 months of the date of this order, each Federal agency
shall provide the Working Group with its proposed environmental justice
strategy... j,',, . ' .
• (e) Within 12 months of the date of this order, each Federal agency
thai) finalize Its environmental justice strategy and provide a copy and
;written description of Its strategy to the Working Group. During the 12
month period from the data of this order, each Federal agency, as part
of its environmental justice strategy, shall Identify several specific projects
llhat can be promptly undertaken to address particular concerns identified
during the development of the proposed environmental justice strategy, and
a schedule for implementing those projects.
(0 Within 24 months of the date of this order, each Federal agency
shall report to the Working Group on Its progress in implementing its
agency-wide environmental justice strategy.
lg) Federal agencies shall provide additional periodic reports to the Work-
ing Group as requested by the Working Group.
1-104. Reports to the President. Within 14 months of the date of this
order, the Working Group shall submit to the President, through the Office
of the Deputy Assistant to the President for Environmental Policy and the
Office of the Assistant to the President for Domestic Policy, a report that
describes the implementation of this order, and includes the final environ-
mental justice strategies described in section l-l03(e) of this order
Sec. 2-2. FEDERAL AGENCY RESPONSIBILITIES FOR FEDERAL PROGRAMS. Each
Federal agency shall conduct Its programs, policies, and activities that sub-
stantially affect human health'or the environment, in a manner that ensures
that such programs, policies, and activities do not have the effect of excluding
persons (including populations) from participation in, denying persons (in-
cluding populations) the benefits of. or subjecting persons (including popu-
-------
Federal Register / Vol. 59, No. 32 / Wednesday. February 16, 1994 / Presidential Documents 7631
lations] to discrimination under, such programs, policies, and activities,
because of their race, color, or national origin.
Sec. 3-3. RESEARCH, DATA COLLECTION, AND ANALYSIS.
3-301. Human Health and Environmental Research and Analysis, [a] Envi-
ronmental human health research, whenever practicable and appropriate.
shall include diverse segments of the population in epidemiological and
clinical studies, including segments at high risk from environmental hazards,
such as minority populations, low-income populations and workers who
may be exposed to substantial environmental hazards.
(b) Environmental human health analyses, whenever practicable and appro-
priate, shall identify multiple and cumulative exposures.
(c) Federal agencies shall provide minority populations and low-income
populations the opportunity to comment on the development and design
of research strategies undertaken pursuant to this order.
3-302. Human Health and Environmental Data Collection and Analysis.
To the extent permitted by existing law, including the Privacy Act. as
amended (5 U.S.C. section 552a): (a) each Federal agency, whenever prac-
ticable and appropriate, shall collect, maintain, and analyze information
assessing and comparing environmental and human health risks borne by
populations identified by race, national origin, or income. To the extent
practical and appropriate, Federal agencies shall use this information to
determine whether their programs, policies, and activities have disproportion-
ately high and adverse human health or environmental effects on minority
populations and low-income populations;
fb) In connection with the development and implementation of agency
strategies In section 1-103 of this order, each Federal agency, whenever
practicable and appropriate, shall collect, maintain and analyze information
on the race, national origin, income level, and other readily accessible and
appropriate information for areas surrounding facilities or sites expected
to have a substantial environmental, human health, or economic effect on
the surrounding populations, when such facilities or sites become the subject
of a substantial Federal environmental administrative or judicial action.
Such information shall be made available to the public, unless prohibited
by law; and
(c) Each Federal agency, whenever practicable and appropriate, shall col-
lect, maintain, and analyze information on the race, national origin, income
level, and other readily accessible and appropriate information for areas
surrounding Federal facilities that are: (1) subject to the reporting require-
ments under the Emergency Planning and Community Right-to-Know Act,
42 U.S.C section 11001-11050 as mandated in Executive Order No. 12856;
and (2) expected to have a substantial environmental, human health, or
economic effect on surrounding populations. Such information shall be made
available to the public, unless prohibited by law.
(d) In carrying out the responsibilities in this section, each Federal agency,
whenever practicable and appropriate, shall share information and eliminate
unnecessary duplication of efforts through the use of existing data systems
and cooperative agreements among Federal .agencies and with State, local,
and tribal governments. ..
See 4-4. SUBSISTENCE CONSUMPTION OF FISH AND WILDLIFE.
4-401/ Consumption Patterns. In order to assist in identifying the need
for ensuring protection of populations with differential patterns of subsistence
consumption of fish and wildlife. Federal agencies, whenever practicable
and appropriate, shall collect; maintain, and analyze -information on the
consumption patterns of populations who principally rely on fish and/or
wildlife for subsistence. Federal agencies shall communicate to the public
the risks of those consumption patterns.
-------
7632 Federal Register / Vol. 59. No. 32 / Wednesday, February 16. 1994 / Prcsidenti.nl Documents
4—402. Guidance. Federal agencies, whenever practicable and appropriate,
shall work in a coordinated manner to publish guidance reflecting the latest
scientific information available concerning methods for evaluating the human
health risks associated with the consumption of pollutant-bearing fish or
wildlifo. Agencies shall consider such guidance in developing their policies
and rules.
Sec. 5-5. PUBLIC PARTICIPATION AND ACCESS TO INFORMATION, (a) The public
may submit recommendations to Federal agencies relating to the incorpora-
tion of environmental justice principles into Federal agency, programs or
policies. Each Federal agency shall convey such recommendations to the
Working Group.
(b) Each Federal agency may, whenever practicable and appropriate, trans-
late crucial public documents, notices, and hearings relating to human health
or the environment for limited English speaking populations.
(c) Each Federal agency shall work to ensure that public documents.
notices, and hearings relating to human health or the environment are con-
cise, understandable, and readily accessible to the public.
(d) The Working Group shall hold public meetings, as appropriate, for
the purpose of fact-finding, receiving public comments, and conducting in-
quiries concerning environmental justice. The Working Group shall prepare
for public review a summary of the comments and recommendations dis-
cussed at the public meetings.
Sec. 6-6. GENERAL PROVISIONS.
6-601. Responsibility for Agency Implementation. The head of each Federal
agency shall be responsible for ensuring compliance with this order. Each
Federal agency shall conduct Internal reviews and take such other steps
as may be necessary to monitor compliance with this order.
6-602. Executive Order No. 12250. This Executive order is intended to
supplement but not supersede Executive Order No. 12250, which requires
consistent and effective implementation of various laxvs prohibiting discrimi-
natory practices in programs receiving Federal financial assistance. Nothing
herein shall limit the effect or mandate of Executive Order No. 12250.
6-603. Executive Order No. 12875. This Executive order is not intended
to limit the effect or mandate of Executive Order No. 12875.
6-604. Scope. For purposes of this order, Federal agency means any agency
on the Working Group, and such other agencies as may be designated
by the President, that conducts any Federal program or activity that substan-
tially affects human health or the environment. Independent agencies are
requested to comply with the provisions of this order.
6-G05. Petitions far Exemptions. The bead of a Federal agency may petition
the President for an exemption from the requirements of this order on
the grounds thai all or some of the petitioning agency's programs or activities
should not be subject to the requirements of this order.
6-606. Native American Programs. Each Federal agency responsibility set
forth under this order shall apply equally to Native American programs.
In addition, the Department of the Interior, in coordination with the Working
Group, and, after consultation with tribal leaders, shall coordinate steps
to be taken pursuant to this order that address Federally-recognized Indian
Tribes.
6-G07. Costs. Unless otherwise provided by law. Federal agencies shall
assume the financial costs of complying with this order.
6-608. General. Federal agencies shall implement this order consistent
with, and to the extent permitted by, existing law.
6-609. Judicial Reiiew. This order is intended only to improve the internal
management of the executive branch and is not intended to. nor does it
create any right, benefit, or trust responsibility, substantive or procedural,
-------
Federal Register / Vol. 59. No. 32 / Wednesday, February 1G. 1994 / Presidential Documents 7G33
enforceable at law or equity by a party against the United States, its agencies,
its officers, or any person. This order shall not be construed to create
any right to judicial review involving the compliance or noncompliance
of the United States, its agencies, its officers, or any other person with
this order.
|KR DOC. 94-3685
Filed 1-14-94: 3*7 pm!
Billing codfl 319S-O1-P
THE WHITE HOUSE.
February 11. 1994.
Editorial note: For the memorandum that was concurrently issued on Federal environmental
program reform, see Issue No. 6 of the Weekly Compilation of Presidential Documents.
-------
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release January 14, 1983
FACT SHEET
Indian Policy Statement
SUMMARY
Strong and effective tribal governments are essential in the
fight to solve the economic, health, educational, social and
other problems of some 735,000 American Indians living on or
near reservations. Just as the Federal government deals.with
States and local governments in meeting the needs of other
citizens, so should the Federal government deal with tribal
governments in promoting the well-being of American Indians.
The President's Indian Policy Statement emphasizes the
Administration's commitment to encourage and strengthen tribal
government as called for by President Nixon in 1970 and by
Congress in the Indian Self-Determination and Education
Assistance Act of 1975. The 1970 policy and 1975 law have not
been adequately implemented because the Federal government has
inhibited the political and economic development of the
tribes. Excessive regulations and self-perpetuating
bureaucracy have stifled tribal decisionmaking, thwarted
Indian control of reservation resources, and promoted
dependency rather than self-sufficiency.
This Administration will reverse this trend by removing
obstacles to self-government and by creating a more favorable
environment for development of healthy reservation economies.
This policy recognizes the diversity of the tribes and the
right of each to set its own priorities and goals, and to
proceed at its own pace. At the same time, the Federal
government will continue to fulfill its traditional
responsibility for the physical and financial resources held
in trust for the tribes and their members.
Indian tribes are tribal governments because they retain all
aspects of their original sovereignty not otherwise given up
or taken away by Congress. There are 283 Federally-recognized
tribal governments in the United States. In addition, there
are 193 Alaska village organizations which are served by the
Bureau of Indian Affairs (B1A). According to figures released
by the U.S. Census Bureau, there were 1,418,195 American
Indians, Eskimos and Aleuts in the United States in 1980.
(QVTTTJ)
-------
MAJOR POLICY POINTS
— The Administration will deal*rith Indian tribes on a
government-to-government basis.
— Tribal governments will be strengthened through these
actions:
* Today's signing of B.R. 5470, the Indian Tribal
Governmental Tax Status Act. This legislation
provides tribes with essentially the same
treatment under Federal tax laws as applies to
other governments with regard to revenue raising
and saving mechanisms.
* Encouragement "for -tribes to assume
responsibilities for services such as the
enforcement of tribal laws, developing and
managing tribal resources, providing health and
social services, and education.
* Designation of the White House Office of
Intergovernmental Affairs as liaison for tribes.
By moving this function from the White House
Office of Public Liaison, the President recognizes
that tribal organizations are governments rather
than interest groups such as veterans, businessmen
and religious leaders.
* A request that Congress expand the authorized
membership of the Advisory Commission on
Intergovernmental Relations to include a
representative of Indian tribal governments.
* Request that Congress repudiate House Concurrent
Resolution 108 of the 83rd Congress which called
for termination of the Federal-tribal
relationship. The Administration wants this
lingering threat of termination withdrawn and
replaced by a resolution expressing its support of
a government-to-government relationship.
* Support for direct funding to Indian tribes under
Title XX social services block grants to States.
In keeping with the government-to-government
relationship, Indian tribes are defined by law as
.eligible entities and receive direct funding, if
they wish, in five block grant programs
administered by the Department of Health and Human
Services. These and other blocks to the States
consolidated dozens of categorical Federal
domestic assistance programs to reduce
fragmentation and overlap, eliminate excessive
Federal regulation, ar.c crevice fcr more local
ccr.t.roi. This Administration proposes that Indian
tribes be eligible for direct funding in the
Title y.y. social services block, the block with the
-------
largest appropriation and the greatest flexibility
in service delivery. Grants for social services
would be made directly to the tribal governments,
at the option of the tribe, and would not be
channeled through the States.
To solve the severe economic conditions on
reservations/ the President has:
* Established a Presidential Advisory Committee on
Indian Reservation Economies. The Commission is
to identify obstacles to economic growth in the
public and private sector at "all levels; examine
and recommend changes in Federal lavs, regulations
and procedures to remove such obstacles; identify
actions State, local and tribal governments could
take to rectify identified problems; and recommend
ways for the private sector, both Indian and
non-Indian, to participate in the development and
growth of reservation economies. It will advise
the President on actions needed to improve
reservation economies.
* Pledged to work with the tribes to implement
expeditiously recently passed legislation allowing
tribes to enter into joint venture contracts for
the development of natural resources on
reservations. This is a major step which will
enable the tribal governments to become more
proficient in business management while increasing
employment opportunities for tribal members and
adding to tribal revenues.
* Requested funds in the FY 1983 budget to provide
seed money to tribes to attract private funding
for economic development ventures on reservations.
* Initiated legislation which Congress passed to
provide $375 million for building new roads on
Indian reservations.
This Administration sought suggestions from Indian
leaders in developing this policy.
-------
54364
Federal Regis*.— / Vol- SB. No. 202 / Thursday, Octobt ,;1, 1993 / Notices
This meeting will be open to the
public on October 18 from 8:30 to 9 a.m.
for opening remarks and discussion of
program guidelines. Attendance by the
public will be limited to space available.
In accordance with provisions sat
forth in sees. 552b(c)(4) and 552b{c)(6),
title 5, U.S.C. and sec 10(d) of Public
Law 92-463, the meeting will be closed
to the public from 9 a.m. on October 18
until adjournment for the review.
discussion and evaluation of individual
grant applications. These applications
and the discussions could reveal
confidential trade secrets or commercial
property such as patentable material,
and personal information concerning
Individuals associated with the
applications, the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy.
Ms. Lois DeNinno, Committee
Management Officer, National Eye
Institute. EPS, suite 350, National
Institutes of Health, Bethesda. Maryland
20892,301/496-5301. will provide.
upon request, summaries of the meeting,
rosters of committee members, and
substantive program information, as
well as, information regarding sign
language interpretation or other
reasonable accommodations.
This notice is being published less
than 15 days prior to the meeting due
to the difficulty of coordinating the
attendance of members because of
conflicting schedules.
(Catalog of Federal Domestic Assistance
Program No. 93.867. Vision Research;
Nations! Institutes of Health.)
Dated: October 14.1993.
Wendy Baldwin,
Acting Deputy Director for Extramural
Research. NIH.
IFR Doc. 93-25868 Filed 10-20-93; 8:45 am]
•KXJNO COM 4t40-01-*
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Indian Entitle* Recognized and Eligible
To Receive Service* From the United
State* Bureau of Indian Affair*
AGENCY: Bureau of Indian Affairs.
ACTIOK; Notice.
SUMMARY: Notice is hereby given of the
revision and update of the list of entities
recognized and eligible for funding and
services from the Bureau of Indian
Affairs and is published pursuant to 25
CFRpart83.
FOR FURTHER INFORMATION CONTACT:
Patricia Simmons. Bureau of Indian
Affairs. Division of Tribal Government
Services, 1849 C Street NW..
Washington. DC 20240. Telephone
number (202) 208-7445.
SUPPLEMENTARY INFORMATION: This
notice is published in exercise of
authority delegated to the Assistant
Secretary—Indian Affairs under 25
U.S.C 2 and 9 and 209 DM 8.
Published below are lists of federally
acknowledged tribes in the contiguous
48 states and in Alaska. The list for the
contiguous 48 states is updated from the
last such list published in 1988 to
include tribes acknowledged through
the Federal acknowledgment process
and legislation. The list for Alaska has
been substantially revised from the 1988
list of Alaska entities for the following
reasons:
hi 1978 the Department of the Interior
adopted regulations setting out
"Procedures for Establishing That an
American Indian Group Exists as an
Indian Tribe." 43 FR 39361 (Sept. 5,
1978). The regulations "establish a
departmental procedure and policy for
acknowledging that certain American
Indian tribes exist. Such
acknowledgment of tribal existence by
the Department is a prerequisite to the
protection, services, and benefits from
the Federal Government available to
Indian tribes. Such acknowledgment
shall also mean that the tribe is entitled
to the immunities and privileges
available to other federally
acknowledged Indian tribes by virtue of
their status as Indian tribes as well as
the responsibilities and obligations of
such tribes. Acknowledgment shall
subject the Indian tribe to the same
authority of Congress and the United
States to which other federally
acknowledged tribes are subjected." 25
CFR 83.2.
Under the procedures, groups not
recognized as tribes by the Federal
Government may apply for Federal
acknowledgment Tribes, bands,
pueblos or communities already
acknowledged as such and receiving
services from the Bureau of Indian
Affairs were not required to seek
acknowledgment anew. 25 CFR 83.3 (a),
(b). To assist groups in determining
whether they were required to apply.
the procedures provided for the
publication within 90 days of a list of
"all Indian tribes which are recognized
and receiving services from the Bureau
of Indian Affairs." 25 CFR 83.6(b). This
list is to be updated annually. Ibid.
The first list of acknowledged tribes
was published in 1979. 44 FR 7325 (Feb.
9,1979). The list used the term
"entities" in the preamble and
elsewhere to refer to and include all the
various anthropological organizations,
such as bands, pueblos and villages.
acknowledged by the Federal
Government to constitute tribes with a
government-to-govemment relationship
with the United States. A footnote
defined "entities" to include "Indian
tribes, bands, villages, groups and
pueblos as well as Eskimos and Aleuts."
44FRat7325,n. *.
The 1979 list did not, however,
contain the names of any Alaska Native
entities. The preamble stated that: "(t]he
list of eligible Alaskan entities will be
published at a later date." 44 FR at
2235,
In 1982 the Department added to the
list of tribal entities in the contiguous 48
states a "preliminary list" of Alaska
Native entities under the heading
Alaska Native Entities Recognized and
Eligible To Receive Services From the
United States Bureau of Indian Affairs.
47 FR 53133 (Nov. 24,1982). The
preamble to this list stated:
(U)nlquo circumstances have made eligible
additional entitles in Alaska which are not
historical tribes. Such circumstances have
resulted in multiple, overlapping eligibility
of Native entities In Alaska. To alleviate any
confusion which might arise from
publication of a multiple eligibility listing.
the following preliminary list shows those
entitles to which the Bureau of Indian Affairs
gives priority for purposes of funding and
services,
47 FR at 53133-53134.
The meaning of this preamble was
clarified by the 1982 list itself. The
entities appearing on the list were
traditional councils that were identified
as tribes in the Alaska Native Claims
Settlement Act (ANCSA), 43 U.S.C
1602(c), and that had been dealt with by
the Bureau of Indian Affairs on a
government-to-govemment basis and
Indian Reorganization Act councils
organized under the Indian
Reorganization Act (IRA), 25 U.S.C
473a. and dealt with on a govemmpnt-
to-govemment basis by the BIA. These
entities parallel the kinds of entities
listed on the list for the contiguous 48
states. Not listed on the Alaska list were
regional, village and urban corporations
organized under state law in accordance
with ANCSA. These corporations are
not governments, but they have been
designated as "tribes" for the purposes
of some Federal laws, primarily the
Indian Self-Determination and
Education Assistance Act (ISDA). 25
U.S.C 4SOb(b), creating the overlapping
eligibility referred to in the preamble.
The 1982 preamble, nonetheless,
caused confusion as to the Department's
intent See, e.g.. Board of Equalization
v. Alaska Native Brotherhood, 666 P.2d
1015,1024. n. 1 (Alaska 1983)
(concurring opinion). A number of
Alaska Native organizations complained
14.-OSCct2a.1M9 V«OMi 18-OCT-43 JW15QZ57 PO 00000 fm 00040 Fat4T1B S*nU7M
p»w02
-------
Federal Register / Vol. 58. No. 202 / Thursday, October 21, 1993 / Notices
54365
that the preamble was ambiguous and
cast doubt on the tribal status of Alaska
Native villages and regional tribes. The
statement was dropped from the
subsequent lists published in 1983,48
FR 56862 (Dec. 23,1983); 1985, SO PR
8058 (Feb. 13,1985); and 1986, SI FR
25118 (July 10,1886}. However, this
deletion did not eliminate lingering
uncertainties over whether inclusion on,
or exclusion from, the Alaska Native
entities list constituted an official
determination of the United States
government as to the tribal status of
Native entities. In addition, in 1986, a
number of Alaska Native entities
complained that they had been wrongly
omitted from the lists published
between 1982 and 1986.
In 1988, as part of the annual
publication required by 25 CFR 83.6(b).
the Department published a new list of
Alaska entities. The 1988 list departed
from the previous lists in a number of
respects. Rather than being limited to
traditional Native governments and
governments reorganized under Federal
law, as were the prior lists, the 1988 list
was expanded to include nine categories
of Alaska entities, including the state*
chartered regional, village and urban
corporations established pursuant to
ANCSA. The number of listed entities
thus more than doubled to 500. The
preamble to the list stated that the
revised list responded to a "demand by
the Bureau and other Federal agencies
* * * for a list of organizations which
are eligible for their funding and
services based on their inclusion in
categories frequently mentioned in
statutes concerning Federal programs
for Indians." 53 FRat 52,832.
The inclusion of non-tribal entities on
the 1988 Alaska entities list departed
from the intent of 25 CFR 83.8(b) and
created a discontinuity from the list of
tribal entities in the contiguous 48
states, which was republished as part of
the same Federal Register notice. As in
Alaska, Indian entities in the contiguous
48 states other than recognized tribes
are frequently eligible to participate in
Federal programs under specific
statutes. For example, "tribal
organizations" associated with
recognized tribes, but aot themselves
tribes/are eligible for contracts and
grants under the ISDA. 25 U.S.C.
450b(c). 450f. 450g. Unlike the Alaska
entities list, the 1988 entities list for the
contiguous 48 states was aot expanded
to include such entities.
Even more significantly, the change to
the Alaska entities list compounded,
rather than resolved, the question of the
status of Alaska tribes raised by prior
lists. First, the list did not distinguish
between entities listed on the basis of
their status as tribes and non-tribal
entities listed because of their eligibility
to participate in Federal programs under
specific statutes. Second, it omitted the
language on some of the earlier lists
which described the listed Indian
groups as "Indian tribal entities which
are recognized as having a special
relationship with the United States" and
instead included language applicable
only to Alaska stating that:
Inclusion on a list of entitle* already
receiving and eligible for Bureau funding
does not constitute a determination that the
entity either would or would not qualify for
Federal Acknowledgment under the
regulations, but only that no inch effort is
necestary to preserve eligibility.
Furthermore, Inclusion on or exclusion from
thli list of any entity should not be construed
to be a determination by thli Department as
to the extent of the powers and authority of
that entity.
53 FR at 52.832. Finally, the 1988 list
further confused the status of a number
of specific entities by using names for
some villages that were different from
the names of these villages used by the
Native traditional councils.
These changes in the 1988 publication
have raised a number of questions with
respect to the Department's intent and
the effect of the 1988 list. The omission
In the preamble of all references
acknowledging the tribal status of the
listed villages, and the inclusion of
ANCSA corporations, which lack tribal
status In a political sense, called into
question the status of all the listed
entities. Numerous Native villages,
regional tribes and other Native
organizations objected to the 1988 list
on the grounds that it failed to
distinguish between Native corporations
and Native tribes and failed to
unequivocally recognize the tribal status
of the listed villages and regional tribes.
In January 1993 the Solicitor of the
Department of the Interior issued a
comprehensive opinion analyzing the
status of Alaska Native villages as
"Indian tribes." as that term is
commonly used to refer to Indian
entitles In the contiguous 48 states. The
Solicitor analyzed the unique
circumstances of Alaska Native villages.
After a lengthy historical review, the
Solicitor concluded that there are tribes
in Alaska:
By the time of enactment of the IRA
(Indian Reorganization Act of 1934. as
amended In 19361. the preponderant opinion
was that Alaska Natives wen subject to the
same legal principles at Indians In the
contiguous 48 states, and had the same
powers and attributes as other Indian tribes.
except to the extent limited or preempted by
Congress.
What constitute* a tribe In the contiguous
48 states is sometimes a difficult question. So
also is it in Alaska. The history of Alaska Is
unique, but so is that of California, New
Mexico and Oklahoma. While the
Department's position with regard to the
existence of tribes in Alaska may haw
vacillated between 1867 and the opening
decades of this century, it is dear that for the
last half century, Congress and the
Department have dealt with Alaska Natives
as though there were tribes in Alaska. The
fact that the Congress and the Department
may not have dealt with ail Alaska Natives
as tribes at all tines prior to the 1930'* did
not preclude it from dealing with them as
tribes subsequently.
Sol Op. M-36.975, at 46,47-48 (Jan. 11,
1993).
The Solicitor found it unnecessary for
the purposes of his opinion to identify
specifically those villages which are
tribes, although he observed that
Congress's listing of specific villages in
the Alaska Native Claims Settlement Act
and the repeated Inclusion of such
villages within the definition of "tribe"
over the 20 years since the passage of
ANCSA arguably constituted a
congressional determination that the
villages found eligible for benefits under
ANCSA, referred to as the "modified
ANCSA list," are considered Indian
tribes for purposes of Federal law. M-
36.975. at 58-59.
In view of the foregoing, and to
comply with the requirement of 25 CFR
83.6(b), the Department of the Interior
has determined it necessary to publish
a new list of Alaska tribal entities. The
Bureau of Indian Affairs has reviewed
the "modified ANCSA list" of villages
and the list of those villages and
regional tribes previously listed or dealt
with by the Federal Government as
governments and found that the villages
and regional tribes listed below have
functioned as political entities
exercising governmental authority and
are, therefore, acknowledged to have
"the immunities and privileges
available to other federally
acknowledged Indian tribes by virtue of
their status as Indian tribes as well as
the responsibilities and obligations of
such tribes."
The purpose of the current
publication is to publish an Alaska list
of entities conforming to the intent of 25
CFR 83.6(b) and to eliminate any doubt
as to the Department's intention by
expressly and unequivocally
acknowledging that the Department has
determined that the villages and
regional tribes listed below are
distinctly Native communities and have
the same status as tribes in the
contiguous 48 states. Such
acknowledgement of tribal existence bjf
the Department is a prerequisite to the!
protection, services, and benefits from
the Federal Government available to
1«S V«rOtt» 1frOCT-83 JKt1S02S7 PO00000 FftnOOWl Fml4TO3 Sftn«4703 E:\FRVFM\P21OC3.PTI pfrmOI
-------
54366
Federal Register / Vol. 58, No, 202 / Thursday, October ^1. 1993 / Notices
Indian tribes. This list is published to
clarify that the villages and regional
tribes listed below are not simply
eligible for services, or recognized as
tribes for certain narrow purposes.
Rather, they have the same
governmental status as other federally
acknowledged Indian tribes by virtue of
their status as Indian tribes with a
goverament-to-govemment relationship
with the United States; are entitled to
the same protection, immunities,
privileges as other acknowledged tribes;
have the right, subject to general
principles of Federal Indian law, to
exercise the same inherent and
delegated authorities available to other
tribes; and are subject to the same
limitations imposed by law on other
tribes.'
A directive accompanying the
Department of the Interior and Related
Agencies Appropriations Act for FY
1992 directed the Secretary to study the
historical evidence relating to five
villages for purposes of determining
whether they were inadvertently denied
village or urban status under ANCSA.
H.R, Rep. No. 102-256,102d Cong., 1st
Sess. 42-43 (1991). Four of these
villages are listed below on the basis of
their reorganization under Federal law.
A decision on inclusion of the
remaining village (Tenakee) will be
made after the completion of the study.
Because the list published by this
notice is limited to entities found to be
Indian tribes^ as that term is denned end
used in 25 CFR part 83, it does not
include a-number of non-tribal Native
entities in Alaska that currently contract
with or receive services from the Bureau
of Indian Affairs pursuant to specific
.statutory authority, including ANCSA
village and regional corporations and
various tribal organizations. These
entities are made eligible for Federal
contracting and services by statute and
their non-inclusion on the list below
does not affect the continued eligibility
of the entities for contracts and
services.^
' Sol. Op. M-36.»75 concluded, construing
general principle* of Federal Indian law and
ANCSA. tint "notwilh*UncUng the potentUl that
IndUn country Mill exists in Alula la certain
limited cue*. Congress hai left little or no room tor
tribe* In Alaska to exercise governmental authority
over lend or nonmemben." M-M.973. at 108. That
portion of the opinion la nibject to review, but haa
not been withdrawn or modified.
* Under longstanding BIA policy, priority far
contract* tnd ttrrlcet la AluLe la gJvrn to
reorganized and traditional governments over non-
tribal corporations. Proposed regulations to
Implement the 1988 Amendments to the IndUn
Self-Delennlnallon Act scheduled to be published
la the aear future will Incorporate this policy.
Ada S. DMT,
Assistant Secretary-Indian Affairs.
Indian Tribal Entities Within the Contiguous
48 Start* Racognizad and Eligible to Receive)
Service* from The United State* Bureau of
Indian Affairs
Absentee-Shawnee Tribe of Indians of
Oklahoma
Agua Caliente Band of Cahullla Indians of
the Agua Caliente Indian Reservation.
California
AkChin Indian Community of Papago
Indians of the Maricopa, Ak Chin
Reservation.- Arixona
Alabama and Goushatta Tribes of Texai
Alabama-Quassarte Tribal Town of the Creak
Nation of Oklahoma
Attune Rancheria of Pit River Indians of
California
Apache Tribe of Oklahoma
Arapahoe Tribe of the Wind River
Reservation, Wyoming
Arooetook Band of Mlcrnac Indians of Maine
Asslaibolne and Sioux Tribes of tbe Fort
Peck Indian Reservation, Montana
Augustine Band of Cahullla Mission Indians
of the Augustine Reservation. California
Bad River Band of the Lake Superior Tribe
of Chlppewa Indians of the Bad River
Reservation, Wisconsin
Bay Milk Indian Community of the Sault Ste.
Marie Band of Chlppewa Indians, Bay
Mills Reservation. Michigan
Berry Creek Rancheria of Maldu Indians of
California
Big Lagoon Rancheria of Smith River Indians
of California
Big Pine Band of Owens Valley Palute
Shoshone Indians of the Big Pine
Reservation, California
Big Sandy Rancheria of Mono Indians of
California
Big Valley Rancheria of Porno & Pit River
Indians of California
Blackfeet Tribe of tbe Blackfeet Indian
Reservation of Montana
Blue Lake Rancheria of California
Bridgeport Palute Indian Colony of California
Buena Vista Rancheria of Me-Wuk Indians of
California
Burns Palute Tribe of the Burns Palute Indian
Colony of Oregon
Cabexon Band of Cahullla Minion Indians of
the Cabaxon Reservation. California
Cachil DeHe Band of Win tun Indians of the
Colusa Indian Community of the Golusa
Rancheria, California
Caddo Indian Tribe of Oklahoma
Cahuilla Band of Mission Indians of the
Cahuilla Reservation, California
Canto Indian Tribe of the Laytonyille
Rancheria, California
Campo Band of Diegueno Mission Indians of
the Campo Indian Reservation, California
Capltan Grande Band of Diegueno Mission
Indians of California:
Barona Group of Capltan Grande Band of
Mission Indians of the Barona
Reservation, California
Vie|as (Baron Long] Group of Capltan
Grande Band of Mission Indians of the
Vtefes Reservation. California
Cayuga Nation of New York
Cedarville Rancheria of Northern Palute
Indians of California
Cbemehuevi Indian Tribe of the Chemehuevi
Reservation, California
Cher-Ae Heights Indian Community of the
Trinidad Ranchrria. California
Cherokee Nation of Oklahoma
Cheyenne-Arapaho Tribes of Oklahoma
Cheyenne River Sioux Tribe of the Cheyenne
River Reservation. South Dakota
Chlckasaw Nation of Oklahoma
Chicken Ranch Rancheria of Me-Wuk Indians
of California
Chippevra-Cree Indians of the Rocky Boy's
Reservation. Montana
Chltlmacha Tribe of Louisiana
Cboctaw Nation of Oklahoma
Citizen Band Potawatomi Indian Tribe of
Oklahoma
Cloverdaie Rancheria of Porno Indians of
California
Coast Indian Community of Yurok Indians of
the Restghinl Rancheria. California
Cocopah Tribe of Arizona
Coeur D'Alena Tribe of the Coeur D'Alene
Reservation. Idaho
Cold Springs Rancheria of Mono Indians of
California
Colorado River Indian Tribes of the Colorado
River Indian Reservation, Arizona and
California
Comanche Indian Tribe of Oklahoma
Confederated Salish & Kootenai Tribes of the
Flathead Reservation, Montana
Confederated Tribes of the Chehalls
Reservation, Washington
Confederated Tribes of the Colville
Reservation, Washington
Confederated Tribes of the Coos, Lower
Umpqua and Sluslaw Indians of Oregon
Confederated Tribes of the Goshute
Reservation, Nevada and Utah
Confederated Tribes of the Grand Ronde
Community of Oregon
Confederated Tribes of the Slletz Reservation,
Oregon
Confederated Tribes of the Umatllla
Reservation, Oregon
Confederated Tribes of the Warm Springs
Reservation of Oregon
Confederated Tribes and Bands of the
Yaktma Indian Nation of the Yakima
Reservation, Washington
Coquille Tribe of Oregon
Cortina Indian Rancheria of Wlnrun Indians
of California
Coushatta Tribe of Louisiana
Covelo Indian Community of the Round
Valley Reservation. California
Cow Creek Band of Umpqua Indians of
Oregon
Coyote Valley Band of Pomo Indians of
California
Creek Nation of Oklahoma
Crow Tribe of Montana
Crow Creek Sioux Tribe of the Crow Creek
Reservation, South Dr-kota
Cuyapaipe Community of Diegueno Mission
Indians of the Cuyapaipe Reservation.
California
Death Valley Tirabl-Sha Shoshoae Band of
California
Delaware Tribe of Western Oklahoma
Devils Lake Sioux Tribe of the Devils Lake
Sioux Reservation. North Dakota
Dry Creek Rancheria of Porno Indians of
California
Duckwater Shoshone Tribe of the Duckwater
Reservation, Nevada
14.06Oct20.100 VerDele 16-OCT-W JW150257 PO00000 FrmOOOC FM4703 8M4703 &WVFMP2TCO.PT1 pfrntt!
-------
Federal Register / Vol. 58, No. 202 / Thursday, October 21, 1993 / Notices
34367
Eastern Band of Cherokee Indian* of North
Carolina
Eastern Shawnee Tribe of Oklahoma
Eiem Indian Colony of Porno Indian* of the
Sulphur Bank Rancherla, California
Elk Valley Rancheria of Smith River Tolowa
Indiana of California
Ely Shoshowi Tribe of Nevada
Enterprise Rtncheria of Maidu Indians of
California
Flandreau Santee Sioux Tribe of South
Dakota
Forest County Potawatoml Community of
Wisconsin Potawatomie Indians,
Wisconsin
Fort Belknap Indian Community of the Fort
Balknap Reservation of Montana
Fort Bidwall Indian Community of Palute
Indians of the Fort Bldwell Reservation.
OUfornla
Fort Independence Indian Community of
Palute Indians of the Fort Independence
Reservation, California
Fort McDermlu Palute and Shoshone Tribe*
of the Fort McDermltt Indian Reservation,
Nevada
Fort McDowell Mohave-Apache Indian
Community of the Fort McDowell Indian
Reservation, Arizona
Fort Mofcve Indian Tribe of Arizona
Fort SHI Apache Tribe of Oklahoma
Glla Rlvnr Pima-Maricona Indian Community
of the Glla River Indian Reservation of
Arizona
Grand Traverse Band of Ottawa ft Chlppewa
Indians of Michigan
Greenville Rancheria of Maidu Indians of
California
Grindstone Indian Rancheria of Wlntun-
Wallakl Indians of California
Guldlvllle Rancheria of California
HannahviJle Indian Community of Wisconsin
Potawatomie Indians of Michigan
Kavasupal Tribe of the Kavasupai
Reservation, Arizona
Hoh Indian Tribe of the Hoh Indian
Reservation, Washington
Hoopa Valley Tribe of the Hoop* Valley
Reservation, California
Hop! Tribe of Arizona
Hopland Band of Porno Indians of the
Hopland Rancheria, California
Houlton Band of Mallseet Indians of Maine
Kualapai Tribe of the Hualapai Indian
Reservation, Arizona
Inala Band of Dlegueno Mission Indians of
the Inaja and Cosmlt Reservation.
California
Iowa Tribe of Kansas and Nebraska
Iowa Tribe of Oklahoma
Jackson Rancheria of Me-Wuk Indians of
California
Jamestown Klallam Tribe of Washington
Jamul Indian Village of California
Jlcarllla Apache Tribe of the Jlcarilla Apache
Indian Reservation. New Mexico
Kalbab Band of Palute Indians of the Kaibab
Indian Reservation, Arizona
Kallipel Indian Community of the Kalispel
Reservation, Washington
Karuk Tribe of California
Kashla Band of Porno Indians of the Stewarts
Point Rancheria, California
Kiw Indian Tribe of Oklahoma
Kewvenaw Bay Indian Community of L'Anse
and Ontonagon Bands of Chippewa Indians
of the L'Anse Reservation, Michigan
Kialegee Tribal Town of the Creek Indian
Nation of Oklahoma
Klckapoo Tribe of Indians of the Kickapoo
Reservation in Kansas
Klckapoo Tribe of Oklahoma
Klckapoo Traditional Tribe of Texas
Kiowa Indian Tribe of Oklahoma
Klamath Indian Tribe of Oregon
Kootenat Tribe of Idaho
La folia Band of Luiseno Mission Indians of
the La JolJa Reservation. California
La Posta Band of Dlegueno Mission Indians
of the La Posta Indian Reservation.
California
La Courte Orellles Band of Lake Superior
Chlppewa Indians of the Lac Courts
Orellles Reservation of Wisconsin
Lac du Flambeau Band of Lake Superior
Chippewa Indians of the Lac du Flambeau
Reservation of Wisconsin
Lac Vieux Desert Band of Lake Superior
Chippewa Indians of Michigan
Las Vegas Tribe of Palute Indians of the Las
Vegas Indian Colony, Nevada
Los Coyotes Band of Cahuilla Mission
Indians of the Los Coyotes Reservation,
California
Lovelock Palute Tribe of the Lovelock Indian
Colony, Nevada
Lower Brule Sioux Tribe of the Lower Brule
Reservation, South Dakota
Lower Elwha Tribal Community of the Lower
Blwha Reservation, Washington
Lower Sioux Indian Community of
Minnesota Mdewakanton Sioux Indians of
the Lower Sioux Reservation in Minnesota
Lurami Tribe of the Lummi Reservation,
Washington
Lytton Rancheria of California
Makah Indian Tribe of the Makah Indian
Reservation, Washington
Manchester Band of Porno Indians of the
Manchester-Point Arena Rancheria,
California
Mansanita Band of Dlegueno Mission Indians
of the Manzanlta Reservation, California
Mashantucket Pequot Tribe of Connecticut
Mechoopda Indian Tribe of Chlco Rancheria,
Callfumia
Menomlnee Indian Tribe of Wisconsin
Mesa Grande Band of Dlegueno Mission
Indians of the Mesa Grande Reservation,
California
Mescalero Apache Tribe of the Mescalero
Reservation, New Mexico
Miami Tribe of Oklahoma
Miccosukae Tribe of Indians of Florida
Mlddletown Rancheria of Porno Indians of
California
Minnesota Chippewa Tribe, Minnesota (Six
component reservations: Bols Forte Band
(Nan Lake); Fond du Lac Band; Grand
Portage Band: Leech Lake Band; Mill* Lac
Band: White Earth Band)
Mississippi Band of Choctaw Indians,
Mississippi
Moapm Band of Patuta Indiana of the Moapa
River Indian Reservation, Nevada
Modoc Tribe of Oklahoma
Mooretown Rancheria of Maidu Indians of
California
Morongo Band of Cahuilla Mission Indians of
the Morongo Reservation, California
Muckleshoot Indian Tribe of the
Muckleshoot Reservation, Washington
Narragansett Indian Tribe of Rhode Island
Navafo Tribe of Arizona. New Mexico ft Utah
Net Pence Tribe of Idaho
Nisqually Indian Community of the
Nisquaily Reservation, Washington
Nooksack Indian Tribe of Washington
Northern Cheyenne Tribe of the Northern
Cheyenne Indian Reservation, Montana
Northfork Rancheria of Mono Indians of
California
Northwestern Band of Shoshoni Indians of
Utah (Wasbakle)
Oglala Sioux Tribe of the Pine Ridge
Reservation, South Dakota
Omaha Tribe of Nebraska
Oneida Nation of New York
Onelda Tribe of Wisconsin
Onondaga Nation of New York
Osage Tribe of Oklahoma
Ottawa Tribe of Oklahoma
Otoe-Mlssouria Tribe of Oklahoma
Palute Indian Tribe of Utah
Palute-Shoshone Indians of the Bishop
Community of the Bishop Colony.
California
Palute-Shoshone Tribe of the Fallen
Reservation and Colony, Nevada
Palute-Shoshone Indians of the Lone Pine
Community of the Lone Pine Reservation.
California
PalaBand of Luiseno Mission Indians of the
Pals Reservation, California
Pascua Yaqui Tribe of Arizona
Passamaquoddy Tribe of Maine
Pauma Band of Luiseno Mission Indians of
the Pauma ft Yulraa Reservation, California
Pawnee Indian Tribe of Oklahoma
Pechanga Band of Luiseno Mission Indians of
the Pechanga Reservation. California
Penobscot Tribe of Maine
Peoria Tribe of Oklahoma
Picayune Rancheria of Chukchansl Indians of
California
Pinoleville Rancheria of Porno Indians of
California
Pit River Tribe of California (includes Big
Bend, Lookout, Montgomery Creek ft
Roaring Creek Rancberlas ft XL Ranch)
Poarch Band of Creek Indians of Alabama
Ponca Tribe of Indians of Oklahoma
Ponca Tribe of Nebraska
Port Gamble Indian Community of the Port
Gamble Reservation, Washington
Potter Valley Rancheria of Porno Indians of
California
Prairie Band of Potawatomi Indians of Kansas
Prairie Island Indian Community of
Minnesota Mdewakanton Sioux Indians of
the Prairie Island Reservation, Minnesota
Pueblo of Acoma, New Mexico
Pueblo of Cochltl, New Mexico
Pueblo of Jenwt, New Mexico
Pueblo of Isleta, New Mexico
Pueblo of Laguna, New Mexico
Pueblo of Nambe. New Mexico
Pueblo of Picuris, New Mexico
Pueblo of Pojoaque, New Mexico
Pueblo of San Felipe. New Mexico
Pueblo of San Juan, New Mexico
Pueblo of San Ildefonso. New Mexico
Pueblo of Sandia, New Mexico
Pueblo of Santa Ana, New Mexico
Pueblo of Santa dan. New Mexico
Pueblo of Santo Domingo, New Mexico
Pueblo of Taos, New Mexico
Pueblo of Tesuque. New Mexico
Pueblo of Zia. New Mexico
-------
54368
Federal Rogiater / Vol. S8, No. 202 / Thursday. OctOuar 21. 1993 / Notices
Puyallup Tribe of the Puyallup Reservation,
Washington
Pyramid Lake Palute Tribe of the Pyramid
Lake Reservation, Washington
Quapcw Tribe of Oklahoma
Quartz Valley Rancheria of Karok. Shasta ft
Upper Klamath Indian* of California
Quechan Tribe of the Fort Yuma Indian
Reservation. California
Quileute Tribe of the Qulleute Reservation.
Washington
Qulnault Tribe of the Qulnault Reservation,
Washington
Ramona Band or Village of Cahuilla Mission
Indians of California
Rod OlffBand of Lake Superior Chippewa
Indians of Wisconsin
Red Lake Band of Chlppewa Indians of the
Red Lake Reservation, Minnesota
Redding Rancheria of Porno Indians of
California
Redwood Valley Rancheria of Porno Indians
of California
Reno-Sparks Indian Colony, Nevada
Rlncon Band of Lulseno Mission Indiana of
the Rlncon Reservation, California
Robinson Rancheria of Porno Indians of
California
Rohnervllle Rancheria of Bear River or
Mattole Indiana of California
Rosebud Sioux Tribe of the Rosebud Indian
Reservation. South Dakota
Rurosey Indian Rancheria of Wlntun Indians
of California
Sac ft Fox Tribe of Mississippi in Iowa
Sac & Fox Tribe of Missouri in Kansas and
Nebraska
Sac & Fox Tribe of Oklahoma
Saglnaw Chlppewa Indian Tribe of Michigan.
Isabella Reservation
Salt River Pima-Maricopa Indian Community
of the Salt River Reservation. Arizona
San Carlos Apache Tribe of the San Carlos
Reservation, Arizona
San Juan Southern Palute Tribe of Arizona
San Manual Band of Serrano Mission Indians
of the San Manual Reservation, California
San Pasqual Band of Dlegueno Mission
Indians of California
Santa Rosa Indian Community of the Santa
Rosa Rancheria, California
Santa Rosa Band of Cahuilla Mission Indians
of the Santa Rosa Reservation. California
Santa Ynez Band of Chumaah Mission
Indians of the Santa Ysabal Reservation.
California
Santa Ysabel Band of Dlegueno Mission
Indians of the Santa Ysabel Reservation.
California
Santee Sioux Tribe of the Santee Reservation
of Nebraska
Sauk-Sulattle Indian Tribe of Washington
S*ult Ste. Marie Tribe of Chippewa Indians
of Michigan
Scotts Valley Band of Porno Indiana of
California
Seminole Nation of Oklahoma
Seminole Tribe of Florida. Dania. Big Cypress
ft Brighton Reservations
Seneca Nation of New York
Seneca-Cayuga Tribe of Oklahoma
Shakopee Mdewakanton Sioux Community
of Minnesota (Prior Lake)
Sheep Ranch Rancheria of Me-Wuk Indians
of California
Sherwood Valley Rancheria of Porno Indians
of California
Shingle Springs Band of Mlwok Indians,
Shingle Springs Rancheria (Verona Tract),
California
Shoalwatar Bay Tribe of the Shoalwater Bay
Indian Reservation. Washington
Shoshone Tribe of the Wind River
Reservation, Wyoming
Shoshone-Bannock Tribes of the Fort Hall
Reservation of Idaho
Shoshone-Paiute Tribes of the Duck Valley
Reservation, Nevada
Slsseton-Wahpeton Sioux Tribe of the Lake
Traverse Reservation. South Dakota
Skokomiih Indian Tribe of the Skokomlsh
Reservation, Washington
Skull Valley Band of Goshuto Indians of Utah
Smith River Rancheria of California
Soboba Band of Lulseno Mission Indians of
the Soboba Reservation, California
Sokoagon Chlppewa Community of the Mote
Lake Band of Chippewa Indians,
Wisconsin
Southern Ute Indian Tribe of the Southern
Ute Reservation, Colorado
Spokane Tribe of the Spokane Reservation,
Washington
Squaxin bland Tribe of the Squaxln Island
Reservation, Washington
St Croix Chippewa Indians of Wisconsin, St
Crolx Reservation
St Regis Band of Mohawk Indians of New
York
Standing Rock Sioux Tribe of North ft South
Dakota
Stockbridge-Munsee Community of Mohican
Indians of Wisconsin
Stlllaguamlsh Tribe of Washington
Summit Lake Palute Tribe of Nevada
Suquamiah Indian Tribe of the Port Madison
Reservation. Washington
Susanville Indian Rancheria of Palute.
Matdu. Pit River ft Washoe Indians of
California
Swlnomlsh Indians of the Swinomlsh
Reservation, Washington
Sycuan Band of Dlegueno Mission Indians of
California
Table Bluff Rancheria of Wlyot Indians of
California
Table Mountain Rancheria of California
Te-Mokk Tribes of Western Shoshone Indians
of Nevada
Thlopthlocco Tribal Town of the Creek
Nation of Oklahoma
Three Affiliated Tribes of the Fort Berthold
Reservation. North Dakota
Tohono Q'odham Nation of Arizona
(formerly known as the Papago Tribe of the
Sells. Glla Bend ft San Xavier Reservation,
Arizona)
Tonawanda Band of Seneca Indians of New
York
Tonkaws Tribe of Indian* of Oklahoma
Tonto Apache Tribe of Arizona
Torres-Martinez Band of Cahuilla Mission
Indiana of California
Tule River Indian Tribe of the Tule River
Reservation, California
Tulalln Tribes of the Tulallp Reservation,
Tunlca-Blloxi Indian Tribe of i^»'i«i«"«
Tuolumne Band of Me-Wuk Indiana of the
Tuolurane Rancheria of California
Turtle Mountain Band of Chippewa Indians
of North Dakota
Tuscarora Nation of New York
Twenty-Nine Palms Band of Luiseno Mission
Indians of California
United Keetoowah Band of Cherokee Indians
of Oklahoma
Upper Lake Band of Porno Indians of Upper
Lake Rancheria of California
Upper Sioux Indian Community of the Upper
Sioux Reservation, Minnesota
Upper Skaglt Indian Tribe of Washington
Ute Indian Tribe of the Uintah ft Ouray
Reservation, Utah
Ute Mountain Tribe of the Ute Mountain
Reservation, Colorado, New Mexico ft Utah
Utu Utu Gwaitu Palute Tribe of the Benton
Paiute Reservation, California
Walker River Palute Tribe of the Walker
River Reservation, California
Wampanoag Tribe of Gay Head (Aquinnah) of
Massachusetts
Washoe Tribe of Nevada ft California (Carson
Colony. Dresslerville ft Washoe Ranches]
White Mountain Apache Tribe of the Fort
Apache Reservation. Arizona
Wichita and Affiliated Tribes (Wichita,
Keechi, Waco ft Tawakonle) of Oklahoma
Winnebago Tribe of Nebraska
Winnemucca Indian Colony of Nevada
Wisconsin Winnebago Indian Tribe of
Wisconsin
Wyandotte Tribe of Oklahoma
Yankton Sioux Tribe of South Dakota
Yavapai-Apache Indian Community of the
Camp Verde Reservation, Arizona
Yavapai-Prescott Tribe of the Yavapal
Reservation, Arizona
Yerington Palute Tribe of the Yerington
Colony ft Campbell Ranch. Nevada
Yomba Shoshone Tribe of the Yomba
Reservation. Nevada
Ysleta Del Sur Pueblo of Texas
Yurok Tribe of the Hoopa Valley Reservation.
California
Zunl Tribe of the Zunl Reservation. New
Mexico
Natta Entities Within the State ofAInka
Recognized and Eligible To Receive Serrica
Fro» the United State* Bureau of Indian
Affairs
Village of Afognak
Native Village of Akhlok
Akiachak Native Community
Aklak Native Community
Native Village of Akutan
Village of Alakanuk
Alatna Village
Native Village of Aleknagik
Algaadq Native Village (St. Mary's)
Allakaket Village
Native Village of Ambler
Village of Anaktuvuk Pass
YuplltofAndreafski
Angoon Community Association
Village of Aniak
Anvik Village
Arctic Village (See Native Village of Venetle
Tribal Government)
Native Village of Atka
Atoasuk Village (Atkasook)
Village of Atmautluak
Native Village of Barrow
Beaver Village
Native Village of Belkofskl
Village of BUI Moore's Slough
Birch Creek Village
Native Village of Brevig Mission
UflSOrtJO, 1W3 VaKMc ISOCT-fta J4T50237 PO 00000 FrmODOM FM4703 SM4783
**"«
-------
Federal Register / Vol. 58. No. 202 / Thursday, October *i, 1993 / Notices
54369
Native Village of Buckland
Native Village of Cantwell
Native Village of Chanega (aka Chenega)
Chalkyttslk Village
Village of Chefomak
Cbevak Native Village
Chickaloon Native Village
Native Village of Chlgnik
Native Village of Chignlk Lagoon
Chlgnik Lake Village
Chtlkat Indian Village (Kluckwan)
Chllkoot Indian Anoclation (Haines)
• Chinik Eskimo Community (Golovln)
Native Village of Chlstochlna
Native Village of Chltina
Native Village of Chuatbaluk (Hussion
Mission, Kuskokwim)
Chuloonawick Native Village
Circle Native Community
Village of Clarks's Point
Native Village of Council
Craig Community Association
Village of Crooked Creek
Native Village of Deering
Native Village of Dllllnghara
Native Village of Diomede (aka Inalik)
Village of Dot Lake
Douglas Indian Association
Native Village of Eagle
Native Village of Eek
Eklutna Native Village
Native Village of Ekuk
Ekwok Village
Native Village of Ellm
Emmonek Village
Evantville Village (aka Settle* Field)
Native Village of Eyak (Cordova)
Native Village of False Past
Native Village of Fort Yukon
Native Village of Cakona
Galena Village (aka Louden Village)
Native Village of Cembali
Native Village of Georgetown
Native Village of Goodnews Bay
Organized Village of Grayling (aka
Hollkachuk)
Gulkana Village
Native Village of Hamilton
Mealy Lake Village
Holy Cross Village
Hoonah Indian Association
Native Village of Hooper Bay
Hughes Village
Huslia Village
Hydaburg Cooperative Association
Iglugig Village
Village of Illamna
Inupiat Community of the Arctic Slope
Ivsnoff Bay Village
Kaguyak Village
Organized Village of Kake
Kaktovtk Village (aka Barter Island)
Village of Kalskag
Village of Kaltag
Native Village of Kaaatak
Native Village of Karluk
Organized Village of Kasaan
Native Village of Kaslgluk
Kenaitze Indian Tribe
Ketchlkan Indian Corporation
Native Village of Kiana
Agdaagux Tribe of King Cove
King Island Native Community
Native Village of Klpnuk
Native Village of Klvallna
llage
Klawock Cooperative Association
Native Village of Klutl Kaah (aka Copper
Center)
Knik Village
Native Village of Kobuk
Kokhanok Village
Kollganek Village
Native Village of Kongiganak
Village of Kotlik
Native Village of Kotzebue
Native Village of Koyuk
Koyukuk Native Village
Organized Village of Kwethluk
Native Village of Kwlglllingok
Native Village of Kwinhagak (aka Quinhagak)
Native Village of Larson Bay
Levelock Village
Lesnol Village (aka Woody Island)
Lime Village
Village of Lower Kalskag
Manley Hot Springs Villa)
Manokotak Village
Native Village of Marshall (aka Fortune
Ledge)
Native Village of Mary's Igloo
McCrath Native Village
Native Village of Mekoryuk
Men testa Lake Village
Metlakatla Indian Community. Annette
Island Reserve
Native Village of Mlnto
Native Village of Mountain Village
Naknek Native Village
Native Village of Nanwalek (aka English Bay)
Native Village of Napaimute
Native Village of Napakiak
Native Village of Napasklak
Native Village of Nelson Lagoon
Nenana Native Association
New Stuyahok Village
Newhalen Village
Newtek Village
Native Village of Nlghtmute
Nikolai Village
Native Village of Nlkolskl
Nlnllchlk Village
Native Village of Noatak
Nome Eskimo Community
Nondalton Village
Noorvik Native Community
Northway Village
Native Village of Nulqsut (aka Noolksut)
Nulato Village
Native Village of Nunapltchuk
Village of Ohogamlut
Village of Old Harbor
Orutsararmuit Native Village (aka Bethel)
Oscarville Traditional Village
Native Village of Ouzlnkle
Native Village of Paimiut
Pauloff Harbor Village
Pedro Bay Village
Native Village of Perryville
Petersburg Indian Association
Native Village of Pilot Point
Pilot Station Traditional Village
Native Village of Pltka's Point
Platinum Traditional Village
Native Village of Point Hope
Native Village of Point Lay
Native Village of Port Graham
Native Village of Port Heiden
Native Village of Port Lions
Portage Creek Village (aka Ohgsenakale)
Pribllof Islands Aleut Communities of St
Paul ft St George Islands
Qagan Toyagungln Tribe of Sand Point
Village
Rampart Village
Village of Red Devil
Native VI llage of Ruby
Native Village of Russion Mission (Yukon)
Village of Salamatoff
Organized Village of Saxman
Native Village of Savoonga
Saint George (See Pribllof Islands Aleut
Communities of St. Paul ft St George
Islands)
Native Village of Saint Michael
Saint Paul (See Pribllof Islands Aleut
Communities of SL Paul a St. George
•Islands)
Native Village of Scammon Bay
Native Village of Selawik
Seidovia Village Tribe
Shageluk Native Village
Native Village of Shaktoolik
Native Village of Sheldon's Point
Native Village of Shlshmaref
Native Village of Shungnak
Sltka Tribe of Alaska
Skagway Village
Village of Sleetmute
Village of Solomon
South Naknek Village
Slebblns Community Association
Native Village of Stevens
Village of Stony River
Takotna Village
Native Village of Tanacross
Native Village of Tanana
Native Village of Tatltlek
Native Village of Tazllna
Telida Village
Native Village of Teller
Native Village of Tetlln
Traditional Village of Toglak
Native Village of Toksook Bay
Tuluksak Native Community
Native Village of Tuntutuliak
Native Village of Tununak
Twin Kills Village
Native Village of Tyonek
Ugashlk Village
Urakumiute Native Village
Native Village of Unalakleet
Qawallngin Tribe of Unalaska
Native Village of Unga
Village of Venetie (See Native Village of
Venetie Tribal Government)
Native Village of Venetie Tribal Government
(Arctic Village and Village of Venetie)
Village of Wainwright
Native Village of Wales
Native Village of White Mountain
Wrangel) Cooperative Association
YakutatTllngit Tribe
(FR Doc. 93-25822 Filed 10-20-93; 8:45 am]
•UJMO COOa 4*1O-C*-4»
Bureau of Land Management
PWW10-4332-01/Q810O0001]
Environmental Impact Statement (EJS);
Chain of Crater* Wilderness Study Unit
(WSU),NM
AGENCY: Bureau of Land Management
(BLM).
14:060020.1«3 V«O*» 15-OCT-W JM160297 PO00000 FrmOOMS Fmt4703 8*1*4703 E-VWT.tP21OCl.PT1 pfrmOB
-------
DRAFT - -Decer.ber 20, 1990 10:03 a-
[BRACKETS] = Deletions Underlining = Additions
CONSTITUTION
OF THE
NATIVE VILLAGE OF NANWALEX
PREAMBLE
[WE, A GROUP OF ALASKA NATIVES, RESIDENTS OF THE STATE OF ALASKA,
AND CITIZENS OF THE UNITED STATES, CONSTITUTE THE NATIVE VILLAGE
OF NANWALEK, ALASKA AND BY THIS DECLARATION WE ASSERT OUR SPECIAL
RELATIONSHIP AS NATIVE AMERICANS IN A DEPENDENT ASSOCIATION WITH
THE UNITED STATES OF AMERICA. AS SUCH, WE HEREBY ORDAIN AND
INSTITUTE THIS CONSTITUTION TO PROMOTE OUR ECONOMIC AND POLITICAL
PROGRESS BY AUTHORITY OF THE INDIAN REORGANIZATION OF JUNE 18,
1934 (48 STAT. 984) AS AMENDED BY THE ACT OF JUNE 15, 1935 (49
STAT. 378) AND MAY 1, 1936 (49 STAT. 1250).]
We, the Native people residing in Nanwalek, Alaska, and
citizens of the United States, in order to implement our inherent
right of self-government and self-determination and to promote
our political, social, cultural, and economic progressdohereby
ordain and establish this Constitution under authority of the
Indian Reorganization Act of 1934, 25 U.S.C. 6 476 as amended for
Alaska in 1936, 25 U.S.C. 5 473fa).
ARTICLE I - NAME
The name of this organization shall be the Nazive Village of
Nanwalek.
ARTICLE II - TERRITORY
NATIVE VILLAGE OF ENGLISH BAY CONSTITUTION Pace I
-------
The jurisdiction of the Native Village of Nar.valek shall extend
to all lands constituting the dependent Native Ccrr.mur.ity of
Nanwalek, Alaska as defined by Federal Lav; and included in U.S.
Survey 4901, (map attached). [AND ANY OTHER LANDS PRESENTLY
OWNED, OR WHICH HEREAFTER BECOME THE PROPERTY OF, THE NATIVE
VILLAGE OF NANWALEK.]
ARTICLE III - MEMBERSHIP
Section 1.A.1 Basic Membership: The basic membership of the
Native Village of Nanwalek shall consist of Alaska Natives whose
names appear on the shareholder roll of the Nanwalek Corporation
approved by the Secretary of the Interior on
; and B) Those directly descended from a base
enrclle.
Section 2. Qualifications for Membership: The Council shall
have the option to adopt any person of at least one-quarter (1/4)
degree Alaska Native descent who neets any of the following
qualifications shall be eligible to be a member of the Native
Village of Nanwalek:
(a) has physically resided in the Village of Nanwalek,
Alaska for a period of at least five (5) years immediately prior
to the date of application for membership; or
(1) the terns of the Alaska Native Claims
Settlement Act (Public Law 94-204}; or
(2) the basic membership roll approved by the
Secretary of the Interior. (Section 1) .
Section 3. Loss of Membership: Any member who is continuously
NATIVE VILLAGE OF ENGLISH BAY CONSTITUTION Pace 2
-------
absent fro- the Village of Nar.wale-; for a period of at least
three (3) years will lose their right to vote or hold office but
will retain their membership.
Section 4. Regulat ions ofMembersnip: A member who has lost the
right to vote or hold office due to absence from the village will
regain these rights after they have again taken up residency in
the village for twelve (12) continuous months following their
absence so long as they intend to remain. The Council shall have
the power to enact ordinances and resolutions, not inconsistent
with this Constitution [AND SUBJECT TO THE REVIEW OF THE
SECRETARY OF THE INTERIOR,] prescribing rules and regulations
governing membership, including application and appeal
procedures, loss of membership, and adoption of members. The
Council shall have the power to adopt ordinances, [SUBJECT TO
APPROVAL BY THE SECRETARY Or THE INTERIOR,] to extend the
privilege of membership for community purposes not otherwise
eligible under Section 2 of this Article.
ARTICLE IV - GOVERNING BODY
Section 1. Name: The governing body of the Native Village of
Nanwalek shall be the Nanwalek Council, hereinafter referred to
as the Council.
Section 2. Composition: The Council shall consist of seven (7)
members who shall be elected by a majority vote of the qualified
members of the village.
Section 3. Officers: The Council shall include a First Chief,
Second Chief, Secretary/Treasurer and tv:o (2) Council members.
NATIVE VILLAGE OF ENGLISH BAY COK5TITUTIOM Page 3
-------
ARTICLE V - ELECTION'S
Section 1. Voter Qualifications: Any duly enrolled menber of
the Native Village cf Nanwalek eighteen (13) years of age or
older and who has resided for at least three (3) years in the
village prior to an election shall be entitled to vote in that
village election.
Section 2... First Election; The first .regular election of
officials under this constitution shall be held within sixty (60)
days of the effective date of this constitution at which time a
system of staggered terras shall be established. At the first
regular election under this constitution, the First Chief, the
Secretary/Treasurer, and one (I) Council member shall be elected
to hold office for a terni of five years. Thereafter, all terms
of office shall be for five (5) years and the Second Chief and
one (1) council member shall be elected to hold office for the
tern of three (3) years. Thereafter all terms shall be fcr three
(3) years. Members shall hold office until their successors are
duly elected and seated.
Section 3. Nominations: The tine, place, and manner of
nominations shall be specified in the 'election ordinance adopted
pursuant to Section 4 of this Article.
Section 4. Election Ordinance: An election ordinance,
consistent with this Constitution, shall be adopted by the
Council with six (6) months following the effective date of this
Constitution which shall set forth the procedures to be followed
NATIVE VILLAGE OF ENGLISH BAY CONSTITUTION Pace 4
-------
in conducting each of the various types cf eleccior.s called fcr
in this Constitution. The ordinance shall include provisions fo:
conducting all village elections by secret balloting,
qualifications of candidates, maintenance cf a current list of
eligible voters, and the settling of disputes. The ordinance
shall spell out the procedure and format to be used whenever it
is necessary to submit petitions for any purpose to the Council
and set forth a procedure for determining the validity of such
petitions.
Section 5. Election Board: There shall be an election board
appointed by the Council whose duties shall be to supervise,
administer, and conduct all village elections. The election
board shall certify the election of villace [COMI-FJNITY] officials
within five (5) days after the election. No member of the
election board shall at the same tir.e be a iner.ber of the Council
or a candidate for a position on the Council.
ARTICLE VI - REMOVAL, RECALL, AliD FORFEITURE
Section 1. Removal: Any Council merr.ber or ether official fcunc
guilty by the Council of behavior involving gross misconduct in
office or neglect of duty shall be removed from office if at
least three (3) members of the Council vote in favor of such
removal. Voting must be by secret ballet and the First Chief is
entitled to vote. If the accused is a member of the Council, the
accused shall not have the right to cast a secret ballot. Before
any vote for removal is taker., the person subject to removal
shall be given a written statement of the charges against him at
NATIVE VILLAGE OF ENGLISH BAY CONSTITUTION' Page 5
-------
least seven (7) days before the rr.aeting of the council at which
he is to appear and he shall be given an opportunity to ar.swer
any and all charges at the designated Council meeting. If the
person subject to rer.oval fails to appear before the Council, the
Council shall proceed with the vote as scheduled. The decision
of the Council shall be final. Mo member of the Council shall
preside over the meeting at which his removal is being
considered.
Section 2. Recall; Village members shall have the power to
recall any member of the Council. The recall process shall be
initiated by filing with the Council a valid petition asking for
such recall, signed by at least thirty percent (30%) of the
eligible voters, and setting forth the reasons fcr the petition.
Within thirty (30) days after receipt of a valid recall petition,
the Council shall call and conduct an election to consider the
recall of the official named in the petition.
Section 3. Forfeiture: If any member of the Ccunci-l shall be
found guilty of a felony in any Federal or State Court, shall
die, resign, or is absent from three (3) successive meetings of
the Council without being excused by the Council, he shall
automatically forfeit his office.
ARTICLE VII - VACANCIES
Section 1. Any office which has been vacated, whether it be by
removal, recall, or forfeiture, shall be filled by appointment of
the Council at its next meeting and such replacement shall serve
the unexpired term of office.
NATIVE VILLAGE OF ENGLISH BAY CONSTITUTION Page 6
-------
ARTICLE VI IT - PCV.'ERS
[SECTION 1. THE COUNCIL SHALL HAVE POWERS AND RESPONSIBILITIES
HEREINAFTER PROVIDED, SUBJECT TO ANY LIMITATIONS IMPOSED UPON
SUCK POWERS BY THE STATUTES AND LAWS 0? THE UNITED STATES.]
Section 1. General Powers; Except as specifically limited by
this Constitution, the powers of theVillage, shallbe exercised
by the Council and shall include all the inherent powers of a
federally recognized tribal government, including but not limited
to those specified in this Article, which do not violate federal
lav. The Council may authorize an officer to act in specific
circumstances.
Section 2. InternalProcedures: Consistent withthis
Constitution, the Council may enact rules to govern its internal
procedures and organization and to further define the duties of
Village officers by ordinance.
Section 3. Other Council Powers: In addition to all powers
vested in the Village or the Council by existing law, and this
Constitution, the village, acting through the Council, shall have
the following powers:
(a) To consult, negotiate, contract, cr conclude
agreements with Federal, State, and local governments on
activities which may affect the Native Village of Nanwalek.
(b) To er.ploy legal counsel, the choice of counsel,
and fixing of fees to be subject to the approval of the Secretary
of the Interior or his authorized representative so long as such
approval is required by Federal law.
NATIVE VILLAGE OF ENGLISH BAY CONSTITUTION Page 7
-------
(c) To receive advice t'rcr. and rr.ar'.e reccrr.nier.cia" lens to
the Secretary of the Interior with regard to all appropriation
estimates for all projects which are for the benefit of village
members of the Native Village of Nanvale.k prior to the submission
of such estimates to the Office of Management and Budget and to
Congress.
(d) To acquire property and to accept gifts.
(e) To prevent the sale, disposition, lease or
encumbrance of tribal lands, interests in lands, or other tribal
assets without the consent of the tribe.
[(E) TO PREVENT THE ALIENATING OR OTHER TAKING OF
VILLAGE PROPERTY WITHOUT THE CONSENT OF THE VILLAGE.]
(f) To protect members' rights in personal property.
(g) To join and/or charter housing authorities.
(h) To charter enterprises, corporations, and
associations.
(i) To prescribe rules and regulations governing
future membership, loss of membership, and adoption of members.
(j) To promote the peace, safety, health, and general
welfare of the members of the village.
(k) To administer the village's assets and manage all
economic affairs and enterprises of the village, including the
lease, sale, or other disposition of lands owned by the village.
(1) To enact ordinances and regulations consistent
with this constitution for the conduct and administration of all
tribal elections, the appointment of an election board and the
NATIVE VILLAGE OF ENGLISH BAY CONSTITUTION Page 3
-------
regulation cf its c-ties.
[(M) TO ADMINISTER JUSTICE BY ESTABLISHING A VILLAGE
COURT, AND DEFINING ITS DUTIES AND POWERS.]
(m) To provide for the maintenance of law and order
and the administration of -justice, including the establishment of
appropriate Village courts orother judicial bodies.
(n) To levy and collect taxes, fees, and assessments
for the village's purposes.
(o) To encourage and foster the arts, crafts,
traditions, customs, language and culture of the village.
(p? To protect and preserve the wildlife and natural
resources within thearea underthe jurisdiction of the village.
(q) To regulate child custody and other domestic
relations among members.
(r) To authorize or direct subordinate boards,
committees or officials to administer the affairs of the Village
and to ..carry out the directives of the Council.
fs) To zone, exercise the power of eminent domain and
otherwise regulate all land use within those areas under the
jurisdiction of the Village.
(t) To regulate inheritance among menbers whether by
intestacy or otherwise.
(u) To administer any fundswithin the control of the
Village.
(v) To engage in economic development enterprises for
the benefit of the Village or its members.
NATIVE VILLAGE OF ENGLISH BAY CONSTITUTION Pace S
-------
(w)Toenact ordinances, procedures andregulations
necessary to give effect to anv provision of this Constitution
and to exercise anv power not prohibited bv federal lav.
ARTICLE IX-POWERS RESERVED TO MEMBERSHIP
Section 1. The following powers are specifically reserved to the
entireVillage membershipacting through a general membership
meeting or a properly called election;
(a) No lands or interests in lands owned by the
Village may besold, encumbered or disposedof without the
favorable vote of at least a ma-joritv of the entire Village
membership.
ARTICLE X - SOVEREIGN IMMUNITY OF NANWALEK
Section 1. Nothing in this Constitution shall be deemed, or
construed to beavaiver of the sovereign immunity of the Native
Village of Nanvalek, vhich may only be waived bv express
resolution of the Village Council, after receiving an affirmative
vote of the majority of the entire adult membership, and only to
the extent specified in such resolution and permitted by this
Constitution and federal law,provided, however,that thevillage
Council shall have the authority to waive the sovereign immunity
of the Native Village of Nanvalek solely for the purposes of
satisfying the conditions or requirements of Federal or State
grants or contracts. Waivers of sovereign immunity shall not be
general but must be specific and limited as to duration, grantee,
transaction, property or funds, if anv, of the Tribe subnect to
the vaiver, as veil as specific to the court having -jurisdiction
NATIVE VILLAGE OF ENGLISH BAY CONSTITUTION Page 10
-------
and applicable lav.
Waiver of sovereign immunity of the Village shall not
be deemed a general consent to the levy of any -judgment, lien or
attachment upon property of the village other than property
specifically pledged, assigned or otherwise explicitly subject to
levy in the waiver resolution.
ARTICLE XI - POPULAR PARTICIPATION IN GOVERNMENT
Section 1. Initiative and Referendum: The eligible voters of
the village shall have the right to propose and rescind [REMOVE]
legislative ordinances and resolutions by secret ballot... [TO
DETERMINE WHETHER IT WILL BE ADOPTED OR REJECTED.] Upon receipt
of a valid petition signed by at least thirty percent (30%) of
the eligible voters, the Council shall call an election to be
conducted by the election board no later than thirty (30) days
after receipt of the petition. An affirmative vote by at least a
majority of the eligible voters shall be required to determine
the issues or questions submitted to the voters.
Section 2. The decision of the voters in both initiative and
referendum elections shall be binding on the Council and the
village and shall remain in full force until amended or rescinded
by subsequent action of the voters or expires by its own terns.
ARTICLE XII - RIGHTS OF MEMBERS
Section 1. All members of the village shall enjcy without
hinderance equal rights of life, liberty, and the pursuit of
happiness.
Section 2. This Constitution shall not in any way alter,
NATIVE VILLAGE OF ENGLISH BAY CONSTITUTION Page 11
-------
abridge, or otherwise jeopardise the rights and privileges of the
members of the village as citizens of the State of Alaska or the
United States.
Section 3. Village members shall have the right to review all
Council records including financial records at any reasonable
time in accordance with procedures established by the Council.
Section 4. The Native Village of Nanwalek in exercising its
powers of self-government shall not deny to any person within its
jurisdiction freedom of speech, press, or religion, or the right
to assemble peacefully. The tribal government shall not deny to
any person the equal protection of tribal laws or deprive any
person of liberty or property without due process of law. The
tribe shall provide to all persons within its jurisdiction the
rights guaranteed by the Indian Civil Rights Act of 1968.
ARTICLE XIII - DUTIES OF OFFICERS
Section 1. Newly elected officers shall assume their respective
office and duties immediately upon being elected and seacsd.
Section 2. The First Chief shall preside at all meetings of the
community and of the Council and shall execute on behalf of the
village -all. contracts, leases or other documents approved by the
Council. He shall vote in all cases except on the matter of his
removal. He shall have general supervision of all other
officers, employees, and committees of the community and see that
their duties are properly performed. When the Council is not in
session, the First Chief shall be the official representative of
the village.
NATIVE VILLAGE OF ENGLISH BAY CONSTITUTION Page 12
-------
Section 3. The Second Chief shall assist the 'First Chief when
called upon to do so. In the absence of the First Chief, the
Second Chief shall preside and when so presiding shall have all
the rights, privileges, duties, and responsibilities of the First
Chief.
Section 4. The Secretary/Treasurer shall keep the minutes•of all
meetings and shall attest to the enactment of all resolutions and
ordinances. The Secretary/Treasurer shall issue notices of all
meetings and elections and conduct all general correspondence as
directed by the Council. The Secretary/Treasurer shall also
carry out the financial directives of the Council, receive all
local monies and keep an accurate account of the receipts and
disbursements. Funds shall be deposited in the Native Village of
Nanwalek's accounts in a local bank selected by the Council where
depositor's funds are insured by the Federal Deposit Insurance
Corporation. All disbursements shall be r.ade by check in
accordance with resolutions of the Council. In the event that
total village accounts exceed $100,000 in deposits for the fiscal
year, the Secretary/Treasurer shall file a bond satisfactory to
the Council. The Council shall authorize payment of the annual
bond premium from community funds. The Secretary/Treasurer shall
authorize payment of the annual bond premium from community
funds. The Secretary/Treasurer shall give a financial report to
the Council once a month, and all financial reports shall be
available for inspection by any member of the village. At the
expiration of his term of office, the Secretary/Treasurer shall
NATIVE VILLAGE OF ENGLISH BAY CONSTITUTION Page 13
-------
turn over all records and papers in his possession to his
successor or to the Council.
ARTICLE XIV - MEETINGS
Section 1. Regular meetings of the Council shall be held
monthly, the time, place, and date to be designated by the
Council. Special meetings of the Council may be called fay the
First Chief and shall be called by him upon receipt of a petition
signed by at least three (3) members of the Council and when so
called, the Council shall have the power to transact business as
in regular meetings, provided that a quorun is present.
Section 2. A quorum of the council shall consist of three (3)
members of the Council. No business shall be transacted unless a
quorum is present.
Section 3. All meetings of the Council shall be open to the
general membership of the Native Village of Nanwalek; provided,
however, that the Council may recess at its discretion to discuss
any matter in a closed or executive session if the general
subject matter to be discussed is expressed in the motion calling
for such closed or executive session and no final or official
action is taken thereon in the closed or executive session.
Section 4. All final decisions of the Council on matters of
general or permanent interest to members shall be embodied in
ordinances. The ordinances shall be collected and made available
to village members and others affected upon reasonable request.
Section 5. All final decisions of the Council on matters of
NATIVE VILLAGE OF ENGLISH BAY CONSTITUTION Page 14
-------
temporary interest shall be embodied in resolutions. Resolutions
shall be collected and made available to village members and
others affected upon reasonable request.
Section 6. Regular meetings of the general membership of the
Native Village of Nanwalek shall be held at least once annually.
The date, time, and place of such meetings shall be [THE FIRST]
set by the First Chief and shall be called by him upon receipt of
a petition signed, by at least thirty percent (30%) of the village
members.
Section7. A quorum of the general membership shall consist of
twenty five percent (25%) of the voting members. No business
shall be conducted unless a quorum is present.
ARTICLE XV - SEVERABILITY
If any provision of this constitution shall, in the future, be
declared invalid by a court of competent jurisdiction, the
invalid provision shall be severed and the remaining provisions
shall continue in full force and effect.
ARTICLE XVI - AMENDMENTS
Section 1. This constitution may be amended by a majority vote
of the qualified voters of the Native Village of Nanwalek voting
in an election called for that purpose by the Secretary of the
Interior or his authorized representative, provided that at least
thirty percent (30%) of those entitled to vote shall vote in such
election. No amendment shall be come effective until approved by
the Secretary of the Interior or his authorised representative.
rSECTIOK 2. IT SHALL BE THE DUTY OF THE SECRETARY OF THE
NATIVE VILLAGE OF ENGLISH BAY CONSTITUTION Page 15
-------
INTERIOR TO CALL AM ELECTION ON ANY PROPOSED AMENDMENT AT THE
REQUEST OF THE COUNCIL OR UPON THE RECEIPT OF A PETITION SIGNED
BY AT LEAST THIRTY PERCENT (30%) OF THE QUALIFIED VOTERS OF THE
NATIVE VILLAGE OF NANWALEK-]
ARTICLE XVII - ADOPTION
This constitution when adopted by a majority vote of the
qualified voters of the Native Village of Nanwalek voting at an
election called for that purpose by the Secretary of the Interior
or his authorize representative in which at least thirty percent
(30%) of those entitled to vote shall vote, shall be submitted to
the Secretary of the Interior for his approval, and shall be
effective from the date of his approval.
NATIVE VILLAGE OF ENGLISH BAY CONSTITUTION Page 16
-------
CO;:STITUTION A;,*D BYLMJS
of Che
KENOMINEE INDIAN TRIBE OF WISCONSIN
FINAL COPY FOR ELECTION
Developed by the Mcnotninee
Restoration Committee pursuant
to §5(b) of the He-nominee
Restoration Ace (P.L. 93-197;
87 Scat. 770)
000138
-------
CONSTITUTION AND BYLAWS OF THE MENOMINEE
INDIAN TRIBE OF WISCONSIN
PREAMBLE
We, the members of che Henominee Indian Tribe of Wis-
consin, being a sovereign nation, in order to organize for
che common good, to govern ourselves under our own laws and
customs, to maintain and foster our tribal culture, to protect
our homeland and to conserve and develop its natural resources
and to insure our rights guaranteed by treaty with the federal
government, do establish and adopt the following Articles of
Constitution and Bylaws for the.government, cvotection, atvi
common welfare of the Menooinee Indian Tribe :f Wisconsin .nd
its members.
ARTICLE I - JURISDICTION
The governmental powers of the Menominee Indian Tribe
of Wisconsin, a federally recognized sovereign Indian Tribe,
shall, consistent with applicable federal law extend to all p
sons, and subjects, to all lands and other property including
natural resources, and to all waters and air space, within the
exterior boundaries of the Menotninee Indian Reservation, includ-
ing any land which may hereafter be added to the Reservation
under any law of the United States. The governmental powers of
.the Menominee Indian Tribe shall, consistent with applicable
federal law, also extend outside the exterior boundaries of the
Reservation to any persons, subjects or real property which
are, or may hereafter be, included wichin the jurisdiction of
the Tribe under any law of the United States or of the Tribe.
ARTICLE II - TRIBAL MEMBERSHIP
Section 1. Requirements.
Membership in the Menominee Indian Tribe shall consist
of the following persons:
(a) Those persons of one-quarter (I/A) degree Meno-
minee Indian blood whose names appear on the tribal roll com-
piled pursuant to subsection A(c) of the Menominee Restora-
tion Act (87 Scat. 771). and
(b) Those persons who possess at least one-quarter
(I/A) degree Menominee Indian blood, and who are descendants
90
-------
of persons entailed on the tribal membership roll compiled
bursuanc to subsection 4 (c) of Che Menominee Restoration Act
(87 Scat. 771), and who are enrolled on the official tribal
membership roll in accordance with procedures established by
the Tribal Legislature by ordinance.
(c) A person shall be removed from the tribal member-
ship roll only in accordance with the procedures set forth in
Section 5 of this Article.
Section 2. Ineli%ibility For Membership or Automatic
Forfeiture of Membership.
No person shall be eligible to be a member of the Meno-
minee Indian Tribe if that person is enrolled in another Indian
Tribe. Any member of the Menominee Indian Tribe who applies, Co
be and is accepted as a member of another Indian Tribe shall
thereby automatically forfeit membership in the Menominee
Indian Tribe and all rights and benefits to which tribal mem-
bers are entitled by virtue of their membership.
Section 3. Enrollment Committee.
(a) An Enrollment Committee composed of five (5) eli-
gible tribal voters shall be elected or appointed annually at
the General Council meeting in accordance with Article III. Sec-
tion A, of the Bylaws of this Constitution. The members of-the
Enrollment Committee shall be subject to the supervision of the
Tribal Legislature. If the Enrollment Committee is appointed, the
Tribal Legislature shall have the power to te^inate any such
appointment, and to make a new appointment. If the Enrollment
Committee is elected, the members of the committee shall be sub-
ject to the terms of Article VII of this Constitution, including
the provisionsof Section 2 which shall govern the manner in
which the Tribal Legislature may expel or suspend a member of the
Enrollment Committee from office.
(b) The Enrollment Committee shall have the* authority and
duty to maintain a current and accurate official tribal member-
ship roll in accordance with the provisions of this Article. The
Enrollment Committee shall report at least four (A) times a year
to the Tribal Legislature as to the current status of the roll.
The Committee shall have the authority to investigate suspected
errors in the roll, and. where it deems appropriate'in view of
evidence, shall recommend changes in the roll to the Tribal
Legislature.
2- 000140
-------
Section A. Appeal From Denial of Membership Application
Any person whose application for membership in the
Menominee Indian ..Tribe Is denied shall have the righc to appeal
such adverse decision CO the Tribal- -Judiciary, buc only after
exhausting all remedies available within the Tribal Legislature.
Section 5. Removal From Membership Roll by Tribal Legislature
If, upon the report and recommendation of the Enrollment
Committee, the Tribal Legislature determines that any person
lacks a required membership qualification, proceedings shall be
instituted against such person in Tribal Court co remove such
person from che tribal membership roll. Only afcer a fi>nal deci-
sion is rendered in favor of the Tribal Legislature shall the
affected person's name be removed from the tribal membership roll
Section 6. Voluniary Relinquishment of Membership
Members of the Menominee Indian Tribe rosy relinquish
membership in the Tribe in accordance with procedures estab-
lished by the Tribal Legislature. However, any member of the
Tribe who relinquishes membership voluntarily, or who forfeits
membership by enrolling in another Indian Tribe, shall not
again be eligible co enroll as a member of the Menominee
Indian Tribe.
Section 7. Enforcement.
The Tribal Legislature shall enforce this Article by or-
dinance, provided that. the Tribal Legislature shall have no
power to establish substantive requirements for membership in
addition to chose established in Section 1 of this Article.
nor to waive any of ch«se requirements.
ARTICLE III - POWERS OF THE TRIBAL GOVERNMENT
Section 1. rowers ef the Tribal Legislature.
The Tribal Legislature, as established in Article IV
this Constitution, shall be vested wich all executive and leg
Incive powers of the Tribe Including the power to make and to
enforce laws, and including such powers as may in the future be
restored or granted to the Tribe by any law of the United States,
-------
or other authority. The powers of the Tribal Legislature shall in-
clude th^*e powers vested in the Tribe by Section 16 of the Indian
Kecrr-i'iizac ion Act (i*8 Scat. 987). namely, co employ legal counsel,
the cfioice or counsel and fixing of fees to be subject co the
approval of the Secretary of Interior; to prevent the Bale, dispo-
sition, lease or encumbrance of cribal lands, inte.resc in lands, or
other tribal assets without the consent of the Tribe; and to nego-
ri~a~X(T~witn the Federal. Stace and local governments. This Consti-
tution and Bylaws and ordinances of the Tribal'Legislature adopted
pursuant to this Constitution shall be the supreme law of the
Menominee Indian Tribe and all persons subject to its jurisdiction.
However, Che Tribal Legislature shall exercise its powers consis-
tent with the limitations imposed by this Constitution and Bylaws.
Section 2. Powers of the Tribal Judiciary.
The Tribal Judiciary, as established in Article V of this
Constitution, shall be vested with all judicial powers of the
Tribe including the following powers: Co resolve controversies
between and among persons where such controversies arise under
ChLs Constitution and Bylaws, tribal ordinances, the constitution
and laws of che United States, or the constitution and laws of any
Kate or Indian Tribe; and co decide cases in which a person is
accused by che Tribe of committing an offense against the laws of
che Tribe. The powers granted to the Tribal Judiciary by this Sec-
tion shall include such judicial powers as may in the future be
restored or granted to the Tribe by any law of che United States,
or other authority. Decisions of the Tribal Judiciary shall be
binding upon all persons within che jurisdiction of the Tribe.
The Supremo Courc of the Tribe shall be che final and supreme in-
cerprecer of chis Constitution and Bylaws, an3 all cribal ordi-
nances. However, che Tribal Judiciary shall exercise ics powers
consistenc wich che limitations imposed by chis ConstiCue ion and
Bylaws.
Seccion 3. Separation of Powers.
The Tribal Legislature and the Tribal Judiciary shall be
separate and equal branches of che Tribal CovornmenC. Neither
branch shall exercise the powers of the other, nor shall either
branch have authority over che ochcr branch excepc as may be
granted by chis Constitution and Bylaws.
000142
-------
ARTICLE IV - THE TRIBAL LEGISLATURE
Section 1. Composition. Terms of Office, and Classes.
(a) The Tribal Legislature of the Menominee.Indian Tribe
of Wisconsin shall be composed of nine (9) members of the Tribe
elected at large by the eligible voters of the Tribe. Seven (7)
of the offices shall be filled by tribal members who are resi-
dents on the Reservation. There shall be no residency requirement
for the remaining two (2) offices.
(b) Tribal Legislators shall serve terms of office of
three (3) years. The nine (9) Tribal Legislators shall be divided
inco three (3) classes for the purpose of staggering cerms of
office. Each class shall be composed of three (3) Legislators.
The terms of office of Tribal Legislators shall be st-jggered as
follows:
(1) The term of office of the first class of Legis-
lators shall expire upon assumption of office by the newly
elected Legislators three (3) years following the first election
of Legislators held pursuant to Section 5(c) of the Menominee
Restoration Act (87 Stat. 772). and every third year thereafter.
(2) The term of office of the second class of
Legislators shall expire upon assumption of office by the newly
elected Legislators two (2). years following the first election
of Legislators held pursuant to Section 5(c) of the Menominee
Restoration Act (87 Stat. 772), and every third year thereafter.
(3) The term of office of the third class of Legis-
lators shall expire upon assumption of office by the newly
elected Legislators one '(1) year following the first election
of Legislators held pursuant to Section 5(c) of the Henominee
Restoration Act (87 Stat. 772), and every third year thereafter.
Section 2. Initial Division of Tribal Legislators Into Classes.
The Tribal Legislators elected at the first election of
the Tribal Legislature, held pursuant to Section 5(c) of the
Menominee Restoration Act (87 Stat, 770) shall be initially
divided into the three (3) classes as follows:
The three candidates receiving the highest number of
votes shall be the first class; the three candidates receiving
the highest number of votes after the first class shall be the
second class; and the three candidates receiving the highest
number of voles after the second class shall be the third cla,
provided thac. if more than two (2) non-resident candidates at
-5-
n -» t n
-------
among the nine candidates receiving the hi^m-it number of votes,
only the two non-jresitienc candidates rrrrivin£ che highest number
of votes of che non-residcnc candidates shall cake office; Che
other seven (7) offices shall be filled with the seven (7) resi-
dent candidates receiving the highest number of votes of the resi-
dent candidates, in accordance with Section l(a) of this Article.
Section 3. Election ofTribal Legislators.
(a) Any tribal member who satisfies the requirements of
Section I* of this Article may become a candidate for the office
of Tribal Legislator by filing a nominating petition which shall
comply wich requirements as established by the Tribal Legislature
by ordinance, and by complying with such other procedural require-
ments as may be established by the Tribal Legislature by ordinance
(b) The Tribal Legislature shall by ordinance sec the
dace on which elections co fill offices of the Tribal Legislature
shall be held.
(c) Wich candidates placed in order of number of votes
received from che highesc co the lowest, offices shall be filled
beginning wich che candidate who received the highest number of
voces, and proceeding down the order provided chat, no more Chan
two (2) offices of the Tribal Legislature shall be filled by non-
resident Cribal members, in accordance wich Seccion l(a) of
this Article.
(d) If in any eleccion to fill an office or offices,
Che number of candidates running exceeds chree (3) per
office, che Eleccion Commission shall hold a primary eleccion co
select Chose candidates who shall run for office in che main elec-
cion. The number of candidaces to be selected*in such primary
eleccion shall be decennined by mulciplying che number of offices
co be filled by cwo (2). This subsection shall noc apply co che
firsc election of che Tribal Legislature held pursuant to Section
5 of this Article.
Section 4.. Reguiremencs for Candidates For Election To
The^Tribal Legislature and'For Tribal
Legislators.
(a) To be eligible to be a candidate for election to che
Tribal Legislature, a person must be a member of the Tribe, at
lease cwency-five years of age as of che dace on which che elec-
tion is held. No person shall be eligible to be a candidate for
eleccion co che Tribal Legislature who has been convicced of a
major crtmc as defined In Arciclc V of the Bylaws of chls Con-
scicution. unless che Tribal Judiciary, in accordance wich such
-6-
000144
-------
rules as ic may escablish, certifies that che person in question
is rehabilitated. Such certificate of rehabilitation shall be
based upon tftfc person'* record of behavior since the conviction.
(b) In any election in which it is necessary to fill all
open offices vith residents on the Reservation in order that
seven (7) offices will be filled by resident* on the Reservation,
in accordance with Section l(a) of this Article, only persons who
are residents on the Reservation shall be eligible to be candi-
dates for election to the Tribal Legislature.
(c) Tribal Legislators while holding office shall be
members of che'Menominee Indian Tribe. Any tribal Legislator
e.lected while a resident on the Reservation shall maintain resi-
dence on the Reservation while holding office. If any Tribal
Legislator ceases to be a member of the Tribe, or if any Tribal
Legislator elected while a resident on the Reservation ceases to
maintain residence on the Reservation, the affected Legislator
shall be expelled in accordance with Section 2 of Article VII of
this Constitution, tn addition, if any Tribal Legislator is con-
vicced while holding office of a major crime as defined in
Article V of the Bylaws of chis Constitution, the office of the
affected Legislator shall be deemed vacant in accordance wich
Section 3 of Article VII of this Constitution.
Section 5. First Election.
(a) For purposes of che first election held pursuant to
Section 5(c) of the Menominee Restoration Act (87 Stat. 772) the
Menominee Restoration Committee shall issue such rules and regu-
lations as it deems necessary in order to properly conduct the
first election of the Tribal Legislature. Such rules and regu-
lations shall be issued within thirty (30) days after the
adoption of this Constitution and Bylaws.
(b) Any tribal member who satisfies the requirements
of Section 4 of this Article may become a candidate for the offi
of Tribal Legislator by filing with the Menominee Restoration
Committee, in accordance with applicable rules and regulations
of the Committee, a nominating petition containing the signa-
tures of at least one hundred (100) eligible cribal voters.
Nominating petitions shall be filed within thirty (30) days
after che Menoainee Restoration Committee issues rules and
regulations governing che first election. Any candidate for the
office of Tribal Legislator may withdraw from candidacy by sub-
mitting written notice to the Menominee Restoration Committee.
(c) The first election shall be held within ninety (90
days after the Menominee Restoration Committee issues its rules
and regulations governing the first election.
-i j - -7-
-------
Section 6. Consecutive and Simultaneous Terms of Office.
No person shall be eligible Co be elected Co more Chan
chree (3) consecutive terms of office of Tribal Legislator, nor
shall any person serve more than one term of office at Che same time.
Section 7. Community Committees of the Tribal Legislature.
The Tribal Legislature shall establish standing committees
each of which shall be composed of three Legislators. Each such
standing committee shall be assigned to a community on the Reserva-
tion as defined by the Tribal Legislature. It shall be the duty of
each standing committee to maintain constant communication with
the community to which it is assigned for the purpose of deter-
mining the needs and concerns of that community. It shall also be
the duty of each convmunity committee to inform the Tribal Legis-
lature of any needs or concerns of that community.
Section 8. Administration of Tribal Government.
The Tribal Legislature shall by ordinance establish a plan
for the administration for the government of the Tribe; provided
that, this Section shall not be construed to include the adminis-
tration of the Tribal Judiciary.
Section 9. Powers and Duties.
The powers an<3 duties of the officers of the Tribal Legis-
lature are set forth in the Bylaws of this Constitution.
ARTICLE V - THE TRIBAL JUDICIARY
Section 1. Structure.
(a) The Tribal Judiciary shall be composed of one Supreme
Court and of such lower courts as are designated to be established
in chi» Article, and as may be established by ordinance by the
Tribal Legislature as it deems appropriate to meet the needs of
the Tribe.
(b) The Supreme Court of the Tribe shall have Jurisdiction
over appeals from all final decisions of the lower court* of the
Tribe. The Supreme Court shall be composed of three (3) Judges.
-s- 0001-JG
-------
Supreme Court Judges may. if necessary and if so instructed l-y
the Tribal Legislature, also serve as Judges of the lower COUP
however, -iw^such a situation, the Supreme Court Judge shall be
disqualified"from participating in a review of any decision
entered by him or her while sitting as a lower court Judge.
(c) The Tribal Legislature shall, promptly after the
adoption of this Constitution and Bylaws, determine and estab-
lish the number of lower trial courts necessary to serve the
Judicial needs of Che Tribe. Such trial courts flhall have general
and original jurisdiction over all cases and controversies of a
civil or criminal nature. Each trial court shall be presided
over by one Judge.
(d) If the Tribal Legislature establishes special kinds
of lower courts with original jurisdiction over specified sub-
ject areas, the Tribal Legislature shall specify whether such
jurisdiction is exclusive or concurrent with the jurisdiction of
the trial courts established in subsection (c) of this Section.
(e) If the Tribal Legislature establishes an intermediate
level of courts to hear appeals from all final decisions of the
lower courts, the Supreme Court shall hear appeals only from de-
cisions of the intermediate courts of appeals. In addition, the
Tribal Legislature may authorize the Supreme Court to exercise
its discretion in all or designated kinds of cases in deciding
whether Co hear an appeal in any particular case.
Section 2. Appointment and Term of J3ffice.
Tribal Judges shall be appointed by the vote of two-
thirds (2/3) of the entire membership of the Tribal Legislature.
Section 3. Compensation.
Tribal Judges shall receive for their services a reason-*
able compensation, as fixed from time to time by the Tribal
Legislature. The Tribal Legislature shall not diminish the com-
pensation of a Tribal Judge during his or her term of office.
Section U. Qualifications and Disqualifications.
(a) To be eligible to be appointed to the office and
to hold the office of Tribal Judge, a person shall be a member
of the Tribe, a resident on the Reservation, at least thirty-
five (35) years of age. a high school graduate, and shall dcmoa
000147 -*-
-------
strace fitness and compcccncy for the office by taking apj>i «»|»riate
examina c ions, relevant to demonstrate competence foi ! lie uifice of
Tribal Judge.
(b) No person shall be eligible to be appointed to
the office of Tribal Judge who has been convicted of n major crime
as defined in Article V of the Bylaws of this Constitution, unless
the Tribal Judiciary, in accordance with such rules as it may es-
tablish, certifies that the person in question is rehabilitated.
Such certificate of rehabilitation shall be based upon the person's
record of behavior since the conviction. No Tribal Judge who is
convicted of a major crime as defined in Article V of the Bylaws
of this Constitution shall continue to hold office.
Section 5. Removal From Office By Tribal Legislature
and Au comatic Va can c i es.
(a) Tribal Judges may be removed from office by the Tri-
bal Legislature by the affirmative vote of at least seven-ninths
(7/9) of the entire Legislature, but only upon grounds of inabil-
ity to carry ouC the duties of the office; failure to carry out che
ducics of the office; or lack of a requisite qualification for
serving as a Tribal Judge. The Tribal Legislature shall notify
the Tribal Judge in question and the Supreme Court, in writing not
less than twenty (20) days prior to the meeting at which the
Judge's removal is to be considered and voted upon. The notice
shall specify the charge or charges and shall state the facts in
support thereof. The Tribal Judge in question shall have full op-
portunity at the meeting at which his.or her removal is to be con-
sidered and decided upon to examine all witnesses against him or
her and to have his or her own witnesses testify in his or her
behalf. The decision of the Tribal Legislature shall be final and
noc appealable Co the Tribal Judiciary. The Supreme Court, may
upon receipt of notice of che removal charges, suspend the Tribal
Judge in question from office with or without compensation pend-
ing final action of Che Tribal Legislature at the meeting.
(b) The office of any Tribal Judge who is convicced of a.
major crime as defined In Article V of che Bylaws of this Consti-
tution, who dies, or who resigns shall be deemed to-be automati-
cally vacanc. Resignation from office shall be written and shall
be deemed to be effective as of che dace tendered unless other-
wise designated in Che resignation document.
Section 6. Rulesof Tribal Courts.
The Supreme CourC shall by order establish written rules
of procedure and ethics for all Tribal Courcs. Such rules may
from time Co time be amended as deemed necessary or appropriate
-10-
000113
-------
by the Supreme Court. The Supreme Court shall consuls wich the
Judges o£~"Eh«- lower courcs in establishing rules of procedure
for the lower courcs.
Section 7. Records and Court Cleric.
The Supreme Court shall implement the system of keeping
records of proceedings of Che Tribal Judiciary in accordance
with Section 3 (b) of the Article III of the Bylaws of this
Constitution. "The Supreme Court shall appoint a court clerk
which shall be responsible for keeping the records of the
Judiciary and generally for administering the daily business
of the Judiciary.
Section 8. Appropriations.
The Tribal Legislature shall give priority for appro-
priations of such funds as may be necessary to enable the
Tribal Judiciary to carry out the provisions of this Article.
Section 9, Enforcement.
In implementing this Article, the Tribal Legislature
shall act by ordinance.
ARTICLE VI - TRISAL ELECTIONS
Section 1. Voter Requirements.
Any nerober of the Menominee Indian Tribe who ia eighteen
(18) years of age or older on the date of the tribal election in
question shall be eligible Co vote in tribal elections.
Section 2, Voting.
Excepc as may be otherwise specified in this Constitu-
tion, voting in tribal elections shall be by secret ballot cast
at polls established on the Reservation. Absentee voting and
vrite-in voting shall be permitted in accordance with such pro-
cedures as shall be established by the Tribal Legislature.
voting and cumulative voting shall not be permitted in
elections.
0001J9
-------
PHE.AM3LS
WE, THE KOYTKCN PECFLE, residing within the vicirir/ cf Stevens Village,
Alaska, in order to perperoate our way of life according to our ancient
traditions, in the presence of our ancestors and to provide for our posterity,
do ordain and establish this Constitution, by the Indian Reorganization Act
(IRA) ot June 18, 1934, as amended. When adopted by the membership and
approved by the Secretary of the Interior, this Constitution shall supersede
the previously adopted and approved IRA Constitution of Decerxer 30, 1939.
ARTICLE I - NAME
This is the Constitution of the People and Government of Stevens Village.
ARTICLE II - Thl-iRTTORY
The territory of Stevens Village shall extend to and include all lanes
customarily and traditionally used or owned by the Koyukon people of Stevens
Village since tire immemorial including within such "traditional lands" all
lands withdrawn for selection by the Dinyea {also called Dinyee) Corporation
or Dcyon I.iirJtPd pursuant to the terzs of the Alaska Native Claims Settlement
Act of Decerxer 18, 1971 (P.L. 92-203), as heretofore and hereafter amended,
as well as all lands acquired by Dinyea or Doyon, plus lands withdrawn as the
Stevens Village federal towns ite under the terrs of the Alaska Native Towrsire
Act of Kay 25, 1926 (44 Stat. 629) and all fee lands and allotments within the
traditional lands of Stevens Village, not withstanding the issuance of any
patent or unrestricted fee title to any such lands.
ARTICLE HI - JURISDICTION
Stevens Village shall have jurisdiction to the fullest extant possible over
all lands and people within its territory to the extent such jurisdiction does
not violate federal or Stevens Village law.
ARTICLE TV ~
l. First . Members. Our ancestors, whose names are on the list of
Native residents made according to the Instructions of the Secretary cf the
Interior as described in the original 1939 IRA Constitution, are the first
of Stevens Village as named below:
000161
©PY
-------
Theodore John Duroy Frederick Tattleback Henry Vcses
Ellen Adari Lav.rer.ce Joseph David. Acazi
Winthrcp Silver Jennie Sincn Lecnard jchn
Minnie Stephen Margaret Joseph Sophie Jaccb
Angus Joseph Walter Jchn Josephine Joseph
Russell Sinon, Sr. Linus Stephen Horace S. Srcke, Sr.
Lucy Jchn Alfred Jaccb William Sen
Edna Ben Agustus Ben Sarah Ben
Carrie Joseph Hilda Stevens Clara San
Elijah Joseph Laura George Old Mcs-s
Johnny Smoke Francis George Benjar__-. Stevens
Harry Sam Jares .-_tka
SECTION 2. Descendants of Members. All descendants (including adopted
children of Native Anverican blood)s of the First Merrers are eligible to be
members of the Village, subject to the provisions of this Constitution and any
laws enacted pursuant to the Constitution.
SECTION 3. Loss of Membership. Any member may willingly give up membership
in an acknowledged writing. Any merrier who hereafter willingly sells, leases,
encumbers or otherwise disposes of any stock in Dinyea Corporation or any
within the territory of the Village, except to another Stevens Village me
shall forfeit his or her inenbership. Membership may also be taken away fcr
other good reason ty the Village, acting torcugh the Village Council, pursuar.t
to custom or a membership and enrollment ordinance adopted in accordance with
the previsions of this Article.
SECTION 4. New Mgrbership. Any person who has lest necbership, and any other
Native person who narries a member and sets up a hone in the Village, may be
made a memcer upon such terms and conditicns as nay be established by cust—
or pursuant to a membership and enrollment ordinance adopted in accordance
with the provisions of this Article.
SECTION 5. Membership Rules. The Stevens Village Ccuncil shall, when
practicable, adopt an ordinance establishing rules and procedures fcr
membership and enrollment, consistent with the previsions of this
Constitution. Uhtil the adoption of such an ordinance, meriership shall be
determined by custca and the provisions of this Constitution.
V - GCVE3NING BCOY
SECTICN 1. Village Council and Officers. The governing body of Stevens
Village shall be known, as the Stevens Village Council. The Stevens Village
Ccuncil shall consist of a First Chief, a Second Chief and seven (7) other
members, all of whoa shall be entitled to vote on all matters before the
Council. The First and Second Chief and each Council member shall be elected
directly by the voters. The council shall itself elect a Secretary/Treas*
fron among its members.
000162
-------
SECTION 2. Eligibility. Any mer.ber of the Village eighteen (IS) years of age
or older, shall be qualified to seek and hold rnerbership on the Council,
provided that he cr she has been physically residing in the Village for at
least six months immediately preceding their election. Candidates for the
offices of First and Seccnd CMief "rast be at least 25 years of age.
SECTION 3. Term. The First Chief, Second Chief of the Stevens Village
Council and seven. Council members shall be elected by secret ballot for terrs
of two (2) years. The terrs of the First Chief, Second Chief and Council
members shall be staggered as follows: At the first general election
following the adoption of this Constitution, the voters shall elect a First
chief and four (4) Council members for two year terrs. At the same election
the Second Chief and three (3) Council members shall be elected for one year
terns. Thereafter, at each general election, the voters shall elect the
chiefs and other Council members for two (2) year tarrs.
At the first election or any other election to stagger any terns, the members
elected by the most votes shall have the longest terrs and members elected by
the least votes shall have the shorter terns. The First and Second Chiefs and
each Council member shall serve until his or her successor has been elected
and seated. If at any tine in the future the staggered terns provided herein
shall lapse, they shall be reinstituted in the manner provided in this section
by the voters at the first practicable general election.
SBCTICN 4. Oath of Office. Before entering upon their official duties, all
officers and members of the Council shall take and subscribe to the following
oath to be administered by the First or Seccnd Chief or other qualified
officer:
I, do solemnly swear that I will preserve, protect and defend the
laws and Constitution of Stevens Village and will faithfully
discharge the duties of ny office according to the best of nty
ability.
SECTION 5. Resignation and Forfeiture. Any officer or member of the Council
who submits their written resignation or is absent from three successive
monthly Council meetings without being excused by the Council, shall
automatically forfeit his or her office.
SECTION 6. ftemoval. Any member of the Council found guilty by the Council of
neglect of duty, gross misconduct in office, an offense involving dishonesty
or who is convicted of a felony by a court of competent jurisdiction, may be
removed from office by the Council. An officer or Council member subject to
removal, shall first be given ten (10) days notice in writing of the reasons
for the removal and be given an opportunity to answer the allegations before
the Council. At least five (5) members of the Council must vote in favor of
removal. No member of the Council shall preside over the meeting at which his
or her removal is being considered. All questions of removal under this
section shall be resolved by the Council and the decision of the Council shall
be final.
000163
-------
SECTION 7. Vacancies. If the office of First Chief shall heccoa vacant, the
Seccnd Chief shall assume that office. All other vacancies en the Council or
in any office, whether it be by rssioval, recaii, resignation cr forfeiture,
shall be filled by appointment of the Council at its next meeting and such
replacement shall serve the unexpired term of the replaced taernber or officer.
All appointments shall be by affirmative vote of a majority of the remaining
Council members > whether consisting of a quanta cr net.
ARnmr vr - PtrrTES or.orncsss
SECTION 1. the First Chief shall preside at all Village nerrership and
Council meetings and shall execute on behalf of the Village all contracts,
leases, or other documents approved by the Council. The First Chief may vcte
in all cases except on the matter of the First Chief's removal. The First
Chief shall have general supervision of all other officers, employees, and
ccraoittees of the Village and see that their duties are properly performed.
When the Council is not in session, the First Chief shall" be the official
representative of the Village but nay make no financial or other ccnaitaent en
bphalf of the Village unless approved in advance by the Council.
SECTION 2. The Second Chief shall assist the First Chief when called upon
do so. In the absence of the First Chief, the Second Chief shall preside
when so presiding shall have all the rights, privileges, duties and
responsibilities of the First Chief.
SECTION 3 . The Secretary /Treasurer shall keep the minutes .of all meetings and
shall attest to the enactment of all resolutions and ordinances. The
Secretary/Treasurer shall issue notices of all meetings and elections and
conduct all general correspondence as directed by the Ccuncil. The
Secretary /Treasurer shall carry out the financial directives of the Council,
prcperly safeguard the Village funds and keep an accurate account of all
receipts and disbursements.
ARII(1£ VII -
SSCITCN 1. Village Membership Meetings. The Council may call a Village
•membership nesting at any time, but at least one (1) such meeting shall be
called each year during the months of January or February. The Ccuncil shall
also call a general membership meeting within ten (10) days after receipt of a
petition specifically requesting and stating the purpose of such a meeting
signed by no less than thirty percent (30%) of the members eligible to vote en
the matter for which the meeting is called. No action nay be taken at a
general membership meeting unless at least 40* of the membership eligible to
vote on the matter are in attendance when the action is taken. An action is
effective when adcpted by majority vote of these attending the general
membership meeting.
-------
SECTION 2. Council Meetings. The Council shall meet each nenth en a date and
place to be fixed by action of the Council, and at such other tires and places
as ray be designated by the First Chief or vets of the council. A quorum to
transact business shall consist of five (5) Council members and zust incite
either the First or Second Chief . Except • as otherwise prsyided.in this
• Constitution, at least a majority of members present at a ineeting in which, a
qucrua is in attendance, must vote in favor of any motion, resolution or
ordirance in order for the vote to be effective, The Council shall keep a
complete and accurate record of all proceedings, including reports of actions
taken at every meeting.
In the event the Stevens Village Council shall determine it or any of its
members have a conflict of interest in the deteraiination of any ratter, the
natter may be referred to the Village meiabership.
? VTTT ~
SECTION i. General Elections. The general election of Village officers and
Council masters shall coincide with the annual general membership meetirc.
Notice of the election shall be given at least thirty (30) days in advance by
public posting in the Village.
SECTICN 2. Special Elections. The Council nay call special elections for any
proper purpose, provided that at least ten (10) days notice of such special
election is provided by posting in a public place.
SECTION 3. Voter Qualifications. Except as otherwise provided in this
Constitution, any member of the Village eighteen (13) years of age or older,
shall have the right to vote in all Village elections, provided that he or she
has been living in the Village for at least six. months isrvediately preceding
the election.
SECTION 4. Election Ordinance. As soon as practicable, after the effective
date of this Constitution, the Council shall adopt an ordinance establishing
rules and procedures to be followed in conducting each of the various types of
elections specified in this Constitution. The ordinance shall include
provisions for conducting all Village elections by secret balloting,
qualifications of candidates, maintenance of a current list of eligible
voters, the settling of election disputes and other matters necessary and
appropriate to the conduct of elections. In the absence of an ordinance,
elections may be conducted according to custom and the provisions of this
Constitution .
000165
-------
- INTnanVE. RgLHJENCCM ANn
SECTICN 1. Recall. Village mer-faers shall have the power to recall any v
or officer of the Council. The recall process shall be initiated by filing a
petition with the Council, signed by at least thirty percent (30%) of the
members of the Village eligible to vote on the matter, and setting forth the
reasons for the petition. Within thirty (30) days after receipt of a valid
recall petition, the Council shall call and conduct an election to consider
the recall of the official named in the petition. Cnce an • individual has been
subject to recall proceedings, he or she shall not be subject to such action
during the balance of his or her present term of office.
SECTICN 2. Referendum. Village members nay approve or reject acts cf the
Council by referendum. The referendum shall be initiated by filing a petition
with the Council asking for a referendum signed by at least thirty (30%) of
the membership eligible to vote on the matter. Within thirty (30) days after
receipt of a valid referendum petition, the Council will call and conduct an
election on the referendum. The Council nay also initiate a referendum en its
own motion without a petition.
SECTION 3. Initiative. Village members may initiate legislation by filing an
initiative petition with the Council. The petition shall set forth the
precise legislation to be initiated. The initiative petition shall be signed
by at least thirty percent (30%) of the membership eligible to vote en the
matter. Within thirty (30) days after receipt of a valid initiative petition,
the Council shall call and conduct an election to consider the initiative.
--PTICTE X - POWERS OF THE
SECTION -1. General Peters. Except as specifically limited by this
Constitution, the powers of the Village shall be exercised by the Council and
shall include all the inherent powers of a federally recognized tribal
government, including but not limited to those specified in this Article,
which, do not violate federal or Stevens Village law. The Council may
authorize an officer to act in specific circumstances.
SECTION 2. Internal Procedures. Consistent with this Constitution, the
Council may enact rules to govern its internal procedures and organization and
to further define the duties of Village officers by ordinance or bylaw.
000166
-------
SECTION 3. ether Council Pcwers. In addition to all powers veszed in the
Village or the Council by existing law, and this Constitution, the Village,
acting through the Council, shall have the following powers:
(a) To negotiate with federal, state or local governments and ethers en
behalf of the Village and to advise and consult with the representatives
of the Secretary of the Interior on all activities which ray affect the
Village.
(b) To promote and protect the health, education and general welfare of the
menbers of the Village, and to administer charity and such other services
as may contribute to the social and economic development of the Village
and its members.
(c) To raise revenue.
(d) To encourage, guard and foster traditional cultural practices of the
KcyuJcon Native people, including the arts, crafts, religion, language and
customs of the Native people of Stevens Village.
(e) To authorize or direct subordinate beards, cosaittees or officials to
administer the affairs of the Village and to carry out the directives of
the Council.
(f) Except as limited by this Constitution, to manage, lease, exchange,
acquire, or otherwise deal with Village or other prcperty, and to prctecz
and preserve the Village property and the wildlife and natural resources
within these areas under the jurisdiction of the Village.
(g) To zone, . exercise the power of eminent ^nm^i" and otherwise regulate all
land use within those areas under the jurisdiction of the Village.
(h) To regulate inheritance among members whether by intestacy or otherwise.
(i) To adaijiister any funds within the control of the Village.
(j) To engage in economic development enterprises for the benefit of the
Village or its members.
(k) To provide for the maintenance of law and order and the administration of
justice, inclxxiing the establishment of appropriate Village courts or
other judicial bodies.
(1) To regulate child custody and other domestic relations among nembers.
(m) To regulate and control the use of natural resources within those areas
under the jurisdiction of the Village.
(n) To negotiate agreements with other governments and international agencies
net inconsistent with federal law.
000167
-------
(o) To safeguard- and prunota peace, safety, morals, physical and general
welfare of the members of the Village.
(p) To eirploy legal counsel, the choice of coursel and fixing of fees to be
subject to the approval of the Secretary of the Interior so long as
required by federal law.
(q) To charter enterprises, corporations and associations and to join cr
charter housing authorities.
(r) To exercise any and all powers heretofore or hereafter delegated by the
state or federal governments.
(s) To enact ordinances, procedures and regulations necessary to give effect
to any provision of this Constitution and to exercise any power not
prohibited by federal law.
SECTION 4. Powers "RAcaa^viad to Membership. The following powers are
specifically reserved to the entire Village membership (including non-resident
members) acting through a general membership meeting or a properly called
election:
(a) No lands or interests in lands owned by the Village may be sold, leased,
encumbered or dispraqpri of without the favorable vote of at least a
majority of the entire Village membership.
(b) Except as required by federal law, no member's lands, interests in lands
or other assets within the territory of the Village may be involuntarily
transferred to a non-member without the favorable vcte of at least a
majority of the entire membership of the Village.
SECTION 5. Sovereign Immunity of Stevens Village. Nothing in this
Constitution shall be deemed or construed to be a waiver of the sovereign
immunity of Stevens Village, which nay be only waived by express resolution of
the Village Council, after receiving an affirmative vote of the majority of
the entire adult membership, and only to the extent specified in such
resolution and permitted by this Constitution and federal law. Waivers cf
sovereign imnunity shall not be general but must be specific and limited as to
duration, grantee, transaction, property or funds, if any, of the Tribe
subject to the waiver, as well as specific to the court having jurisdiction
and applicable law.
Waiver of the sovereign inmunity of the Village shall not be degmpri a general
consent to the levy of any judgment, lien or attachment upon property of the
Village other than property specifically pledged, assignee or otherwise
explicitly subject zo levy in the waiver rescluticn.
000165
-------
SECTION 6. Retained Peters. The retained powers cf Stevens Village net
expressed in this Constitution shall not he lost fcy omission, but ray be
exercised by rajcrity vote of the entire adult jasr±jershlp or delegated by' the
ner±ership to the Council.
SECTION 7. Lease of Village Lands. Except as required by federal lav,
Village lands or interests in lands nay not be disposed of for ccrsuniry
expansion, rights-of-way for public use, other connunity needs or airports and
related facilities except by lease.
SECTION 8. Ordinances and Resolutions. The Council shall act by ordinance or
resolution, whichever is appropriate. Ordinances shall be adopted for all
laws of permanent application. Council action with respect to other ratters
shall be by resolution. Unless otherwise specified" in the body of the
ordinance or resolution, the effective date of all resolutions and ordinances
shall be the date of their adoption or enactment by the Council. All
resolutions shall be available for public inspection at the Council office,
unless specified otherwise in the resolution. All enacted ordinances shall be
available for public inspection at the Council office.
ARTTfrT- YT - RIGTTS OF MEMBERS
SECTION 1. Civil Rights . Consistent with the custons, laws and traditions cf
Stevens Village, the Village in exercising its powers of self-government shall
net deny to any person within its jurisdiction, freedcni cf speech, press or
religion, or the right to assemble peacefully, nor shall the Village deny to
any person the equal protection of Village laws or deprive any person cf
liberty or property without due process of law.
SECTION 2. land Righ^«s. Resident and non-resident oenbers shall have equal
rights to use Village owned lands.
SECTION 3. Freedcni of Information. Village nenbers shall have the right to
review all Village records, including financial records, at any reasonable
in accordance with' procedures established by the Council.
- SAVINGS AND SEVESABTTTTY
SECTION 1. Savings. Nothing in this Constitution shall invalidate any law,
ordinance, custom or tradition of the Koyukon people of Stevens Village except
to the extent the ****> nay be inconsistent with the provisions of this
Constitution.
SECTION 2. Severabilitv. If any provision of this Constitution shall in the
future be declared invalid by a court of competent jurisdiction, the invalid
provision shall be severed and the remaining provisions of the Constitution
shall continue in full force and effect.
000169
-------
- AMENCKENTS
Constitution ray be amended by a majority vote of the qualified vcters of
the entire Village sembership (including non-resident roen-Jaers-) at- -an elecricr.
called by the Secretary of the Interior in which at least thirty percent (30%)
of the qualified voters take part.
Ihe Secretary shall call such an election on a proposed Constitutional
amendment at the request of either five (5) of the nine (9) Council members or
upon a petition by a at least thirty percent (30%) of the entire village
nembership eighteen (18) years of age or older.
XIV - ADOPTION
Ihis Constitution, when ratified by a majority vote of the qualified voters of
Stevens Village, voting at an election called for that purpose by the
Secretary of the Interior, or his authorized representative, in which at least
thirty percent (30%) of those entitled to vote shall vote, shall be submitted
to the Secretary of the Interior for his approval and shall be effective frcm
the date of his approval.
000170 10
-------
CZHJTFTCATE OF RESULTS OF ELECTION
Pursuant to a secretarial election authorized by the deputy to the Assistant
Secretary - Indian Affairs (Tribal Services), on , 1990,
the attached Constitution of Stevens Village was submitted to the qualified
voters of the Village and on , 1290, was duly
(adopted) (rejected) by a vote of for and against and
cast ballots found spoiled or mutilated in an election in which at least 30
percent of the members entitled to vote, cast their ballot in
accordance with Section 16 of the Indian Reorganization Act of June 18, 1934
(48 Stat. 984), as amended.
Qiairaan, Election Board
Member, Election Board
Member, Election Board
Washington, D.C.
Data
11 000171
-------
CERTIFICATE OF RESULTS OF ELECTION
Pursuant to a Secretarial election authorized by the Deputy to the Assistant
Secretary - Indian Affairs (Tribal Services) on May 14, 1950, the actacnea
revised Constitution of the Native Village of Stevens Village, Alaska was
submitted to the qualified voters of the tribe and on June 25, 19SO, was duly
(adopted)(-e*j*c=wreF) by a vote of p •___ for and -y against and ^
cast ballots found spoiled or muti!ated in an election in which at least
thirty (30) percent of the ^jC)_ members entitled to vote, cast their ballot
in accordance with Section 16 of the Indian Reorganization Act of June 13,
1934 (48 Stat. 984), as amended by the Act of June IS, 1935 (49 Stat. 378),
the Act of May 1, 1936 (49 Stat. 1250), and the Act of November 1, 1988 (102|
Stat. 2938).
Micnaai/ J. Stan camp, vano, Chairman, Election coar:
1 •'/
...........
Rooert Josepn, Memoer,.J; lection Boara
Horace Smone Sr., Meraoer, Election Boara
(Hero George, Alternate Memoer)
Date ,
000172
-------
CERTIFICATE OF APFKDVAL
I, Ronal Eden , Deputy to the Assistant Secretary - Indian Affairs
(Tribal Services), by virtue of the authority granted to the Secretary of the
Interior by the Act of June 18, 1534 (48 Stat. 984), as amended, and delegated
to vet by 230 CM 2.4, do hereby approve the Constitution of the Native Village
of Stevens, Alaska. It is effective as of this date; Provided, that nothing
in this document shall be construed as authorizing any action under this
document that would be contrary to Federal law.
RonaJ Eden
Deputy to the Assistant Secretary •
Indian Affairs (Tribal Services)
Washington, D.c.
:-:: - 9 ES:
Date: ,
000173
-------
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
AMENDED CONSTITUTION
OF THE
NATIVE VILLAGE OF TANANA
ALASKA
APPROVED JULY 26, 1989
000150
-------
AMENDED CONSTITUTION
OF 'I'tjL'
NATIVE VILLAGE OF XANANA
PREAMBLE
We, the members of the sovereign Native Village of Tanana,
in order to establish a more perfect tribal government, to
preserve and exercise the Tribe's inherent sovereign rights and
powers, to conserve and develop tribal lands and resources
pursuant to tribal law and custom and Federal law, and to
establish justice, make for ourselves this Amended Consti-
tution by authority of the Act of June 18,1934, as amended fay
the Acts of June 15,1935, and May 1, 1936.
ARTICLE L NAME
This Tribe gh«n be called the "Native Village of Tanana."
ARTICLE IL TERRITORY AND JURISDICTION
The jurisdiction of the Native Village of Tanana shall consist
of all Indian Country in the vicinity of the Native Village of
Tanana to the full extent permitted by federal and tribal law
and as defined by tribal ordinance,
ARTICLE HI. MEMBERSHIP
Section 1. First Mezrubers, All persons whose names are on
thelist of Native residents, made according to the Instructions
of the Secretary of the Interior for organization in Alaska, shall
be members of the Tribe.
Section 2. Children of Members. All children of tribal
members shall be members of the tribe.
Section 3. Loss of Membership. Any tribal member may
relinquish his or her membership in writing. Membership may
also be taken away for good reason by the Tribal Council.
pursuant to an Enrollment Ordinance adopted in accordance
with the provisions of this Article.
000151
-------
Section 4. New Membership. Any person who has lost his or
her membership, and any other Native person who sets up a
home in the Village, may be made a tribal member upon such
terms and conditions as may be established pursuant to an
Enrollment Ordinance adopted in accordance with the pro-
visions of this Article.
Section o. Membership and Enrollment Rules. The Tribal
Council shall adopt an ordinance establishing rules and pro-
cedures for membership and enrollment, consistent with the
provisions of this Amended Constitution.
ARTICLE W. GOVERNING BODY
Section 1. Tribal Council and Officers. The governing body
of the Native Village of Tanana shall be known as the Tanana
Tribal Council. The Tribal Council shall consist of a Chairman
and six (6) other members, all of whom shall be entitled to vote.
The seven Council members shall be elected directly by the
voters. The Tribal Council shall itself each year elect a Chair-
man, a Vice Chairman and a Secretary from its members.
Section 2. Eligibility. Any enrolled member of the Tribe,
eighteen (18) years of age or older, shall be qualified to seek
and hold membership on the Tribal Council, provided that he
or she has been living in the Village for at least sis months
directly preceding the election.
Section 3. Term. Council members shall be elected, by secret
ballot, for terms of two (2) years. The terms of the Council
members shall be staggered as follows: At the first general
election following the adoption of this Amended Constitution,
the voters shall elect three (3) Council members for one-year
terms and four (4) Council members for two-year terms. There-
after, at" each annual general election the voters shall elect
three (3) Council members or four (4-) Council members, as
appropriate, for two-year terms. Each Council member shall
serve until his or her successor has been elected and seated.
Section 4. Council Meetings. The Tribal Council shall meet
each month on a date and place to be fixed by action of the
Tribal Council, and at such other times and places as may be
designated, by action of a majority of the Tribal Council or by
the Chairman. A quorum to transact business shall consist of ^ « . r _
-------
at least four (4) Council members. To be effective at least four
(4) Councibnembers shall vote on all motions, resolutions and
ordinances. The Tribal Council shall keep a complete and
accurate record of all proceedings, including reports of actions
taken at every meeting.
Section 5. Oath of Office. Before entering upon their official
duties, all members of the Tribal Council and all other tribal
officers shall take and subscribe to the following oath and
affirmation to be administered by a qualified officer:
% , do solemnly swear (or
affirm) that I will support the laws and Constitution of
the Native Village of Tanana and the Consitution of the
United States and will faithfully discharge the duties of
my office according to the best of my ability."
Section 6. Forfeiture. Any members of the Tribal Council
who submits a written resignation, or is convicted of a felony,
while in office, or is absent from three successive monthly
Tribal Council meetings without being excused by the Tribal
Council, shall automatically forfeit his or her office.
Section 7. Removal. Any member of the Tribal Council
found guilty by the Tribal Council of neglect of duty, gross
misconduct in office, or any offense involving dishonesty may
be removed from office by the Tribal Council by at least five (5)
Tribal Council members voting by secret ballot, provided, that
such member shall first be given ten (10) days notice in writing
of the charges against him or her and be given an opportunity
to answer such charges Before the Tribal Council. No member
of the Tribal Council shall preside-over the meeting at which
his or her removal is being considered. All questions of removal
under this section shall be resolved by the Tribal Council and
the decision of the Tribal Council shall be final.
Section 8. Recall Any member of the Tribal Council may be
recalled by the Tribal voters if a valid petition requesting- such
recall and setting forth the reasons, signed by at least thirty
(30) percent of the eligible voters, is presented to the Tribal
Council. The Tribal Council shall within thirty (30) days of
000153
-------
receipt of such pe:i:ion call an election to consider the recall of
the named official, such election co be conducted pursuant to
thiTeTestion ordinance. If a majority of the voters vote in favor
of the recall, the official shall be removed. No official may be
subjected to recall proceedings more than once in the course of
his or her term.
ARTICLE V. GENERAL MEMBERSHIP MEETINGS
A meeting of the general membership may be called at any
time by the Tribal Council, provided, that the Tribal Council
shall call such a meeting at least once a year. A general
membership meeting shall be called by the Tribal Council
upon receipt of a petition specifically requesting such a meet-
ing signed by no less than ten (10) percent of the eligible voters.
The Tribal Council shall adopt an ordinance establishing rules
and procedures for general membership meetings. At such
meetings the general membership shall furnish its advice to
the Tribal Council.
ARTICLE VL ELECTIONS
Section 1. General Elections. The Tribal Council shall set
the first Tuesday in May of every year for regular elections in
the Village, and shall give at least thirty (30) days notice of
such elections, posted in a public place.
Section 2. Special Elections. The Tribal Council shall call
special elections to fill vacancies on the Tribal Council and as
otherwise necessary, provided that at least ten (10) days notice
of such special elections is provided by posting in a public place.
The Tribal Council shall call a special election no later than
thirty (30) days after a Tribal Council vacancy occurs for the
purpose of filling such vacancy.
Section 3. Voter Qualifications. Any member of the Tribe
eighteen (18) years of age or older, shall have the right to vote
in all tribal elections, provided that he or she has been living in
the Village for at least sis months directly preceding the
election.
Section 4. Election Ordinance. The Tribal Council shall
adopt an ordinance establishing rules and procedures to
govern all aspects of voter registration, elections, and election
protests.
000154
-------
ARTICLE Vm. POWERS OF THE TRIBAL COUNCIL
Section 1. Powers. The Tribal Council shall exercise the
following powers by appropriate motion, resolution or ordi-
nance, subject to any limitations imposed by the Constitution
or applicable laws of the United States:
a. To negotiate with Federal, State, local governments
and others on behalf of the Tribe and to advise and
consult with the representatives of the Department of
the Interior on all activities which may affect the
Tribe.
b. To promote and protect the health, education and
general welfare of the members of the Tribe, and to
administer charity and such other services as may
contribute to the social and economic development of
the Village and its members.
c. To levy taxes or license fees.
dL To regulate the internal procedures of the Tribal
Council.
e. To encourage, guard and foster traditional cultural
practices of the Tanana Native people, including the
arts, crafts, religion, language and customs of the
Native people of Tanana.
f. To authorize or direct subordinate boards, committees
or tribal officials, to administer the affairs of the Tribe
and to carry out the directives of the Tribal Council.
g. To manage, lease, exchange, acquire, or otherwise
deal with tribal property, and to protect and preserve
tribal property and the wildlife and natural resources
within those areas under the jurisdiction of the Tribe-
fa- To administer any funds within the control of the
Tribe.
i. To engage in tribal economic development enterprises
for the benefit of tribal members.
00015-5
-------
j. To provide for the maintenance of law and order and
:the administration of justice, including through the
establishment of appropriate Tribal courts,
k. To safeguard and promote the peace, safety, morals,
physical and general welfare of members of the Tribe.
1. To employ legal counsel, provided that the exercise of
this power shall be subject to the approval of the Sec-
retary of the Interior, so long as required by Federal
law.
m_ To prescribe the rules and procedures necessary to
give effect to any provision of this Constitution.
Section 2. Reserved Powers. All rights and powers not
delegated to the Tribal Council in this Amended Constitution
are reserved to the people and may be exercised by the mem-
bers of the Tribe through the adoption of amendments to this
Amended Constitution.
Section 3. Annual Report the Tribal Council shall make an
annual report of its activities, including a budget report, to the
general membership at the annual general membership meet-
ing.
Section 4. Actions of the Tribal Council. All ordinances,
resolutions and motions shall be acted upon by the Tribal
Council by a roll call vote in public, and the vote of each
member shall be recorded.
Section 5. Ordinances. An ordinance shall take effect only
after being posted in a public place for thirty (30) days after its
adoption by the Tribal Council. All enacted ordinances shall be
made.available for public inspection at the Tribal Office.
AKTICLE VIEL AMENDMENTS TO THE CONSTITUTION
This Amended Constitution may be amended by a majority
vote of the qualified voters of the Tribe at an election called by
the Secretary of the Interior in which at least thirty (30)
percent of the qualified voters take part. The Secretary shall
call such an election on a proposed constitutional amendment
000156
-------
at the request of 5 of the 7 Tribal Council members or upon
petiSofijsf thirty percent of ail members of the Tribe eighteen
(18) years of age or older.
ARTICLE IX. BILL OF RIGHTS
Section 1. The Tribe shall not make or enforce any law
prohibiting the free exercise of religion, or abridging the free-
dom of speech, or of the press, or the right of the people
peaceably to assemble and to petition for a redress of griev-
ances.
Section 2. The Tribe shall not violate the right of the people
to be secure in their persons, houses, papers, and effects
against unreasonable search and seizures, nor issue warrants
but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched and the person
or thing to be seized.
Section 3. The Tribe shall not subject any person for the
same offense to be twice put in jeopardy.
Section 4. The Tribe shall not compel any person in any
criminal case to be a witness against himself.
Section 5. The Tribe s: 1 not take any private property for a
public use without jnst c -npensation.
Section 6. The Tribe shall, not deny to any person in a
criminal proceeding the right to a speedy and public trial, to be
informed of the nature and cause of the accusation, to be
confronted with the witnesses against h*™ to have compulsory
process for obtaining witnesses in his favor, and at his own
expense to have the assistance of counsel for his defense.
Sectidn 7. The Tribe shall not require excessive bail, impose
excessive fine, Inflict cruel and unusual punishments, and in
no event impose for conviction of any one offense any penalty or
punishment greater than imprisonment for a term of twelve
(12) months or a fine of $5,000.00 or both.
Section 8. The Tribe shall not deny to any person within its
jurisdiction the equal protection of its laws or deprive any
person of liberty or property without due process of law.
000157
-------
Section 9. The Tribe shall not pass any bill of attainder or ex
postrfticto law.
Section 10. The Tribe shaU not deny to any person accused of
an offense punishable by imprisonment to the right, upon
request, to a trial by jury of not less than six persons.
ARTICLE X. ADOPTION
This Constitution when ratified by a majority vote of the
qualified, voters of the Natvie Village of Tanana voting at an
election called, for that purpose by the Secretary of the Interior
or his authorized representative in which at least thirty per-
cent (30%) of those entitled to vote, shall be submitted to the
Secretary of the Interior for his approval, and shall be effective
from the date of his approval.
ARTICLE XL SAVINGS AND SEVERABILnT
Section 1. All enactments and official acts of the Native
Village ofTanana promulgated or adopted prior to the effective
date of this Amended Constitution shall remain in full force
and effect to the extent they are not inconsistent with any
provision of this Constitution, and in the event of any conflict
with this Constitution, the provisions of this Constitution shall
control.
Section 2. The provisions of this Constitution are severable,
and should any provision of the Constitution be determined by
a court of competent jurisdiction to be invalid, such invalidity
shall not affect the validity of any other provision of this
Constitution.
000153
-------
CERTIFICATE OF RESULTS OF ELECTION
Pursuant to a Secretarial election authorized by the Deputy
to the Assistant Secretary - Indian Affairs (Tribal Services) on
May 8,1989, the attached revised Constitution of the Native
Village of Tanana, Alaska was submitted to the qualified
voters of the tribe and on June 13,1989, was duly adopted by a
vote of 38 for and 5 against and 1 cast ballot found spoiled or
mutilated in an election in which at least thirty (30) percent of
the 110 members entitled to vote, cast their ballot in accord-
ance with Section 16, of the Indian Reorganization Act of June
18,1934 (48 Stat. 984), as amended by the Act of June 15,1935
(49 Stat. 378), the Act of May 1,1936 (49 Stat 1250), and the
Act of November 1,1988 (102 Stat. 2938).
| Chairman, Election Board
Eileen Kozevnikoff, Member, Election Board
Marie Grant, Member, Election Board
(Phyllis Kennedy, Alternate Member)
Date: _Jmie? 13, 1989
000159
-------
CERTIFICATE OF APPROVAL
I, Hazel E. Elbert, Deputy to the Assistant Secretary - Indian
Affairs (Tribal Services), by virtue of the authority granted to
the Secretary of the Interior by the Act of June 18, 1934 (48
Stat. 984), as amended, and delegated to me by 230 DM 2.4, do
hereby approve the Constitution of the Native Village of Tan-
ana, Alaska. It is effective as of this date; provided, that
nothing in this document shall be construed as authorizing any
action under this document that would be contrary to Federal
law.
Deputy tKche Assistant Secretary
Indian ASkirs (Tribal Services)
Washington, B.C.
. July, 26. 1989
0001GO
-------
7% fr,
-------
Minutes
of the Plains
Congress
<$•«» »—••—•'
RAPID CITY INDIAN SCHOOL
Rapid City, South Dakota
March 2-5, 1934
-------
Minutes of the Plains Congress
THIS BOOKLET
is THI IWORK OF INDIAN
STUDENT-APPRENTICES OF
THI HASKELL PRINT SHOP
HASKiU INSTITUTE, LAW.
RINCE, KANSAS
Friday. March 2, 1934
MOBNINO SESSION
Opening of meeting by James H. McGregor, Superintendent of
Pine Ridge Agency, South Dakota.
Friends, we will begin this meeting and as Is the usual custom
of our Indian people. It will be opened by prayer. Reverend Simon
3. Kirk will open the meeting with prayer. Mr. Kirk.
Invocation by Reverend Simon J. Kirk.
Mr. JAMES H. McQREGOR: Friends, If you will come to order,
the greatest Council' (Indian) held in recent years will be opened.
Commissioner John Collier will now take charge.
Mr. JOHN COLLIER: Friends, to begin with I am going to
speak only of procedure. We have four days for this meeting.
That will mean morning, afternoon and evening, If necessary. We
have a treat deal of ground to cover. I shall In a moment Intro-
duce to you other of the men from Washington who will also take
part In the discussions. In fact, before I do anything else, so that
you may know the other Indian Bureau staff people who have
come for this meeting, I will introduce them now and I will ask
them to stand up so that you will know all the Indian Bureau
officials.
Ur. Walter Wochlke, Field Representative of the Commissioner of In-
dian Affair*.
Ur. Ward Bhepard, Specialist In land pollcle* for tbe Indian OfOce.
Ur. Slegel, An*lfctant Sollcller of the Interior Department.
Mr. Cohen, Aulilanl Sollcller of the Interior Department.
Ur. Stewart, Chief of the Land Olvlttou at the lt>a>»n Office.
A complete record will be made of everything said or done In
these four days and we hope that the record of each day will be
finished, and typed by the next day. In the matter of voting, or
taking action on questions, the Important matter Is for the dele-
gation to act; not for everybody to vote, but Congress wants to
know what Rosebud wants, what Fort Peck wants, and so on. I
do not say that the meeting may not vole as a whole. But very
definitely, this meeting Is Intended to determine the opinions of
each of the delegations, each of the tribes of the reservations.
That Is what Congress wants and I may add that there will prob-
ably not be any voting In the first two days. It Is necessary for
i
-------
of th* Plain* Congrtu
us to transaot business with promptness because- w» have M much
(round to eowr, and Inumueh M U» matter of catting vote* U
a matter of separate delegations voting, and a record being made
of what each one thinks, it U evident that the question of Parlia-
mentary control U not very Important.
Now, I tint want to ask you, and X wlU get thli by the ahow of
hand* whether you would like to have an Indian Chairman or
have one of the Government men preside aa Chairman. My own
view U that It would be much better U you have an Indian Chair-
man, U you can choose him without taking too much time. On
this we might get a show of hands, those who favor the election
of one of your own delegates, an Indian, to be chairman, hold up
your hands. (Interpreted by Rosebud Interpreter to Indians.)
ROSEBUD INTERPRETER: Mr. Collier, U you will please, .1
would like to speak In. Indian first and then Interpret it In English
myself. (Interprets.)
This Is Mr. Collier's meeting and this Is not strictly our meeting.
We are here to listen, and therefore I think It Is the proper thing
to -have a Superintendent or some Government official preside
over this meeting. We are hen as listeners. Each man who la
here in a delegation from different reservations are here with the
sole purpose of listening and we are not here to pass on questions.
We are here to listen and whatever we learn we wUl take back
with us to our own people. Therefore, I think It proper that we
should have a Government official to preside over this meeting.
REPRESENTATIVE from FORT BERTHOLD: Mr. Collier I
wish to announce that speech to my delegation In Indian. (Inter-
preU.)
Mr. COLLIER: May I say that before the meeting comes to an
end there will be questions put to you, to each of the delegations.
because we want to know your sentiments. A delegation that does
not want to answer the questions Is free not to answer. A dele-
gation that wants to answer the questions will answer them. Fur-
thermore, It Is possible that this meeting will bo the beginning of
meetings that will be held hereafter. This may be the first Con-
gress to be followed by other Congresses, In a regular way. It Is
for these reasons that It seemed well U there was an Indian
Chairman, although I do not want to Insist on that. (Interpret
that for me, pleaae.)
(Rosebud Interprets the above speech to Indians.)
(Port Berthold Interprets Commissioner's speech to his dele-
gation.)
Mr. JOHN COLLIER: Has the Interpretation been understood
by everybody? if not, then It should be Interpreted until every-
body understands. (Various O. K.'s heard throughout the hall.)
Bhoshonft O. K. Blackfeetf O. K.
Minute* of the Plaint Congren I
ROSEBUD INTERPRETER: Mr. Collier, please, It was my fault.
I left out the most Important part of that Interpretation, and this
Is what Mr. Collier said, (Interprets.)
Mr. COLLIER: All who desire that there be an Indian Chair-
man elected by you hold up your right hands. Is that understood?
All who desire that there be on Indian Bureau official (or Chair-
man hold up their right hands. (Interpreted.) There will have to
be a count. U Is so close. Keep your hands up, nil who wiinl an
Indian Bureau Chairman. (Count taken—101.) Now, all who desire
that there be an Indian Chalrmun eltcU-d by the meeting hold up
their hands. (Count token—01.) 101 (or un Indian Bureau Chair-
man. 67 for an Indian Chairman.
I shall ask Mr. Walter Woehlkc at present to serve as Chairman
of the meeting.
Mr. WALTER WOEHLKE: My friends, as Mr. Collier pointed
out to you, a great deal of business has to be transacted within a
short time, yet that short time is twice the time that the commis-
sioner and hte staff can give to any other of the Congresses that
follow this one, but the Commissioner will have to leave here on
the 6th of March because he has engagements with other Indian
Congresses that can not be changed. Therefore, It Is exceedingly
Important that this Congress transact business with as much
speed as possible. I would therefore urge that the various dele-
gations make their arrangements for Interpreting the remarks
and addresses here all at the same time. There are possibly seven
or eight different languages represented here and K they Inter-
pret it one after the other we would be here by next fall. There-
fore it is important (hut each group select Its official Interpreter
and arrange Itself, or arrange the non-English speaking members
of the delegation around their interpreter so that the Interpre-
ters can go on at the same time all over the room. Will you kindly,
these delegations, make that arrangement right now so that we
may proceed at once? In each delegation, all those who do not
(.peak English should gtl ncur llu Inti-rpix-icr.
INTERPRETER from STANDING ROCK: Mr. Chairman.
Mr. WOEHLKE: The gentleman from Pine Ridge.
INTERPRETER: Standing Rock. The major portion of tho del-
egates nrc Sioux and 1 believe we v.'ould wive tlniu by ulllmnu I DC
services of one Interpreter for the entire Sioux group. (Delegates
arrange themselves near Interpreters.)
Mr. WOEHLKE: I believe the arrangements around the Inter-
preters nave all been completed. I would now like to ask you to
listen carefully and attentively (o the remarks which the Com-
missioner Is about to make. He will explain to you the purpose
and the scope and ihe reasons lor the new policy and the new
-------
4 Uinuttt of th« Plaint Congreii
legislation designed to carry out that policy. Mr. Collier will now
•ddrea* you. (Applause.)
Mr. JOHN COLLIER: It will be necessary for me and for other*
on the platform to do a good deal of talking, but please under-
*land that It Is just as Important for you to talk as for us to talk.
It U Important that your views be expressed and put Into the
record and that any question In your mind be clearly asked and
answered by us It we can answer It. The record which Is being
inadu will be Immediately sent back to Washington where It will
be read by the, members of the House and Senate Committees
on Indian Affairs by high officials of the Government. Before
I begin, let me convey to you the greetings of the Secretary of the
Interior. Mr. Ickes.
ROSEBUD INTERPRETER: I do not know whether I can re-
member nil of that or not, but X will do the best I can, Mr. Collier.
(Interprets.)
Mr. JOHN COLLIER: Also the greetings of Senator Wheeler.
Chairman of th,e Indian Committee of the Senate, and Congress-
man Howard. Chairman of the Indian Committee of the House.
A written message to you by Congressman Howard will be re-
ceived during the next day and will be read to you.
Now, my frlepds, I will first beg you to put out of your minds
any fixed Ideas ,that you may have brought here, based on previous
rcporU about qur policies and about the proposed legislation and
that you will have open minds. The questions are of great impor-
tance to each jlndlan. A great deal Is at stake for each and all
Indians "and there should be no hurried, careless thinking or
actions. I ask you to believe that our coming to you Is because
we want and expect you, yourselves, to reach the final decision
about these matters. That Is why we come to you.
Mr. COLLIER: (Continuing; Sum I.aPoln*., Koscbud, interpret-
ing.)
(Mr. I.APOIKT: I want to cny to any of you EnglUh-Bpcaklni pco-
pl« tlwl I *m open for correction at any Urn*.)
We have not come to you because your endorsement Is needed
for this or that. That U not why we have come. If we were only
concerned with passing a piece of legislation, we would not have
to come to you. Legislation put forward by the Interior Depart-
ment which !••• iiI-o .-n:loi .id by (he Pr. skicnl ami v lilcli upper.'s
to the common sense of Congress could be put through quickly
and quietly If we wanted to do It that way. But, It Is the policy
and the purpose of the present Indian administration not to do
things, even if they are the right things, merely because we think
that they are right. We Intend to act in partnership with the
Minute* of the PI culm Caiigrett 5
Indians and we are not going to act unless the Indians are will-
Ing to go with us. It also Is true that within tho last four or Ave
years the members of the House Committee on Indian Affairs and
of the Senate Committee on Indian Affairs have taken the view
that they arc represent!)lives of the Indians In Indian matters
and that they want to know the views und wishes of llic Indians.
Hence, It Is In behalf of these CommUlui.-s und llitlr Members,
as well as the Administration, that we have now come to meet
with you.
Now, it is my belief—I may prove lo be mistaken— but it Is
my belief that the Indians of the Hulled Stales are going lo be
practically one hundred per cent Ui agreement before we are
done. I am not speaking of the more than one hundred particular
dcLallc of this Dlil vhcn I bay that you an: toinij In In:, I (liink,
onu hundred per cent In agreement. I do believe there Is going to
be general nurceiwnl <;n llils Bill, but wlun I ::iiy I bc'.luvu llu-ro
is going to be a complete agreement I am not necessarily refer-
ring to this Bill. I am conv!i!i.vd that : lu.ro arc M.HII! ihir.^s which
all the Indians need and thai they know those things in order
to prosper, In order thai their children and their grandchildren
may prosper, and In order thul they may be free men.
Before the meeting Is over, any and all of the details in this
Bill will conic up [or dl:;ctiv>;Gi), but. wo would m:.k'j a ml.-.Uikc If
we began by nttcmplint' a detailed analysis or Ihlu Bill, because
the Bill will, In any evc-nl. hi- amcndul by Coii|jre::s and amended
In a great many different ways.
Mr. COLLIER: (Continuing; Robert High Eagle, Rosebud, In-
terpreting.) Therefore, with your permission, I shall not begin
talking about this bill at all, but will lay it aside and forget
It for the lime being. And, with your permission, I shall first
talk about the fundamental conditions of your life as I under-
stand it. And what are these fundamental conditions which I
shall suggest are wrong conditions and ought to be put right?
What are they? They arc, first, that the Indians of the Untied
Stated, Including your Irlbcs, have for two lifetimes been steadily
losing their properly, becoming poorer und poorer on the whole.
That Is on the side of your property. If you take the United States
as a whole, the wealth of the people has been increasing year by
year steadily until the depression of three years ago. And, during
those same years the wealth of the Indians, instead of Increasing.
has been melting away. I t>hull give you the exact facts utter a
few minutes. They arc len-lfying fuels.
Now, the second big condition Is this: That the Indians of tho
United States arc living under a condition which puts them at
the mercy of the Indian Bureau.
-------
• Utnutet of th» Plain* Congrtu
Tbt guardianship of the Federal Government over Indian life,
which wu Intended to be a meant of making the Indiani both
prosperous and free, haa been having the opposite affect and has
been making them poor while they were deprived of their, free-
dom. Therefore, many people and some Indiana have risen up and
cald that the only hope for the Indian Is put an end of the guard-
ianship of the Government so that they may stand a chance In
living. Some people have said the guardianship of the Government
U Injuring the Indian, U robbing the Indian, Is keeping them In
a condition of 'slavery. Therefore, the responsibility must be
brought to an end. You have all heard that Una of talk, and I do
not hesitate to say I am speaking honestly my own feelings, that
if the guardianship of the United States has to continue doing the
tilings It has been doing; If It has to go on the old way, I think It
'had better be stopped, thrown aside, and the Indian better do
without It. But, that Is not the answer. The cure for the evils
done by the Government Is not to abolish but to reform it and
make It do good things Instead of evil things, and that is true
of the guardianship over Indians.
I believe that the Indians would be In agreement with us In
saying that the answer to the evils of the past and the present Is
not to abolish the guardianship and responsibility of the Federal
Government but to change it so that It will build up the property
of the Indians .Instead of taking It away. Build up the life, the
health and the liberty of the Indians Instead of taking them
away. The United States In across centuries of time has Interfered
with Indian life too profoundly, has stamped Its stamp on Indian
life too deeply;for the United States now to withdraw and dis-
claim Its responsibility. The obligation of the United States to
Uie Indian Is not discharged. The guardianship should not come
to an end. It Is still possible for the United States to do the right
thing. Instead of the wrong thing, and I think It ls fair to say,
true to say, that the present Secretary of the Interior, Secretary
Ickes, and the present Commissioner, myself, hold the positions
that we do hold because we are expected to bring about changes
and reforms In the Federal guardianship until the change be-
comes good Instead of bad. Both of us have fought for many
year* for those changes. We were put In office In order to carry
them out. (Applause.) But I again go back through these years
gone by, almost 15 years, Secretary Ickes. Mr. Ickes as he was, and
I. have stood for one thing above all which was, that it was the
duty of the Indians themselves to determine what their own lite
shall be. It ls for the Indians themselves to determine what laws
Congress shall pass tor them. Therefore, we are going ahead and
Minulei o/ the Plains Congreit 1
are carrying the case to you before we attempt to procure Legis-
lation. (Applause.)
I now wish to make one more general remark before going to
the discussion of things In greater dctull. One more general re-
mark. There is a country north of us—Canada. There is a country
south of us—Mexico, and there are Indians In Canada and there
are Indians in Mexico, nnd Camilla and Mexico both maintain
Federal guardianship over their Indians. In Canada and Mexico
the Indian wealth Is steadily Increasing In both those countries.
(Interpreted to Indian delegations by Rosebud. Standing Rock,
Fort Bcrthold nnd Crow Agency.)
Mr. COLLIER: In both those countries individual Indians arc
receiving every encouragement and lllicrty for a personal ambition
nnd enterprise while at the same time the property of tribes and
Individuals Is guarded against theft or foolish waste. In both of
these countries .the Indians and their guardian Government have
n hnppy relationship and there arc no charges of bad fullh and
broken contracts and treat IPS that are scraps of paper, and In
Mexico porliculnrly, the Indians, under the guardianship of
Mexico, nil nearly all of the positions In their own Indian Service
and receive such educational opportunities that they ure at the
top of all the professions and technical pursuits nnd are largely
la control of the Government itself. Never In Canada, never in
Mexico, do you find Indians rising up In despair la i;uy, "Ju:;t let
us alone. Quit Imprisoning us. Quit driving us. Leave us to our
fate." You never hear that in Cannda, you never hear that in
Mexico. You hear it ottcn In the United Slates. (Applause.)
Now It must be clear that the United Stales is honorable, the
United Status is Intelligent, the United Slates is powerful and
there Is no reason why the United Slates, in comparison to
Canada and Mexico, should go on disgracing Itself In its handling
of Indian matters, and It Is now Ihc Intention of the President and
of the Administration, and I think It Is perfectly safe to say it Is
now the Intention of Congress, lhat the United States shall not
go on disgracing itself and wronging the Indians. (Applause.)
The United Slules U not making a mess of its Indian guardian-
ship because Its employees arc wicked or stupid. That Is not the
reason. They arc not wicked and they are not stupid. But because
Ihc guardianship maintained by the Untied States Is carried out
under a body of laws which arc wicked and stupid and which
make slaves even of the Government employees hired to enforce
Iho laws. (Applause.) There was u time when U wns the policy
of Ihc United Slules Government lo rob the Indians. There was
a lime when It was the policy of the United Stales Government
to crush Indian life and tvi-n la crush the family life of Indians
-------
• 1/lnuf el o/ M« Plain* Congren
and during lh»t time, lawi were passed and those laws are still
the laws, though U U no longer the policy of the Government to
rob you or to crush you. but they are the laws end by them we
must work and you must live.
(Rosebud Interpreter asks to have last thought repeated.)
Mr. COLLIER; I was saying that It U not the policy of the
Government to rob the Indian or to crush the Indian, but those
old laws are still the laws.
Therefore, the matter of deciding how to change the laws; what
new laws to get, U the fundamental matter before the Indians
and the country In Indian matters.
Now try to give me. close attention while I talk first about your
property.
U we go back to the year 1887. 1887 In our thought, I will tell
you about the property the Indians had then. The Indians were
the owners, In that year, of 138,000.000 acres of land.
(A gentleman speaks to Rosebud Interpreter.) Teil them that
means all the Indians, not just the Sioux. (Interprets.)
Mr. COLLIER: I am speaking now about all the Indians. This
land Included the best land in the United States. It Included the
richest farming land, the best grazing land. It Included much of
the land best suited)to Irrigation farming and U Included a great
wealth of oil and lead and zinc and other minerals below the
surface. In that year, 1887, Congress, over the protest of the In-
dians, enacted what ls called the General Allotment Act. That
Act Is known .as the. back bone of the Indian law—the great basic
law of Indian A!Ta|rs.
Mr. COLLIER: (Continuing; Mr. LaPolnt Interpreting.)
We come from 1887 to the present day. The amount of land now
owned by the Indians Is forty-seven million acres, which means
that the amount of land which has been lost by the Indians since
1887 Is ninety-one million acres. The best land was Included In
the land that was lost. If you take the forty-seven million acres
that the Indians stlli own, twenty million acres of that land Is
desert or practically desert land. The facts are very much worse,
aa I shall now show you. The allotment law was not applied In
the southwest Indian country, except In a few cases. The great
Nkvaho tribe was spared from the allotment law. The Pueblo was
spared from the allotment law both In New Mexico and Arizona.
The Papago was spared and three of the four Apache tribes
were spared from the allotment act. These tribes which were
spared from the allotment have nearly doubled their holdings
since 1837. Instead of losing their land they have nearly twice as
much since 1881. Every one of the tribes which was spared from
the allotment act has more land now than In 1887. In other
Mlnutet of tne Plaint Cangreit 9
words, the losses of land have fallen upon those tribes that were
subjected to the allotment act, so Ihut Die aliotlud tribes have
lost In land area more than two-thirds of their total holdings
since 1887.
(Mr. Red Tomahawk, Rosebud, Interpreting.)
If you take the velue of the land loss of the allotted tribes, It
would be more than eighty per cent, or eight-tenths, or four-
fifths of the total value. As you know, the allotment operation
was not brought to bear everywhere at the same time. It came
sooner some places and later In other places, to that the effects
of the allotment system are not cquul in Intensity everywhere.
They are variable. 11 you take Oklahoma as an example, the
amount of land owned by the Oklahoma tribes was twenty-three
million acres before allotment—and all of that except three mil-
lion acres has passed away. You can take Individual tribes like
the Oncldu of Wisconsin and find that practically one hundred
per cent of the land has passed from the Indians to whiles
and the Onelda are landless. More than one hundred thousand
Indians in the allotment areas have lost all their land down to
the last square fool and are entirely landless. We will later look
at the Pllotment system In a closer way In order to understand
why It nas done what U has done. We will look at 11 closely In
order to see what can be done to so change It bo as to stop the
loss of land. We will examine It In order to answer a very neces-
sary question which Is In your minds, so I am going to ask the
question right now. The question ls—how can this allotment sys-
tem be changed so as. first, to stop the futile loss ot land by
Indians; second, Increase the amount of land owned by Indians;
and, thlvd, protect the rights and equities of those Indians who
have not yet lost their land?
Let me state again what we think It Is necessary to do under
some law to be enacted: First, that the further sale or loss of
Indian lands to while* must be slopped; second, that new land
—more land—must be procured In large amounts In order to
supply those Indians who have lost all of their land and in
order to supplement the Inadequate land of those who still have
some land: third, we may say what we like about the bad results
of allotment, we say plenty, but allotment has created Individual
valid property rights in individuals. That fact Is there and has
to be dealt with.
(Interpreter asks Mr. Collier to repeat flrst part of his speech.)
Mr. COLLIER: There must bu no more land lost. There must
be more land obtained. (Interpreter.)
Mr. COLLIER: In addition, as a result of allotment, thousands
of Indians live on or are the holdt-rs of parcels of land. They
-------
10
Vinulei of the Plaint Congrett
own that land. They were allotted It. It U their right, not only
to continue to own what they own but they have the right to
transmit what they1 own to their children, to their heirs. This
right U theirs, fundamentally under the Constitution of the
United QUtrs and could not be taken away from them no mat-
tor what'congress did. 60 (hat, In addition to stopping the loss
of land and getting more lend, any change of laws, must protect
these Individual property rights In living allottees and their heirs.
(Applause.)
Right here I might ns well crash Into one misunderstanding
that has come back to us from some Indian reservation. Deal
with It at once. I went down Into Oklahoma about three weeks
ago, and met with a lot of Indians and among them were the
Pawnee. Well, I found out that somebody had called together—
I may say that among tho Pawnee three out of every four have
lost all of their land—somebody had called a meeting to which
they hod admitted only those Pawnee who had some land left.
They didn't let the landless ones In. They had told those who
were allowed to come In that this man Collier and Ickes, they
have a scheme take this land away from you and give It to the
landless ones. 80 very naturally, the Pawnee came there "red
hot." Of course, I was able to explain to them, as It will bo-
come clear to you. First, that anyone wllh a crazy plan like that
could not put It Into effect because tho courts would not allow
them to, If Congress had a crasy Idea like that and passed a
law like that It would be promptly thrown out by the courts.
It an Indian 'Commissioner went to Congress with an Idea like
that he would just be laughed out of the building. I do not want
too dwell to long on this point. Before you go away you will
rightly Insist on understanding clearly how the Individual pro-
perty rights are to be held In safely, perpetuated, protected. If
there be among you Indians who are landless. It Is Just as Im-
portant for them to be In the clear about this as for you who
still have land, because If Legislation Is passed which ovcr-rldcs
property rights, which Is In violation of the Constitution, the
Courts will prevent the Legislation from being put Into effect.
In other words, will be made null and void. In other words,
what we want is Legislation so that the Courts will pass It.
(Interpreters changed; Robert High Eagle from Standing Rock,
Interprets.)
Mr. COLLIER: At this point may I say that the pending Bill
will have to pass through the Indian Committee and In addition,
the Judiciary Committee of Congress and If any Indian Is worried.
he can rely upon those constitutional lawyers on the Juii.i:iary
Committee to see that the due process clause Is not violated by
Minutes of the Plains Congrcn
II
nny language of the Bill. I might say right here, there Is nothing
particularly mysUTloir; or even experimental here. Before I re-
ferred to Canada and I referred to Mexico. They both have worked
this out to the complete satfofaclion of nil the Indians. It can be
done here. Again, let me parily linn aside now from the main
argument in order to answer until her uilMimlcrsliincling that has
come back from some reservation. We liikc the position that It
Is very necessary lor Indians 10 IM< |n null led to organize, to or-
ganize tor many dilfvrcnl purpo us. It i:; neeci^ury for Indians to
be allowed to organize to take care of their own lotul aifutrs, and
again to organize to do bmlne.ss In u motion biumut.'is world in
competition with tho modern while world. In this world at large.
the while world, I he unorganized people arc powerless. They urc
vfctims. Only organized groups have power in the while world.
There nrc ninny kinds ol orjjniil;:ullo» in the modt.-rn world.
For example, thore are corporations, there ore cat'.le men's as-
sociations bnd stock associations. There arc co-opc-rallvc societies
to run, lor example, creameries, to buy in (|imntillcs so as to cut
out middlemen's profits; all kinds ol co-operative economic or-
ganizations for mutual benefit,. Tlicie uie town government;; which
manage the local a II airs of towns.
The ward Indian Is shut out from nil of these advantages of
organization. He likewise, as you all know to your sorrow, Is de-
nied access to credit, financial credit.
Now I am RoInK to say what is utmost the heart of our plan we
arc going to lay before you.
We arc proposing Unit Indians shall be allowed and helped to
organize for mutual bcnclit, for local self-government and for
duing biiiincM In the modern, organized way. We arc proposing
that there shall bo set up u now llniinelnl credit system through
which the Government, will extend financial credit to these or-
ganized croups of Indians. We arc proposing I hut when Hie Indi-
ans do organise and they will only organize If they wunl to when
and If they do organize, then their oi'uanizntions will he instru-
mentalities of Hie Federal Government. Let this be vciy clear:
When the Indians organize It will be flr.sl under Federal laws
cimc'.cd by Gonurcis lu enable them lo organize, under Federal
luws. Second, the organized bodies of Indians will become Agen-
cies of Hie Federal Government, instrument alilles. or. If you like,
brunches of the Federal Govcrnfncnt. The organized Indian body
then organized under Federal Inw, orp.uni/rd tis an Agency of
the Federal Gnvrrnnu-nt, would be surrounded by the protective
Uliardlniishtp of I lie Federal OuverninenL and clothed wllh the
authority of the Federal Government
(Ro.sebiiU Interpreter announces: "Mr. Clement Smith will in-
terpret.")
-------
II
Ulnutei of tht Plaint Congreu
Mr. COLLIER: I repeat, no Indian croup will to required to
orgtnlM, but they could organize It they wanted to. When they
organtaed, they would be what I have told you; Agencies of the
Federal Government, existing under guardianship ot the Federal
Government and clothed with the authority ot the Federal
Government.
When I cay guardianship of the Federal Government and
authority, what do I mean? I mean, for example, that the privi-
lege of the Indians to be exempt from taxes will be extended to
these organized groups and their operations. I mean again, that
In addition to extending financial credit to these groups, the
Government would subsidize them—would give them various kinds
of financial assistance. This organized group, as an Agency of
the Government, would, In one case, be doing one kind of thing
and somewhere else would be doing another kind of thing, entirely
according to the desires and needs of that Indian group.
Such a chartered Indian organization could, If It desired, take
over many of the things that are now being done by the Indian
Bureau and the money being spent on those things would be
transferred to the organized body of Indians and they would spend
the money and they would hire their own employees. (Mild ap-
plause.) Now, we will get into the detail of this later, of course.
Now I am only telling you enough that I can deal with objections
that have come back from some places.
For example, from one of the Pacific Northwest reservations
comes In a telegram, "We don't want socialism or communism."
(Applause and laughter.) From another Reservation comes in this
solenfti message, "We don't want anything to do with this new
deal because In 1867 the Government promised rations to our peo-
ple until the water ceased to flow." (Laughter.) Another phase
was brought to me by an old friend, a very good friend of mine.
who I hive known for 30 years. He came to me In New York to
see me. He said, "Mr. Collier, I want to ask you a real question."
I said, "Go to it." He said, "Are you an athtest?" because he had
gotten an understanding that this plan of allowing the Indians
to organize the way I have described was some scheme for doing
away with Christianity; that it was some kind of thing like they
do over In Russia.
It will be clear to you; If It isn't, don't go away until Jt becomes
clear; that in the United States, If you are going to do business
and make money and protect yourself, you have got to do it in
an organized way. Otherwise you are just out of luck. You don't
make any money, you are not protected, and the other fellow
eaU you alive. (Applause.) You can't govern yourselves, you can't
do business, you can't protect yourself, unless you organize. That
Affnufei of the Plaint Congreu
13
Is true regarding everybody In the United States.
If you look around throuoh the United Stales you will find some
leaders of organizations who arc Catholics and some who are
Protestants and some who are Mormons, and some who are Re-
publicans and some who are Democrats, but every mun who has
got any power is organized.
Mr. COLLIER: (Corillnulng; Rosebud, interpreter.)
Now, away back yonder in the old days of war when the United
States was over-riding its treaties with most of you tribes—In
those days the Government adopti-d a policy of forbidding Indians
to organize at till. For Indians to organize wus made a seditious
and illegal act. And thai inidlllim has come down lo the pres-
ent In the minds of many and the luws passed in those old days
are still the Inws, so thai II Is Gllll Illegal and It can still be con-
sidered actually seditious tor Indians lo organize. In spile of that
explanation.from history, It docs scum strange that there should
bo anybody In the Unllod States who would want to forbid the
Indlun* from organizing when everybody else Is organized. Many
Indians have come lo believe lhal the only way they could gel
power to organize, power to make contracts, power to borrow
money, power lo do business In the modern world, was for them to
pass out of the guardianship of the Government. Indians have
been taught that they had lo choose between remaining like so
many domestic animals being tukcn cure of by the Indian Bureau
or else be thrown lo the wolves. Thai Is the choice they thought
they had lo make—so a misunderstanding IK natural. It will pass
away when everybody grasps the Idea which Is that the Indiana
who organize under this plun which we arc talking about will
organize undur Fcikml luw, under Federal (>uurdlunshl|). This or-
ganization will be un mjcncy ol the Ftrtirnl Government, subsid-
ized by (he Federal Quvcrnmciil. :is well ii.s protected by It, In
other words, within the framework of uuurdianship. It Is possible
to build up (or the Indians (ricJoin as Indlvldaul men, freedom as
human beings, wllh the power that goes with organization, and
there will be more Federal protccllon at the end than there is
now.
(Rosebud Interpreter.)
In my remaining words I will not say uny more about the
details of your problem, because we will come lo all lhal. I want
rather to remind you ol whnl Is going on In the country as a
whole at present under the leadership ol President Roosevelt. A
great body of fundamental chungcs me (uklng place swiftly at
Washington und Iroin Washington out all over the country. And,
In a broad way It can be said that those chnngcs. those reforms,
are dealing with two subjects. We arc dealing with what Presl-
-------
1«
Jflnufai o/ fft« Pialni Cmgreit
dent Roosevelt In hla campaign speeches called the "forgotten
man." That means the rank und Ale of the plain people, the
common people who were staggering under the burden of the
rich, carrying a privileged class who ruled the country and ruled
the forgotten man. But the big business which rodo on the back
of the forgotten man was Itself blind and didn't know where It
was trying to drive the common man, and, therefore, we have
the great crash of 18?9. And. part of the gigantic thing being
done by the President Is to get the blind giant off the back of
the common man and to work out an ecoinomic life through which
the common man Is his own master and Is free.
And, the. other part of that thing which Is going on In Wash-
ington has to do with what you may call the "forgotten land."
All over the United States the great stands of timber, the forests,
have been wasted by careless lumbering—cut green and burnt up
—to the Injury of mankind for thousands of years to come. That
to being done. All over the country the soil has been neglected,
over-grazed, washed away Into the rivers—millions of square miles
of our grazing and farming land damaged or ruined by erosion,
going on every year. At this time great expenditures are being
commenced, new laws, are being enacted to save our forests, to
restore our land, to bring the land and Its productions back under
the control of the people and their Government. This, what we
will call a new deal for Indians, is part of all the rest. The big
push that Is carrying fho country Into a new life is the same big
push that must, carry the Indians Into a new life.
Mr. COLLIER: The time will come when the changes will be
finished as far as law and Washington 'are concerned and the
country will settle down Into a new mold. Perhaps In two or three
years. The chance of the Indians Is now and not hereafter. It
Is the chance of all times for you to get whatever you are entitled
to. Now and not at some future time. Now Is the time of destiny
for the Indians. If they will use their best brains in dead earnest
on all their problems now, determine what they need, ask for it
clearly; present intelligent programs, they can get the utter most
far with what they need, but that may not be true two or three
years from now. (Applause.) You will understand now why we
are going out to the Indians to discuss these questions of your own
life.
It is time for dinner.
(Interpreted by Emll Afraid of Hawk, Pine Ridge, Sioux Indian.)
Mr. WALTER WOEHLKE: Chairman: This Congress will re-
convene In this hall at 1:30. At that time photographers will be
present to take pictures of this history-making group. For the
purpose of that picture we would like to hove the heads of the
Mlnutej of the Plains Congreit
15
delegations and the chiefs from the various delegations fcatcd
along the center aisles and in (rout where Hie Commissioner will
also be so that they can be plainly seen. We would also like to
have the heads of IIic delegations und the chiefs to QCl Immedi-
ately outside to have (heir pictures taken wilh (he Commissioner—
before dinner. The heads of thu delegations arc requested to ob-
tain copies of the memorandums which explains the 13111 at Ihe
boys' dormitory. They cun oLlnln enough 'copies for cnch member
of the delegation there.
The meeting Is udjuurncd.
AFTERNOON SESSION
Afternoon session, Plains Congress, convened at 1:30 p m.,
March 2, 1034. Photographs were inkcn ol Hie Congas assembled.
Mr. WOEHLKE, Chilli mini: Will the delegates oil lingo them-
selves In the sumo order us (hi* mornlm; .so us to imiku Inter-
preting easy. Owing to the nw.-CM.Hy of having our picture; tul:en
we me dignity behind our schedule. I would IHce to announce Mint
the Congress will convene tomorrow morning at 8:30. There- will
be another meeting In the uftcnioui jl 1:30 und tiierc will prob-
ably be nn evening mecllny at 7:30. We me ulso considering the
question of holding the Sunday meeting or meetings In the uudl-
lorimn of Rapid Clly l>ccuusc tl uf fords fur more space than we
have here and It would iiilow many more of the delegates and
visitors to hear and listen mid talk In the proceedings. The cities-
lion now is. whether the Congress would like to have u Sunday
morning meeting In the Civic Auditorium of Rapid City, mid I
would like an cxpic: slon of opinion from HUH Conuress. .Supposing
that all those who nrc in favor of holding n Sunday morning meet-
ing In the Civic Auditorium, raise ihclr right hands.
INTERPRETER from ROSEBUD: I hiive inli-i-prated what you
said and 1 made this statement. Tills morning we heard that Mr.
Collier hnd bcui a-.-cusril of l>!:li>s an iilhcl.si. Nnw we don't wmil
it to appear I hut Mr. Collier Is nn nlluMst brc-:ui::c we arc all
iilheU>!!>. There arc many ol our pi-bplu Hint nn< very rtlli;lous
people. 'Vu belong to .several different rclli;lous denomination*.
Thnt Is sort of n personal rlijhl. Tlitix1 arc perhaps- many ol us
who want to attend religious services on Sunday morning. There
would be no objcelion in holding n muuling in the afternoon. So
I nuiku that mutloii niiiiin.sl your .slalrment.
-------
19
Utnutei of th« Plain* Conpreu
Mr. WOEHLKE: It Apparently U the sense of the meeting that
w« should not have a session Sunday morning In the Civic Audi-
torium Is that the sense of iho meeting? Lot us put U this way.
All those who are against holding a meeting on Sunday morning
In the Civic Auditorium raise their right hand. (Quite * con-
siderable number raise their hands.) Then we shall endeavor to
arrange for a meeting Sunday nflrrnoon In the civic Auditorium,
and as we can not get; It at night, probably a Sunday evening
meeting here again.
Now, with your kind indulgence, Commissioner Collier will con-
etude his general statement to you. (Applause.)
Mr. JOHN COLLIER: Friends, I do not like to do so much of the
talking. \Vhen we come to discussion of details I shall yield the
floor to various other people, out I suppose that It will save time
If I go on myself for a little longer.
I (hall speak to you for a while about the most difficult part of
your situation and of our problem; your property.
Without repeating anything I gave you this morning about the
way your land has melted away under the allotment system, not
repealing that, I will go on and discuss the allotment system.
a little turlher. As most of you know, perhaps all of you, the allot-
ment plan vac made with a view to bringing the guardianship ot
the Federal Government to an end.
The law clearly Intended and declared that the trust period on
the allotment should come to an end after a while, anJ the in-
dividual who owned (ho land should no longer be a ward of the
Government, should be subject to the State laws, should pay
taxes. That was the end. During the time between allotment and
the end of the trust period or the declaration of competency;
during that time, the Government was to act as trustee over the
allotment.
It soon became apparent to the law makers that the allotment
law would have to be changed, because the allottee died, the
original allottee, the end of his life come and his land passed Into
the hetr.'hlp status. After the death ot the allottee the estate was
probated and the heirs were determined. It then became neces-
sary that the land either be sold and the proceeds divided among
the heirs, or that It be rented and the rental proceeds divided
among the heirs. In comparatively rare cases, the allottees were
children, who died and the heirs were their parents, and then
there was no need of splitting up the equities, because one heir
received the whole allotment.
But, us you.know, the usual thing was that there wwld be a
number of heirs; sometimes a very large number of heirs, and It
frequently came about that one heir had an Interest in a largo
Minute* o) the Plains Congrcis
17
number of estates. Now, If the Government, did not sell these
helrshlp lands, then Die Government had to act as trustee over
them; had to act as the real estate aeent to sell them or lease
them and handle the proceeds. An example of what hnj>pft»ed
has Just been handed me l>y Supeiinttmlcnl Buker ol the Sls-
seton Agency.
Here Is one estate; that of Joseph Itcnville. at Slsscton. and It
Is so split up thut there arc about sixty heirs In this case, and
there arc hardly two ol the heirs who have on Identical or equal
Interest.
Mr. COLLIER: (noberl High Englc. Rosebud. Interpreting.)
You can arrive at Ilial by dividing B.DIB.CUO lulo 114.307.200.
You can divide 6.200 Into 114,301,200. The lowest equities arc the
ratio between 5.200 and IM.OUO.OOO. (Mr. Collier Illustrating at
blackboard.) In other words, one part In about four hundred. Mow,
that same heir having the value of a postage stamp in one allot-
ment way have ihu value of len postiigc stamps In another allot-
ment and a dollar In sonic other allotment..
Now, understand this, every year (his (jets more complicated.
The shares get smaller, the number of heirs becomes greater, and
the number of Individuals having shares In more than one allot-
ment becomes more numerous. Now, In addition, of course, we
can supply the picture that the allotments In question arc- scat-
tered among a lot of white-owned land—checker-boarded with
white-owned land. And that checker-boarding grows crcatcr all
the time as lands are sold. The lands themselves, because of the
way they are checker-boarded, can not be used or vented to the
best advantage. There arc great disadvantages in the matter of
renting the lund or using it.
We had hoped to have some giant maps here to show all ol this.
We have a number pf interesting maps which we would like to
have you look at before we are done. This (indicating map) is.
as it happens, the Clicycnnc River.
Mr. STEWART: we have made maps of all the reservations In
this part of the country and we have them here. We will pass
them around sometime during the Congress to all of you. We have
some picture graph* coining by air mull along this Hue. We want
to explain them jointly with these maps. However, they have not
yet arrived. The color trhcmc, as I mentioned before, is uniform;
that is, one color—as blue—on one map Indicates the same status
on all the mans. Blue represents living allotted land: lh:a is, where
the allottee Is still living. On this map. Oils shade of green—It
ts green supposedly—looks like blue &a don't let. It mislead you.
The blue Is those smnll pieces scattered around. Oreen represents
tribal J«nd unallotted. Yellow represents tiucoa&cd ullutments where
-------
II
Utnutei ol tht Plaint Conpreti
the allotment or iknd Is (till held In trust by the Government.
Red represents the' alienated land or while-owned land. The un-
coloit-d tectlnn hrre rrpri'scnis surplus land yet open and un-
cll.-.poscd of. I \v.nii 10 fiimlliy (hat remark, however. A good deal
of It Is undisposed of, but we have no way ot putting a color here
lo show i1l.s|x>sed of mc.is because our office docs not handle that.
'Hi; General Lnnd Oillcc handles that. This situation is true on
all ilic reservations In this purl of the country.
Mr. COLLIER: While Mr. Stewart was talking I corrected my
fit-it lintctlc ond I find Ihnt In tho cnse I was giving you. the
heir In question has l.t?00 In the allotment. And, if the allotment
rents (or $50 a year, that heir will get a little less than two
unrt one-half cents a year. Now let us get It clear. Under the
allotment law, as It slnnds, the cituatlon has to get worse every
year as the orlglnlil nlottces die. This complicates this crazy quilt
as helrjhlps holdings lixivaso year by year. Nothing con stop It
because people insist on dying. We can not stop them. Now, I
ant very anxious to get this situation, as it appears, to the people
who control our annual budget and so on. It Is very vital.
Tho Indian Bureau, under the law, Is compelled to be trustee
and real estate agent for all of these parcels of land on behalf
of all of these heirs.
Tho number of separate equities, in bookkeeping accounts no
one IMS ever cotihtrd. but It Is probably Incxcess of two millions.
Probably is nearly (en millions. Not merely is there the book-
keeping Job. but all of the probating of helrshlp and then tne
job of renting and collecting and distributing the collected money.
It dors not stop the lund from passing out of Indian ownership.
It cannot eel a'good rental or a good sales price because the
land is broken up by hcirshlp. The Bureau must go on going
through tho motion of being (lie real estate agent for nil these
millions of acres of land. The result Is. that the cost of determin-
ing these helrshlp ship lands not only exceeds the rental yields
of these lands, but It often exceeds the capital value of these
lands year by year. We have told Congress the truth as we know
it, as all of there opcrailons I now describe to you, which do not
tivvo tho land, which da no good to the Indians, arc costing us
somewhere around (wo million dollars a year of money thrown
awiiy. wasted. This Is another way of saying that It becomes a
matter of administrative ntxcESily lo sell these helrshlp lands,
no matter hnw much wo regret it.
The person who stands pal on the allotment system has this
answer. The answer Is. "It was the Intent of the allotment act for
those lands lo be sold and used. Mr. Collier, can save the Govern-
ment ltd waUcd money by selling the lund and then you will not
Minuiei o/ l/ic n«i»J
19
have to look after the ln»d uny more." They would suy. "It it
Is the clear intonl Tor live nllotmi.nl net lor Hie land lo bo told, why
don't you go ahead and do you duly, sill the land." They further
say that It !•• the the clear Im. ni ui ilia i il-.tim-nC «t-i to cleclurc
the Indians compel ml. The allotment «a has la'.ied 25 year::.
Now it If 35 years and tl has uvtn dimjur.ii; <•» year alter year
so as to keep Jobs in Dm Indian liiircau. 1h;.-y putul out thut
the Secretary of the Interior today has ihc discretion to lurinl-
nale Iho Tin;I IVHOJ. 'they ul;u point Mil nhai 1)11: <<;tv Jmil:i»"
ot the allotted areas need to know, d, (hi.;, that 11 icy point, out
that the poorest Indians arc thu ones living in Iho allotted areas.
Where Is the hlyhcsl death rah-'V ll i.. ;;i..«.n.; ihu luiiia:i:: livintc
In the allotted area;:. They point oi;l thai the Indiana in the
Unallotted ureas are co.sllni; thu GOVC.UHK hi le.;:> money than tlie
Indians living' in the allotted areas. H is Hue. and yi.-t Uuy point
out that the Indians in llie unallotted meas tue geltltii; nioie
scrvlcu than the Indians in ihu ullutu il ;>ri:..:,; moiv liuu/.m M-I-V-
Ice in the wny of health, edueuliuu and ;i(;nuiUun.-. Iho rcuson
being Ihttt the Oovirnmeia'u inon.y hi Ihu allo'.U'd at'fcus is to
largely used lip on tliu.se banvn Uii:,lur:.lu|i:; oi1 unaliolU-d lunds.
What I am leading up to is something that I will say lo you
only after a good deal of ilioutla, whether h Is wi.c or nol. but
II is Ihe truth and therefore I i.m (joing to t-iiy It. You remember
what Secretary Lunu und Coinini:^li>nL-r Cuto Sells did In 1017.
They used the discretion, which the fc.-i-i-uiuy ol Uu Interior hut;,
and they fee patented Ihousiinds oi Indians in a hurry, forcibly.
Those lands iniincdiuiuly bt.-ciii>ie luxahlu anil they were lost In
a very few years lo the Indians. I.'uw ihi; piv.-.cni iidmlni.stnUit.n,
while It lauts, Is not tu'>: |iruli:liiU:d the ::uU: ot
allotted land which Is temporarily a ; lop ii)o;'.:,uiij, b\it \vc inu:,L
face Ihe acknowledged iaet dial ihc Cuvfiiiineul's co^tj IUT: luouiit-
Ing in conneclion con.suhrably ulihoul Uoinu any uocd; that ihu
hcli'shlp hinds are increasing year by jvai and thai an udminio-
Iration of the future, it would be of the- near lutur-.-, may submit
to the pressure and simply force fee paieiuu on all of you. They
can do !l und I am (joini; lo tell you they will.
This rising cost Of administration lui iht; alliilled and partleu-
larly Uin helrshlp land:-, which adiuiilidly Is doing nci good, will
slaro the administration in Uit- luCu and wiil stare the director
of the budget In the fan; more und mure every >cnr. Tin; Goviun-
ment IU«lf. as all of you know, i.i gelling horribly in debt as a
result of the depression. Before- the dcpru-sslun Is over, the mere
Interest charge of the fli^vvi inn. ni'^ li-.,n>i.d i:u!. ln-d.it-:., |iv,,|,-
obly will exceed o Ihonsiind million dollars a year.
-------
30 Mlnu(«i o/ (/)« Plalni Congress
INTERPRETER from ROSEBUD: How can I say a thousand
million?
Mr. COLLIER: A billion.
ROSEBUD INTERPRETER: You know, our arithmetic among
the Sioux Is very limited.
Mr. COLLIER: That;means that the Government Is going to
be compelled to economize wherever It can; at every point where
money can be saved, from the regular administrative costs, the
Government Is going to be looking for place In saving money.
That has already commenced. The Indian Bureau In the year
ahead will not have as much money by 112.000.000 as it had year
before lust. Right now, for every dollar we get for health, for
schools, etc., we-have to fight like wildcats. Only last month, in
order to get a little more money (or our hospitals we had to go
to the President himself and It took days of debate before we got
on additional (75,000 (or hospitals that did not have doctors and
nurses.
Now, I must say that you do not need to fear what Secretary
Ickcs Is going to do; what I am going to do. We have our pledge,
but we won't be there for ever; not by any means. We might not
be there three yeari from now. And now that Congress knows and
now that the budget knows that this administration of these
hclrehtp lands Is Just throwing good money alter bad; Is a waste
of millions of dollars a year of money needed for something
else, watch out what the next Secretary of the Interior does.
Watch out what the next director of the Budget does, and re-
member that the States and counties may be relied on to present
all of the arguments for terminating the trust period on your
lands because your lands arc now tax exempt. If the trust periods
were terminated your land would pay taxes. In brief, unless we can
modify the land situation, then the Indians of the allotted area are
In a dead end passage. There is no way through. They are clinging
now to their allotments; such allotments as remain, as a last hold
on a feeling of security. That hold will be taken away from them
too, because as a matter of economic and administrative necessity,
future administrations will carry through the thing that Franklin
Lane begun. If a way can be found to get out of this dead end
passage In such a manner as not to disturb existing possessions,
existing ownership, existing rights. In such a way as to make the
trust period perpetual, and In such a way as to add land where
land to needed, that clearly Is the line of hope for the Indiana,
and that way can be found—a way which will not take away
anything from any Individual Indian, but which will only increase
what any individual Indian has got, white giving something to
Die ^ndlan who has got nothing.
Mtnutet of the Plains Coni/rea
21
Much of the time later In these sessions will, of course, be de-
voted to making this clear to you, but I have spoken as I have
In the lost half hour and told you what I have for a reason.
The reason Is this: That I am Informed that tome of your dele-
gations consider that It may be bcltti; to do nothing at all ralher
than to take a risk of changing something; either that you haven't
got authority to do anything or that you don't want to do any-
thing at all to meet the situation. I am Informed tliat some of
you here, on the strength of things you heard before you came
here; things that you read In the newspapers or thut people havu
told you, have crystallized your thlnkinu ayuimt uny change, and
I desire for you to realize what I know to tic the truth; Iliut
beyond your power, beyond my power, beyond the power ol the
President himself, the forces arc moving which uru going to malic
the change In a way to destroy you unless it Is made in a way to
save and help you. The allotment system Is working out to Its
predestined conclusion; It will work on and within a compara-
tively few years It will force the Government Into wholesale fee
patenting as the only way out of a bad situation.
Now I want to say a word about another phase of the situation
still connected with land. Where the land Is checker-boarded In
the way that you know, on most of your Sioux Reservations;
checker-boarded with white holdings; where half or more of It
Is In the helrshlp status and split among an ever-Increasing num-
ber of heirs; under those conditions ubout nil that can be done
la to rent the land and to rent It at a disadvantage; to rent It,
that is, tor rather poor returns.
The Government is not justified and can not be expected to
advance large sums of money to capitalize Die Indians for the
use of lund when the land Is In that condition. The Government
program of capitalizing the Indians, extending loans to them I
mean, for the e/Tecllve use of their Ja»d. can not be can led out
amid such areas as, for example, the Slsscton Sioux and others
that I might mention. This thing so cssvnllal for modern life,
particularly modern life on the land, of credit, can not be pro-
vided unless we find a way out ol Uils licit-ship land misery.
We have amended this Hill now prndiiiK In I tire Co«i|;rc s wllli
a new part, which establishes, to begin with, a five million dollar
loan fund which the House CowiiilUcu linve Muted they wlil raise
to ten million, for capitalizing the Indians in the use of tliclr land.
We can get that money. We cun establish that new credit system,
but It can not be made effective until the lund summon is read-
Justed.
Once more, we propose, that the Government Is, first: Buying
a large amount of land for landless allotted Indians, mid to add
-------
33
Utnutei of the Plaint Couprcsi
to I he Insufficient land of allotted Indiana who haven't got enough
land. That to one of tlio basic proposals now before Congress.
Mr. COLLIER: (Continuing; Robert High Eagle, tntcrprcting.)
To begin with we ore Diking for two million dollars to bo avail-
able ouch year for liuid purchase, that being only a beginning.
In addition to that Utc Government Is stinting In to buy up
millions of acres of what they call sub-marginal hind, which really
Is grazing land, all over the country. We expect to be able to
obtain lurgj gifts of loud to Indians and Indian tribes out of that
sub-marginal land In order to withdraw It from fanning. But
IUTU ngulti it can be taken for granted by nil of you that the
Government will not buy land to get It Into the condition of the
allotted lands at present. It will not buy land to spend millions
of dollars In this allotment business and then see It pass bocfc to
white ownership. It will not do It—only, If the Indians can get
an Intelligent, successful business-like land-holding eystcm. Only
then may they expect to have more land bought for them or ad-
ditional lands given to them. Now we will make it clear to every-
one while we are bcru that this improved land-holding system is
necessary to get credit, necessary to acquire new land, necessary
to avert fee patents. We will make It clear that this new system
con bo arrived at with almost no visible change from what you
have, with no disturbance of any vested right of any Indian to
anything
I keep coming back to this because of things like this telegram
which I hold In my hands from somebody up at Fort Peck who
protests that nottUiig must be done to destroy the treaty rights
of the Indians, so nothing must be passed on, he says.
I surely do not blame any Indian or group of Indians for being
like we say the man from Missouri is—he has to be shown. I
don't blume you. There Is not one of you tribes, I believe, that
has not had the experience more than once of having high officials
tell you lies. For a hundred years the usual wtxy for the Govern-
ment to dispose of a dilllcult situation was to tell some lie to the
Indians and get them to sign up for It. Somebody here might
think It is bad for the Commissioner of Indian Affairs to say a
thing like that. I think It Is the duty of the Commissioner to tell
the truth and the truth Is what I said and everyone in tills hall
knows that it is true.
Mr. LAPOINT, Rosebud, Interpreter: By the way they clap
their hands, I don't think they need an Interpreter.
Mr. COLLIER: I. myself, have, for more than ten yean before
I became Commissioner struggled with repeated cases where Im-
portant legislation was laid before Indian tribes all dressed up In
false statements by high officials of the Government, and It was
Wlnii/cj o/ the Plain; ConorcM 23
my business to strip oh* the untrue and help the Indians find out
what was true.
Therefore, I will know why ho Indians anywhere will be willing
to take somebody's word. Secretary Ickes' word, or anybody's word
about these matters. I believe that the facts and the proposed
changes arc so clear and the proposals themselves arc so simple,
that everyone of you can examine the facts, analyze the proposed
relatives and reach an Intelligent conclusion about them. I do
think that this much Is true; that In a case where there Is an
agreement among people whom you have looked to for advice;
In a case where the President, himself, loins in the assurance;
In a caso where the Committees tit Congress give close study
and arc agreed on, that you can have a certain amount of con-
fidence that you arc being told the truth about them. But we have
called these Indian Congresses because we want you to take our
word for it only after you have made your own Inquiries and
arrive at your own conclusions. (Appluusc.) I ought to say that,
which again you will all agree on, und that It Is not only of-
ficials of the Federal Government In the limes gone who have
mislead and misinformed the Indians. Not only them. There arc
others who have done the same thing. There arc others who have
had a motive for misleading the Indians and who huve mislead
them. Not only Government Olllcluls. There Is a fcioup today,
and speaking generally, I huve no specific reference—there are
today many thousands of white people living on or near the
Indian owned lands who certainly will not wuni your lunds pro-
tected. (Applause.) There arc a great ninny lessees und cuttle men
that want and Intend that the Indians shall continue to be at
their mercy. There ure parties and groups that do not want the
Indians to got their lunds in shape and then have adequate tal-
ent to use their lunds Instead of renting ihcm for a song. In
other words I am leaving with you now that It will be your own
fault really nnd truly that you will, und Just us I do not want
you to follow blindly, or neither does Secretary Ickes, still less
do I want you to lake your Information from interested sources
whose sole purpose might be the opposite of what you want. Now,
before 1 conclude, and I have been a long time talking in genera),
and I am going to stop alter another explanation to you. I want
to refer to the clement of time ui the situation. To the speed In
which these matters will huve to happen. The Legislation, the
Bill draft, which wu hnve put for wind as our own best Idea has
been before Congress since February Olh. The House Indian Com-
mittee hus held four long ru:ord hearings on the bill already.
The Senate homines have begun. Our power and your power to
secure legislation will be greater (it the present session of Con-
-------
a«
Hlnutet of tht Plaint Congren
grtss than we can b* sure It will be the last. We are pretty
sure we c«n put through Congress anything reasonable that the
Indlim and the Administration ogree on. The difficulty with Oon-
•reu lies principally In getting Congress to embark upon a large
program of expenditure. This five or ten million dollars as the
beginning of an Indian Credit System; this two million dollars
a year as a beginning for the Indian land purchasing and the
five million dollars to be spent for the cost of organizing the
Indian self-government, are very large amounts, but I would say
that we stand a better chance ol getting these large grants at
this Congress than we would at the next Congress. That Is be-
cause, and I have every reason to think, that the National debt
will continue to roll up at an awful speed. It will Increase by
billions.
Agnln It Is Impossible to predict, of course, what will happen
at the next Congressional election, which Is not very far away as
you know. Nobody knows what Is going to happen next fall. I
find that the need of the Indian for relief Is very great. Particu-
larly the need of those Indians whose land Is gone and who really
are homeless on the face of the earth. Their need Is desperate
and pitiful. These are all reasons In favor of moving as fast as
wo can, moving safely. They are not reasons in favor of moving
any faster than we can move with reason and safely. Now this
I should also make plain to you; that In the long run it is Con-
gress and Congress alone which determines the passing of any
Bills. First. Clio Indian Committee are going to take this Bill and
look over It very carefully and examine every line of it. Then
the Judiciary Committee of the House and Senate will take their
turn in approving the Bill and then amendent on the floor Is
wide open. Any amendment in either the house or Senate. So that
the Bill is somewhat In the form of this paper(dlsplays paper in
hands) AS it will come out as a Bill from the House or Committee.
The way a group of Indians can meet that situation, because
all of the whole Indian race cannot come to Washington and
stay there, the way you con meet the situation I will now try
to make clear to you, and I can best explain by an example of
something like this which happened once before. Back In 1022,
that Is twelve years ago, there look place a great struggle dealing
with the lands owned by the Pueblo Indian Tribe of New Mexico.
It was a matter that was fully as complicated as the allotment
system. At least that complicated or more BO. It was a condition
of ancient grants from Spain and other grants that had been
bought by the Indians; then of white settlers who claimed a
part of the land, and any BUI in order to deal with the situation
had to be « very long and complicated Bill. The Pueblo were
Mlnute$ of the Plains Congreu
25
met together and sent delegations from 17 tribes, and they stayed
three or four weeks In Washington and then they came home. It
was evident that the Bill would be in congress in committee for
quite a long lime and. they lust could not stay In Washington.
Then the Pueblo got together la a Congress of their own.
A regular congress of delegates how every tribe, and after many
days of conference, they found, it possible to put In simple lan-
guage In about four printed pages, they put down what they in-
sisted on; what they would tukc nnd they would not take any-
thing less than that. They did not try to write a great, com-
plicated bill, with all the Icyul phraseology. They simply slated
in one paragraph after another, and another one after another
one, what they would bland for; wluit they demanded; their
platform. Their friends, in and out of the Government, were guided
by that statement. All of the Indians themselves had copies of
that statement which they themselves had drawn up and from
lime to time as Congress worked over the BUI and amended it,
the amended drafts were sent buck again and again to the tribe,
and they were able to check up on the drafts la sec whether It
conformed to their own platform. Finally the act known as the
Pueblo Lands Act was pussed by Congress and signed by the
President, and that act conformed to the Pueblo's Platform. It
was not changed In any way but Congress worked It over inio
the legal language, and, as a matter of fact, all subsequent legis-
lation; In the pakl ten years; every line of the subsequent legisla-
tion has conformed to the platform which the Pueblo adopted
In 1924.
I believe that you will find It possible to reduce your own wishes
and Ideas lo simple statements and then lo Insist that those Ideas;
those principles, be carried over Into the legislation. I suggest
also that any expression that you give here before you go away,
shall be regarded as tentative, subject to change after you go
back home, because what Is desired; what we want and Congress
wants, Is the mature thought of ell of the Indian people and we
do not want to tuke your expressions ol today as being binding
upon you.
Mr. WOEHLKE. CHAIRMAN: Before we proceed with the busi-
ness of the Congress, I would like lo make an announcement.
There will be & meeting of all Missionary workers, Indian and
white, ordained and uiiordulncd, at eight o clock Saturday mom-
ing. They will gather In Ihls auditorium and proceed lo one of
the school rooms.
Major CUKC 1ms requested the privilege of thu Jloor lo make
an announcement lo the Bloux delegations. Mujoc Case.
-------
96 Mlnufei o/ Ihe Plaint Congrett
Major CASE: Thank you. my friends. I would like to have
the delegates from Ihe eight Sioux Reservations. I will name the
Reservations: Pine Ridge, Rosebud, Crow Creek. Brule, Cheyenne
River, Standing Rock, Santcc and the Sioux of Fort Peck of Mon-
tana, meet here In this hall at eight o'clock tonight. The Com-
missioner has very kindly consented to tills arrangement and Mr.
Stalcy. the head of the school, has made It possible for us to meet
here. This meeting Is called so that I may dla:uss with you the
progress made In your tribal and band claims against the. United
States. I came here to be of service to you and to the Indian
Service, and to the Commissioner of Indian Affairs, so If you have
questions you want to ask me tonight, I will try to answer them.
M>*. WOE'.ILKE: (Mr. LaPont. Roccbud, Interpreting.)
You have heard the Commissioner's general statement of the
broad purposes of the new policy and of the legislation designed
to make this policy effective. We now want to proceed with the
discussion of the various parts of this program. There are four
broad divisions. One of these divisions deals with the proposed new
land policy. Another one of these divisions deals with the credit
machinery that Is necessary to make the land policy effective.
Another division deals with the necessity and the means of pro-
viding education, and funds for this education, for Indians, to
train them for the Indian Service and for leadership. And still
another division deals with a matter that Is and should be very
close to your hearts—the right to run your own affairs. It Is a
most Important division of this policy and I would like to have
the Commissioner assign some one on his staff to give you a
detailed explanation of the machinery which is set up in this
legislation to make self-government possible.
The Commissioner has asked Mr, Ward Shepard to present this
matter to you and you will now hear from Mr. Shcpard.
Mr. COLLIER: (Mr. Red Tomahawk. Standing Rock Indian,
Interpreting.)
Before introducing Mr. Shepard to you. may I say a few words
about this self-government. I want to get into your minds what
your present situation Is about handling your own affairs. Your
present situation is that you are entirely at the mercy of the
Secretary of the Interior and the Commissioner of Indian Affairs.
By law, we, the olOclals, have final and absolute power. If you
have business committees and tribal councils, they exist because
we allow them to. Furthermore, what we do is in moat cases
Anal and not subject to review by the comts. That Is the fact
under existing law which we, ourselves, are powerless to change.
Again, if you look at the Indian Service which served you in
the year 1900, that Is thirty-four years ago, there were more
Minutes of the Plains Conyrets
37
Indians employed In the Indian Service In proportion to the total
employees than there are today. After thirty-four years of edu-
cation, the proportion of Indians holding positions In Hie Indian
Service Is smaller than It was In 1900. Tliut again. In the main.
Is due to existing law and outside our control, due to the Civil
Service, which can be changed by Inw— and we me proposing to
change It.
I am not going on multiplying examples of how llule belt-move
you have. We arc powerless (o chance It in :i»y Important respect
unless we gut new Inw.
In years gone by, your friends, und lh:it Included myself, have
tried to get at this Munition by lejjlslatIon und we fulled. We
fnllcd partly because the administration was ugain.sl us, bir. that
was not the only reason why we fulled. We fulled partly bec.v.u.e
we l:tpi. on Uyi;:8 t« >>'•'• ^ ill-- ::Ur.ii:u-.i ili:'i.u:,li t-r.:.- niunkU
Bill, Vthcn i:an»l:lio:i5 v.vrt !:o vark-J ilu-l 0:1.; llhinki I Bill coi:IJ
not meet the situation.
We arc now toying before Congress nnd bcfo.-j you :i more care-
fully thought out plan—a plan awarding to which Indian tribes
or groups may develop the kind of iell-yovermneul Uiut they
want, that Is fitted to them, and may take on more power or less
power as they prefer. You will sec that it is u plun which enables
an Indian group to lake over just us much of the authority of
the Government, and I might udd Just us much of the money
being spent on Indian Service, as that group after mature thought
wants to take over. The machinery Is such tlml the Initiative rc:.ls
with the Indians, themselves. The Secretary 01 the Interior Is
directed by Congress to present und grant the !;clf-government
as the tribes ask for it. Should the Secretary of the Interior
refuse to obey the mandate of Congress, he must publicly in
writing (usllfy his position, and the tribes' appeal goes to Con-
gress—all of this taking place within Hie gimrdluMstijp of the
Government, which is made permanent.
I'.M:', III,! i:V lll'il '!'. allll'jj Ol li.; , lll'.l. V/ll'c.h Is l)-:fl)!l: J'oll lllld
Congress, was carried out by representatives ol the Solicitors'
office In consulallon with members of the Indian Olllcc, and I
nnt going to turn over lite detalltd explanation to them, beginning
with Mr, Ward Shcpard, who Is the specialist in land policy of
(he Indlnn Olllcc, und a man who you will discover hits great
breadth and sympathy.
Mr. WARD 8HEPARD: My Irlcnds: Before we go Into the de-
tails of ihi.'i liill. I v.-anl In..I 1,1 all in r.'-l i> I'i'lu.v nl the
general principles by which the self-government, will be worked
out.
First of all, we do not wish Indian self-government to be dc-
-------
M
of tht Plaint Congren
pendent In the future upon the whims of the Indian Bureau. Wo
therefore have started this Bill with a declaration by Congress
that it It the policy of Congress to grant self-government to the
Indian* and that those powers of self-government will be con-
firmed lo the Indians In charters which will be Issued by the
Secretary of the Interior. We propose. In addition to Issuing these
charters of self government and business Incorporation, to pro-
vide for the gradual transfer ot the functions and services of the
Bureau of Indian Affairs to these organized Indian communities.
We propose further, In order to permit the Indians to develop
this self-government and to take over these services of the In-
dian Bureau progressively and gradually to set up a system of
education by which Indians will be educated In all of the admin-
istrative and technical functions of their local Government. We
propose further that the funds appropriated by Congress for the
performance of these services which are gradually turned over
to the local Indian communities; that the monies .shall be turned
over to be disbursed by the disbursing officer of the Indian
community. We propose that the monies that belong lo the In-
dians themselves, the monies that are In the Treasury of (ho
United States to the credit of the Indian tribes, shall also be dis-
bursed only through the Indian disbursing officers. We propose
further that In the future th« Indians themselves shall take a
part In making the appropriations estimates which go to Congress
for the expenditure of federal funds In their own communities,
so that they themselves, shall have a part In determining how
this money Is to bo expended for their benefit. Moreover, any
money expended by the Federal Government from Congressional
appropriations, from gratuity appropriations, can not be made re-
imbursable against the Indians without the consent of the In*
dlans.
Now, let me repeat this last thing to make It perfectly clear.
It means In the first place, that Indian money can no longer be
spent by the Government without the consent of the Indians. (Ap-
plause.) It means further that in the future the Indians will take
part In determining what appropriations that Congress will make
for their benefit, and that the recommendations of the Indians
will go first of all to the Bureau of the Budget and then to the
Congressional Appropriations Committee and will receive the same
hearing that the recommendations of the Indian Commissioner
and the Secretary of the Interior receive.
Now, let us go back to the question of charters. No charters are
going to be forced on any Indian community that does not want
to take self-government. If any Indian community want« lo go
on with the present system it Is up to them lo determine It. If,
Minutes of the Plaint Congrett 20
on the other hand, an Indian community wishes to undertake
self-government It has the right to petition for a charter of self-
government and to help work out that charter with experts who
will be furnished to help and assist them. If an Indian community
petitions for charter of self-government, us the Commissioner has
told you, and If the Secretary of the Interior should refuse or
should lay down unreasonable conditions for the Issuance of the
charter, then the Secretary must report the facts to Congress and
the Indians would have an appeal to Congress.
Now litre Is a:i ciliam-ly impoiliuU p'.lni. This Hill docs nol
set up any one system of self-government. It docs nol seek lo
impose on the Indians u byslcm of self-government of any kind. It
sets up permission lo the Indians lo work oul i>clf-govcrnment
which Is approplatc lo the traditions, to their history and to their
social organization.
We do not wish to force on the Indians the white man's system
of Government. We want, on the other hand, to build on the
old Indian traditions, on your old traditions of self-government, to
make this legislation fit, those old Irudtllons and your own In-
stitutions. If, on the other hand, an Indian community wishes
lo adopt the white man's by item ol Government and to enter
Into I he same kind of local Government you already have lu
your Slate, this Bill albo permits that. This Bill permits traditions
from the ancient tribal Pueblo In the Southwest to the most
modernized communities. One more final statement. This BUI guar-
antees what you really have under the Constitution but which
we want to restate and reaffirm—namely, that all Indians shall
have freedom of conscience, of won.hlp, of speech, of press, of
assembly, and of associations. Now, it Is nol the Intention of this
Bill lo force upon the Indians a grcalcr responsibility in self-
government than they feel thai they are able to Initiate at the
present time, and this Bill is nol n means by which the Govern-
ment, by which the Indian Bureau wishes lo cucape Its own re-
sponsibilities. It Is a means ol making 11 possible for the Indians
and Ihc Indian Bureau lo co-operate In the working out of the
future of the Indlnns. Now this BUI gives a long list of powers
which may be grunted lo an Indian community, and remember,
please, I hat you arc lo choose lu adopting this charter o. self-
government only those pouvrs llmt I nin going lo enumerate
which you wlih to try lo exercise'. I will nol read all of these
powers but I will rend Ihc main ones slowly so that the Inter-
preter may Interpret as I read them. First:
]. Making and flnforclnc ordinances.
2. Electing or appointing Uiclr own cain.cn>,
3. Dciormlnlnii nifinbcibhlp In (lie cimiiininUy.
-------
so
Utnulei of tni Plaint Congrtit
4. BetulaUaf the UM tad i^ipoMl of prop«rtT o( member* of tbi
eommunltjr and of the eommunltr Ittelf.
I. Encouraging art. culture, aud education.
t. AdmlnU(«r|ni charity.
7. Protecting the public health,
I. EilablUhlng Indian CourU, and enforcing your own Uwa.
t. Appolntlnt guardlana tot minor* and Incompetent*.
10. ConitrucUlig publlo works.;
II. Levying aMCMmeute on member* or requiring labor lit place or »•-
•ournent*.
II. Acquiring and managing property.
I). Entering Into contract* *nd employing attorneys.
14. To make contract* with the Slat* or with the local Slat* Govern-
ment.
IS. To give to Indian*, service la education, public health and »ucb
other lervlce ai.atate* render to local communltlei.
14. To sue and to be *u*d.
17. To compel the tranefer from the community of an unsatisfactory
Federal employee.
II. To regulate trade and lntercour*e with non-member* of the com-
munity.
Mow those are the main, powers which may be given under a
charter to an Indian community and as I said before It Is up
to Uta Indians themselves to determine which of these they wish
to take over In the beginning. Later on, you will have a chance
to take over more of them as you get experience In taking care
of your own affairs. This Bill proposes to appropriate five hun-
dred thousand dollars to assist the Indian communities (hat wish
to begin self-government, and that money would be spent to help
the Indian communities to organize, to build- necessary govern-
mental buildings to carry on their functions of Government and
for many other expenses necessary to Inaugurate this system so
that the Indians themselves would not have to pny the cost of
It. Now let me> repeat and emphasize that It Is not compulsory
on any Indian group, either to accept self-government or accept
any specified system of self-government. It Is up to them.
Now, I want to go on to the second Important step In thin
Dill, which Is tha ci'adunl transfer of the functions of the Indian
Bureau to the organized Indian Communities.
Now first of all the Commissioner Is required by this law to
classify all of the servkes and functions which may be transferred
to the organized Indian community and to set up rules and regu-
lations governing that transfer. But, I want to point out, that
as a condition for the transfer of any functions to an Indian com-
munity, that community must have Individual members who are
capable of satisfactorily performing those functions. That does
not mean that Indians who wish to go Into these services whteh
are to be turned over to the Indian communities, must pass a
tttnulet of the /'/a/us Conyrcn
31
Civil Service examination. It does mean that the Secretary and
the Commissioner will define the qualifications which on In-
dian must meet in order to bo nppolnlcd to one of those services.
It means ako that the CominLsiloner is directed lo furnish fin-
ancial assistance for the training o( Indians so I hat they mny be-
come more and more qualified (o hike over self-government.
If the Secretary refuses to voluntarily transfer a service which
the Indian community feels that It Is qualified to perform, the
Indians may require the Secretary to transfer that function and
may appeal to Congress to require (lie transfer of that function.
If a service Is Iransfcried to nn InUlun community, Unit. (Iocs
not muan that (he community hnu to pay the col of thai .service.
but it means that the mon-jy apinoplalcd by Congress for thut
service wilt be transferred with the .service. Itself.
The Dill requires Ihnt the federal employee:; of th: l',c:il rs.:;. r-
vatlon must aid and assist the Indian community In every pos-
sible way to carry out Us local self-government and to .idmlnli-
tcr these services that are transferred. The local Indian ofllclals
aro required to make regular reports to the Indian self-govern-
ment and to consult the advice of your Indlun officials on all
questions of administration and policy. Moreover, If there Is a
vacancy In Ihc Federal Indian Service on :m Indian reservation,
even before the services have been transferred lo your community,
you have a right lo appoint tin Indian to Unit vacancy pro-
vided he has the requisite qua!ilic.ilIons. The Indian Service will
continue to administer any functions which tire not Iransfnred
to the Indian community.
It an Indian community fulls to administer properly a trans-
ferred service, then the Secretary or the Commissioner may re-
arsume that service, but must report the facts to Congress. This
does not mean the abolition of the Indian Bureau, or the aboli-
tion of Federal guardianship and ivt.|K>a;iiiiil:y Uvvur.l i\:n li\Ji;<:i.,
It means that hereafter the Government mid the Indian com-
munities will be partners In working out all ot the ulTalrs of the
Indians.
And I want to say that this system will remove a great many of
tho causes of Irlullon that have existed between the Indian Bureau
and the Indians. The present byUcm l.s equally bad for the In-
dians and for the employees ol Ihc Indian llureau because it
leads to constant friction and constant rjiinrreling. This new
system will give lo the Indians and to the employees of the In-
dian Bureau a chance lo work on a footing of friendly equality.
It gives to the Indians a chance to become real citizens In the
American community.
-------
39 tUnutei of th» Plaint Conpren
1 think that this explains the general principle* and operation
of this Bill and it: will be now the duty of the Chairman to an-
nounce the next prci:crd)iu».
Mr. WOEHLKE: (Mr. Red Tomahawk still Interpreting.)
A tittle while ngo a lady arose In the back of the room ana
asked a question. Nobody understood her question. I know from
Just looking at you that a lot of you are just boiling over with
questions. We want to answer those questions, every one of them.
I, therefore, suggest that everyone who Is full of questions write
them out and present them at this table as soon as possible BO
that we all may go over them at the earliest possible moment, then
proceed to answer them. And, we would like U distinctly under-
stood that this privilege of asking questions is not confined to the
official delegates—any member of the audience may ask any ques-
tion and present It here at this table.
At a certain time in the future, during an early session, we
shall take up there questions and answer them one by one, If
they can be answered.
Now, the next session of this Congress will begin tomorrow
morning at 9:30.'Before tho session opens some motion pictures
will be taken and I think it would be a good Idea If you would
all be here a little early.
WILLIAM BEN,. (From u Reservation In Montana): I want to
say A few words to the members of the council and other tribes
from various Stales, We are now confronted with a problem af-
fecting .us which needs very careful consideration. I want to state
a simple fact—that U is a known fact that once a coyote gets into
n trap, very often he gets away.
Mr. WOEHLKE: Before we adjourn, the Commissioner will say
a few more words.
Mr. COLLIER: What I wish to say will be. perhaps, a repe-
tition of some things Mr. Shcpard already has said.
There are In the United States more than 200 communities or
tribes of Indians. The laws concerning Indians apply to all of
them. Some of these tribes are at one extreme. There are, for
example, there won't be any of th: crown people who talk English,
and where all of the members of the tribe are pure blood. Others
will be at the other extreme, where the old native language has
been forgotten, everybody talks English, and where the blood Is
mixed, one-fourth, one-half, and one-eighth Indian blood.
You would nil, I think, agree that if there be an Indian tribe
which wants to run Its own Indian court, to select Its own judges,
and to control its police; If there is a tribe that wants to do that,
the tribe ought to be permitted to do it. (Applause,) Maybe my
tribe, your tribe, would not want to. but wo would not want to
forbid the other fellow from doing it U he wanted to.
Aflmiiej ol the Plaint Congreu
33
Again, suppose there Is some tribe, maybe not here nt ail, whose
young men believe they could qualify and hold a good many of the
jobs of the Indian Service; young men who believe that they could
be Rood foresters and gool tumids und «ood clerks, und .suppose
those young men and young women are really Jnst as well trained
and just as competent as the whites that have got the jobs now.
Then you surely would not want to turbid that tribe way oil yon-
der from putting its young men and young women Inlo the Jobs,
Now, there might lie here not a single tribe Unit wasn't com-
pletely satisfied wiih all of Die Indlun Bureau employees on the
Reservation. Maybe Unit Is the condition, Bui II (here Is a tribe
in North Carolina or Okluhomii or CiilUomlu, Unit would like
to take a vole on whether It wants to keep Us Superintendent,
you would not object to them having Una privilege, would you?
And just the same way, to linn the lublus. If you have got any
of these desires; young people that you want to put Inlo the jobs;
if you want to have a voice in choosing employees; a voice about
how your money Is going to be spent, you don't want some In-
dian in California to say you can't huve it.
This arrangement that Mr. Shcpard has been outlining Is simply
an arrangement to allow each tribe, if it wants to, to take on
power—If it wants to, and to allow that tribe to take on authority
without In any way risking Us security as a ward of the govern-
ment, and the same arrangement would enable the tribe which
look over the authority al.so the money necessary to pay the peo-
ple to do the work, and If the tribe made the experiment and
then was sorry— felt that II li.ul gone too fur, the tribe would say so
and turn back the authority und the jobs and the money to the
Federal Government.; to the Indian Bureau. Or, If the tribe made
a mess of its undertaking, then Congress would have the power
to take it bock and put it In the hunds of I he Indian Bureau to
straighten out, but nothing the tribe could do could bring the
guardianship of the Federal Government to un end. That is made
permanent by the Act.
I should mention certain safeguards. If a tribe; the majority
In a irlbe; become oppressive towurd a minority, violated the
constitutional rights of u minority, under this Bill the case would
be appealed lo the court of Indian Affairs. It would be the duly
Of the Secretary of the Interior to carry the appeal, or any Indian
could carry the appeal. Minority rights ore safeguarded by the
Bill, especially by the creation of this Federal Court of Indian
Affairs.
It Is further provided Hint If there be an Indian who does not
\vanl to remain n p:ul ol hi.', Tillje. ol his UC::,L-I viitiun, ol lilt, cum-
-------
34 Utnutct of trie Plaint Cougresi
munlty, but wants to go out Into the world and break off his
connection he may. If he desires, surrender his rights In exchange
for compensation. Ho does not have to but he may. The tribe
or the community would be forbidden to alienate land or to waste
the capital assests, coll, lorests and such. The Bill expressly pro-
hibits tho disposal ot cnpltnl in a wasteful way.
Tribal funds, subject to all treaty protections, would no longer
be handled by the Indian Bureau, but by the chartered com-
munity when the community got ready to handle thorn. You may
not know I his fact, but I will tell you, that even next year, be- •
ginning next July, the Indian Bureau Is going to use up more
than two million dollars of the Indian tribal funds for salaries
and upkeep of the Indian Bureau. Wo are doing that In spite of
our loud and continued protesting against being compelled to do
It, because the Director of the Budget, who controls our budget
makes It necessary that we shall go on using tribal money for
Indian Bureau support. This self-government, title one, would put
(in und (o (hat at oir-'C. Y/h-rover a community accepts a charter
It would be able to take over the control of the trust funds, and
I dj noi Imagine that (lie Indians would want those monies spent
on Indian Bureau iialarlcJ. Mow, a remark about the coyote In
the trap. If the Indian Is a coyote he Is lit the trap now. It has
caught his front leg1. The only way he can get out Is by biting
o(I his own. leg like the coyote does sometimes. (Big Applause.)
Biting oR his own leg by declaring himself competent and start-
Ing to pny taxes. (Ap'plause.) This whole'scheme Is one of opening
(hat trap. Saving what Is left of his leg. (I understand the lady
In the rear asked whether we wanted them to secede from our
Government.) (That is what caused a Civil War.)
Do we want the Indians to secede from the Government? The
answer Is the came answer as about the coyote. A number of
Indians have seceded In that they are worn out by the system
under which they have been compelled to live. They have gone
and got patents In fco and lost their land. That Is the way they
have seceded. Thousands of them In years gone by. The point
that Is being laid before you Is Intended to bring It about so that
Indians will not want to secede from the Government and won't
need to.
Question by WILL BENDS, Crow Agency, Montana: The Coin-
mlrsloncr himself explained to tho Council that when a Bill went
to Congress and It is on the floor. It Is open to amendment. In
that event there Is nothing to guarantee to tho Indian whereby
Minutes of the Plains Congress
he could be sure Hint members of the lloux: und Bonnie would
not change that Bill so (hat when it cumu out. It would be thu
same and contain the some things as wlivii II wns ;;tnl to Con-
gress?
Mr. COLLIER: That is true. That Is u very L'ood quc'Uon to
bring up and It must be answered. I may say HilJ. You have in
Congress a very good House Indian commlllee und Hermit: Com-
mittee. All Indians who have ktpl following llio ionise of Kufb-
latlon In the last three or four years have lenrncd (o phice con-
fidence In their Congressmen. Howard mid his Coii:mlUuc; Sena-
tor Prazlcr and Wheeler and their coi,imilli;es. In Imllun I«-(jif-
latlon, where the Indian Committee ; lands :.ul)d. pniclieiilly never
docs Congress over-rldu them. II fuUov.s lu committees. Parti-
cularly whvn thu InUtior U.IMUV.MU »• .! th ; Cu.:. ,',i.<." : ;• •
In agreement. Congress would not change thu Ulll. He could, b'ii
I', would not. and I could tell yuu some mure which I have not
wanted to tell you bccuu.-x» I did nut waul to seem luud-
Ing you too mixh.
Mr. COLLIER: (Robert High Eagle interpreting.)
Till; On. iil:.;i:i \v:.'i th..- »•»..-.: r« nlii..i . .-'.i. |...!i:fi:^ !! • !i::i:.
mimeographed memorandum, wo have hv»e, went to ihu ri-t.A-
d..i)t s^nu- li;tl«: lime »$». 'Hi: iY.-.-tik.it lut-j •• :.:iiv=i. .1 in. li.il
and favors it. That announcement was IIKU.'U to the HOUKU Com-
mittee on Indian Affairs by milhurily about live d:iya ui;u. The
President knows that we nru li:l:iug Ibi:, ijiie.'iliui) bacl: lu Uic
liliiiull-i. If lie.- Bill ;:ll.<'.l!'.l b.- .(> •!(.- '.-. i..(i: i:il(j u v/r-jili. :,!'i:;JJU
by Congixvi, !f tho IJitl l ha \\::.<.'.: miu ;Mi:i '.hln;; tl...-: \,!ii-:)>
does not do what we arc lemng you but dues something dlftcienl,
then I think you may be confident, that MIL- President will veto
the Bill. I have not wanted to mil: iil;uL in
this because that is almost overwhelminc in Us Induencu. IHa
ho is going to.stand back of this thing.
CHAIRMAN: I believe we will now adjourn until 9:30 tomorrow
morning.
Adjourned.
Meeting called ot Alex Joliiikun Imivl til U:(j(i li
-------
Saturday, March 3, 1934
MORNING SESSION
Mr. Woehlke opened the Congress at 0:60 A. M., March 3. 1934.
Mr. WOEHLKE: (Mr. LnPolnl interpreting.) On account of
the motion pictures wo are a little behind time. BO we will have
to speed up to regain lost ground. I would like first to read to
you a letter we have Just received from the Honorable Edgar
Howard, Chairman of the House Committee on Indian Affairs,
with whom many of you are acquainted. Congressman Howard
writes:
Honorable John Collier.
Commissioner of Indian A.rutri,
R*pld Cllr. 8°ulh Dakota.
Great U mf regret because ot my Inability to go with you to the
Regional Conference which you have called In the several stales where
our Indian ptopl* largely rtalde. 1 wish I might be with you because I
leol that I could help you In winning the favor of our Indian people
to the new adirUnlUratloir* Indian 1)111. It la a lone >tcp I" advance
of any legislation heretofore offered In bilialf of the Indian*. II I could
talk with th* Indian* I might admit that Ihcro wero torna feature!
of the Dill difficult to unrtcr«Unl plucc, we believe
that the Indians arc entitled to hnve u court which Is convenient
to them, which can settle the muny disputes which urlse between
Indians and whites, particularly In the innU<:rs of lre..puss—whites
trespassing on Indian lands, white boolk'cucrs on Indian lands.
At present If such a dispute arises between mi Indian und a white,
it is usually necessary to go to the Federal Di.slrlct Coml which
is sometimes 100 or 200 miles from lhu reucrvutlou. II you no to
the Federal District, Court you have to find a lawyer. When you
come to the Federal District Court you find Unit the judges there
ana not particularly Interested In (he Indian. You find (hat the
whole procedure of the Federal District court Is very complicated
and difficult to understand.
What this BUI would do would be r.j n-ial.: u ;|,:ri.ii court.'
This court would consist at llr.il of iieven judges. Uach Judyc
would have a particular reijlon. One juduu might run through
two or three of the Sioux Reservations in South Dakota. Another
might have two or three of the llCM.T\ulion:> In Montana and so
on. A judge would slay at one reservation lor two or three wec/ks
and all the disputes (hot hud nrnim In Diu lust month or two
would come up before that judge. '1 he procedure bc'lorc this
Judge might be very simple. Furihcrmur.- (In.-. Mill provide, that
ten special attorneys Mnill be assigned lieu to the Indian tithes
and to the Indians to help the Indians bflore this court. Tills
court would be of help not only to the Indian communities, which
ask for a charter under this net and receive charters, but ulso to
-------
38
Minutes of the Plain* Conyrctt
the tribes which do not want chorlen. We hopo that all the
Indians will be given a,voice In the selection of the judges. The
judges will be appointed by the President of the United States
with the approval of the Senate. In these ways that I have men*
Honed, the Court will help all Indians, but there are some ways
In which the Court will bo peculiarly useful to a community that
wants a charter.
Where a community receives a charter this charter Is a pledge
of certain rights which the community inny enjoy. Tho Secretary
of the Interior makes this pledge, but wo do not think that the
Secretary of the Interior should bo permitted In future years to
Interpret this pledge. If ft new Secretary of the Interior comes
wo do not want-to bo able to say that this pledge meant some-
thing very different from what the Indians understood. There-
fore, we want every Indian to have the right to go Into this
Indian Court and Insist on the rights which have bsen guaranteed
him und his people by the Charier of the Government.
In this Charter of self-government the Secretary will give up
many arbitrary rights which he now has. In this charter the
Indians will be given the right to say what will happen to their
tribal funds. This Charier will be a guarantee that the Secretary
may not put Indian lands under State taxation as he may today
by giving fee patents. These rights which are given to the Indian
community hi Its charter must be sacred- The Indians must have
the right to go Into court and sue the Secretary of the Interior
If ho disobeys-the provisions whfch have been laid down In the
Charier. You know that outside of the Indian reservations. If
the Secretary of the Interior or some other Government official
commits on act which Is unconstitutional, a private white citizen
cun sue that employee pf the Government. A private white citizen
can go Into a court of the United States and sue a Federal official
und say that something the Federal oluclal has done violates
his constitutional rights. There have been hundreds and thoii.-
unds of cuscs In which the Federal Courts have held that somu-
thlng that nn -official did was wrong and that the person wronged
(should receive compensation for his Injury. We want to give the
Indian the same right that the white man has to Insist on his
rights In Court. That Is why we want to establish this Court of
Indian.Affairs. The Charter that you receive from the Secretary
of the Interior Is a contract. If the Secretary does not keep his
promises In that contract you can sue him. So too, If the com-
munity docs not keep Us promise, If It Injures mlnorltcs within
the community ;lf It oppresses Individuals, then the Secretary
may bring a suit In this court and compel the community to live
up to Us contract In the Charter. There Is one more thing I
Affnulfcj o/ the Plaint Cungreis 39
must explain. That Is, the relation between this Federal Court
and the local Court of an Indian community.
The Indian community may be given the right to have Its
own local court as a community outside Indlun reservations has
Us own local court. This court, this local court, would take the
place of the present Indian Judges appointed by the superinten-
dent. Tills local court would be elected by the Indians of the
community Itself. It would administer the ordinances that the
community had prepared and passed. Its punishments would be
limited by the charier and. In any case, the punishment which
could be Inflicted, cither on Indlun or while, could not exceed
$600 fine or filx months, imprisonment. If the Indian community
so desired, the limits of the punishments might be made less in
the charter.
More Important crimes and cases could not come before this
local court but would have to come before the special Federal
court that has been spoken of. Also in cases before the local court,
particularly If non-Indians were Involved, either parly could appeal
from the local Indian court to the special federal court. I hope
I have made It clear why we need a :tpcciul Federal court In addi-
tion to the local Indian court. It is because there are many cases
which are too Important for a local court to want or to have the
right to handle. It Is because you want a court of the highest
authority before which each community and each Individual can
bring any grievances that may arise In the administration of the
new policies of the administration,
I ask you to remember when you discuss any provisions of
this bill that wherever there Is a provision which seems as if
It might work an Injustice on on Indlun. that Indian will have
the right to come before this court and Insist, first, on his con-
stitutional rights as a citizen of the United States, and, second,
on his special rights as are given him by the charter of his com-
munity.
Mr- WOEHLKE: I want to ask you In ihe first place not to
get scared If another bulb should full down. We are not.
I would like to Illustrate the statement of Mr. Cohen by an
actual example.-
On the Fort Peck Reservation a few weeks ago, a young man by
the name of Brown, the son-in-law of Roger Running Bear, was
arrested on a charge of stealing a mare. The marc was eighteen
years old and worth about $50. but the court jixed a bond of $1500.
The superintendent and 1 looked over the evidence and wo thought
that It was not strong enough to convict him. The superintendent
and I worked for days and days with the County Attorney, with
the white man who preferred the c)mrg« and with the sheriff to
-------
40
Minute* of the Plain* C-mgreu
Ht\ that young Burn out of Jail. We Anally had to hire an attorney
lor him and we got hit boll reduced and got him out. Now, U
there had been a court of Indian affaire, the whole thing would
have been settled without any trouble, without any ol this waste
of time, without having the boy In jail for a month. It would
have been willed In three or four day*. Roger Running Bear's
Eon-ln-lnw would have been out again. That Is what the court
of Indian Affairs would have done for him.
Now I want to read you a telegram:
Poplar, Mont.
Chairman of tht Indian Conference:
At «n elected repre»enUUve from the joint netting of three dlitrlcti
cm the Port Pack Rnervalloii I wlnh to announce that we not agree
with tb* new propound Indian program which U botng itudled et the
conference DOW. Reatone will be presented later In our general council.
Roger Running Bear.
Now, my friends, I want to have you listen to one of the great
educators of the country; to a man who Is internationally known;
a man of your own race. I would Ilka to present to you Dr. Henry
Roe Cloud who will speak to you on the educational features of
the BDJ. Dr. Roe Cloud. (Applause.)
Dr. ROE CLOUD: The chairman has asked to speak to you on
the educational features of the bill which I hold In my hand.
Now. for these chartered communities that you have been hear-
ing about, which will bo Ibcalcd all over the Indian country, lead-
ers for those chartered communities will be necessary. The Com-
missioner has anticipated—he luis foreseen the need of that, and
has provided for it In this BUI. He Is going to give leaders to
every tribe. I have talked with various groups last night, and to
Indians on the train, and they said, "I like this whole thing very
much Indeed, but there Is one thing that U going to make It fall
down and that Is, the kind of lenders they are going to set up for
this thing." One of them said last night, "We Indians are," and
I agree with htm, "We Indians are awfully Jealous of one another
and we don't follow this fellow and that fellow." (Applause.) Now,
I think the reason we urc jenlous of one another Is because In the
past there have been so few leadership opportunities. Now, the
way to do away with jealousy is to put so many leader*. Indian
leaders, Into the Indian communities themselves, that It will wear
away that jealousy. Now, one reason why we have been jealous U
because we don't want to follow the man who tells us what he
can do, but we want to follow that man who has already done
things. Now the Commissioner proposes to bring to us those men
and women who have done things; who have accomplished cer-
tain things and who have a right to come and lead us. He pro-
poses to give us leaders In education. Leaders In taking care of the
Minutes o/ the Plaint Congress 41
health of our people; leaders In those who know how to leach
us to Jive together In groups. They call U social service In the-
while man's language. Leader;,- In law and order and not just any-
body on the reservation lo do tins work, but those llvut have been
taught In elementary principles of luw und order, benders In those
who know how lo take cure of the woods. Tlmy cull It forestry.
Leaders In grazing; In cuttle L'luzlni,' so th^l the trass is not eaten
off too much. Those who sit at the desk and keep books and write
on paper, They call It olllce work, bookkeeping keeping of blQllatl-
cal records, etc. I might say that ilu.skull Institute hus lots of those
that we can give to you when yon ore rcudy. Leaders In public
works, road building, and one thine and another. Improvements
of roods on the reservations, etc.
Now how Is he going to do this? Wherever he finds one of our
existing schools that will be suitable In any locality for the train-
ing of our Indian people, hu will open them up and use them,
and he will use also the white colleges, the law schools, medicine
schools, and engineer schools, where thesu Indians will he sent to
get the white man's tcchnlcnl knowledge, and lie Is asking Con-
gress for fifty thousand dollars on a reimbursable plan, one half
of which will beni- no Interest when U Is paid. One half ot It the
student docs not pay Interest on and the ollu-r half is a free
gift to him. (Applause.) Now In addition lo this fifty thousand
dollars, the Commissioner himself will liuve flltecn thousand which
arships to colleges. I might sny that- the (illy thousand dollars
adaptation to leadership. He will select those und give them schol-
larshlps to colleges. I might soy Dial the filly thousand dollars
will be fifty thousand a year. Now If your son got one of thcso
nionlc.' from the Government, from the Commissioner, he can pay
It biuk only when hu Is employed. When he is not employed the
Government dac-s not nsk him to keep on paying. Now we spoke
only ol men benefiting by this ominiiement. We want to emphasize
that the girls will get this too. The Government coes not "hog-tie"
such an individual to go so fur us lo my In this Bill Ihut no
formal contracts will be required.
Now, there Is an tnlcrcsling thing in connection with this, and
that Is, Hint Die Indian Tribes over nil the United Stales have
something bit; to give to their while braiders over all America,
and the thing that he Is to fclvc Is the thing that he has thought
In his mind thousands of yours back and paired from Generation
to generation, and what he has lived thousands of ycani back,
his art, his traditions, etc., and by whii:h the Indian himself Is
Inspired to live- Now the Commissioner comes In this Dill and says
to you. look Into your minds and look Into your heart. You have
-------
42 Aflnutet o/ the Plaint Conpreu
got great valuable things that you need to give to the world, and
the world needs them. And he prosposes to put teachers into the
Tribes and Into the schools who have sympathy with what the
IndUns have to give, not the white persons that come around to
stamp It out and destroy, but those that are in sympathy and will
let the Ares burn bright In (he Indian hearts and In the Indians'
mind.
Back of all this In his mind. Is to build In us, who are Indians,
the Idea of our own self-respect and build up the pride of our
people: that we feel that we have got a great history and great
thoughts and great Ideas and Inspirations in our hearts, so that
we can walk away with our heads, up Instead of looking down all
the time. (Applause.1)
Now here Is an Interesting thing to think about. These leaders
•will bring to us the white man's way of thinking and doing things
In while communities, and then the Indian race will give to the
while race their own culture and that will do away to a great
extent with this thing called segregation. A while man and an
Indian walking down the roud, nothing passing between them, the
mind of the Indian Is segregated. Now, just becau:« all the In-
diana live In one place together, that Is not necessarily segrega-
tion. Segregation Is a matter of the eyes of the mind looking out
all over the world, or closing them, only seeing his own people.
Now I am through. I am just going to say this and tit down.
Always Interesting to me 1s how the Navaho. although living all
by himself, has made a great success of thlngr that we who be-
long to other tribes have failed In, He lives, all by himself but
he has great thoughts and he lives by great inspiration, and I
heard one of them say, when I was down there a year or so ago
that he even believed that the first man that was created was
Navaho. (Applause and laughter.)
Mr. WOEHLKE: Before proceeding I would like to read two
announcements. The Rev. L. J. Sheldon, Minister of the Methodist
Episcopal Church of Rapid City, extends to the people attending
the Indian Conference In Rapid City an Invitation to attend the
Church services and worship with us Sunday. Morning worship
at eleven o'clock and evening worship at seven-thirty. There will
be Catholic services in tikis auditorium at nine o'clock a. in. to-
morrow—at nine In the morning, and an invitation Is extended
to all Catholics In this conference to attend these services.
Mr. WOEHLKE: (Rosebud interpreter.) We have now finished
with the presentation of three of the Important divisions of the
proposed legislation; namely, self-government, education, and the
court of Indian Affairs.
There to still left the land division to be discussed, but before we
Mlnutei of the Plaint Congreit
43
proceed with the consideration of the land problem and the new
land policy, we would like to answer the questions that have been
asked regarding (he three preceding lilies. Commissioner Collier
will take up a number of the questions that have bean uskcd and
proceid to comment on them and answer them.
Mr. LAPOINT, Chairman of the Rosebud Council: Mr. Chair-
man, before Mr. Collier begins his talk, tuny I have the privilege
of rending the questions written by (ho Rosebud delegation? We
would like to rend our qms'.lons (rum the Hour to give nn oppor-
tunity to the audience lo know wliul kind of questions we are
presenting. Then we will turn (hem over lu Mr. CollU-r.
Mr. WOEIII.KE: Do they rvler to Die Hiiro preceding sections
or deal with the land division?
Mr. LAPOINT: They do not, deal with (tic land. If any of
them do. they can be thrown out.
Mr. WOEHl.KE: You may jirocerd, but make it brief.
Mr. LAPOINT: Question No. 1, from Rosebud delegation with
respect to the ten million dollar credit loan-will that be u loan
to the tribe or lo the Individuals? Will the loans be reimbursable
and, if so, when and how arc they to be rcimburetd?
Mr. WOEHLKE: I will repeat these questions u> that the other
delegations may have their interpreters translate them. Question
No. 1, with respect to the tcn-million-dollur credit loan, will that
be a loan to the tribe or to the Individuals--or will the loan be
reimbursable and. If so, when and how Is it to be repaid?
The same questions arise with rc.-.pecl- lo the lwo-mll)lon-dollar
item.
Will you translate these questions.
(Various interpreters translate.)
Mr. COLLIER: May I first usk If you all have copies of the
Bill now. All who have copies of the Hill hutd up (heir hands.
(Several copies of the Bill were distributed, i
I will answer the first question—uboul the new credit system.
The ten-milllon-dollur fund, we will cull It, would be loaned to
Indian communities, and through the communities to the indivi-
duals of the community. An individual might get the loan, a
partnership might get U, a slock association or cuttle association
might gut It.
The money advanced by the Government would become a re-
volving fund. In other words, il would never go back to the
Government. Uul the num who borrowed (ruin the lund would
pay (he money back lo the fund M) that it could be loaned again
to another man. The loan would noi bear intcruhl. Those who bor-
rowed would not be required (o pay jnltrcM, The length of time
for payment could be made as much us thirty years, it thu con-
ditions justified it.
-------
44
Hlntittt of'lht Plaint Congrtn
Now, what about the purposes (or which loans can be made—
for any purpose to build up the economic life of the Individual
or the community. For example, the buying of seed, the buying
of Implements, the buying of stock, the buying of materials to
build a house. Tlio money could be loaned to provide the capital
for starting an Indian co-operative store, or an Indian co-opera-
tive creamery, and Indian saw-mill, or anything like that. And,
broadly, the loan could be for any business purpose thnt would
build up the prosperity, the economic life, of the Individual or (he
community.
I will now present a question that was asked me lost night.
Somebody said, what about (he reimbursable loans that are now
being made In the shape of seed or Implements, and then the
Indian pays the Government back? That system, the old reimburs-
able system, will not be changed, will go on. This Is something
cUe \n addition. The now credit, the Icn-mllllon-dollar fund, would
be supplied by preference to those Indians who organized Into
communities, and It would be supplied by preference to those In-
dians who got their lands into a condition for good business-like
use. This new loan system, this ten-mllllon-dollar fund would bo
provided as port of the plan for getting Indian lands into a secure
condition for effective use. Unless we can get this reorganization
of the land system, there will be no chance of obtaining this new
fund. And, when obtained, the fund will be used as a means of
helping the Indians build up their life on the land. This credit
section is not found In the printed bill. It has been put In through
an ammendment in the House, and it will be put In the records
of this meeting which will be mimeographed and sent to all of
you at the earliest date. Now, the other question was about the
two million dollars a year authorized by the Bill for the purchase
of land. That two million dollar fund, we will call It two-mUUon-
dollars a year. Is a gratuity and not a loan, and therefore will not
have to be paid back at all. That Is a thing which we are going
to have to flght for in Congress, I think, to make it a gratuity and
not a loan, and our justification Is that the land was lout under
the allotment system which the Government Imposed on the In-
dians. In other words, the Indian lost tils land under Government
compulsion. The Government made him lose It. Therefore, the
Government ought to buy it back- (Applause.) I may say that
what I have just said appears to be aggreable to Congress as far
as we have gone. There Is no evidence that they will dispute this
point of view.
INTERPRETER: The Rosebud delegation want to know about
question No. 2. with respect to Section 13 b. What Is the meaning
of the word Reservation? Doca It Include counties which were
Minutet ol the plains Ccingreu
4fi
within the Reservation In 1889 but which arc no longer In the
Reservation? Why I nsk that question Is this, there are two words
In that Bill that describe—the words Indian and Reservation. Will
only Indians that are within an organized coun'.y be known as
Indians? We hnvc three counties o» our Rciicrvullcn that ore or-
ganized p.nd one unorganized. Will tlicy bu uillllod to come Into
the community or not?
INDIAN: Mr. Chnlmian. We would like to malic a motion at
this time.
Mr. CHAIRMAN: Not at this lime. I.ct the Commissioner finish
his explanation.
INDIAN: We would like to linvc all these questions thnt orb
submitted and let the Commissioner give uii answer afterword.
This will be very nitich appreciated.
Mr. CHAIRMAN: Do I hear u second to that motion?
(Moilon seconded.)
Mr. CHAIRMAN: Any remarks to that million? Ii hns been
moved and seconded Unit nil (juc.slions be submitted In private
to (he Commissioner and be answered by linn utter they have
been submitted In writing Arc you ready for the question? All
UIOM In iovor of the motion Hit tlulr right hand. (Majority
lift right hands.)
Mr. CHAIRMAN: All those against the motion lilt their right
hairf. (Three or four lift right hand.)
Mr. CHAIRMAN: The ayes have It. The motion Is carried.
GENTLEMAN from WINNEBAGO: I move thai Hie last ques-
tion be carried out by the Commissioner, or whoever cite will ex-
plain It, and that thereafter they proceed with these questions
by the various delegations. We have been killing tea much time
as I see It.
Mr. WOEHI.KE: May I explain lor a moment Hint It is the
purpose 10 suggest meetings with the diflertnt delegations tills
evening for the purpose of confuting with tlit.m; having them
propound their questions right then, and huvc lltcin answered on
tlic spot. Would not that cover your Idm?
GENTLEMAN iiom WINNEUAGO: Thnt, would. Yes.
Mr. COLLIER: Mny 1 siii:(jc:,l this: Koine ol the questions here
ore in the mind or everybody. They JiilKlil Ju.ti nu well be answered
to all of you- Some oi (he questions :itu in (he minds of only
one particular delegation. They ouclil to be answered to thai
delegation, but .some of the questions are lundamcntal and arc
of Interest to all ol you.
Mr. WOEHLKE: 1 tlilnK il would be I lie bc:,l way. to lake
the written (|iic*.sllon.s Hint lire of ycni-ral interest to nil of you and
have them answered In this gi'iu-rul M.-.S:.IHII and to lukc the din-
-------
46
Ulnutei of the Platni Conpreu
Unetly local questions and have them answered tonight In sepa-
rata delegation meeting*. I believe, with thU understanding, wo
will allow the Commissioner to proceed. I thai), however, follow
the luggeitlon and answer this last question.
Mr. COLLIER: On page 31 of the BUI the term, Reservation.
la defined. The act says, "that the term 'Reservation.' wherever
used In this Act, shall be construed to comprise all the territory
within the outer boundaries of any Indian Reservation, whether or
not such property Is subject to restrictions on alienation and
whether or not such land Is under Indian ownership." I may Buy
that (his Is nothing but a repetition of the existing law as to what
constitutes an Indian Reservation.
And now, the particular matter that I think Is troubling the
Rosebud delegation will be answered by Mr. Stewart.
INDIAN: Pine tfldge also.
Mr. STEWART: As I understand the question, the specific ques-
tion is, whether or not Trlpp, Meltette and Bennett counties are
to be considered In the Reservation and to be considered Indians.
Am I right?
INDIAN: Yea.
Mr. STEWART: The answer Is, yes- For this reason. There are
two classes of cessions affecting Indian lands. One class Is that
class where the Indians ceded their title outright. Their title was
extinguished and they are paid for that land. The second class
Is where the Indians had their land opened to settlement under
the public land laws, and the United Slates acts as trustee, and
until the Indian lands were disposed of, the Indian title remained
unextlngulshcd. We are confronted here with that second class.
On page 36 of the BUI, on top, Section 3, you will find your answer.
We are going to convert bock Into the Reservation all that surplus,
undisposed of open land. \
Mr. DAVIDSON from PINE RIDOE: Mr. Chairman. Chair-
man recognizes Mr. Davidson.) I am not a delegate, but I would
like to have the gentleman explain the second part of that 26.
Mr. WOEHLKE: Will you submit your question In writing? It
has been ruled by the Congress that all questions be submitted
In writing. You are out of 'order-
Mr. DAVIDSON: All right sir, I will present my question In
writing this evening.
Mr. COLLIER: There Is one further point about the two million
dollar fund which I did not make clear. The fund for the purchase
of land. That fund would be available only where the new land
holding system had been put Into effect.
Now, there Is a question of general Interest. It relates to Section
4 E of title 1 of the BUI. "What happens to tribal self-government
Mlnutci of the Plaint Congreit
47
If all, or a major part of Jhe Indians, decide to withdraw at one
time. How are their Interests to be paid for; the interests of thosu
who withdraw."
The answer I wilt try to make simple In this way. Forget about
this BUI for a moment. If nn Indian of uny tribe Is enrolled In
that tribe and therefore has a share of lUc ownership of the tribal
land and tribal funds and goes away, lit- continues to have his
share, even though lie has cone nwuy and lives, say. In New York.
Sometimes he will get a benefit from his share; that 1$. if there
are par capita payments lie will yet them, even though he In
Jlvlnif in New York. But if there is no tribal Income from the
properly, then he loses the Use of It by yol.ig to New York. There
is no money being paid out on it and he Is not yet I ing the use
of It.
No*v, under the new plan, II would be the same, with one dlf-
ferei-co that I will state. The Individual who wanted to break oil
his relationship with I lie tribe uiul move away ixuinanenlly could
bargain with the community and the community could pay him
the value of his holdings and then the community would own the
land or whatever there was, and he would yo uwuy with the cash.
Ifc might make a bargain in such a way that he would gel cash
down, or he might get Installment payments to be paid over a
term of years. Now, the question was, MIPIWSV there arc 1,000
members of the community nnd 000 ol them decided to go away
at oie time. What then? I would say that in such a case, ordi-
narily, there would not be enough money to buy them all out at
once. They would have to wall until tlujve was enough capital
accumulated for the deal to be transacted.
It Is just like with any oilier estate. II a family in Rapid City
wants to scatter all over the country and it lias got a property here
it mi^hl not be possible to liquidate that properly now. They may
have to wait. You can't liquidate an estate the minute you want
to. Ucme tribes have tribals funds they could use to buy out ab-
sentees. Some have no tribal funds. The only chance in this point
from existing law is tliut the Individual who wutils to go awuy
Is allowed to surrender his equities In exchange for compensation.
The community Is allowed io buy it. Neltncr of them Is compelled.
The Individual may go olf and keep his equities. The tribe may
refuse to buy him out and then lie will have, to keep his equities.
Wu are right up ot'nln.sl the dinner hour, and what I think I
shall do now Is to answer the question thai Is purity asked by
one of the written questions. I will Just answer It briefly, because
It will require explanation luter on, bccau.se I know it is In the
minds of most of you.
-------
41 Minute* of the Plaint Conyreii
Hwe I am going over to the land section—title 3. Is the trans-
fer of the Individual allottee's title to the community, that Is,
rcllnquhhmenU to (he community, mandatory or permlssable? In
other words, It is proposed simply that the allottee may relinquish
his il;lc In exchange for an equal Interest or compensation?—he
may do that, and he may accept it; or, Is It Intended that he
must do it and the community must accept? Have I asked the
question In such a way that It is the question In your minds?
VARIOUS ANSWERS: Yesstr.
Mr. COLLIER: Now. I will answer first just In the language
of the Bill as it stands.;Tlw language now is as follows: 'The
Secretary of the Interior is authorized to muke the transfjer."
That would mean, as It stands, that if a case arose where the
Secretary wanted to make the transfer and the Indian did not
want it, the Secretary would have the power to make It, even
without the consent of the Indian. That Is the effect of that langu-
age now. We have given i a great deal of thought before we came
here, and since we came here, to the question of whether tha",
language ought to stand or ought to be changed.
Mr. Wochlke has anticipated what I was about to say and I
will just pass it on to you. Would it be Interesting to have a show
of hunds to see whether you would like a change? (Applause.)
Of course, Mr. Slrgcl points out that before we Invite you to a
show of hands we ought to make certain things clear to you.
You understand that any transfer of title as planned, on this
page 31, would have to be an exchange of title for compensation
of * variety of kinds. In all cases adequate compensation. In
other words, there hould be no taking of title. There would only
be a purchase of It.
SIOUX INTERPRETER: That Is one of the hardest phrases
to Interpret that I have run across yet.
Mr. COLLIER: Let us imagine the Secretary of the Interior
Is going to start In and transfer your title to the community.
Your piece of land. If he docs that he must, In the first place,
give you In exchange a proportionate Interest In tribal or com-
nuinl.y lands of similar quality. In other words, of equal value.
In addition, you would have the right to keep the land you arc
living on. You would have first preference In the assignment of
land; to keep the land you hnvc got and live on It and use It.
If you chose not to continue occupying that piece of land by
exercising your preferential rights, and take another piece of
land, then you would be entitled to be paid for the Improvement*
on your land, as well as getting the new land. Similarly the Inter-
ests of your heirs would be prolucted. As a matter of fact, the
Minute) of the Plaint Conprett 49
protection would be so complete nnd the advantages would he so
great that as a rule you would want to mal:e the trade. You would
waiu to relinquish and gut In exchange the tilings that I have
described, and bccauco of that lad. becnu:;e we were confident
that the allottee himself would be the out- chli-fly anxious to tiled
the txchange, %ve did not worry nboul the result, because, as you
will sec, when we start dlv.-u:.slng the land lltle In detail, the
allot'-ee always, would not only kiep all he had but he would always
get something more thun what he has got. Hut that does not an-
swer the question of what thu Secretary of the Interior should be
given power to do tills, even though the nllultci: Is not jx-'isuaded
and does not wont It nml It I.-, on that point that I was going
to give you my answer and then llic «,ugi;u!>tion was that wu get
a show of hands.
Mr. WOEHLKE: Now, I would like to blalc the proposition that
you are asked to have a t>how of huntls on very bi Icily. Do you,
favor giving the Secretary of Iho Interior the right to force u
transfer? That Is the question.
Mf. FRANK OIILERIUNG of Fort Hclknap: I object to your
motion, Mr. Chairman, because we want to understand the condi-
tions a little better first—the result, of Urn', transfer, or the condi-
tions under which this transfer Is to be made.
Mr. COLLIER: I think tliul Is a very wise thought. The thing
ought to be viewed In the light of all the facts before you vole
on It.
Mr. CLEMENT SMITH of Rosebud (Ynnkton): Owing to thn
fact that we arc defining the law as It Is prepared and wi|t)U:n
and (.he discussion applies to (he authority that the Secretary now
has or Is going to have, It is an Important question to these people,
and if we discuss It in that way we arc Just going to be taking lit
as n matter of course, mid preparing on opinion. The definition
in that Bill Is the question at the present lime.
I make a motion to the house that we decide whether or ncf.
the Secretary shall have the power to force nnd coerce any allottee
to transfer his properly to the community or whether lie shall
not have that power.
(Seconds arc heard from various members of the audience.)
M~. WOEHLKE: Now, the gentleman from Ft. Belknap has
suggested that we postpone u decision on I his question unlit a
broader discussion of all the phases of ihU Important point. I am
Inclined to adhere to his opinion. I believe (hut the entire question
at this time was out of order becau.'.o we had not yet reached the
land biibjcct. Therefore I ruin that nil mot Ions to this effect at
-------
M
ttlnutti of the Plaint Congren
the present time are out of order, and that w« shall give more
consideration to this question at the afternoon session. (Applause.)
Ju*k prior to ajourmncnt—and you know that dinner Is walling—
I would like to ask to which delegation Ivan OrlR and Mike Klcth.
if (hoy are members of a delegation, belong. The Superintendent
of Mi.il dflcgntlon In requested to go to the long distance telephone
because they arc calling him from Dtadwood. I do not know why.
iLuushtcr.) I suggest also that any of the delegations or delegates
who have not yet received copies of the Bill and copies of the
explanation, the mimeographed explanation, come to the Chair
here and receive them.
Wo now stand! adjourned.
Minutes of the Plaint Conarcsi
51
AFTERNOON SESSION
Congress opened Rt 1.45 p. in. on March 3, 1934, by the Chair-
man, Mr. Wochlkc. .
Mr. WOEHLKE: I recognize the gentleman from Fort Tottcn,
Charlt* White.
Mr. WHITE: I make a motion to do away with all Sioux Inter-
preters. Practically nil of the Sioux speak English. Furthermore,
It confuses our minds between times.
Mr. WOEHLKE: Some ore unable to follow the proceedings
completely without the nld of on Interpreter and I believe, In fair-
ness lo all delegates, we should continue'with our Interpretation.
(Mr. LaPolnl, Rosebud interpreter, translates and requests nil
Indians ((cutting to continue with the Interpreter to raise their
rlfc'hi hands.)
Mr. LaPOINT: These arc the non-English-speaking Indians,
co that Port Tolten can see them.
Mr. WOEHLKE: There was no second to the motion. The motion
was lost.
Mr. WOEHLKE: (Mr. LnPoint, Rosebud. Interpreting.)
I would like to explain the last ruling of the Chair because-
that ruling was not Interpreted and a number of (ha delegates
went otit without understanding what the ruling was.
At the time we closed, there was under dkcusslun the land
fciibji'tt. The order of business at that time called for a conclud-
ing discussion on the Ihruu other main divisions of the BUI. 1 here-
fore, the Chair ruled that the Commissioner was out of order.
However, It seems that it has been the concensus of opinion
that we should get to the discussion of the land problem at the
earlL'St possible moment. Therefore. I am new requesting the
Commissioner to state (he- general principles, the piir(xue and
tho objectives of the proiwsod lund policy. uiiU I shall usk him;
before he does that, to answer one ur two of the questions on self-
government.
Mr. COLLIER: lllo.sebud jn(ci|>ic!cr.> Kuine f|ile.,Uons that
can be answered quickly—if the Dill becomes u luw whul will be
the voting power of the Indian who h;i& Ixi-i) Hindu ti citizen?
Will <.he Indians IMC their frnnclnse und vole?
Ho. of course not.
A similar question. If Ihc Bill passes can Indians run for office
in a county or slate when they art- mcm;>crs of an Indian com-
mun'J.y? Yes, just as they can do now, except that tliey will have
more training in the holding of public oHlces through their
community organizations.
Two or three delegations have said this. Please explain the word
"subsidy" as used In Title 2. Subsidy Just means the same as
grant—a gift of money.
And then the question which is Important. As to the control
by Indian Tribes under this Bill over their Tribal funds? The Bill
provides that when an Indian croup oruanlzcs und tulccs a Char-
ter, thtn Its tribal monies cannot, be spent except by the consent
of che community—of the Tnbc. Lei mu make this clear. This
Is not something which may be granted or withheld by the char-
tered members. It Is fundamental and BOOS to ull thu chartered
communities. Any chartered community will huvc the veto power
over expenditures of thu tribal funds belonging lo Ihut community.
In n-idltlon, the community muy be chartered to handle Its funds
completely so that it would nut just huvc the- veto power but the
initiative as well. Now. I am glad this question has been brought
up because I desire particularly lo make il clear lo these Sioux
delegations. There has been opposition agulitst the Bill and against
the vetoing Idea on account of this viewpoint giving the Indians
the veto over expenditure ol money, and Hint opposition, I am
advised, has come from groups who arc ufiaid (hut the Tribe
would not permit certain use of the money, which urc good uses.
As you all know, you Sioux nnd thu blKisluine. in certain of tlie
Mission schools—schools Hint arc run by the churches—the tui-
tion of the children Is paid fvoin hinds which are called Treaty
funds. Now this Bill would leave II for I he Tribe lo decide whether
the Secretary Of the Interior should continue lo muke payments
of this kind. That is the case in .so fur as the payments uvu made
from Tribal funds. It is my own view, tlmt a fundamental principle
-------
M Mtnutet of the Plaint Congren
U Involved In the matter of Indian tribal funds. I believe that
the Tribe* should be given a veto power over the expenditure
of their own funds even if they might be unwise sometimes and
veto something that Is good. However. I point out that the con-
tentlMi In this matter that affected the Sioux and Shoshone, grows
out of a misunderstanding about Us funds. The funds In question
prob.ibly are not tribal funds at all. In the case of the Sioux
they arc called Treaty appropriations and are made annually by
Concress. Actually, they are annual appropriations by Congress
mads gratuitously because Congress wants to make them, because
the Treaty In question expired many years ago.
It is therefore practically certain that these particular funds
from which the tuitions are paid In the Church schools are not
tribal funds at all and therefore they would not come under the
cont.-ol of the chartered communities. But, If they are tribal
trust funds and U It was so decreed ultimately by some court, then
they \vduld come under Uie control of the tribe and If, In fact, they
are money belonging to the Sioux Tribe—If they are. which I don't
UUnk they are—then I would say the the Qloux Trlbo should
decKIa how Its own money Is to be spent. Now. coming to the land
question, In Title 3.
I simli. myself, try to outline the facts and purposes as we under-
stand them, and then I shall ask others to lake the matter up and
carry on the detailed examination of Title 3. What I shall say
will bu a statement of what wo think ought to be accomplished,
and If It Is not accomplished by the present draft of the BUI
then the BUI ought to be changed so that It will accomplish that
result and therefore, I am not going to complicate my talk by
reference to section, etc. I believe that If you found yourselves in
agr.'2mcnt with the purposes and the methods as I shall slate
them, then either you will nnd the Bill all right or you would
see how to change the Bill to make It all right.
Now, first, tills loss of land by the Indians must be sharply
tlop;:td. It must be brought to and end—the loss of land. That
means that the trust period on all lixnd now held In trust irrupt
be miido permanent. The power of the Secretary of the Interior
to bring the trust period to an end must be taken away from him,
and hereafter the trust period must be made permanent unless
and until terminated by act of Congress.
Second, In order to mnkc (he restrictions effective the exemption
of Indian restricted land from taxation must be continued and
made pcmamcnt until otherwise directed by Congress. You under-
stand, of course, that the power of Congress Is necessarily there
MJnufes ol the Plain* Coiiyress 53
alwn;s and we can not go beyond thai. How, thut Is No. 1, und
very simple and easy lo undoistand.
Now, No. 2. I told jou yesterday thut there were more than
100,000 Indians who had lo.,t nil o( iluir laud t:nd< r I ho all.jti.H.-nl
system. Those Indians, If they desire (u have land and (o usu land,
should be supplied with the land v.'hLh they need, und thai land
bhould be restricted nnd ext-mpled (rum taxation. V.'e do not as-
sume that all of the lnn
-------
64
Minute* of the Plaint Congres*
funds, has used these funds In ways which were Indefensible,
which should have been illegal, and which in Canada would have
been Illegal and Indictable.
I am making only the statement that has been made on the
floor of the Senate by Senators King, Frailer, and others, and
reported in formal reports by Its committees and Is on Incon-
testable fact. By this misappropriation I mean the diversion of
Indian trust funds for the support of the Indian Buvcnu which
ought to have been supported by the general treasury. I mean also
the use of Indian trust monies without the consent of the Indians
to build through highways for tourists and great Irrigation sys-
tems for white fanners. •
Let the Government give back to the Indians just twenty per
cent of this trust money which the Government misappropriated
since 1000 and It will be enough capital for the development of
the Indian lands. Whnt I am saying Is not needed to convince
you, but I am saying It to get It Into this record so Hint you may
use It to persuade other people—white people.
A, Anal Item, while dwelling on this point of what the Govern-
ment'* duty Is, Is that most of the Indian tribes—I believe every-
one of you tribes here—have valid legal claims against tho Govern-
ment for violated trcallcjs. For a long lifetime the Government, by
that 1 mean Congress and the Executive, have been using every
method possible to prevent your claims from coming to Judgment.
The Dill \ae are discussing nas no connection with the matter of
Indian claims and I am not {.peaking of It tor that teason. It has
no connection at all, but I do say, and I want you to get this,
that when a valid, lego,! claim could and should have been ad-
justed In the year 1BOO, and the Government by deliberate de-
lays keeps It from being adjusted until 1950, or, let us say, 60
years too late, that Is the same thine as depriving the Indians
of the use of their moneys for 60 years, and the Interest on a
dollar In 60 years Is a great deal move thnn the dollur. This
policy of the Government to postpone the settlement adjusting
Indian claims has had the effect already of depriving the Indluns
. of more than one hundred million dollars, of Interest on trust
funds which they would have gotten if the claims had bjcn
settled promptly when they should have settled. What I snld Is
the ivason why the bad practice ought to be changed, and we are
golnd to try and chnnee It, but It also Is a reason—an additional
reason why the Government has a moral obligation to give the
Indians the land they need and the capital for developing their
land.
Now, I go on to the things which as we bee It must be 'done
about land. The other things. I huve spoken about the policy of
Minutes of lite Plains Congress
55
the government to give Ihc Indians the new land whore they need
It and to give them the capital for stocking the land und devel-
oping It, but, yesterday, we saw how the existing, Die present sys-
tem of land holding, hud cut down the Indian lund and was going
to reduce them until they wore ull gone. And we saw, as you will
ceo more fully, later, how the ullotmi-nt uirungcmcnt has broken
up the lands so that they cun't be used to best udvanluyc. We
saw how It hud checker-boarded the fiiizlng land wlll) white
owned lands. (End of inttrprclallon by Einil Afruid-of-liawk. Mr.
Collier continues, Wllllem Fire Thunder iiUvrprbllng.)—and had
broken up the hclrshlp allotments Into u multitude ul Individual
ownership almost Impossible to udmlnislcr.
And we saw how Inevitably (liu thing will go on until ull of
the land is In the hclrshlp status and nil messed up the way Die
helrshlp lands arc messed up, and thul the cost to the Govern-
ment for administering the system was ulwuys Incieusing while
the land melted away. U therefore Is clear, that this business of
getting, or providing new land to the landless Indluns und more
land to the Indians that haven't got enough lund; this business
can not be carried out within Hie old land holding system. Neither
can any plan of giving large grants of cnpltnl to the Indians for
developing their land be curried out within this old syelcm. II
would be a waste of lime to go to Congress or to the President In
the matter of new land or of capita! lor lund development if ull
we have got to oiler Is Uiat thing on lliul bluekbonrd On Die
contra 17, as I told you yesterday. If tlml Is ull we huve got to
orter—that land holding system—we inuy look forward to a duy,
5, 7, 10, or 12 years, from now wlien I he Government will simply
wash Its hands of un Impossible slluaUon by lee-putcntlng the
whole business.
Therefore, we propose a change In the land holding system as
a means of saving the lands and of getting more land and capital
for developing lands. Now, what Is U that we have got In mind,
if I cun put It In luiHUjinjf nut legal ul nil, but just simple, pluln
Eiv;i;.-;)>? We wuiit. first, lo enable the Indians holding these scat-
tend ullulmenls lo combine their ullulincnls II Un-y desire. Into
solid blocks of lund so that they can be leased or used In u prof-
itable way. Second, we want un urnmucincnl Unit will permit
an heir who lias u little interest, in ten or twenty allotments to
lump his Interest into one lump so thul he will huve a piece of
land which he cun use or from which lie cun eel u rental worth
collecting that won't cost too much money to collect.
Then, we want an orrunecmcnt in the mutter of helrslilp lands
that will put an end lo this subdivision of the Interest!! until U
gnt<: so small that nobody cnn use the subdivided purls.
-------
M Uinutet of the. Plaint Congre$$
Then, we want an arrangement which will allow an allotted
Indian to put hU title hock into the tribe In exchange for a vested
right to use an equivalent amount ol the tribal land, or to have
the rental from an equivalent amount of tribal land, as he prefers.
We want him to be in possession of a guarantee, this Bill calls It
a Certificate, which guarantees his property right to that amount
of Irnd. and to that particular land if hu prefers to stay on It
rather than to go on to another piece of land. We want him to
be able to transmit this property right of hU. represented by this
certificate, to his heirs. We want an arrangement concerning the
new land—the land newly to be acquired—the land to be bought
or obtained In a new way, which will give to every member of the
tribe a share of that new land. This applies not only to the land-
less Indian who comes In, but we conceive of every member of the
tribe having a fundamental equity In the total tribal assets, but
that will not be an equal share to each member of the community.
It wilt be an unequal share, because, the Indian who transfers hU
allotment to the community will be entitled to Hie full value of
that added on to his equitable share In the new land.
With respect to the descent of property, hclrshlp. making of wills.
I first remind you that the Secretary or the Interior has absolute
power over an Indian will at present. He can annull the will, he
can compel the amendment of the will. In so far as he Is guided
by law, It Is by the accidental laws of the state where the Reserva-
tion happens to be located. We propose to take away from the
Secretary of the Interior that absolute power over Indian Wills.
and the determination of heirs, by that proposal. Is taken out of
his hands and placed Irk the Court of Indian Affairs. We propose
that if, In a given case( the State laws governing the descent of
property are not satisfactory to the Indians, those laws, as applied
to Indians may be changed until they are satisfactory to the
Indian.
Mr. COLLIER: (Rosebud Interpreter.) I am not stopping on the
details of the Bill. I am trying to give you the complete picture.
We will come back to the details.
Now, I left for the last the one point In this whole program
which I think will continue to be a matter of debate unless It Is
clianged. That Is the feature of the BUI which gives the Secretary
of tr.e Interior authority to transfer the Individual title to the
community, even without the consent of the allottee.
I am not yet going to make my own recommendation. I want to
state for your consideration the reason why you might want the
Secretary to have this power. If a community Is proceeding by an
exchange and voluntary arrangement to get Its grazing lands
blocked for etlectlve use, and tllll more so if a community is pro-
Minutes o/ the Plains Congrett 57
ceedlng by exchange and voluntary rellnqulslunent to get its tim-
ber lands blocked so that they may be handled In a business-like
and conservative way, that community might find Itself In a posi-
tion of being held up by some one person. A man who might be
willing and anxious to rcllnqul: h his land In exchange for benefits,
might sec a chance to demand an extortionate price. Tlien that
community might be glad If It possessed the power, or If somebody
possessed the power, to compel that individual to be reasonable
and to play square.
Now, I do not present that as a reason why this compulsory
feature ought to be kept In the Bill, but ruthcr as an explanation
why It was put in the Bill as formally Introduced. Ordinarily, In
any event, the whole operation would be a voluntary one pursued
by the allottees because It would be greatly to their advantage,
both immediate and In the long run. Here and there. In the ab-
sence of a power of compulsion lodged In somebody, you might get
a hold-up.
If the Indians were tolerant and were unanimous In wanting
that clement of compluslon k-;pl In the BUI, then I think It might
do no harm and some good.
On the other hand, Indluns might well be afraid of It because
they might fear arbitrary action by the Secretary of the Interior
or unwise action. All of us up here on the platform are agreed
that it is a relatively unimportant point which, If we don't have
it, will not seriously get in the way of the things that you all
wont
3o, you might either vote to wipe It out of the Bill, making
the whole thing voluntary, or you might vote that under certain
conditions compulsion would be lodged In the Indian community
with the consent of the Secretary of the Interior. You might, for
example, vote that In a given tribe If four-fifths of the enrolled
members want compulsion to be possible in (hut tribe, then the
law will permit that tribe to use It.
Now I am going to start my presentation at this point. I am
going to read you merely three questions that have been suggested
to me by Mr. Wochlke. The kind of questions you might put to
yourselves.
1. Do you want Iculalnllou to mop tho further lota of your land by
mopping allotment und exluiidlnu llio Hint pcilod and tax exemption*
on your land?
1. Do you want legislation and appropriations for buying laud for
tluMo hundred lliout,and Indluno who no\v liuve no land?
3. IX) you want luglnlKilou that will enuUI« you to dovelope your tim-
ber and grazing laud, and lliu chccki-rUourd kyiicm, and put your land
In auch condition that you cr.n raise nic-ie Murk on It or net bolter
rent for It?
-------
M
Ulnutei of the Plaint Congresi
4. Do you want legUUllon that will end thi lost of Und through
htlnhlp ind pUc* dcccibcU land back Into tribal owncrthtp with pro-
per comptautlon to tht
Do you want nil or that subject to the condition that the prop-
erty rlghts-of Indians who now own land shall not be taken away
or diminished, and that means that property rights shall be In-
heritable and descendable to your children. Those questions mere-
ly sum up this land program. It the Indians of the country an-
swer them with a yes. Ihbn 11 would be the duty of the Indian Of-
fice, of tliu Secretary of the Interior, of the committees of Con-
gress to work over these principles and purposes Into legislation
that would accomplish |lhosc purposes and not other purposes.
Wo would be pledged to do this as a matter of public record— to
got this, or get nothing.: You will note that from these questions
as I have read them to 'you the clement of compulsion has been
loft out. The entire mutter Is left as a voluntary thing with the
Individual Indian and tho community of whk;h you arc a part.
(End of Mr. Collier's speech.)
Mr. CHAIRMAN: with your permission I would like to declare
a recess for ten minutes so that we can open the windows and
air this place out.
Recess-
Congress convened after ten minutes reccrs.
Mi-. WCEHLKE. Chairman: I think we all enjoyed that re-
cess. I almost feel tempted to make It permanent. (Laughter.)
Now. the general session for this evening Is called off. In place
of the general session we will have Individual sessions of the var-
ious delegations and I would suggest that all the Sioux Delega-
tions meet here at 7:30 In order to discuss their particular prob-
lems with the Commissioner and his representatives, ask ques-
tions concerning their particular problems, and have them an-
swered right there. For the same purpo:e I suggest that the Mon-
lan-t tribes— Blackfect. Fort Belknap, Fort Peck, Crow. Rocky
Doy delegations— meet In the dormitory of House No. 1, at 7:30
this evening for the same purpose of close. Intimate discussion of
their problems and of their questions concerning this legislation
with the representatives of the Commissioner, and that the other
tribes, the Wlnnebago, and the Shoshonl and the Omaha, and
all the rest of them including Turtle Mountain, meet here at
7:30 In one of the school rooms which Mr. Stalcy will show them
and that they be hero promptly at 7:30 so that we may get under
way, because they will have many questions to ask and It will
take time. But, In that way we can speed up the proceedings and
we can give various trlbrs Information and replies concerning
Minntej of the PMni Conjrcu 69
their particular problems; so the Sioux delegations will meet hero
at 7:30 In this auditorium, the Montana Tribes will meet In dor-
mitory of House No. 1 at 7:30 and the rest of (he tribes will meet
In one of (he school rooms lure nl 7:30. The school room that
I mentioned Is on the second floor In the niirlhoast corner.
Mr. DAVIDSON: Mr. Chairman. (Is recognized.) I am the gen-
tleman that was out of order this morning. Mr. Chairman, I was
requested this momlng to put my question in writini; and I have
done to and It Is on your table, and l de.-.irt* thai my question be
read publicly and explained publicly before this convention con-
cerning the second section of the land question.
Mr. WOEHI.Kti: Wu have iib:ml 110 qutt.liuiis litre. We have
found It rioht hero on top. Your qu<;:,llun will be answered right
away.
The meeting tomorrow afternoon will take place In the Civic
Auditorium In Rapid Clly, beginning al 2 o'clock. We expect a
very large attendance there and we fivl that we should have at
least one meeting when this auditorium Is available where wu can
accoiHodate all those who want to conic in and listen or .speak and
at this meeting tomorrow afternoon we want to do thu listening
and we want you to do the talking, so 1 hope you will all be there.
Now, continuing with the discus: ion of land questions, the Com-
missioner wishes to conclude his remarks and to read Mr. David-
son's question und el\e him his re-ply.
Mr. COLLIER: I will first rend Mr. Davidson's question: "Turn
to paye 26 of the Bill, title 3. beginning of Section 3. Suction 3, as
you will note, authorizes the Secretary of the Interior to with-
draw any surplus or ceded land and bring them back into tribal
ownership."
The fourth line of the paragraph in question "Such h'nds shall
be re-opened to sale, settlement, and entry " Thai means these
surplus or ceded lands, If 11 Is found that lh:-y arc not needed.
shull be sold under existing law niul the proceeds de-posited to the
cix'dil of the tribe. In order to clear up any possible misunder-
standing of the paragraph, llij^.o v.-ords ou^ht to be Inserted on
line 11, to read:
"Tho Secretary of the Iitlurlur bliall determine wliul lunds. lulurrud
to In the above iiaruyrnph, lying oulUdc * - • • "
In other words, any surplus or nny of this land thai Is already
let open for entry, that Is brought buck and then found that thu
Indians have no need for It. shall bu sold under existing law and
the money given to the Indians.
Now, my slall points out that I have neglected to make one
-------
00
of th$ Plaint Congren
thing clear. Mineral Und find oil landa are not dealt with In this
Bill. The allottea who owiu1 an oil well would hold nil oil well In
severally, though It could be arranged that. If he wanted to part
with It to the tribe, the tribe could buy it.
Then, In my statement concerning the new lands bought (or
the landless Indians. I stated thnt. In such a way that apparently,
I gave a misunderstanding to some of you when I said that all
members of the community would have an equity In all tho land,
Including the new lands. Thnt statement, of course, Is correct.
But, obviously, It to the landless Indians who have tho preference
right to use the new land. I suppose that will be clear.
Then, to state again the matter of descent of helrshlp as pro-
iwsert In (his new Bill. Upon the death of an allottee, his heirs
wouW Inherit flrrt the right to use or receive the rental value of an
equal amount of land. In the second place, the heirs, by a will,
couM be given the exclusive occupancy of the Identical piece of
land In question, the title going to tho tribe. This will be more fully
clear as the details are explained, but I simply wanted to avoid
givlnc any misunderstanding on my own part.
Mr. DAVIDSON: I never referred to any ceded land. I referred
to the reservation and whfch we are now occupying and my question
has not been read and I believe I am still In order.
Mr. COLLIER: Mr Davidson's question b as follows: "Concern-
ing the second section of Section 3, of title 3. Page 20" (That Is the
second paragraph which I read a while ago.) Then he proceeds to
quote Uiat paragraph which I read.
I explained that that paragraph related to the ceded, lands, did
not relate to reservation lands, could not relate to reservation
lands, because It says about tnese lands, "Such lands shall be re-
opened to sale, settlement, entry, or other lawful form of disposal
In accordance with existing law."
I am explaining that Mr. Davidson's construction of this para-
graph Is an Incorrect construction, but I added that, In ordter to
mak3 the undesirable construction Impossible, there ought to be
addel the words referred to In the paragraph above. In other
irordd the surplus and ceded lands. The paragraph as printed is
nothing in clearness. Mr. Davidson's point is well taken, although
there could be no doubt as to how the courts could construe the
language. To make it sure, we arc suggesting that those words be
added.
Mr. CHAIRMAN: I would like to ask Mr. Davidson whether the
explanation of the Commissioner is satisfactory now?
Mr. DAVIDSON: Mr. Chairman, I was asked to put my question
Winutet of the Plaint Congren
61
In writing to be presented before this meeting and I have done It
and it has not been read yet. (Applause.)
Mr. COLLIER: We will proceed wllh the minutes of the meeting.
Mr, Davidson yesterday quoted the paragraph which we now
read twice Uien he asks a question which I have answered twice,
and I will read the asking of It analn—"dot's this paragraph, which
he Jtulcs oft-scts Section 3, construe to mean that the Secretary
of tho Interior will bu empowered Lo rc-oprn all lands lying out-
side the boundaries of coinmunlilcs to be determined by the Sec-
retary of the Interior." "As provided in the Senate Bill 255 and
does the BUI further construe thai the Indians will nut need such
surplus lands outside such community uicas should UIH 8-277S be-
corrv! a law." Now as I have explained, lite liinguugc in question
doej not effect any Tribe In or out of a community or any allotted
land In or out of a community. It deals, us II Is clear, only with
thes.J surplus or ceded lands now In the hands o( the land olllce
for disposal. It directs the Secretary of the Interior to take those
lands away from the land oltlcc and restore to the Tribes such
porl'on of thc.se surplus or ceded lunds as the Indians need, and
then with respect to those surplus or ceded lands, which they
don's need, to re-open them under existing laws, and I said that
In order to avoid nny misunderstanding, although actually no
court could misunderstand, we nddod new words explaining that
the language refers only to these surplus or ceded lands and not
to any other lands.
Mi'. CHAIRMAN: I bellvc It Is very clear now and I would HVc
to call on Mr. Marshall, Clilul of the Forestry Division, Lo speak
to you about the consolidation of grazing hinds and limber lands.
what they ineuii, why. and how these consolidation!) are to be
accomplished. Mr. Marshall.
Mr. MARSHALL: I think that I have about the easiest Job on
the program today, because I have tot to say principally what Is
wrong, and particularly I have to suy what Is wrong with the way
lonUs are blocked out In Individual ownership. I am going to tell
you a little bit about why the Indians lose money when Uiclr tim-
ber lands arc all broken up Into small hunks of land but I am
going to tell you mostly why the Indians lose money when their
gracing lands are all broken up Into Individual allotments.
I InJIeve that there are very lew of the tribes here who have got
allotted timber lands, but .so you will understand everything that
Is In the BUI. I will try to make this clear, even though It docs
not apply t° your particular Reservation.
There are many Reservation in the country where the allottees
havi lands right In among the timber. On one of the Washington
Reservations, the allottees sold about $2,000 worth of Umber, and
-------
ea
Ulnutet of the Plaint Congren
Minulei of the Plains Congrea
63
became thU Umber was told and the unit wat partly cut over,
the lumber company which had formerly offered 120.000 for the
unl*, would not buy any of It. all because the $3.000 worth had been
cut out and they could get a better proposition where no cutting
had been done. Now this case Is just an example, and perhaps an
extreme example.
SOME INTERPRETER: Mr. Marshall. I think they would pre-
fer It on the Plains. This timber proposition does not concern us.
SIOUX INTERPRETER: Yes. but It concerns us. I want to
Interpret that.
Mr. MARSHALL: So now. I will leave the timber and woods and
go ou' on the plains. (Laughter.) I can think of at least six dif-
ferent disadvantages—«lx different ways In which the Indiana of
the country lose money where their grazing lands arc all broken up
Into email units. The first and mcst obvious way Is the amount It
costs to administer the land. Now, I have just talked to a couple of
the Superintendents on the platform, here and one of them
estimates that It takes about 10 per cent of his time Just In con-
nection with gracing leases and permits, and the other estimates
It takes about 60 per cent of Ms time. Now, all of that costs money
because there Is a lot more money besides that Involved.
I will give you an example and It Isn't an extreme example
at alt.
Thiie are. In the Indian Reservations, allotments of 160 acres
with as many as 100 different heirs.
INTERPRETER; we would like to get that example.
Mr. MARSHALL: This Is the example, about that allotment
willi so many heirs. It has cost, on the average, ns much as 60
cents, figuring all the costs of stockmen and others In and out of
the Office, to get the signature of an heir, and those connected with
the land. Or, In other words, the administration of the leasing of
this one allotment has. In cases, cost as much as $50. Now, the
receipts have been, perhaps about 10 cents per acre, which would
bo about 16., so, when the land Is broken up that way by heir-
ship mid allotment, It sometimes costs as much as $50 to adminis-
ter (or a return of $16. Now, I admit that is an unusual case today.
but 1'. does happen that way today sometimes, and twenty years
fron. now and thirty years from now. If the present system con-
tinues, we will have cases a whole lot worse than that one.
Wo have grazing allotments today from which each heir receives
less than one cent. Thirty years from now. If the present system
continues, each heir will get enough money to buy himself about
one toothpick. (Laughter.)
Now, a second evil of the present system, I have tried to show
on this blackboard here. It is a fact that unless you have very close
administration, and on many Reservations unless you have a per-
mit system, the stockmen will not lease all the land. Until a few
year.* ago. this situation was true on practically every Reservation.
Todny It Is still true on a good many Reservations. In the future,
If tho present system continues, It will be true on n lot more Rcs-
ervulons where we can not possibly have enough men to take care
of laid check Up on all the leased lands. New, this Is the situation.
A ttockman comes In and Hrsl of all iwikts a Ica'.ic on the water
hole Is. Then, he finds that there nru some Indians on this unit
a 60 acre tract here, and there. Perhaps 040 acres where the water
hole Is. Then, he finds that there are sonic Indians on tills unit
of -{razing land he wonts to use who know very well how to handle
their own bustiu-ss affairs. He knows he can't get away trespassing
on their lands, so he comes out and pays them lcn.se money, and
those lands 1 have shown by these lots scattered throughout here
wll
-------
94 Uinutct of the Plaint
11 U very easy and very cheap to prevent trespass when you hav«
one unit all under one control, but when you have It all broken up.
llko this picture on the blackboard, with the stockmen permitted
to gj Into tltc squares which are marked, but not permitted to go
Into .he area In the center. It would take hundreds of dollars just
to vlmlnlstcr (he trespass on one unit. And, on nil the Reservations
In the country It would tukc thousands of dollars and probably even
lens or hundreds of thousands of dollars to take care of this tres-
passing, and that money would come from the Indians whether
it was taken directly from tribal funds or from gratuity oppropla-
tlons Because the Government only has a certain amount of
money It can spend. If It Is spent on useless things U will mean
there is that much less money to spend on things the Indians
really want.
Another thing that we And happening on many of the Reserva-
tions Is (hat one Indian who has an allotment on which there Is
wnlcr refuses to lease or grant a permit or put his allotment Into
a permit unless he Is given an exorbitant price. Now, as all of you
know, you can't run cither sheep or cattle without water. So, on
this particular diagram I have shown here, If the two Indians
wllh the water holes I 'have depleted here, refuse to lease those
water holes or throw them Into the permit for the whole unit.
then all the rest of the Indians on this unit, who may own a
thousand times as much land as these two men put together, will
be held up from leasing or granting permits on their land. This
is not a cose, that I inn imagining. It Is something that really
happens time and again.
Then there Is still another point. It Is much easier to run any-
thing In a business way if you run It altogether and at once. You
can Imagine what would happen In an automobile factory, for
Instance, if ench workman In the factory did just exactly what he
wanted to do without any reference to the other workmen- If the
factory, instead of being run as one unit, was run wllh each work-
man going about pulling on a wheel or tightening a screw with-
out anybody directing the whole business, I don't think the fac-
tory would make very much money and I don't think many peo-
ple would want to ride In the car even though they were able to
buy U.
Mr. MARSHALL: (William Plre Thunder Interpreting.) Well. It
is exactly the same way wllh running the business of a grazing
unit. If each part of the unit Is run by a different person just the
way he wants It, It will make so much confusion that a cattle
man or a sheep man, who wnnls to lease It will not pay as much
money as they will when it all comes In as one unit. Now that Is
iflnuta of the Plaint Congress 65
a point which we can also prove wllh figures. Now, perhaps the
most Important reason. In my mind, anyway, why it la good, why
the urcscnt system of different allotments scattered over the In-
dian country is good, is the mutter of Indians themselves going
Into the stock business. As Mr. Collier mentioned. It Is the desire
to encourage all (he Indians lo make use of their own range. I
think It can be said that the irlbi-s having ranges have the most
satisfactory life and the most money for themselves, and (he ones
who arc actually using It. Tito Nnvaho out on a dcscil such as
most of you would consider iihsolutely Impm.sihlc land to use.
have actually made belter living than niO-.l of you have, ami the
reason they have made that better living is Hint lh«;y have not
only gotten the lca.sc from their land but they have also gotten
the money from their livestock which brings more money than
just range, and they have also rotund food for Ihrlr own use. Now
the reason that the Navnho got to this is because they have had
their lange In solid lunds. If each Indian who wanted to run stuck
had to come to separate terms with tillotlees, the way they expect
the white stockmen to do on these Reservations, It would mukc lite
situation so complicated that very few would go Into the slock
business at all. We have a case--we have ul least two cases in
this Northwest country where Indian allottees have refused to
lease their lands to Indian stockmen preferring to lease to white
stockmen. Yet I think It Is everybody's desire here that the In-
dian" should be given preference In thu use of the range. The only
way that I can sec (hat this can be done without Interfering with
individual rights of allottees Is to block the land up Into units
that can be put up for one bid instead of depending 011 the good
will of the allottees some of which may have a grudge against
the particular allottee and not be willing lo lease their land to him,
so for all these reasons I think that the present system has been
a failure and that a new system, which will block up the land for
the Jndlan, which will mukc them more usable, which will give
them more money, more returns, and more sallsfucllon to the
Indian. (Applause.)
M:. FRANK OHI.ERKING: (fort Dulknap Indian.) Now we
have heard quite a lltllu talk about range, and I would like
to hive Mr. Marshall explain what would happen where there Is
about one-third of the range wilhln a unit which is needed by
the Indians for their cuttle and thu remaining two-thirds of thu
rani;* subject to lease to sheep, I do not cure where they are from,
but you cannot tell me that sheep and cattle can range on (he
same range, so If an Indian couldn't altord a fence, what pro-
tection would the Indians' cattle luwc on this unit?
-------
M
Ulnulei o/ the Plain* Congren
Mr. MARSHALL: The answer Is, that the only adequate way to
keep iheep and cattle separate Is by putting up a fence and all
the ;>ioney spent for tho useless administration of these broken up
range units could then be spent to build that fence for the Indians.
Mi- CHAIRMAN: How, my friends, I do not think that the
waling capacity of this hnl) Is very small, but very hard, but I
wonta like to hnve Mr. Stewart, Chief of the Land Division, talk
to JUH now for not longer than four minutes and thirty-two
seconds.
Mr. STEWART: I am to address you about the land matter.
Before doing so I would like to telt you of a little experience I
had In the Southwest with a large group of Indians. I was to
address this large group of Indians. There was a total In the neigh-
borhood of 600. The meeting wns held In the open air and the
pnrliculat day it was rulnlnu very hard. There were four Super-
intendents and several more field men there. After they had gotten
through addressing the Indians I found (here was nothing left
for me to say. I was In, or .on, what Is commonly known as a tough
spot. Somewhat along the lines that I am now In. However, more
from nervousness than from desperation I was fumbling with my
watc.i chain and happened to pull my watch out and see the time.
Thereupon I got up and mnde the shortest and most pleasing
speech to Indians I think ever was made In that part of the
country. I merely cot up an.l suld two words, and I say them to
you now. Let's Eat.
«Applause and laughter.)
Mo. WOEHLKE: It Is not that easy. You have got to listen to
me hri>t. I would like to nsk the Sioux delegations tonight to post-
pone (hch meeting from 7:30 to 8:00 because there will be a small
mcct'ng In advance of the main meeting here, and then I want
to wuru you. If you read the papers, don't believe them. (Laugh-
ter.) The nltcrnoon paper says that tomorrow's meeting will be
licit! here and Invites all the white people to come and meet with
us. We will meet at the Civic Auditorium In Rapid City at two
o'cliirk and I wish you would tell all your friends that the Infor-
mation In the papers is wrong, and that we will meet in the
Civic Auiillorlum, and now I echo (he sentiment of Mr. Stewart,
pud say. "Let's Eat."
Adjourned.
Mtnvtet of the Pluins Congress 67
NIGHT SESSION
Special evening meeting of all Sioux Tribe delegates, convened
at 3:00 p. m.. March 3.1934. called to order by Supl. James II. Mc-
Gregor of the Pine Ridge Agency.
Mrs. Duumrce, deleuate from SKscton, Ihe only woman detente
at tht Congress, makes the following address to liie special meet-
ing.
Mm. DUMARCE: My friends, I uni unpiep;md I must say, but
I wait to tell you that II Is an honor and I want lo thank Mr. Lu-
Polm for saying, as he did.
We arc here, my friends, on a question, and nothing like this has
ever been brought, lo US people before. Now, lul us think. Tills trap
us Mr Collier said, above our ankU-s; Is it going to hll higher or
arc we going to step out of II completely? Let us think mid think
some more.
Mr. McGREGOR: Now. some of you men have been asking for
an opportunity to talk. The Commissioner says now Is your lime.
Get up right now and ask the Commissioner some llili)|;s, anything,
or the thing that you ore most worried about (lib question.
GEORGE WHITE BUM, from Standing Rock: Mi1. Chairman.
We have such a good Interpreter that I am going to Bay a few
words. I wish to extend my appreciation to the OUitiiils for all Ihc
good things that they have done for us.
But. In the middle there, there are some things that In detri-
mental to us and we feat- them. Under tins ultulineul system they
have been after us for quite a number of years, using every means,
employing fraud and deceit and eventually nuide us accept and KO
Into the allotment system, under which we are now being Governed.
We believed In the allotment system us presented und we arc now
kind of gelling accustomed to thai way of beln;; governed. All Ihe
officials arc Interested in the pas.snye of Ihc now proposed Bill or
the new Bill, which contains .iome very ijood provisions In Dial Bill.
Now, If. as a precaution and safeguard, If they will nmkc a law
guarding that Bill with a penally of so ninny years imprisonment
and n fine of so many dollars utlnched to anyone who vlolulus or
breaks up this Bill, annuls or voids this Bill. 1 believe thai nobody
shall attempt lo break up this Bill. What. I have relerence to Is
the regulations governing the allotment uystent of which arc now
pas*.
I ucllcvr that something Is nol very clear In our minds awl
that is this, that the passage of the new Bill would In turn
jeopardize our Interests in some of (lie allotment and Irriilie.s Ihul
-------
08
MinuteM of the Plaint Conpren
•re known by the year '68, '78, and '89. Treaties that art known
by the. yean would be jeopardized and that part of those will be
reinstalled If we accept the new proposed BUI.
I ulso believe that Immediate action concerning thU Bill U
unnecessary as I just mentioned that some of the content* of the
Uill tre not clearly understood by all of us and there are a large
number waiting at home and I (eel that the delegations should
tuk.j the matter home on their respective jurisdictions and there
acqimlnt themselves, study the BUI, analyze It to the fullest extent.
U I'ipy scum simple to you English speaking people, In whose
lunfu:age the Bill Is constructed, but on the other hand the
Indians that are Involved, by the gift of God, they have an entirely
different dialect,-or language, of their own and some of them do
not rpcak the English language so I think that the matter should
be referred back to the people at home and there digested lully
and then acted upon according to the wishes of the entire people
after they have thoroughly acquainted themselves with the pro-
visions.
O.te more thing I wish to say.' Something that Is to be readily
observed by the delegates present here Is that among the delegates
are some who are landless that are very anxious for the passage
and (he acceptance of the Bill, and the reason for this anxiety,
I believe, Is that In the provisions of (he Bill a credit system or the
loan L! money was mentioned. As I said awhile ago. we are getting,
Bonu of us are getting accustomed to the allotment system; that
Is, live on our allotments, utilize that land for their livelihood,
utilize the water, the wood, timber and grass and maybe a garden
spot and, more, a majority of these people that are utilizing
their allotments are full bloods and can not speak English and
they arc reluctant about hasty acceptance of the BUI, fearing that
fionio authority would come and take away what they now hold
and (latin as their own..That Is all I wish to say.
I h.we some claims and suits against the U. 8. Government. We
arc looking forward to the day when a judgment shall be reached
In connection with otir claims that we may realize some compensa-
tion on behalf of the claims. How does It happen there are no
monies to settle our claims and reach judgment on our claims or
pay the amount of those claims, but when a time comes for the
transfer of our allotments Into another system then we are told
that a large amount of money—millions—would be appropriated
for this purpose? I believe that It would be an easy matter for us
to uach an early decision in this matter hod the Government
been anxious to settle our claims and pay up our claims In full
Mtnute* of the Plains Congress 08
than If a new proposition were presented. I believe we would huve
been just as anxious to answer just as readily- and go Into It whole
hearcedly. Also, because by the settlement of our Just claims we
know our rights and we would have 1:0 fia;- toward:; any other
mailer that they may present. I believe thnt If they go Into an
Immediate decision on this mallei- and take final action on U licit;
It 'Viuld be just the same as luklng bread und butter out, of the
mo'iihs of the younger generation and ((iking U hum the old and
Indigent Indians.
Mr. COLLIER: My friend says that he, and olhi-r full bloods
especially, arc getting use.d to their lands, Unit Is. planting li and
all that. They want to keep whiil they have and Duty want to
Gtav where they arc. We agree with Hum. This Illll would permit
that and would help them to do It. Our friend Miys that maybe
some abuse would be commuted under (lie new plan. We must be
careful that there will be no abuse and there would not be under
the present plan. Docs our friend remember that tomorrow If he
wan'cd to, the Secretary of Interior could issue him a fee patent
to declare him competent and then issue him a patent. He knows
tha; the Secretary of Interior Is not coins to do that because he
trusts the Secretary of Interior not to do a bad tinny thing of that
kind, but the Secretary of Interior could do U if he wanted to do it
and he could have no escnpc nor redress. Under this new plan the
Secretary could not do that any more even If he wauled to. Now
I am more anxious that we be clear about this multer of treaty
and suits In the Court of Claims. Your lawyer is here tonight us
well us I am here and I wish that he would correel me if he thinks
that ! am In error In anything I am going to say. Tills Bill thnt
was before you now has no elfecl upon your suit In the Court of
Claims. This BUI docs not lake away uny right that you urc seek-
ing in your suit. This is something el-,^; noi u hill dealing with
a Court of Claims question. Your suit Is lief ore the court und Is
being presented by your attorney. In my Judgment, with energy
and loyally- This Bill will neither hinder nor help In the matter
of t'.'.at suit. Any right which you possess undir Irciily remains
unaltered on the terms of this Bill. Now I do want to say a word
about the matter of claims against the Government.
(William Fire Thunder, Pine KUIge. lnlL-i-pn.ting )
This Bill thnt Is before you Is very Important, liul docs not do
everything that needs to be done. Spunking for my.self. for more
than ten years I huve been denouncing I he Government's pulley
about Indian claims and trying to utt It ch..ni;cd, and I still de-
nounce It and I am trying to gel changed. In order to th:mgc It,
we must get legislation and probably more than one piece of let;-
-------
10
Minutes o/ (he Plains Congress
Minutes o) the Plulm Ccnpreu
1\
UlftUon. You understand of course that the Sioux Tribe U not
tlio only tribe with'claims against the Government. More than
hulf of all Ilia tribes arc cither prosecuting suits or asking author-
ity to prosecute claims against the Government, and the Govern-
ment Is handling the matter In such a way that more than one
hundred ycurs will yo by In the future before most of these claims
arc tried In court, and each year that goes by while the Govern-
ment delays, means that your efforts arc decreased and your judg.
men'. Is cut down. This Is one of the worst things about the Gov-
ernment Indlnti iwllcy. You Indians of the Sioux Tribe are not
suffering at ail as much ns many other Indians are suffering. You
Imvo obtained your jut isdtctlonal half. You have been able to get
competent lawyers to ivprcsunt you and they are working for
you. Your case U moving toward Judgment with good prospects
of a very good substantial victory lor you. Most of Ilia tribes hnve
not even got their Jurisdiction act yet, as our Asslnlboln friends
across the nlslo here Inst yeur got a judgment In court and came
out one million dollars In debt to the Government and nothing for
themselves. Now, some of you, I believe, have read the hearings
of the Senate Indian Committee. .Some of you no doubt have those
writings. If you possess them you will find one volume devoted
to Indian claims against the Government. In that volume you will
find the draft of a proposed Bill for the final settlement of all In-
dian claims. The draft of that Bill was prepared by Mr. Nathan
Mnrgold. Mr. MorcoUl was the man who I wanted to have been
miutc Commissioner of Indian Affairs this year. Instead of that
he was made sollcltcr of the Department of the Interior. He now
Is -the chief law official ol the Interior Department and of the In-
dian Bureau. That BUI draft or something like It, will shortly be
Introduced as a departmental bill and pushed with all their energy
In Congress, and It will enable all Indian tribes to get their day
In court without delay, and will enable them to plead, not only
breach of treaties of the Government, but violations of equity
rights and moral rights by the Government, and it will limit the
authority of the Government to plead what you call the off-sets.
Incidentally, that same measure, If It Is passed, will put your own
case in a very much better position than it can be put by the
Jurlsdlctlonal act. We do not expect to be able to pass that Bill
at this session of Congress. That Bill will be resisted by a great
many Interests. It will cost the Government, before It la finished.
I wouldn't like to say how much because the newspaper men
are here, what It would cost the Government. It will cost the
Government so much that Mr. Douglas, Director of the Budget.
would faint. We are going to stand for it because the Indians are
entitled to have their cases tried and settled. If the Government
Is subject to judgment, then the Government has no right to hide
out and to keep the court from filing judgment. We have been
asked In the House Indian Committee why we do not put these
two things together, why we didn't lake this plan of Government,
land credit, and self-government and put them In one bill with
this other thing that would bring all these claims to judgment,
and our answer Is very simple. This Dill we have got before you
Is a big mouthful, and If we threw It Into the Omnibus court of
claims bill, then 11 will choke us U> death. There must be relief
for the Indians in the matter of their lunds. We must gel credit
for the Indian and we do not want to lie that down to the general
claims Bill. I anticipate Hint if we succeed in getting relief in the
matter of their livnd and credit und so on Uuxl yeur then the
battle-ground In Government, will be this clulm matter.
But to take them both on at the same lime and as a part of
one BUI would be loo heroic, it Is too much, we couldn't get owuy
with it.
Now, what I earnestly hope ts that you will not take the posi-
tion that because we can't right every wrong In one Bill, therefore
we ought not to right any wrong but ought to leave them all as
they arc. Don't mix up the two things which arc settled and there-
by confuse both of them.
There Is one very real connection between this proposed Bill
that we are discussing and your claim. One real connection, and it
has to do with what will happen to your Judgcmmcnt after It Is
paid to you. Maybe you think, "We Sioux are going to get $100.
000,000 net," and that Is a lot of money. But, I have told you
today how the Government, without the consent of the Indiana has
misappropriated more than that much Indian trust money since
1900. If you just take one tribe of Indians alone; the Osflge Tribe
In Oklahoma. Since 1015, $245,000,000 has been paid Into the Tribal
• fund of the Osagc Tribe; $245,000.000. And do you know how much
of that Is gone already; thrown awuy, culen up. wasted? $220,000,000
of that Is gone. If you want to find out How U went, get the Issue
of Collier's Weekly that Is on the stands right now and you will
read all about how (he Oiuge tribal fund has been misappro-
priated, or ask Mr. Henry Hoc Cloud; lie will tell you about it.
Now, If this Bill becomes law, this Bill we arc discussing at this
Congress, and then if you Sioux Indians go ahead under the Dill
and lake your charters und then, If you gut your Judgement from
the Court of Claims, then not a dollar of that money con be spent
by the Government except with your consent. You can protect
your fund from misappropriation. Under existing law you would
-------
73
AUnuta o/ tlit Plaint Congreu
Mlnutet of the Plains Congreu
73
be powerless to protect your tribal fund from misappropriation.
That la the only connection that this Bill would have with your
claim. (Change of Interpreters.) 1 may say, that all of the Indians,
In Uio matter of their tribal funds, are at present defenseless un-
der existing law. There Is one exception which we obtained lost
May. There Is one group of tribes who are protected in their tribal
funds. Last May the Pueblo Tribes of New Mexico were able to
get a law through tiongress which requires the consent of these
tribe* before any of pelr tribal money can be used. No other tribe
has that protection. This Bill, which we deal with, extends that
protection to all of the tribes. Now, I am very anxious for us to
understand one another about the relation of this BUI to you Sioux
and to Indian treaty rights and to Indian claims generally. It is
very Important that we understand each other. If my understand-
ing Is Incorrect, If I have not stated the matter correctly or If
there Is disagreement, I am very anxious to have It brought out
now, so that I would like to yield the floor either to any of you
or to your Attorney who Is here tonight.
A GENTLEMAN RISES: Mr. Chairman. There la one thing
I want to ask you.
INTERPRETER: There Is a question as to who had the floor
Ant.
Mr. McGREGOR: I will recognize Mr. Oliver Prue from Rose*
bud.
Mr. OLIVER PRUE: There Is a thing that I want to question
In regard to this petition, but before I make any statement I
want to make a general statement on It. From times gone by,
the Secretary of the Interior has been empowered with authority
to act and to do aa he pleases In all matters relating to Indians.
We are selected as delegates to come to this Congress and listen
on both sides of the question and thresh out the matters and try
to understand it thoroughly and then without taking any action
on our pnrt, to take the case home, back to the people whom we
represent. Therefore, it Is believed, those being the condition! un-
der which we came. If it is Just a little matter of local concern
right at this meeting that the whole Congress is requested to act
on, our delegation Is not at liberty to take part even in that case.
Last night, our Attorney, Major Case, gave us a nice talk and
he complimented Mr. Collier, the Commissioner, on the character
of the man and his sincerity In everything and his earnest desire
to do something worth while for our people, and we also, our
Rosebud Delegation, believe with Mr. Case.
From past experience In years gone by, we have come to leam
to distrust all Government officials that come out here to nego-
tiate with our people and we really hove been fooled so many times,
time and again, that we Just simply distrust every Government
offlclnl that come out here, however true they may be. (Applause.)
We have listened to Mr. Collier for two days now and he has
presented some very good malerlul fur us to listen to, but we have
had so much experience In the past and even right now, maybe.
ono matter brought up sounds good, looks good, and pleasant to
hear about, etc., and yet we hear another thing ngaln und then
another thing. The matter has been passed along like a basket-
bnll. Thrown from one player to another until we don't know what
It Is.
On page 31, line 6, (here Is matter that he wants to atk a ques-
tion about. He says that It Is a mouthful and we cannot swallow
it. That b, from the /net lliat our properly will be exempt from
taxes—we ought to be able to swallow it. From this very reason
it is harder for us to swallow 11 und we would like to have Mr.
Collier explain that If he cun. And we would like to have Mr.
Collier explain said section of this Bill and we would also appre-
ciate it If Major Case would ulvu his legal opinion on this question.
Mr. COLLIER: It Is going to take us the rust of thu evening,
I am afraid.
SAM LAPOINTE, Rosebud: Mr. Commissioner, I was Just going
to take up this subject myself. I think It Is a very good point. We
had the understanding from the Chairman when he announced
tonight that we were going to meet here tonight and the Sioux
were going to be given a chance to talk and most of them r.rc
gone and I think this Is the desire and opinion of the majority here
tonight. We came here with the hope that you would read those
questions that came from the Sioux delegates and you would an-
swer them tonight.
CHARLEY RAMSEY, Standing Rock: We are all delegates to
this Congress and I am one of the delegates from Fort Yatcs.
We have taken particular care In choosing the tribal councilman
and I am the chairman of that council, and if I see things run-
ning In this manner In any of my mot-tings I am going to talk.
One thing I want to know Is whether thu people on the outside
of the delegation assembled hero have any voice in this meeting.
I want an answer to my question right away so I can go home
and go to bed.
Mr. COLLIER: Yes, they cnn ask questions and make remarks.
although the meeting Is primarily, of course, for your buslhcss
council. If there were going to be any voting each delegation would
do his own voting or not vote, as 11 preferred to do. Do you want
your questions read and then answered?
-------
14 Ulnutei o/ (he PJnini Conpreis
Mr. McGREGOR: The question Is—do you want your questions
answered right now, or do you want lo talk?
FRANCIS RED TOMAHAWK, Standing Rock Delegate: I no-
ticed during the proceedings of this meeting the method used In
running- this council—personally, to me, I do not like It. For this
reason—I realize the chairman Is trying to hold us down to the
subject In order to prevent backwardness from the subject—that
I realize. And yet the explanation of the Bill In question—various
titles which were discussed at tlUs stage, the majority of the dele-
gales are not fully acquainted with and hence do not want to
commit themselves In any form, no matter how mild It is. I no-
ticed during the conference that questions submitted were laid
on the table and we 'do not know what was put on the table. If
we arc going to act Intelligently for our constituents at home we
want to be fully Imformcd of everything that is on that table.
It is for that very reason our delegations have a number of ques-
tions all prepared before we came down here and we have, since
coming here, picked up some more which would be supplementary
to the original questions prepared for explanation. We are not prej-
udiced against the plan of changing from the old system to a
new system. We came here with an open mind; we want to listen
to everything—we have no bias whatsoever and upon the explan-
ation given and upon the attitude taken by the majority of the
delegates attending this council we want to base our best Judg-
ment on that before we act. Now I ask that we be permitted to
read these questions 'into the record and become a part of the
record.
Mr. COLLIER: Do you refer to the questions I have here, or the
questions you have with you.
Mr. RED TOMAHAWK: All the questions we have at this time.
It Is requested that the Commissioner answer these questions at
this time.
Mr. FOSTER THUNDER: This Is not the original council that
Is supposed to meet so I object to the questions asked which are
upon the table for the reason that the council Is not fully repre-
sented, that Is why I object.
Mr. COLLIER: Many of the questions will be answered M we
go along- We have not got an unlimited amount of time and some*
times one question overtops another and, In that way we will do
nothing else until adjournment. I also point out that we have
been answering these questions right along. Here we have for
for example, the Pine Ridge list of questions. "We want your frank
statement of the Bill In its relation to our tribal claims." That Is
the answer as fully as I can answer It, and as we go along we
find that many of them have been answered.
KMnuta of the Plaint Conpreji
75
Now, at the moment I can't find those questions concerning
Tomahawk. They have not been answered. Now we should know
whether you want us to go ahead answering questions, or what
you do want for the meeting tills evening.
Mr. JOE IRVINQ of Fort Thompson, South Dakota: It has been
announced by the chairman, he said, we were going lo have a
meeting In the City Auditorium, and I understood him to say that
we were going to to do all alt the talking »»<1 Uiot you fellows are
going to do the listening. If that Is the CUM* I will save my speech
until tomorrow, I want to make a motion that the written ques-
tions on the table be read and answered.
Mr. McGREGOR: It has been moved by Joe Irving of Fort
Thompson, S. Dak., that the questions on DIG table be read and
answered tonight. Is there a second lo that motion?
Motion seconded by Mr. Frank Wilson of Pine Ridge, 8. Dak.
M.-. McGREGOR: You have heard the question, nil In favor of
the question hold up your right hand. (Majority hold up right
hands.)
Contrary—a few. Motion Is carried.
Mr. McGREGOR: Let me Just say this, let us get down to the
meat of this meeting and not stray away from the questions. The
Commissioner Is our Commissioner tonight.
First Question, ROSEBUD: Commissioner Collier said that the
Government should give back to the Indian 20 per cent of the
hundred million dollars admittedly mlsapproplaled since 1900,
meaning tribal funds. Why not give buck the lull 100 per cent?
ANSWER: Yes.
ROSEBUD QUESTION: Suppose the Bill passes and title 3, tho
land title, becimcs law, so that the land becomes tribal, then
suppose that some Secretary of the Interior refuses to grant any
charters, would not then the control of the use of the land be com-
pletely in the Government?
ANSWER: In such an event, the control over the use of all
Indian lands would be completely In the Government In exactly
the way that the control of tribal land is now In the Government.
However, such action by the Secretary of the Interior, who we will
say, refuses to grant nny charters, would be a violation of the act
Itself. The Act expressly declares what the policy of Congress Is.
Do not stop to read the first three pages but YOU will find It all
there. The Act expressly sots up lite procedure for issuing charters.
The Initiative is put In the Indians themselves. If in the event the
Secretary refuses to issue a charter nfler the tribe tins asked for
It, he must Issue a written explanation why he refused and trans-
-------
W jffnufe* of the Plains Congrtu
mil that to Congress. I also point out that the first lines of this
question presume something which may not be the case.
ROSEBUD QUESTION; suppose the Bill passes, title 3 becomes
taw. so that all the land becomes tribal?
ANSWER: On a basis of transfer and rellnqulshments being
voluntary the land would not become tribal until the Indiana made
It so. They would organize their chartered communities before they
transferred title, and then the chartered community would have
the power and not the Secretary.
ROSEBUD QUESTION: How much Indian land remains unsold
of whites? This refers to ceded and surplus lands.
ANSWER: We do not know. These ceded lands are under the
Jurisdiction of the general land office. That office has not yet com-
plied statistics so we can't give them to you. This Bill'would direct
that all of this Information be compiled by the Secretary and they
would have to provide the money to do It.
COMMISSIONER COLLIER: Rosebud Again. "Who determines
wha: Is the fair value pf land which Is tn a community; that Is. a
consolidated area, and which Is to be exchanged lor non-communal
that Is for Individual land. Suppose the Indian thinks the value
placed on the land Is not a fair value, what then?"
Then he does not make the exchange until he has satisfied him-
self that It is a fair value. The matter could be referred to an ar-
bitration board; between an arbitration board to settle the thing
between the community and the Indian. If compulsory transfer
were kept In the law 'and then the Indian felt that he was not
getting (air value, the courts would arbitrate; the Court of Indian
Affairs.
I am getting away from Rosebud now for a minute. There Is a
lot more Rosebud yet. but I will Jump around. Here Is ono I don't
know where It Is from, but not Rosebud.
•mould the Indians be disfranchised II they are to adopt the
self-eovemment principle?"
I do not see why that follows at all. The Indians are citizens of
the United States and as such they are entitled to vote and the
fact that they take over partial or complete self-government In
their own business Is no reason why they should not vote in the
elections.
That same question goes on. "Isn't it a fact that our troubles on
the Indian Reservation begin when politics enters?"
I do not know, but down In Washington we hear that there Is
lots of politics In there already. (Laughter.)
Now we have come to slsseton. This Is a very practical question
"An Indian who has made his home on a trust allotment; has
Minute* of the Plains Congress
77
miuV much Improvement on his allotment, wants to continue to
llvo m he has. He does not wont to go Into the community area
and he wants his children to enjoy tlic ownership of his land with
all of the Improvements after tils dcnth. Will the Secretary of the
Interior ignore this man's good Inli-iillruis by virtue of the Whcclcr-
Bltl nnd compel him to submission?"
That Is a question that might be raised from nny Reservation
where (here arc allotted Indians. Now, without slopping now to
again analyze Tlllu three. 1 will Jvisl answer Uie question. This
Indian described In (his quc.sllon. under thu new plun, would con-
tinue to occupy lus land If he wanted to. and his heirs would)
occupy that land If they wanted to. He would own his Improve-
ments and his heirs would -Inherit his Improvements. That would
be true even with the compulsory transfer feature kept in the law.
If the compulsory feature ba taken out of the Dill, then he would
do whatever he wants to.'Mr, Stewart, reminds me that I wnnt to
explain here again that suppose the heirs do not want the Im-
provements and do not want to live on that land, then they will be
entitled to the value of the Improvements, They can sell It, and
they are entitled to the rental value or the use of either this land
or any equivalent amount of land anywhere else. If they prefer.
A VOICE PROM THE AUDIENCE: Mr. Collier, supposing the
community did not want those Improvements?
Mr. COLLIER: Well. If a fellow has got something he wants to
sell nnd nobody will buy It, he Is out of luck.
New. we lump to Pine nidyc. There Is a whole series of questions
here of which I have already read No. 1. about the claims Dill, and
whether this Bill effects It. The second one relates peculiarly to
your Sioux situation. The English of this Is not clear, so 1 will
just read you the sense. The question Is, "What Is going to happen
to the matter of Sioux Benefits If this Dill passes?"
The Sioux Benefit, as I understand the law. Is a payment made
under treaty. It Is a curious thine because It has been so worked
out that the benefit, which Is a payment In money, goes to the
nllolved Sioux Indian when and If that Indian reaches a certain
age. I believe It Is 18 years. Isn't It?
ANSWER: Yes.
Mr. COLLIER: Now the question Is this. It Is a very practical
one. Your allotted young pmon who has got an allotment, If that
young person should relinquish his or her allotment, docs that de-
stroy his .or tier claim to the Benefit?
I am subject here to correction liy the lawyers. I bcllcvo that 11
Is nvcessary In order to protect these Sioux Ucncllts to adopt legis-
lation expressly protecting them. I think it Is a mutter on which
-------
78
Minufei of the Wain* Congrtti
Minutti of the Plains Congresi
79
we ought to have the opinion of your lawyrra. This U UM <
as to whether the pending Sioux Benefit would be endantand to
the even*, that allotments became relinquished to the community
and if so, whether we do not need to amend Uie BUI or POM sup-
plemental legislation.
M.'. CASE: Sioux Benefits, my friends, are payable under aecUon
17 of the Act of March 3, 1880. only to those people who were liv-
ing on the date when the President authorised allotment* to bo
madt on each Reservation. Now. those children Uiat wmra
after Uie President ordered the allotment! to be made wen
even entitled to allotment under tho act of '(9. Now, all of
ResirvaUons had a good deal of land, well, say in 1900 up to IW.
And all of pour people came to Ute Congress and asked UM Coo-
gres* to open up. make allotments to the now born children, and bf
the act of May 39.1908. It was provided that Ute land remaining oa
the Reservations should be allotted as long as the land butad. and
the allotments went right on from that lime anrt the OovcroBMOt
seemed to think that the new-born children, when they got aa al-
lotment, that they were entitled to Bloux Benefit*.
It took until 1926 until the. Comptroller General slopped M, !•
find out that the Government was wrong In paying you Stout
Beneftta. and then your attorneys went to the OongrcM and caked
them to pass an act that would authorlxe the payment ol Bkml
Benefits-to these new-born children, and that became UM act of
May 31, 1938. Now, you see. there are two kinds of tiloux BenoBU,
The old timer*—1669 allottee* arc one kind, and I9a« la aaotbor
kind. Now, the 1889 Sioux Benefits are part of UM contract
by the United States and Sioux Tribes for the c«**lon ol UM 1
between the Cheyenne River and the White River, known aa UM
Crooks Treaty, and that belongs to you and somt of you old I
and some of the old men haven't got It yet, but we have got
of them since we started this fight. Young EagU. stand up; Hov
many did you get on Standing Rockf
ANSWER: Something over 134.
Major Case: All right. 134. We got 134 on Standing Rock. Wo
haven't got through yet. so I tell you, there Is nothing In UtU BUI
as far as I can see It that changes It except this. There will ba a*
morj allotments and that only alfccU Cheyenne River.
Mr. CASE: Now I could talk to you all night about Stout Boat*
flts. I could talk to you all night on that one subject—and I IMTO
been laying to catch Uie Commissioner of Indian Aflain • I
couldj toll him what I wanted to cay about Stout BentAU. but I
will wait until I get htm In Washington. 1 do not want to tak*
the time to talk to you about It and to talk to him about It'
now.
PIRE THUNDER, Pine Ridge: The question he wonts to sub-
mit to you Is the payment of the Sioux Benefits under the 1028 act,
whether or not the funds used will not be taken out of the claims.
Mr. CASE: No. Not unless they hove a belter man on Die other
tide, on this law suit.
FIrtE THUNDER, Pine Ridge: The reason 1 nsked the question
Is because some Information has been rccvlviil whereby the Gov-
ernment paid the Sioux Bcnrnu as a loan to the tribe to be
deducted from funds Unit may have armed (ruin Judgment of our
claims.
Mr. CASE: No, that Is not so. The net of Mny 21, 1928. simply
lays—the Secretary of the Interior is hereby authorized to con-
tlnuo making payments of Sioux Duncflis to children it Hot led under
section 19, under the Act of Mny 29. 1908. It simply suy.s he can go
aheod and do It.
Mr. FIRE THUNDER. Pine Rldgc: Is this money approplnlcd. or
Is It taken from the United Stales Treasury.
Mr, CASE: From the United Slates Treasury.
Mi*. COLLIER: I am going to read the question which seem to
be the most Important. Will all monies approplutvd for counting off
division of this Bill bo chargeable to the Indians, to be reimbursed
from tribal funds?
No. All of the appreciations arc gratuitous, except that where
monny Is provided for scholarship for young Indians—One half
of that money Is a loan—ns a gift. It Is loaned to the Individual
Indian. How much land would be purchased for landless Indians
under the proposed amount of two million?
If each family of four were to receive eighty ncrcs of this agri-
cultural land then there would be two thousand families put on
the land each year.
Mr. COLLIER continues:—could each be provided with 80 acres
of agricultural land?
Here ore two questions almost identical, one from Pine Rldgc
and one from Rosebud. I will read the Rosebud question. With
respect to section 13-b, title one, what Is the meaning of the word
Reservation?
ANSWER: I find that Mr. Stewart makes a note that this was
answered this morning.
PINE RIDGE QUESTION: Clarify the intended boundary lines
for a Reservation in an InrtJnn community. In Ihc cn.sc where a
county hns been thrown open for settlement nnd homestead pur-
posr* and the county lias been organized, und where there arc
vested rights therein, fee patented land, or white owned land
lubject to taxation?
-------
BO
Minutes of the Plaint
Mlnutei of the Plains Congress
81
ANSWER: I think I will ask Mr. Stewart to atuwn that
tlon.
Mr. STEWART: In n situation of that kind. It will be our plan
under (he consolidation mid (Acquisition program outlined In tht
Bill to acquire or rcacqulrc some of that allcnntcct land, fe* paU
rttte-i land. If It Is feasible to block It out for Indian purpose*, and
nlso If It Is desirable to block It out. If on the other hand It to
not needed or desired for Indian purposes, we will of count not
nttempt to obtain It. Therefore, the county Jurisdiction over the
land will remain undisturbed. If. however, we do acquire It, county
jurisdiction would cense.
Mr. RALPH II. CASE: May I have the floor a minute to explain
what Is In the minds of these delegates? Everybody knows Uial the
Act of March 3, 1039, Intd down the boundary lines of the MVtral
Sioux Reservation lit court. Since that time, quite a number of
counties hnve been opened tip and sold out and the Jurisdiction
and the law over those counties has been turned over lo Ih4
Slate. Not everybody moved out of that county. Ilciv:e BtnneU
County with a number of Indians living In there, and Ute sain*
Is true of Gregory County. Trlpp County. Corson County, Me tell
and Zlcbci:h counties. Now. what Is the status of those llrtm la
those open counties where the jurisdiction has been ceded bjr th»
county over to the state. Residence Is an essential factor In that
matter. In the Act of 1013 all of the surplus land on Standing
Rock was opened up for sale and settlement. Is Standing flock
n Reservation now? A HtUc simple amendment that would lay
down the boundaries of the Reservation! as fixed by the Act of
March 2. 18CO as Reservations within the minimum of U»U BUI
would correct this situation. I am answering my cwit qucMlaa.
(Speech Interpreted by Robert High Eagle.)
Mr. STEWART: I would like to further go Into that matter aa
to whether that open land Is Reservation or Is It not. This mom*
Ing you recall that the undisposed of open land In Indian territory
remains tmdlslurbed. That wo; a ruling by the Supreme Court
of the United States laid down In a Crow case of a simitar na-
ture In connection with the Ash Sheep Company caie. Therefor*.
there li a dun) Jurisdiction of control over those land*. In thU !»••
poet, the Federal Oovernnunt has control over the undUpocetf tt
surplus land. The stale laws prevail as to the db>po*«d of land
Now then, as to a white man living within one of these area* that
we may consolidate who refuses to remove or tell to the Indiana,
we would have no control and there is nothing I know of that
could be done to force l\lm out. Docs that cover the general aUu*»
lion?
INTERPRETER: Mr. Chairman: If you please. It Is now quar-
ter of eleven and no matter how strong the Cnmcl's back Is, If you
put one more straw on that Camel's back, It will break licit Cam-
el's back. Mr. Collier may be able to stand 11 bccuu:,c lie Is u :.t 101115
man, but we arc not.
Mr, McQREQOR: It Is proposed that we adjourn.
Mr. PRANK WILSON, Pine nidge Agency: I would like to have
that question answered. If you do nol answer my question - that
question Is my question before the house—I will nol bo itble to
ilccp tonight. There have b-jcn a lot of Impoihmt thing.s pill
through here and that Is a very Important question and we want
It answered. It Involves lots of Indians, U will exclude about 1500
Indians because we arc not Inside of the lleservatlon jurisdiction
according to your program.
Mr. COLLIER: 1*1 me answer that question, nnd sec If I can
answer It. The way It Is now on I ho Reservation nil over the In-
dian country there are arm:; of land that once wen: solid Itull-.m
trcas and now there are white people here and then- among them.
Now what Is Hie jurisdiction of Die Federal Government DOW?
First, It has the exclusive jurisdiction over Ihnl land where the
title Is In the Government or iu In the Iiulliin held ID trust by tin:
Government. Jurisdiction over the Indian as a ward Indian under
the Constitutional laws as to relations with Indians, how Is this
Government to regulate relations wllh Indians? What n white man
does on his own land that Is nol under the Government. What he
does now within the Reservation, he Is under the Slate Courts,
but, If he docc something on his own land that directs an Indian,
It may come under the Federal courts and if ho bulls liquor lo
sn Indian, he can be prosecuted under the Federal laws for sell-
ing liquor to an Indian. Now, under this Hill It would be actually
the same as It Is now. A great deal of Reservation Innd would
never be organized under an Indian community. The Indians
might not want to organize as a chartered community, and again
If their land Is scattered out loo far from one another, they can't
organize as a chartered community. If they do organize as a char-
tered community, then they exercise the powers of self-govern-
ment, laid down In the Dill. Its powers ninnol be gruiilcr Ihun the
powers of the Federal Government exercises, and those powers of
llio Federal Government are cxen:lscd In all Indian country re-
gardless of whether Indian communities exist or not, 'but It Is
not the power of the Federal Government to extend It:, control
over the fee patented land owned by white men In or out of un
Indian community.
And, therefore, it Is the white people of Dakota need not fear
-------
Mlnutei of the Plaint Congrut
that the Indians are going to eat them alivt, I do not
whether 1 have yet answered It. All that U Reservation land n*
mains Reservation land. Any new land to which tlu
secures title becomes Reservation land under the Federal
nicnt. That Reservation land Is Just a* much Reservation tf It li
not under an Indian community as If It to under an Indian Mfr»
munlty, and In addition, the. Government's power reaches) to UM
Indian himself In so far as he Is Injured by things don* on wtrife
owned Innd, and can protect him. No BUI can go beyond oaottt*
tutlonal limits. The Federal Government can not aster! • pom
thru U docs not possess, and U docs not have power over land that
U docs not own or control, where white people am living, and w»
can't give that power to the Government and the Ooranmanl
ran not give It to an Indian community.
ANTOINE DEROCKBRAINE from Standing Rock: Itr. Chair-
man, I would like to nsk one question while we art on thsi
subject In regard to this land. Now, under the Act of IVOt, att
littul was thrown open for settlement and on the land thai It
still remaining not taken by homestead within that area of
or territory, there Is section, 16 find 39 out of each township i
to the State of South Dakota for $3.50 an acre by the OovcmnMM.
What would we do to get that land in case of a community orgaav*
Iznllon within that area of unsettled portion.
Mr. COLLIER: You would have to buy It. It could not be I
back. You would tinvo to buy It back.
Mr. McGREGOR: Meeting adjourned.
Sunday, March 4, 1934
AFTEllNOON SESSION
The session was opened at 2:15 P. M., by Mr. Woclilkc, at the
Clvlo Auditorium at Rapid City. South Dakota-
Mr. WOEHLKB: Friends, we would like to open this session ol
the Congress with an Invocation by the Reverend ur. Henry Hoc
Cloud.
Invocation by Dr. Roe Cloud.
Mr. WOEHLKE: As I staled yesterday, at this session of the
Congress we have come here to listen, to hcnr front you. Time,
unfortunately. Is very short because today this auditorium will be
In use again at 6:00 p. m.. and we have to wind up by that time.
I shall call on the various delegations from the diifcrcnt Reser-
vations to have one member of Hint delegation express unofllclally
and wholly Informally what he and his fellow members of the
delegation think of either the various phases of the proposed
program or of the program as a whole. As there arc ciyhtuuii dele-
gations It Is absolutely necessary to limit the time given to each
delegation so that we may give all of them a chance to express
their opinions. Now, a simple problem in arithmetic will show you
what has to be done. Eighteen delegations, with ten minutes for
each one. means a hundred eighteen minutes or three hours. We
have about three and a half hours at our disposal. Therefore, the
Chair must Insist that the remarks of the spokesman for each
delegation be limited to ten minutes, including the interpreta-
tions, though by agreement between two or three (lolryiiilon.s they
may nominate one spokesman who would have the combined tlmu
of the two or three.
Before we begin this presentation of the views, I would like to
call on Commissioner Collier for a brief restatement of (he gener-
al objectives and purposes of the new pruurum, but I must limit
him to not more than twenty minutes. I, lla-rcfoixs cull on the
Commissioner who will speak and lake not more lliun twenty
minutes, but before he begins I would like to ask whether you
have made arrangements for Interpreters.
83
-------
84
Minutes of the Plaint Congreii
Minutes of (lie Plains Congress
85
Mr. COLLIER: Where Is the Sioux Interpreter? Will fOtt W
ready to Interpret? (Sioux Interpreter. \Vllllum Fire ThundtrJ
I ntn not going to repeat tilings that we have been wring for
the last two days. I would like to add to what the Chairman has
said, this slntcmcnl. We slUll be In session tomorrow morning.
afternoon, and If necessary, at night. There will be Umt for all
necessary discussions tomorrow about any question. Therefor*.
Ihoje who may arise today In order to speak, should not feel thai
they nre being called on for any final expression or any verdict
that they can't change tomorrow.
To the white Mends who urc here find not at the other m«*t»
Ings. I will merely explain Umt the Indians at this Conirett art
studying a proposal by the Administration In connection vllli
their land and their self-government. This proposal U embodied
in A Bill that ha* been Introduced Into Congress. The BUI la atlO
being improved and when It Is finally enacted. U will embody Ih*
wishes of the Indians themselves. The general purpojet being
sought I will slate hi a few words. We wont to vtop the continued
loss of the land by Indians. Wo want to provlJo new land lor
Indians who have lost their land and who desire to farm or fro*
s'.ock on lands of their own. we want to make U poulbto far ttw
Indians to get their land into condition for the best tue. W« want
to supply the necessary capital so that the Indians can restock
thslr Innd and buy the necessary Implements and build home* ami
generally can put their life1 on a model bosb. We expect thai thla
result can be obtained while giving complete protection to tach
Indian who has got property.
In addition, wo want laws which will permit Un Indiana to
organize for self-help and mutual aid. and to take part la the
management of the Indian Bureau, Itself. Now. In the dlKmatant
of the last two days, It. has been made clear that everybody to
aorccd that the present situation Is bad. The difficult part hM
been to build up a clear picture of the new plan and how II fttt
work In order that we can make that picture a IIUU owtt ctar
than It Is now, I shall ask the permission of the Chair to allow
me to give the bnlanco of my tlmu to one of the Indians Iron UM
Fort Belknop Reservation In order Unit he muy U-ll about UM
Sto-jk Association that Is now being carried on up thrr*. That
will convey a picture of what sort of thing we are aiming at la
general.
Mr. WOEHLKE: Will the delegate from Port Delknap to**
here and take the balance of the Commissioner'* lline. 1 mlnuiwf
lie may also take his own delegation's lime in addition If IM M
desires. (Applause.)
Mr. KINO of Port Bulknan. Montana: Mr. Chairman, ladles
and gentleman. Our Commissioner of Imilnn Allulrs, Mr. Collier.
has requested me to devote the rest of his time, which was allowed
him, to tell about the slock oi);aiil/atlun which Is urbanized on
our Reservation of Fort Bclknap, Montana.
Wo have approximately 500.000 acres of yia;;ini; land on the
Fort Bclknap Reservation and wo lu.vc u little h-::s llr.ui 1.200
Individual allotments, and wu have ni;liUvn cruy.lni; nm«t! unity
In that arcs. Out of these 18 unit::, (wu me lrasi.il \ty tin; Stuck
Association of the members of the Foil I3::lkn:ip nc:
-------
M
Minute* of the Plaint Congrttt
rider and the man who rides through the range and MO that the
cattle arc alright and sees that the range U Uken car* erf. Mm
year we will have to take additional land It will require quit* a
bit of land to run the Increase (or next year. Mr. Chairman—
I asked the Chairman if It would be all right to BO ahead and
tell the way our delegation from Fort Bclknap tecl about tnU land
policy and ho asked me to go right ahead and tell about that too.
Well. I have only five minutes Iclt so 1 will make It short, as ahott
as I can. Mr. Collier and his sta« have been trying to ull w how
this new policy will work on! we have been likening verf cart-
fully and closely and In viewing U from the standpoint of our
situation on that Reservation we discussed the matter among tht
Council and we. believe It is a good thing lor our Reservation la
adopt this land policy. (Applause.) Our Reservation la all under
trust yet up to this time and there are four (intent In fe* land*
on our Reservation. The mortgage has been foreclosed on two of
them and the Indians got their money all spent and Utejr hart
no land. And we feel that from other Reservation*, this also ha*
been going on since the allotment system haa been carried on,
most of the Reservations In other slates, even In our sUU. we
hear that their lands have nil been gone through which U Ilk*
this patent In feo land that I spoke of on our Reservation. W*
couH see that this new policy will not hurt us at all. and !***•
after Instead of hurting us It will add to what we got and It will
protect what we got, so we are glad to hear that we haw t>
Commissioner now that is willing to come out and protect ow
landj and our delegation from Fort Belknap, Montana, to willing
to accept this land policy.
Mr. WOEHLKE: The Fort Belknap delegation ha* now w*4
up its time. I shall now begin to caU on tht other dtbfattt to
alphabetical order and the first I shall call upon to tht Mack*
feet Delegation.
Mr. BROWN. Chairman, Blackfect Delegation: Tbt part that
the Blackteel delegation has taken in UUs meeting; and tht part
that a portion of the Blnckfect delegation look In some mare of
this same kind of meetings In Washington; our part In tola, ha*
been that of a good listener, uylng to learn what we- can and tir-
ing to figure out whether this Is a good thing lor our people or not.
In the most part of this Bill wo are In favor of It. and 1 feribrv*
ooVtato to
are not M
In e mo
that If we can get together with some of the Bureau ooVtato to
work over the objectionable features that we have we are not M
for npart. Our Reservation Is getting so now that It to so checker*
for npart. Our Reservaon e
boarded with white settlers that It look* like a man «1U» th#
small pox. I want to take this opportunity to Mpm* pwMKlr
Minutes of lite Flams Congress 87
our sincere and heartfelt sympathy for the way our new Com-
missioner and those of his stall hnvc treated this delegation while
In Washington. Notwithstanding minors that naturally go about
the country the Blackfect have every fiilth and confidence in our
new Commissioner, and it Is just loo bud that our law permits a
Commissioner to be appointed ncrurdlng to pollllcul adulations.
(Applause.) Because, since we have one In them now that we
have faith In. it Is Just too bad Ihul we can't kw-p him tlvoic eo
that with his new program lie cuii sec It through and follow It up.
I thank you for your nltvnllun. (Applause.)
Mr. WOEHLKE: I am leur:)lng Dial a great many things can
be said In less than ten minutes. The next delegation to speak
will be the Cheyenne River dcluuutlun.
VOICE FROM AUDIENCE: Mr. Chnlrmnn. hist a minute. I
would like to ask you, your honor, If tills meeting is confined to
delegations or for open public discussion, I object, before this
Is open for public discussion I object to any acceptance of tills
UIH of any delegation confined to this meeting.
Mr. WOEHLKE: (Repeatedly.) You arc out of order. You,shall
have an opportunity for public discussion later In the meeting.
GENTLEMAN: (Ignoring the Chair.) This Is the first time my
voice has been heard hi tills hall. Tills thing Is being carried out
In too much autocratic manner and I am not going to Eland
for it. I cm not going to be ihe victim of this Dill und I am en-
titled to a voice as n citizen of the United SUilcs mid I am going
to have it. I object. I solemnly object to any acceptance of this
Bill that Is being requested by Wheeler of Montana, and I am
an Indian and I am not go'im to put up with tiny confinement
of Kpccch. I realize that I am out of order but I reserve right of
volco. (Applause.)
Mr. WOEHLKE: I want to Insist that this Is on expression of
opinion on the part of various individuals and delegations which
Is nut binding on them or nnyonu else. U Is an unolllcial expres-
sion of opinion.
Mr. LUKE GILBERT, Chnlrmnn of Cheyenne River Reservation
Delegation: Mr. Chairman. Mr. Commissioner, Oif.clal Staff, ladles
and gentleman: I represent the Cheyeiuic River Sioux Indians
as their Chairman and I am iilso a member of the delegation who
are here.
(Voice from audience asks for speaker's name—Mr. Woehlke
gives name.)
Wo have been here now for two (Lays listening and trying to get
the true meaning and undcrslnndlni: of the BUI In question. The
-------
88
Minute) of the Plaint Congest
Minute* o/ the I'latns Conyresa
Cheyenne River Sioux Indians Relieve that this Bill has greatly
affected them In this way. We have and still retain a vast area
of tribal lands, somewhere In the neighborhood of 250,000 acre*
which Is subject to allotment as well ns the Individual land hold-
Ings oC the nllultees.
W«j Uilnk we know our problems and I lie conditions under wWch
we live on the Cheyenne River Reservation. We do not want an
Improved administration Hint covers hcnllh and educational facili-
ties and other things that go with It.
We feel as though this BUI, white It may be of benefit to come
Reservations, will not be of much benefit to the Cheyenne fllvcr
Reservation as far as land holdings are concerned. As I said
before, we think we know our i problems; we know what to aak
for; we know what we want.
Atter getting the understanding of this BUI, the Cheyenne River
delegation will take these view4 back to tiieJr people and leave It
to :hetr people to decide.
M-. WOEHLKE: My friends: Perhaps there U an apprehension
and mistaken Impression In the minds of some of you, especially
of the gentleman who arose and spoke out of turn a little "while
ago. We are not asking for a vote of any delegation for or against
the BUI now. We are merely asking the spokesmen of the various
delegations to tell us what they think about the Bill and what U
right or wrong with U.
1 would now like to have the- spokesman for the Crow delegation
step forward. Following the Crow delegation, the Crow Creek
dcleKatlon will speak.
Mr. HARRY WHITE MAN; Crow Reservation: Mr. Chairman,
Honorable Commissioner of Indian Attain and Members of the
Commissioner's Stall, fellow members of the Indian Race: Once
an Assistant Commissioner of Indian Affairs called me the mod
ungrateful Indian In the Unltrd States.
I »ald that because I was trying to voice the sentiment at mr
people before the Senate Committee of Indian Affairs.
Mr. CHAIRMAN: Mr. WliUuman, please stco forward so the
crowd can hear you.
Mr. WHITE! MAN: We admire and we respect the present Com-
missioner of Indian Affair* for his endeavors to try to place the
Indians upon a stable basis. In spite of our respect for him I wmt
to say that when I was recently at Washington I was told U.»(
the Commissioner's heart was In this BUI, but I want to tell )JM
that I also have * heart and that heart U the welfare of my
people. I bcllove that we have come to the road where It forks off.
says that the allotment sys'.cm Is » vicious Byslcm President
nooscvelt said that ho was yo.ng to .iv. us u now da. nd he
new S7do°f rU",A'""r!i' l "'•'"--• » «• "ivoca'te of h
L W""1 l° B° lMM"e U"U kct" '»"'» "^ *""
£» * PC°P'e rC*linUng l"1S '«•'*'«"*« Program thai
before us. If U,e President and the Commissioner are
us • iivw *»' n" u"it ' «* '» "* . "
and ,, .M S°mClhl"e l° «* Ubo«l "" *l«l>»nB of U,£
nL ~? Uy l° cram down Olir tllloal something that we Do
not like. The Commissioner of Indian A.ralls told uV hat
of w,lcked ond vicious iaws -««*•
y Ih0t We *" "ol hovc n cl"l"«
of """ laws- " you pcoi"e
vo.« th , f ? CVCfy ™be °f U1C Ulltt«l ** » «="»»ce lo
vooe their opinion and desire. In the shaping of these Bill, and
wl -n ih,°Ur T,"016 'S lakC" by Cvury triUc °' llle »»11^ States
when his legislation Is made, then we will certainly be for U
othrrwlss we will not. '
,,
lime.
lcft' lct
Man
Mr. MAX BIO MAN: Mr. Chairman, the Northern Cheyenne
lnd«,u which ls 0 neighboring Wend of ours hus t.,wlBJ MfC
White Man as our .pokcmnn for this time.
Mr. WHITE MAN; I want to thank my nclg/.bo. Ing Cheyenne
friend o, giving me this lime. I renlte the fact that n,y nclg"lbo !
»g trlb,, the Cheyenne, who arc adjacent to our Lscrvailo ,
has had a greal difficulty In MclU»B tho.r miotmw,u nrnde "
the allotmenU were made, then comes the n,w program T A
proeram as I see II lakes away from us Initiative and p
ownorslUp. that we all desire B0 much to possess. It t ku3
from us the spirit of Independence *, esscntla, ond M tadly
by Ihe members of the Indian race. Unless this mil |s ,
uusBui1 ^'e,vYhe Crow Illd!ons 8IHl c»«*««n?
this Bill to the lasl measure, and. if necessary, cull on our oon-
suiullona rlyhts which »y, ,Jml ,w ,„.„„„ Jmtl btl ^()°^'of
their right and due process of luw for Government. I believe the
adopllng of this Dill should be voluntary on the part of the Indians
and If on Indian wants It, lei him huve li. and If he doc" n^t
wa)jt, he dooB not have lo have It.
-------
90
Minifies o/ the Plaint Congress
Now, Mr. Chairman. If I have any time left 1 would like to haft
Mr. Big Man take the balance of my time.
Mr, SHEPARD: You have five minutes led, I will |Ua Iht
balance of the time to Mr. Big Man.
Mr. MAX BIQ MAN from Crow Agency: Mr. Chairman, Com*
mlssloncr and Staff and my American friends. I am very happy
to be hero In your presence. I want to tell our Orcut White Father
that If my spokesman step on Ihclr toes a little bit they will Itavt
to excuse us because lie Is a Democrat. (Applause.) I want to UU
my people that I have recently visited Washington, D. O., the
home of our Great Pother, and he Is a real white man. lAppUuM.)
His heart Is good, and he gives an opportunity to hU children.
among come refuse to lake It whether it Is good or nut. (AppiauM.)
It may be so whctlicr the plan Is work now, but we want him to
excuse us when we refuse. If It Is for the wrong and If any of th»
Tribes refuse It I think It will make a man of them. It take* com-
petition and big knocks to make a man. So, It I* rather hard at
a step that I made to learn to cat the while man's food. Now,
you take me, I dress In my Indian clothes, but tha progrcai thai
I make Is on account of my parents. I now have push my children
ahead and I can not live In a community and live altogether away
from my white friends. Now, only a little bit more and a* 1 kara
the white man's way 1 .hnve learned to talk a lot, and which I
want to say again, as lot of people In their speeches when U*y
repeat the speech they always take It wrong, but among our peopte
we blways repeat In our speech, and I want to w>k the Commit*
iloner and his staff If they step on their toes, a Utllo bit to txcu*
us Just because he Is a big Democrat and he know more In hit
speeches In the thoughts of the while man.
1 thank you for your kind attention and, my friend*, 1 MI
very thankful for the privilege of sounding my words to you la
this great hall here. I am directly talking to the llapld City peopU.
Of course, you have seen me before for I hava done work for
you Rapid City people In the days of tha past. I thank you for
your kindness.
Mr. COLLIER: Mr. Chairman: I think at this point a reply from
me would be expected. Mr. White Man will not b« called an un-
grateful Indian. We want plain speech. We don't care It It U very
emphatic. But Mr. White Man will not object II I comet OM of
his own statement* The proposed new policy of tegUlatlon will
not be rammed down the throat* of the Indians.
What is the meaning of this Congress and of tha other Can-
gresHes that are to be held all over the Indian country! WhM It
Minutes of the Plains Congress 91
the meaning of our statement to you that we arc not even inter-
ested In your indorsing the Bill? We urc meeting with you in order
thas you and we may think out this question and Improve the BUI
In nny way that It can be Improved, m- change It In nny way It
ought to be changed. Now, I want to go further In my reply to my
friend. Mr. White Man.
Several times during yc:;tcrcmy's inei linn. I brought up the sub-
ject of compulsory transfer by the Hecn:l:iry of the Interior, lead-
ing up to the question cf whether there uiii.ht to ue ;iny compulsion.
Tlwt precise question is one on which we .shall seek u referendum
of '.he Indians. But I clearly explained to you yc.sin tiny, my own
views which were that this feature of the ruinpul.sory transfer of
the allotment to the coniinunlly Is not iitee.s:.ary to the Hill, al-
though I pointed out thiil there might arise conditions where a
tribe might wish there were some compulsion.
Now I will speak both lo Mr. White Man niul tu our friend who
was out of order. If and when this compulsory feature Is stricken
from the Bill and transfer is made wholly vohmiiiry so that an
allottee may slay In or slay out, entirely as he prefers, then the
decision as to whether or not this Hill cues Into elfccl rests with
the individual alloitcc whose property Is In question--not even with
the tribe but the ultimate Individual can veto U.
Coming around to tribal net Ion. I remind nil of you that there
arc Indians In many states who arc profoundly concerned with
this Bill—In Oklahoma, California, Arizona, North Carolina, In
the country all over as well us In the Nurlhwest. If at the end
there should be tribes who do not want, this mil, 11 ml Is their own
affair. Such tribes would not have Ihc rluhl and I am sure they
would not have the desire lo forbid other tribes from having the
Bill If other tribes wanted It. Let me be explicit, it would be the
easiest thing In the wot Id to simply put nn amendment at the end
of Jhls whole BUI and s:ty thut, just ns the New York Stale In-
dians are not Included, so tha Crow Indians ure nut Itieludvd in it.
And, I assure the Crow Delegation nnd nny ollur delegation
thai when they go back to their people nnd t:iku u referendum inul
If ;'ae majority of their people wnnl (o bu shut out ol this BUI, we
will do all in our power to get them shut out. (Applause.) Of course
they will have to know, that, as we say, "You cun't eat your cake
nnd nave it loo." You c;m'l be both In and out ul the same lime
and the tribe which llnully chooses, after this BUI Is perfected, not
to lake advantage of it and not to have anything lo do with It,
would be making a serious choice -wise or iunvl.se -nnd Important.
I wot Id make Ihc suggestion that before nny tribe decide.*; whether
-------
M Wlnuio of the Plaint Conortii
to stay In or get out of this BUI. the thine to do I* to work orer
the Bill and try to get It the kind of Bill the tribe wants. (Ap-
plause.) I believe you will all agree that this Is the first time la
the history of the Indians that an administration which also con-
trols both houses of Congress came to the Indians on an Important
IcglsiUlve matter, requesting them to assist In drafting the BUI;
submitted *he BUI to them for a referendum, and told them that
It WAS just up to them. The power was in them. It never happened
befcie. (Applause.) Now, we don't want any praise or gratitude on
account of Ihls. We are only doing our duty. (Applause.) What wt
do want Is that the Indians and, their councils and their leaden
shall do the thing we are asking: study the BUI, help us make It
right If It Is not right; help,us change It so that It Is rlglit and will
nice; conditions, and we desire that they shall do that and not
simply close their minds and say, "We are not going lo do any-
thing." And. this Congress Is working Just the way tliat I want
you lo work. I am not suggesting that you arc not working. You
are working on the Bill. And I want to wind up by saying again.
when a large crowd of people gather about an Important thing;
when the Ideas begin to bank up in their heads and their feelings
become Intense, they arc not always polite. There Is no reason why
they should be. Let us just be ourselves and kick each other around
as much as we want to. That Is all good. (Applause.)
Mr. SHEPARD: I now call on the Chairman of the Crow Cretk
Delegation.
CROW CREEK CHAIRMAN: Mr. Chairman, I will have M art
you to excuse me. I will have one of my delegates speak for ma.
Mr. Joe Irving.
M.-. SHEPARD: That Is quite all right. Mr. Joe Irving will you
come forward please?
Mr. IRVING: Mr. Chairman. I often thought of what Mr. Ool-
ller'n politics was. Some told me he was a Democrat and othm
told me he was a Republican. I always thought ho was a Socialist.
because the whole Idea as to self-government, according to what
It lays In the Bill, Is Socialism. Now, as my time U very limited I
am folng to come right to the point. The main objccllonabta point
In this Bill. I have had a taste of community life. When 1 was *
llttlo boy my tribe used to live In a community, and 1 am pretty
sura I would not like to go back to It. Now, It U a rather long dis-
cussion about that part of tha BUI, but time U getting shott and I
am not going to say any more, and In the other section of tno BUI,
the second section, ahead of scllon three, Is all hinged on th« third
section.
Minutes Of the Plain} Congress 03
If that part of the Bill was cut olT I do think that more would be
willing lo adopt this new policy. I do not believe Hint In a highly
civilized country they would stand to give one man loo much
power over u down-trodden people. In this Uill It gives the Com-
missioner of Indian Allalrs power to lukc away Irom one Indian
and e'vc to another Indian. If he so desires. Now everybody knows
that Is not right. This Is the United Hlults. nnd according to this
BUI If It were passed we could nut exn ci.su our own rights and we
might Just as well live In Ru.sslu. Wt II, 1 huvc not uol much time
for further discussion. If I h-ul to discuss this mailer In detail It
would take me until tomorrow. U Is that pulnl Hint Furl Thompson
and Crow Agency Is now objecting In. If that point Irom the BUI
Is removed, I do not think Unit, we would obji'cl to the Commis-
sioner's policy. That is oil. I thiink you.
Mr. CHAIRMAN: If the chair inny have the liberty of speaking
half a minute, I want lo say, with full respect to Mr. Irvlng's right
to stty anything he wishes lo, the one thing the Bill docs not do Is
to take land away from somebody and give It (o somebody else.
Now, I want to coll on the Chairman of the Plandrcau delegation.
Who Is speaking for Flandreau?
Mr. JESSE WHITE MAN, Klandrcati, 8. Dak : Mr. Chairman,
Commissioner, Stall and Delegates, ladles nnd gentleman: I am a
representative for the delegation of the Flandrcnu Indians. Flan-
dreau Is a very small place, lust like mysulf. I will leave the land
queitlon to the other delegates. It seems to me that the next In
Importance or even greater Importance to all Indians Is the matter
of their future education. The education today needs quite a bit of
repairing. We have already found out from our present system of
education that the Indian as a student going Into the colleges—the
rcsul'- Is so many of our Indian boys and Rirls arc failures In col-
lege. It would be wrong to blame the student. Something must be
done as something is wrong In regard lo the previous training. So
therefore It Is just as important for all parents lo look Into It and
they should have a voice In regard to their education. We should
have a better system, belter preparation for (he student lo enter
college, or university.
Some years ago. I do not remember how lung'-three or four
ycari ago—Congress orders that all uciidi-inlc or vocational and
non-iescrvatlon schools thoul'i have tcuchm with degrees and did
we cct them? I will say no. I want lo nirnllon just om: school nnd
that Is where 1 came from. We huvc j-ome Inslriiclors (hat arc not
even high school graduates. From some p.iriifulur departments
when the students go Into colleges they sue failure.-; because of
their Improper Insl.iuctlon.
-------
94 Minutes of the Plains Congress
At this point I wish to say that I am very much In favor of tht
new program that Is being put out. The program Indicate* that
Indians will have a voice In their property or anything else that
concerns them. Therefore, I believe I am very much In favor of the
new system, especially of education. That Is the only way we will
hava» voice In our education. In the present system, those people
who arc In the Civil Service will have Jobs to go on unless their
status is changed.
On; more thing and I wilt be through I want to say that U I am
not mistaken, according to the new program the Indians of the
United States, as a whole, will have an Increase of land In the
amount of something like forty thousand acres each year, instead
of a decrease.
1 said enough now because I belong to R small country and I an
a small man myself. I thank you for your kind attention.
Mr. SHEPARD: I will now call on the Chairman of the Fort
Bcrthold delegation.
FROM AUDIENCE: Mr. Bcnurhaiiip Is our spokesman.
Mr. 8HEPARD; Choose your Interpreter—or will you do your
own Interpreting.
(Mr. Bcauchamp chooses Interpreter.)
Mr BEAUCHAMP, Port Bcrlhold: Friends: The Fort BerthoVt
delegation Is nqt prepared to make any expression one way or
another at this lime. We are en toy Ing, however, the talks and UM
discussions that we have: had In this convention. The more we
learn from you and the more Instructions we gel from our Govern-
ment officials, the more we believe we arc getting the very best
Information we can secure so that we will be able to go back lo
our homes and take up these things seriously with every Individual
of our Reservation.
Now the rest of our time allotted to this delegation we will do-
nate to the tribe.
Mr. SHEPARD: That Is the shortest speech of the afternoon but
as we are a little behind time we will go right ahead and call on
the next delegation, from Port Peck.
Mr. WETS1T, Fort Po:k: Mr. Chairman and Honorable Corn-
mlsloner of Indian Affairs and his staff and my fellow Tribesmen:
I am very grateful to present here at this great gathering today.
There aro 3,550 Indians of the Fort Peck Reservation of which I an
a representative here today. But, 1 want you to understand that 1
am speaking as an individual and not to make any llnal decision
or to make any endorsement of any program at this lime.
Well, on the Fort Peck Reservation wo own at this time 1,250.000
acres of land today, In tho last 20 years up lo today, there an 111
Minutes of the Plaint Congress 95
landless Indians living on the Fort Pc«:k Reservation, and I Just
stated n while ago we own one and a quarter minion acres—that
ls tho last property we havo fiol today. Then-lore, we feel that
something must be done lo snfefimrd lurtlu-r loss of our properly.
We feel that If we can live all these ycara i-l^ily f0iiie odd yuurs
since the Government has been keeping us In tin- ronal.i, and liv-
ing up to this lime, why we feel we cnn tnki- anuili. r chance. •Ap-
plause.) We feel a drastic change Is ncec;,r,aiy and if we con live
on that old policy we con lake our chunre on another policy. I
want to remind you of our gnat craiuliulhurs In the history. Take
In the year 1851, there was cluhl or nine tribes here gathered at
Port Laramlc, Just similar to this Catherine here today, nnd I am
thankful that we arc fortunate enough, alter eighty some odd
years that we are called here and rccoinilml ns human beings, to
consider our business for the future. You all know, recently the
while people were hollering about "New Deal" and now I think It
Is about time that we arc entitled to a new deal for our Indian
people. Now. what I want to state to you ul this time Is, we came
here for business and for the last two days Mr. Collier, our Com-
missioner, has made 11 very clear to us. He told us that he framed
a Bhl which would make lire a little bit easier than what It has
been In the past, and now. I think we should nil get down and put
on cur thinking caps and -sec If we could frame up something.
This Is the first time In the history of our Indian people that they
are recognized. They come to us and say "What is it you want
now?" Now. Mr. Collier has said we can throw the Bill to one side.
Wha». do we offer In Its plncc that Is belter? Now It Is on bchnlf
of *.ne Fort Peck delegation Unit I want lo state Unit we haven't
got together. There Is dlllct-jut objectionable features ii\ the Bill
that we ore not quite clear on and therefore we have not decided
to Inke any final action at this time, but in any action we arc
going to take, It would bs subject to the approval of our people at
home, after we make them understand what Is muUc us under-
stood here at this convention. I thank you.
Mr. SHEPARD: Now, the next speaker Is the ruprcsunlnllvc of
the Fort Toltcn delegation. Ten minutes. Come ilulil up.
Mr. CHARLIE BLACKUIRD, Fort Tottcn: Mr. Chairman. Hon-
orable Commissioner and official executives. I-'or the past two
days we have been taking uO the work ot liuvlu;; the. Howard-
Whseler Bill Interpreted to the delegates from the dllfercnt tribes
of different Reservations, and I am sure Hint each and every mem-
ber of tho delegations from the different lU'sri-viilluns have at
least understood parts of the Bill as It I.s presented und as near
-------
90 Minutes o/ the Plains Conprejj
•s I can understand the interpretation of the Bill there are parU
In the BUI I suppose that each member of the delegations nave •
llttlj difficulty In understanding, simply for the reason that parts
of the BUI. what effect v,111 It have on the different Reservations.
I do not commit myself to say that I am opiwscd to the new land
policy program of the Commissioner of Indian Affairs, and neither
does the other members of my delegation who represent lite In-
dians of the Devils Lake Indian Reservation have any objrctlani
to Mtu BUI. Before we were delegated to come to the regional tribe*
conference, members of our local Indian Reservation stated that
bcfn'.o we were sent here be sure and listen to it. "The elfccls of
the BUI. If It has nnylhlnu to do with our Reservation we would
like lo hear something about It when you get back."
I noticed that before wo were sent here there was many of the
proplc from my Tribe who slated that If the Bill had no tendency
to deprive the Indians ot the holdings, that he has on certain Rci-
t; vat Ion. well It would'be ntsroenble. We hove at one time previous-
ly taken up the work under the Circular letter of January 20. 1931
ird the problems that were brought up before lite General Council
on Devils Lake Indlaii Reservation had also to deal with Indian.'
interest on oilier Indian Reservations, and under that question »e
merely took up the work of answering the Circular of January 30.
1034. This work was done before we had any knowcdge of what
Howard nnd Wheeler was giving to us. So I, myself, huvc wondered
us to Just what effect tills Bill will have on the InlercsU of Indians
on nlhcr Reservations. We have still tomorrow to discuss the bal-
mice of Ihc work that is still left In the BUI. and from the work of
tomorrow, explaining or Interpreting the balance of what Is Itfl
In I lie Bill. I suppose we can nil learn something more so that
when we leave here we will be able to go back to our Indian Rei*r-
vntlons and say that the work being done here was hi accordance
with the work that we hnd, taken up previously. At Hie conclusion
of the Plains Indian's Congress I hope that there will be attached
In Ihc meetings of the Congress that the Government can guaran-
tee i:s In some way that it will live up lo Its obligations and every*
Ihln-j that was taken up In regard to their new land policy.
Dr. ROE CLOUD: Now. while wo are getting ready for the ne»l
speaker, who will be from the Jurisdiction of the Pine Ridge
Agency. South Dakota. If the employee who has charge of ln«
lights Is here. I wish he would turn on th; lights. Let's have mo«e
light on the subject.
Mr. JACOB WHITE COW KILLER. Pine Ridge: If the chair-
man docs not object, I would like to talk In the Indian languijt.
Minutes of the Plaint Congress
97
William Fire Thunder Interprets the English. When (lie Pine Ridge
Cour.cll selected mo as o delegate to come to attend this Congress.
It was wllh the Idea of comliij; heir nnd ll.stcnini; m Hint I could
tak-i back lo them what Hie policies wire. I was not sent here to
pass on any questions that wrrc «li!.i nw.ed. I wlsli to tc II liore Just
how I sec the picture nccordliu; In the pii-suiilallun made liy Mi
Collier.
The question that confronts us nnd nil the COIIUH::.:. Is tliul Mr.
Collier draws us a picture of Ihc Hill mid prcsinis tne acceptable
features, or good features, to us all the w.iy tliron::li. Now, If that
Bill becomes a law and Is nccvplrd by tin: people wh.it will happi.-n
then? The question I sec Is that what has horn pie: wiled by Mr.
Collier as the good feature; of the Dill will never yul through
Congress as a whole. There will bu some features added and «omo
stricken off before It reaches Us llnal end. Will the Commissioner
go behind this Bill supporting It ns It Is all Ihc way through?
I also observe another thliv; and that Is this: Afttr I take back
the provisions of the Bill to my proplc and present, the good points
to them nnd we accept It whole-heartedly and the I3II1 becomes a
law In an entirely different form. I see that Mr. Collier will be
crltlzcd.
I also observe another probable thing and (hut Is tills: That
what the Republican Parly has been doing In the past has been
all lorn to pieces by the Democratic Pnrly, nnd naturally there
will be a large opposition lo what Mr. Collier Is liylni: to do.
What Is In the minds of Ihc delegations thai has been sent
here from Pine Ridge, is this: That when this Congu-ss comes lo
an end, we will go back to our people and present to them nil the
different discussions that have taken place here. Then we will
tnk* final action as to whether we shall accept or reject the
program,
I nlso feel that this BUI may be constructed for the best Interests
of the Indians and yet within four years from now there will be
the biggest battle that has ever taken place in the administration
of our affairs, and Mr. Collier's program will be fought by Ihc
Republican Parly lo a bitter end.
I also know another thing to be a fact nnd that l.s this: That
if wa go bock lo our proplc and present to them the discussions
hero—discuss them among ourselves, analyze them, and digest
them, then when the Bill comes otil In a law In entirely dillerenl
form, I know that my people will call me a bin liar.
I do not want to take up any more of my allot ted time because
the Pine Rldtc delegation has submitted some quest Ions to be
-------
M Ulnufes q/ the Plains Congreu
answered. When those questions arc to be answered I will UM the
remainder of my tlmo then.
Dr. ROE CLOUD: Tho Chair acknowledge* its mistake la
omitting one of the delegations. The promise was tiiat they should
conu In alphabetical order. The dtlcsallon omitted was Lower
Urule and, If they arc here, we shall hear from them now, apolo-
gizing for our mistake.
Kir. GEORGE YELLOW, Lower Brule: I have nothing to say
to tho audience on this side, bul I have to these people up here
on the platform and I am going to luce them and I want UM
interpreter to face them too.
Tho first thing I want to sny Is this; I want to thank these
offlciuls for bringing to us a cl^antlc measure which, to DM. la
very Important. In my heart I believe that It Is tho right thing
for on Indian aitd a while man to stand together. What I have
reference to Is that In the past we have never had a friend. I
believe that we have a friend that we can stand together with
now. It is unbctlcvcnblc that he can call such a Congress here
of the Plains tribes to discuss this Important matter and I do Dot
believe there la any fraud or wrong concerning It.
I also observe with reference to the allotment system that
ever since we have been governed by the white people, ihe while
man has been reaching lil'.o my pockets and robbing me of every*
thing except the soles of Iny shoes.
I want to talk right straight to the Commissioner and leU htm
that the people 1 am representing are living In conditions thai
ore very deplorable. According lo the allotment system, tnul
patents were Issued and some fee patents have been Issued, but
I have found Umt the land for which » trust patent was Issued
does noi actually belong lo me. What I fear Is this: That within
three or four years from now I will lose all of my holdings and
my Interests nnd my property.
I wish to thank my people for sending mo here to listen and
obsmvc what has taken place here so lhat I can lake It back to
them for action.
Supt. TIDWELL: The question arises with me that the Wlnne-
bago Tribe, having four delegations here, might be entitled to lour
representative speakers.
Dr. ROE CLOUD: I nm Instructed n» Chalnn.in lo say ll»l we
will hear from tho Wlnncbaso Jurisdiction as one.
Supt. TIDWELL: That was not Irue of the Crow Creek and
tower Brule Reservations. Tlmt Is one jurisdiction.
Dr. ROE CLOUD: The Chair rules thai we will hear from
Minutes o/ Me Pluint Conyrcss
09
Wlnncbago as one this time because we have only seventy minutes
left and there arc a certain number to lie heard fro.-i).
Biipt. TIDWELL: We will .'bide by y<;ur niliii^.
Dr. ROE CLOUD: The next di-logMion lo be heard Is Rocky
Boy.
Mr. MALCOM MITCHELL from Rocky Huy: I c-an'l siiy very
niuuh because our land Is dllli-rcnt from tlio:,i: other hlbes. Our
lam! Is not allotted. It Is tribal land, and v.luit this nuw plan..
what we hear. It Is nothing that is uolti;; lu innt our llcsi-rvation,
so wn arc just going to put our lout hi 11. That U nil 1 have lu Lay.
(Applause.)
The Chairman, Dr. ROE CLOUD: The next dclewilc to bn
heard from Is Rosebud Indian Agency under Supt. llob;-rl:;, and
unless we have lime enough to bear froi.i both this rvprt.scnta-
tlvc will speak for Yankton.
Mr, SAM LaPOINT of Rosclnid: Mr. Chairman, may I have
the privilege of Interpreting lor myself. (Granted.) I hnvcn'l
very much to tell you because we don't know yet what we are (joliif;
to do. We arc in the ducp sea and for the lust, two days, this Is
the third day, we have been hearing, llsti-nlng to the discussions
and propoundlngs of Mr. Collier. I don't know hul \vh:il we should
give en Indian name to Mr. Collier. I think \vc luul better cull him
the Iron Man because I know he has worn out every interpreter
we have got. The Rosebud delegation lu nut lit liberty to mako
any decision one way or another he«-c. and whatever individual
opinions we may have, I don't think we dare express that. 1|hc
Instructions we have from home arc thai we nre lu listen, thresh
out the whole thing and bring the merit homo and leave the bones
up I'.ere and so that Is what we arc yolni; tu do, and I am very
sorry. Mr. Collier, that we can not Kay, one \vuy or the other ut
this lime. Mow, we have heard quite a bit '.boul this nuw program
of the Commissioner's. He w;is at Roucbud in the last six weeks.
I tell you Rosebud put one over you fellows bi-cuu.sc we had
the Commissioner the llrsl port of December at one Agency. Wo
put one over on you fellows. Pine Ridge got n diilc of that tou,
so wo know something about the program tinco the )h:.t o( Decem-
ber, and Individually and collectively dlircient times we have tried
to study and study and study ami the iuu:e we study the less \vu
know. That Is the situation we huvc, hut nuw I (hlnk, slmx: r
have been here for the pnst Iwo day:; and (his Is the third day,
and personally, I am not talking for the trine, I nm talking not
for the delegation, bul personally, this is my decision. So far in the
last ihrcc days, I have been convinced Ihut thcru me luo sections
that could be worked on our Reservation lo yuoil tidviinlauc.
-------
100
Minutet o) ihe Plaint Congrett
One Is the education system. We need It. ohl the wont way. W«
knov It and nobody knows that as well as our selves. Then UM
loud tenure, with a few modifications. That could be worked on
our Reservation too. Now. then the other two, I hute even to look
nl them. I don't know whether we can look ixt It at all or npU
self-government at this time because we arc very lacking In
material-good material—men as leaders.
W: have now on our Reservation a population of 0300 Indian*.
I do not think we can Ihtd any man that would tuke hold ol or
thai will make a success ot It at this time. N«w, I Ull you. In
every critical crisis point In history there lias always been Iht
rise of the man of the hour and now for the last lhre« or ftwC
mon'.hs we hove tried to find sonic man that wll'. rlso up to be UM
man of the hour and we cannot flnd him. This Is very sad. I am
sure that there arc soirtc phases that could be worked, so the only
thins I Got to tell you now Is Hut we cannot come to any decblon
soon. Personally, I wunl to tell you this makes me feel prcUy
bad. back two or three days. Friday I guess It was, this program
accenting to Mr. Collier was repeating at that time, he said Utat
ho heard that some of our Missionaries had felt that IhU program
was going to put our Indians back, way back 60 years Into Hea-
thenism and savagery. Well, T Just laughed to myself. Imagm*
Henry Roe Cloud going back 50 years. I would Just like to SM htm.
I remember the first time I saw Henry wus when he was a Illlto
boy and I was a young man and we were going to Sanlc*. I gufd from iho Srnlct'.
Mr, CHAIRMAN: You have about one inlnitli: to i;o.
Mr. LuPOINT: I have Irn niiniili.s \y. r:ui:.i' I h:i\i: Im-n inter-
preting for myself.
Mr. CHAIRMAN: Your using I he Inic.pivii i'S Unit; Is like using
the tribal funds for administration purpo.-.cs.
Mr. CHAIRMAN: Next jurisdiction In }><•. ln-unl (mm is the
ShoshonI, Mr. linns, SupuriiiU-ndcnl, nnd ih:: irpn-.M niuiivr will
come forward and spunk for the Sho.slmnl (leli>i;uii<.n.
CHARLES A. URISCO: Mi'. Ch:ilriii;in, Members of (he Wash-
ington Blaff. ladles and i;enllemi-n: At this lime we situ non-eom-
mlttal but We arc going to do our ulmo:;l to convey Ihe Interpreta-
tions of this Bill lo our folks back home.
Mr. CHAIRMAN: We thank the Sho;honl. di-lriinl-j for (jiving
us that time. Now we will hcnr from the Slssclon people.
Mr. AMOS ONE ROAD. Sls.:eton. S. Dak.: Mr, Chairman, fellow
members of the Aborigines. I am happy lo be hriv, and I want
to sov that I am not an Allnl.st. The Arlnns anil the Anulo S.ixon
are here. Plato made this reintirk cue thousand years D. C.:
'"The acquisition of knowledge Is a t;ood Ihlni;. The ciiltlvntlon of
Science and Philosophy Is a good thin?, but there l.s something
Infinitely more Imporlnnt than till lhr:;e, H l.s (lie rectification
throunh that mysterious operation wt' will sympathy, emotion."
That Is why you arc here. My delegate*, iho Sls.seton and Wiihpc-
ton people are here, nnd I wish to sny (hat my mind toes back Into
the history of the post, I am like Will Roisors. nil Hint I know Is
what I read In the pnpcrs, ami I w;ml to .-.ay that this problem,
this Indian solution, Is and wns begun when those Purllnns landed
at Plymouth Rock and fell upon tliclr knees nnd then upon the
Aborigines and said—"We lliiink Ihee fiod Dial wr can whirl
theas Savages lo Eternity."
I want to say that the Sioux Indians have been In contact for
many years, ever since the early French explorers, nnd I wnnt
to make It short. I could Inllc here nil uf lei noon, but thut Is not
the question. There was a .selllement known ;is (he Ha/Hwood
Republic from 1851 to 18G2 itt Gnuilie r'all.'.. '1'hal was \vlpetl out,
by the outbreak of 1862, nnd thereby all our treaties, the ten mile
strip, was confiscated by lln.< r-Vdrml Govcicimnl. Hut dim
-------
102
Minuta of the Platni Congrtti
B. l«e. the Revolutionary genera], was In the same calcfory.
His land wus stripped off and yet Ihe heirs received that land back
ngoln. Why could we not then. I am going right down to this pUc*.
In March 3, 1672, Congress ceased to recognize the American
Indian ay a separate nation. It ceased to rccognlzo their (mile*.
Wh:it I nin getting at Is this; we have our Commissioner of In-
dian Alfnlrs here and the Secretary of Ihe Interior to not her*.
but way buck in 187i| the Secretary of the Interior. Delano, and
Commissioner of Indian A flairs. Smith, came to Slssuton and con-
sulted with those people and promised to nuke a codified MI of
linvj governing those Indian people In Dakota Territory, dolnf
away with Indian chiefs and substituting a form of government
towards American civilization. In 1007 the Slssctons went to Wash-
ington. OnbrlcJ Rcnvillo was elected head cliluf. After his speech
around; and only yesterday It was the great figure of allotment la
which the heirs were so numerous; he arose and made his resigna-
tion as head chief of thoso bands. Those people elected their
magistrates, their ofllcers, constables, their farmers and other one*.
They had ox tennis, hitched them lo their plows, and their women
went out with little (babies on their backs and went forth with
lay. With their ox teams and with the brush of a certain UM
they harrowed the Innd. What I am getting at. Is thU. In IU7
treaty there Is a clause which says that the man who fence*
and plows two or three acres will receive an allotment, and II
wits. Thai allotment' Is different from the laws act, and what I
am yetting at Is this; that under the allotment system thU land
will be handed down to the descendants of the owner and wilt
never be sold. When'the blood expires, It will return lo tho United
Stales for a consideration. That was good, but we ought lo sub-
stitute that treaty of 18G7 with that allotment. In order lo live,
The officials tell me, "Hold on to your land." and I am going to
do It. Now, am I colng to throw my land Into that JackpotT t am
a citizen I think, and so arc my people and yours. I stood h*r«
on (he mountain top, looking at the profile of WasltlngUui. wh«
said years ago. "They, the poor wretches have no press Uiroucti
which their grievances may be related." and when one *!dv of
tho question Is related, It becomes obviously unbalanced and I
wonv to say this. That If this Dill becomes true this IB UM last
and greatest treaty that will be made and it will tennlnaU al|
previous treaties and It will be defunct at tho mighty dinosaur,
which has been defunct for ten llnusonds. (Applauw.l
Mr. CLEMENT SMITH: Friends, I have been listening to Mf.^
Collar's description of this Bill for several days.
FRANCIS RED TOMAHAWK from Standing Rock: Mr. ChalM
Minutes of I lie Flams Congress
103
man, Standing Rock Delegation protests their position. They are
next In alphabetical order.
Mr. SMITH: I withdraw because you precede me.
Mr. TOMAHAWK: Mr. Chairman. Indies and yenticman of the
audience. Before starting, we had a list of questions which we
wanted to read Into the record but our time Is so limited at this
tlmo and the meeting is limited also, uiul we are therefore hand-
Ing these questions in to be incorporated into (lie records, and as
I want to speak on something else In connection with these,
outside of these questions. I will not read them. Now then. We
arc here, a great many people from diJTcreut Reservations alto-
gether here to consider a piece of legislation which the Commis-
sioner himself, upon being questioned last night, could not give
an explanation clear enough to cltnr the Issue. How cun people.
who have no legal training understand a piece of complicated
legislation Intended for them unU for them lo discuss In a short,
very brief period, and understand the whole situation clearly, I
cannot understand. We, the Standing Rock Dcltgution present
hero, considered the plans a* outlined to us in a circular under
dale of January 20, this year. Up to that time we hod not received
a copy of that Bill. We did not know what the contents of that
Bill were. How were we to know what the provisions were? But.
in spite of that handicap we desired a change from the old policy.
We wanted something new, something constructive, something
that would elcvute the status of the Indian of the United Slates to
become a part of the economic Mfe of the nation, and not dead
weight upon that economic factor. Now, before the allotments on
our Reservation the whole Reservation belonged to all of us. We
each and every one had an equal share In that Reservation. What-
ever we derived from that particular land out of leases, etc., right
of ways, etc., was equally distributed and II worked to our advan-
tage. About 1904 after the Milwaukee hnd penetrated Into our Res-
ervation and cut It In two, the United Stales olllclals came out
there and began to preach us allotment to us. They, you might say,
coerced our people into the allotment system which was their
downfall at this lime. At that time we had about three million
acres or more. Today we have not got half of Ihnt. That Is the evil
of tilt allotment system. Now, the question uppermost in the minds
of Ihu Standing Rock people, which Is worrying them. Is this. The
Unlte.'l States, tlirough the provisions In various treaties entered
into with the Sioux nations provides that they would give us a
certain amount of land that they would hold that land under re-
strlcMon for a staled period of time. Upon the expiration of that
-------
104
Minutes o/ the Plaint Congrest
Mlnuta of the Plabu Congress
105
trust period they would give a patent in fee free of til charte and
tncumbcrnuce. That time arrived, and the official* itw thtt U\«
people were not In a condition to take a potent In fee and assume
the burdens of responsibility of the citizens of the state, and there*
fore, under Presidential proclamation by President Hoover, the
trust jicrlod was extended to cover a number of states for a period
of ten years. Now then, how long have we got before that trust
patent Is to end. Not very far. About eight years or a little more.
and nt the end of that lime our people will not have become very
much more educated than they arc now, and It will nccculUte
anotlicr extension of the trust period as I see It. Now then. The
Standing Rock face a change from the old system to a new system,
but the provisions contained in the first title of this proposed legis-
lation are too drastic a change. It Is too abrupt a change from the
present order of things., and It will do a certain amount of harm
I believe which, while not being permanent, will do quite a Uttte
bit of Injustice. I think that the order that we ought to adopt
would be to salvage the very best parts of the old, cut out the un-
desirable parts, and what our people want Is this. They are not
adapted to the while man's culture. They live under a different
cuitme of their own and within a short space of time in which
they arc trying to adapt themselves to Uic while man's culture
they ran not compete with the white people, and therefore a cer-
tain amount of protection must be given our people, and therefor*
what we want was this., A permanent trust placed upon all land*
owned by the Indians. Somewhat on the order that the proceeding
speaker stated lust a little while ngo. And, the educational features
of that provision of the proposed law. We have no objection to
that at all, because we need something like that, and I think It Is
just the thing we need. Now then, the other provision, the fourth
provision. I do not know. That has to do with law. and as I said a
bit MO, we haven't cot legal training and how fur we can carry
that to a success Is doubtful. Now, Mr. Chairman, I ask for an ex-
tension of time to explain what I have Just said.
CHAIRMAN: There are only fourteen minutes kit to hear two
mora delegations so we can not allow you any more time.
Dr. ROE CLOUD: A while ago I was empowered to say from
high authority that It any tribe want* to accept any part of this
Bill i-nd initiate that portion on their Reservation, the problem of
lock of leadership which Sam LaPolnt spoke of need noi Inter-
fere. Adoption of some parts may be deferred until you liave lead-
ers and Introduced them.
Tim next Jurisdiction is Turtle Mountain.
FRANK WILSON, Pine Ridge: We don't wont an Interpreter In
Indian. That Is a waste of time.
Mr. LaPOINT, Interpreting for speaker on the floor In the
audience: We can not talk English and we do nol understand It.
Mr. LaPOINT: I will Interpret tor the bpetiker.
Dr. ROE CLOUD: The lime Is very short. Please speak very fast.
JOHN AZURE, Turtle Mountain: Friends: At the present time
our Reservation Is twelve miles loui; and six miles wide and In
that Reservation there arc more tliun three thousand people. The
belter half of this Reservation Is now owned by the white people.
60 wo are having a hard lime. Something must be done so that
we ctn get along belter than this.
We have been here for three days now trying to understand the
explanation of Commissioner Collier. But we did not leurn so very
much because we do nol hnvc the education. When I was first
elected to our council I could hardly spell my own name, but still
I am trying to do the best I can for my people
Now the way we understand Mr. Collier's explanation. It sounds
rather good to us delegates, but we are not going to say that we arc
In favtr of the new |>ollcy or against It. We would like to take the
new* back lo our Indian people and oxplnln everything we have
learned to them. After that. If the majority want lo lake up this
new rollcy it is up to them.
The only thing now we wish from the Government Is to give uj
help or relief lo get a start. The first thing of all we need Is educa-
tion. We have no education on our Reservation. If the Government
can work out a plan that helps us out, some way to get us on our
feet—that Is what we want. I thank you.
Dr. ROE CLOUD: The next speaker Is from Wlnnebago.
Mr. FELIX WHITE. Wlnnebago: Mr. Chairman: I want to say
**»at there are four different tribes under this Jurisdiction, so I hut.
if each of their representatives may say something at this lime I
won'l say very much. They each have different problems. I will
just ir.ke a half minute.
Dr. ROE CLOUD: The speaker Is going lo divide his Icn minutes
among the other speakers from this Reservation.
Mr. FELIX WHITE: We were sent up here lo be open-minded
and we have tried our best to be, although some things are not
clear. I am praying that tomorrow I will have a clear vision of all
tiling.
I want to express appreciation that the Commissioner brought
this ball of light out here. We arc probably the last on the list-
last but not least. I believe Adam and Eve wi-re Wlnnebagoa. We
-------
106
Minute) at the Plain) Cungrcii
Minutes of the r/nliu Congress
107
are thankful that we cnme up here. We have learned a lot and will
learn some more.
M.% ELWOOD HARLAN. Wlnnebago: Mr. Chairman: I might
say here (hat our jurisdiction did not get a square deal. I want to
state that In 1874 we had a land proposition similar to the one
that Is now under consideration by all of you. At that time we were
given a certificate of occupancy title which would allow you to live
on yovtr land, die and allow your future generations to occupy It,
but coutd not sell it. But what happened? The treaty that we had
negotiated with the Government gave Congress the power—the
Treaty of 1805. Politicians chunged the good law we had Into an
allotment law In 1882. We had 300.000 acres of the most valuable
agricultural land In the Slate of Nebraska. Today we have 25,000
acres.
I \vant to say for my people that I am not going to make any
decision. I am going to go homo with the good news of what I have
learned here, that we are not going to be losing anything to try
this new deal.
Mr. WILLIAM WHIPPLE. Sanlce: For the reason that we
Sanlre did not have any tribal council about this BUI at all
as tho rest of the Reservation did (more than half of our tribe
Is scattered among other tribes) we feel that we ought to get the
opinion of all the others before we give a decision.
Dr. ROB CLOUD: The next speaker will be from Yankton.
Mr. CLEMENT SMITH, Yankton: (Mr. Wilson objected to Mr.
Smith, saying that Yankton was represented by Rosebud.)
Mr. SMITH: Is there another Indian who wants to lake my place
or Is my time up?
Dr. ROE CLOUD: do ahead.
Mr. SMITH: Mr. Chairman: I don't like to say very much but I
have been listening to Mr. Collier the last few days. and. to be
brief, he has been telling us that the BUI which has been under
discussion has as Its purpose to make It as hard as possible to da
wrong end as cosy as possible to do right. We have also been talk*
Ing about the allotment system. He tcUs us about the allotment
system and says that the purpose of the allotment system and
the law* that govern the allotment system were made as easy aa
possible to do wrong and as hard as possible to do right. That I*
my understanding of what he has conveyed to this council.
Of course, I realize that the things that are contained In that
Bill would baffle the brains of a Huxley or a Darwin, and I eon*
tend that It must be revised. But, If Mr. Collier will listen to us
Indians and let us revise It, I think we will slilke pay dirt.
Dr. ROE CLOUD: 1 wont lo thank you Indians for listening and
I think there arc controversial matters In this program. I am glad
you ;>re going home to submit the whole llilnu to the councils. I
pronn'nce this meeting adjourned.
AJIourned.
Questions from ('io\v Creek
QUESTION: This BUI abrogates Die treaty laws agreements, and
laws of Congresses, especially the allotment system, but the In-
dian became a citizen under the Act tit Jinn; 2, 1024 (Public No. 175,
68th Congress). Thereby lie hns the lull privilege of liny other
citizen of the United Slates, uiul bound by Hie United Slates Con-
stitution, and is protected by constitution, amendment Article 5.
aiuoiu' other things said "Nor be deprived of life, liberty or proper-
ty without due process of law nor shall private properly be taken
for ottbllc use without Jubt compensation." How will tins Bill affect
Individual property and land?
ANSWER—Mr. COLLIER: The constitution minion tecs that
Just compensation must be given lor any private property taken for
nubile use. The new BUI and any act under the new BUI must con-
form with the constitution. If this net did not conform with the
constitution the Courts would hold Dial it wns void. I have already
explained that the provision for transferring Indian lands to the
community in Section 8 of title 3 will be amended so as lo make
such transfers volulary. In any case the Courts would protect the
right of any person lo fair compensation for any lands transferred
to the community.
QUESTION: Government will buy land for Ihc landless Indians.
From what funds, will these additional lands be bought?
ANSWER—Mr. COLLIER. The Dill provides that a fund of
$2,000.000 may be appropiatcd each year lo buy lands for landless
Indians and Indians with tnsufiicienl lands. This money will be
paid out of the United States Treasury.
QUESTION: Will the Government give the money oil gratuity
and reimbursable basis?
ANSWER—Mr. COLLIER: The Bill provides llml the money will
be appropiatcd on n gratuity biislr. That Is with respect to money
for the purchase of land. The Dill al:;o provides for n $10,000,000
fund which will be loaned lo Indians for tho purpose of cuttle, the
Improvement of land and olhcr purposes. This money will be
handled through chartered communities :md Jointed without Inter-
est for periods not more than thirty years.
QUESTION: If this Bill piissrs would It slop our suit now pend-
ing before the Court of Claims and would It be a dead line of
claiming any damages for properly and land?
-------
ttlnutet of tti« Plaint Congrttt
ANSWBRr-Mr. COLLIER: This Bill would not Interfere In any
way wilh any clalnu or suits against the Oovernment.
QUESTION-, Vflwl advice would you give It any money U »*•
covered—what will you do with the money?
ANSWER—Mr. COLLIER: I assume that you are referring to Iha
Oem ral Sioux claims. Any recovery would probably b« apportion*!
among the different Reservations. If any of the Indiana entitled U>
any of this money are In a chartered community, they will be
glvc:i the right to veto any expenditure of this money, and tha
money may be turned over to the community to bo distributed or
spent u the community charter nicy provide. Clalini collected by
tribai to which no charters have been granted may be spent by the
United Slates Qoov«ttu>nent tot fcdwitalslraVWe expenses and other
purposes, as has been the case In the past.
QUESTION: Will the Admlnlsratlon try to push thUBIII through
regardless as to the wants of this Congrcus, or U U. optional awl
*walt-ng results?
ANrfWBR—Mr. COLLIER: The Bill Itself U optional In nearly
all Its provisions and Indians who do not wish to taka advantage
ot these provision* are not under any compulsion to do so. How-
ever, If » majority of the members of your Reservation after
thoroughly discussing and understanding this Bill want (o submit
an amendment that this Bill *liall not apply to thai Reservation. 1
will recommend to Congress chat such an amendment be accepted.
It sh;uld bo understood however that none o! the benefits of the
BUI .rill be available to an Indian Reservation that U excluded by
such an amendment. Of course If any Indian Reservation ttiinkj
that It can get a special law applicable to Haelf, Instead of this
BUI. It con try to do so. but the experience that several tribes have
had In trying to get such special legislation show* that Congre** U
too busy to pass a special law for each UIM that wanu a special
treatment.
Monday, March 5, 1934
AIOItNINC SICSKION
Morning session opened by Mr. Wocl'lke. Chnlnimn, at 9:45 a. m.
Mr. WOEHLKE: The session of Hits Congress 1» no* open. Arc
the Interpreters ready; linvc they tlielr ihroitls oiled? (Answers,
"Yes.")
Now, my Irlcnds, Die Oovcriiinciil Is considering this Congress
of such Importance Unit the wheels of Ilif Government In Wash-
ington have almost stopped. Everybody Is licit-. The last arrival
from Washington ccvmc U\U> morning and I nuvv have the plca&\uc
to Introduce to you the Assls'.nni commissioner oi Indltm Affairs,
Honorable William Zliuinermun.
Plforc w
-------
no
Mlnutci of the PJalni Congreii
MVnutcs of the Plains Congress
11!
be protected" As I said, l( this Bill Is adopted the credit tectlon
was made for people Hko you who arc In a position to and willing
to help themselves. I said to them, "You don't have to be afraid
of self-government. All of that self-government comes Into force
only as you want It. This Bill. If It were passed Just as It Is. merely
sets the self-government table. It puts out a table and put* all
kinds of self-government dishes on from pie and roost beef down
to a plate of soup. The Government says to you, 'Here it Is, all
the dishes. Step up to the table and eat It you want to.' And
the Government says to you, 'Be careful. You hove not had a dish
of self-government for a hundred years, so don't cnt too much at
the etart. It might make you sick. You don't hnvc to cat anything
on that self-government table unless you want to, and If you want
to yo I can start with a plate of soup and, gradually work your way
up to the roost beef as you are able to digest It.'" Bo that Is
what the Northern Cheyenne said to me and what I said to them
and that Is all. But It took us four and a half hours to say It.
Now, I have heard that a great many of the old warriors feel •
that because this Is an .Indian Congress and not a white man's
congress, we should have some talks In the Indmn languages and
I think that Is a good request. So beginning at ten o'clock we will
hear from the old men In their own language for brief periods
each. We are now asking the various delegations to unite and select
the older men who are to speak between eleven and twelve.
FRANK WILSON, Pine Ridge: Mr. Chairman: We put questions
hero on this table In the last gathering and we want to continue
on that.
Mr. WOEHLKE: We will.
Mr. RED TOMAHAWK, Standing Rock: Mr. Chairman: Dur-
ing jesterday's council I asked the Commissioner that we be
allowed to put Into the record a report of the tribal business
counoil and he said we could.
M.-. WOEHLKE: That will be done.
Mr. RED TOMAHAWK: I have the minutes here and will turn
them In.
Mr. WOEHLKE: Yesterday afternoon I was sorry I had to t»
a little harsh with a gentleman who spoke out of turn and I
bcllcva that this gentleman who was out of turn yesterday should
bo given an opportunity to speak, his mind. Therefore, If th*t
gentleman, who was out of order yesterday afternoon, u In the
houw, I would be glad to have him come to the platform here
and, with your consent, speak five minutes. Is he here? U Mr.
Dav'rtson here?
Mr. FIRE THUNDER: ( Pine nidge.) I think he went home.
Mr. WOEHLKE: I am sorry.
Now, a large number of questions Unit were sulmilltcd In writing
have to far remained unanswered. We said Dial we would answer
them and we do not want to speak with two tongues. Therefore,
I am asking the Commissioner to show us Unit he Is like on Iron
man and answer some more questions now.
Mr. COLLIER: A question from many of the Sioux delegates,
about the meaning of section II, In paragraph E. page 18. of the
Senate BUI. This question says: \\lmi Indians shall be eligible for
membership In a chartered community? What they me troubled
abOU1, arc those Sioux Incllnns who have ullutincnU and who arc
llvlnij In areas that ore now surplus anil ceded lands? In order
to make the meaning clear we me chancing the language. I will
read II In the changed form, and I think It wi.l be clear to you.
"Tho term Indian as used in this title, specifying (he persons to
whom charters may be Issued, will Include all per.suns of Indian
descent: 1st—who arc members of iny recognized Indian Tribe,
band, or nation. 2nd—who arc descendants of any Mien members
of my recognized Tribe, band or Nation, actually residing within
the present boundaries of any Indian Reservation." We odd this
language; "Including surplus areas opened to settlement and homc-
steal entry." That Is the new language which I think will meet
the questions In the minds of the Sioux. Now in addition to all
of those classes, any Indian, with one-fourth or more Indian blood
may be put Into a chartered community If he win us to and in
addition still, members nmy be brought Into the community
by athptlon, by admission if the community wants them. This all
has lo do with title one, about being a member of a chartered
community, and has nothing to do win land holdings. An Indian
need not be a member of a chartered community at all and muny
will never be. Their lands arc not disturbed. This only has to do
with the self-government feature.
Next QUESTION—Lower Brulc: Will the Bill affect the Hunts
of Indians In any given Reservation or ruimminlly to minerals,
or anything In the land, oil, gas, etc?
ANSWER: No. but 1 told one of the delegations last night. I
think It was the BlackfccH, that In order lo make It clear we had
better put In language saying so. II an Indian made rrllnqulshment
of his allotment to the community and took title In the community
land, he could simply reserve any mineral rights so that they would
not go Into the community. The tide lo Die mlntral.s would remain
with him Individually.
-------
119
Minutes of the Plains Congreit
Minutes of the Plains Congress
113
Standing Rock QUESTION: In the matter of forming ft char*
torcd community, the question Is what would be considered a
reasonable number of adults to Justify forming a communityT
ANSWER: There Is no fixed number. Anything from ten to ten
thousand. That Is entirely a matter of the locul people and the
duslrj of the Indians In the matter of organization.
Kir. COLLIER: It Is suggested that regarding this amendment
about membership In the chartered community (hat I ask Major
Case whether he thinks that meets the situation of the Sioux.
Major CASE: I have gone over the language now proposed u
an amendment by the Commissioner of Indian A Hairs and I will
tell you what I think about It.
This language will protect the people, allottees, In all country
or areas opened up out of the 1869 Reservation. U ls very clear
that the people who live In Bennett, Trlpp, Gregory or MelletU
counties or the Northern counties opened up out of Cheyenne
River or Standing Rock arc protected. Now, \\hllo I am on my
feet I would like to tell the Wlnnobngo delegates that I. would
like lo sec them just after we have our mid-day meal, right here.
Mr. COLLIER: Now, continuing my answer about the ifase of
the chartered community. It might be some tiny group of Indian*
who have a body of land. There are tribes with fewer than 100
members In the United States. Again, a whole large jurisdiction
might decide to take out a charter ns a self-governing Jurisdiction
or u large jurisdiction might decide to break Itself down Into
two, three or four town governments, or again a grovtp of Indiana
might decide to get n charter for some special purpose, such M
forming a stock running association, and the size of the group
wou'.il be determined accordingly by the Indians.
Another Standing' Rock QUESTION: This relates to Section
3 of the Bill, Land Title. -Can the community lawfully take
jurisdiction over severally owned land and personal property
wlthla Its confines?" Tills question has to do with allotments
that are kept separate but rrc continued within the boundaries
of nn organized community. The answer Is. "Yes," by which I
mean this, that the community Is an Instrumentality of the
Fedjrnl Government and by agreement between the Community
and (he Secretary of the Interior the Secretary could delegate to
the community his own regulative |x>wers over allotment* In
severally. Remember always that the communities are things which
the Indians can have or not have and they can lake a power of
this kind or they con not lake It. It Is entirely optional. Of courte.
with rcpcct to the bind which the community owns, obviously Uie
community can manage that land, and In this connection Mr.
Cohen says It may be well to remind you (hat an Indian having
an allotment which has been fee patrnlcd and Is therefore unre-
stricted, could, If he desired. c-xchiniKc that for nn allotment of
land lestrlctcd and tinder trust tuid ilirrrforc lux exempt.
Under Section 4, a question. "How can Judgments against the
Ind>an community be enforced since the properly Is all In trust
or a restricted status?" This means that If on Indian community
Is sued and judgment obtained against It. how could it be collected,
since the lands arc not subject to judgment? The answer Is,
that the judgments could nut be enforced If Iliclr enforcement
meant taking land or capital from the tribe. However, If a tribe
wanted to enter Into a contract, thereby to lake on obligations,
and wanted to pledge some- income against th:>t contract, and lo
stipulate that, then with-the consent of lite Secretary of the
Interior, that future Income inliiht be ir.adc tmUJccl to judgment.
AgHln, under Title 4. The quc.sllon Is dillicult lo stale and may
be dl-'Rcult to answer. It is really under title one because It relates
to membership In the community — rights In the community.
"Where there Is a husband and wife and one of them abandons
the ."Community, then what Is the status of the children?" The
answer Is that the children rcmnln members of the community
unh*s the children individually, themselves, abandon It. Any In-
dian may abandon the community and so may the children, but
they ere members unless they abandon It.
Then a question concerning the pnrtlcipation of members of
the Indian communities in funds derived from stills In (he Court
of Claims. The answer (here Is that, as you know, judgments ob-
tained In the Court of Claims arc paid Into tribal funds. Every
member of the tribe—every enrolled member—has his equal equity
In those funds. Thut holds good regardless of whether an Indian
Is In a community or not in a community, so that the rights of
the Indian, In and out of the community In the matter of these
funds would be equal. There would, however, be one Important
advantage In this matter to those who are In cummunlllcu, as I
explained to the Sioux the other night. In the matter of their
Black Hills judgment. If and when they gel It. The shares of lite
tribal fund belonging to the members of the communities would
no longer be subject lo appropriation by Cunwcss for any and
every purpose, but could be spent only wild the consent of the
community. Under Section 8 of title one; about clmrlcring of
communities and the question relates lo this .situation Unit might
arise under the Bill, which provides that when a charter Is
-------
114
Aflnufei of the Plain* Conpreif
Issued to a tribe, the Secretory of the Interior cnn not revoke the
charier. Only the tribe cnn revoke Its own charter, or Centre**
can icvoke It. The Secretary of the Interior can report a recom-
mrndittlon to Congress recommending that the Charter be revoked.
Mow, suppose Congress docs not agree with the Secretary and
rejects his recommendations and refuses to revoke the charter.
The answer Is that the chatter stands. The Indians can always
revoke It.
In general, throughout this self-government clause, the effort
is to put the Secretary of the Interior hi a position where, U rto
wanvs to change what the Indians are doing under the charter,
he has either to convince.the Indians or convince Congress. He
can not be arbitrary about It.
Another question which Ip again asked Is, "Will Indian restricted
land be subject to attachment?" And the answer has already been
given, "No, It will not."
(A question Is handed In by Foster Thunder Hawk, Rosebud,
addressed to Mr. 8U-wart.)|
M.'. COLLIER: (Reads question.) "Mr. Stewart: I wish you would
explain In regard to Ihu exchange a restricted land for a deeded
land and where the Indians clog the title and where the stale
jumps In and says the Indians must pay tax."
Mf. FOSTER THUNDER HAWK: The State might any It ha*
to be taxed.
M,-. STEWART: Docs that Involve deed land—alienated land, or
land nold under restrictions?
M.*. THUNDER HAWK: fund held under restrictions to be
exchanged for deeded land.
Mr. STEWART: The note says. In regard *o the exchange of
a restricted plcca of land for deeded land or a fee patented land
(No*, as I asked before, docs that Involve any alienated land-
by alienated I mean taxable lands?) and It (utliter goes on and
says, where the State Jumiu In and sayi the Indians must pay
taxes, what will be the outcome?
Now, It I understand the question correctly-'
Mr. THUNDER HAWK: I think you misunderstood It.
Mr. STEWART: I think I have too.
Mr. THUNDER HAWK: Restricted land is exchanged for re*
btrlcted land, but If Mr. McGregor nuts the deeded land back Into
a triut, the Supreme Court soya this deeded land could not be put
back In trust and there Is a tax asalnst It. Would that be Involved
In this community orgatilznton?
Mr. RED TOMAHAWK, Interpreter. Standing Rock: What he
Mlnutet of the plaint Conyrcs» 115
Is trying to drive at Is this: In cxchniws of hind between an
Indian and a white man, trust Innil mid ilmled land-, lie .snys the
Supreme Court has held that Ihu Elate had a rii;ht to lax the
land and that they could not remove or atlicli lo tin- deed a clause
restricting the alienation of that lar.d once It h:ul bi-rii deeded.
He hays, "Would (hat matter be Involved in any liiin:;actli>ns of
that kind in the future?"
M>:. STEWART: Under the Conns of this lit)!, I inn subject to
correction by the lawyers hero, provision Is unule (or nil Indlun
on restricted land outside a community or nn Indian aix-a \vu pro-
pose to consolidate, lo cxtlmiiuc Unit restrict! d luad with any
whlt-i owner of land within the nrea. Now, If you have borne re-
stricted land outside and you want to exchange it for land Inside
that Is taxable owned by a vvhltc num. you would lake over his
land unrestricted but he would-have lo continue lo pay taxes on
the land that you turned over to lilm ouc.ldc the area.
Mr. LaPOINT: That answers the questUm.
Mr. 81EOAL: I would like to ndd n few words to whut Mr.
Stewart has already said. The Supreme Court has held thai
where fee patented land, once subject to taxation, has been pur-
chased for an Indian with n^li-icled fund.-;. I In: land continues
to remain subject to taxation. The Supremo Court did not say
that Congress could not exempt that land from taxation. The
Supreme Court ruled that whether or not tl)c land should be
subjected to tax exemption was a question for Conyni&s to deter-
mine. The Supreme Court held Hint It was not the Intention of
Congress, alter construing the various act; of Confess, lo exempt
such land from taxation.
(Some one asked that this .be repeated.)
(Mr. LaPoInt asks to Interpret this.)
Tru Supreme Court In the case I referred lo held that It was not
Congress* Intention to exempt from taxation land which was once
subject to taxation but purchased for nn Indian uul of funds which
were restricted. But the Court made It plain thnt If Congress
Intended to exempt the land from tuxnilon U could do so.
Under this act, restricted land Is exchanged for fee patented land,
the Indian will receive In exchange the right to use (he same
amount of land or the rental from Hint land and Hint land will
be free from taxation, or the restricted h> exchange for a similar
pleci, land of equivalent value, and It should be made plain In
the Act, If It is not plain now, that thul land should be ffee
from taxation. I think the gentlemen's question brines up u i;ood
point. As the Act reads now, only lands which are acquired for
-------
lie
Minute) of the Plaint Congrett
the community or the trlbo are specifically exempted from Uxt-
tton. In order to make our Intention perfectly plain I think the
Act ought to be amended so that restricted land exchanged for
fee patented land and not transferred to the community should
nlso continue to remain free from taxation just as the restricted
land before. (Applause.)
Mr. COLLIER: Now we are nearlng eleven o'clock and there
will Le a new order of business. We have only about four minutes
more. We are done with answering questions, but I wanted to give
one answer which covers a great many questions that liavo come
In. They relate In one way or another to this proviso In land title
3, S.-ctlon 8. page 31. The matter wo have discussed repeatedly.
The Bill as-drnwii gives to Hie Secretary of the Interior authority
to transfer the tlUc of nn individual allotment to transfer that
to the community:and compensation without Hie consent of the
allottee. I have been telling yju that we ure leading up to a vote
on that question as to where you wanted the power to be. whether
you wont the Secretary to have power to do that, or whether you
wanu-d the Indian to have authority to do It If he wanted to. I am
not meaning to say Hint yon will vote on particular proposals In
the Bill now, therefore. I am going to pass that over and make an
nmnunccmcnt instead. Of course, if you Kant to vote on thU or
anything, that Is up to the meeting. I am speaking now for the In-
dlnn Office. We are feeing to recommend to the Committees of Con-
gress that this transfer of title by the allottee to the community,
this transfer shall be exclusively voluntary mid Hint the compuUlon
feature shall be stricken out. (Great Applause.) I tell you this M
a means of not having to answer a largo number of separata
questions on that point.
Dr. ROE OLOUD: We come now to that part of the program
when we are to hear from the oldur Indians In their own l*n-
guavi, and it lias been suggested that because the Sioux delegation
Is v?r; large, that we hear from two representatives of the 81oux
people. I hope you have talked this over among yourselves and have
selected your speaker. Each speaker will be allowed five mlnulea
and we understand that It will be put Into the English language
for :ne benefit ol the people r-crc.
BAM LaPOINT: I want to mention that the Rosebud Bloux
have selected the con of the oldest Chief on our Reservation,
Mr. Edgar Quick Bear.
Dr. ROB CLOUD: Interpreter please tell him that when h«
hears one tap he has only one more minute. When he hears two
tap* that means It Is the end of his speech.
Minutes ol the 1'luins C»iiyii:ss 117
EDQAR QUICK BEAR (Interpreter. Sinn l.nl'olnl.) : Mr. Chair-
man, Honorable Commissioner, my friends on the plulfonn and
my people— delegates from nil over (ho country. I nee a (juod many
good men here. I am glnd lo M;L' you.
My friends, we of the Indl-m race are yrt viry fur behind hi
nmt'crs of education, and wh-.-n It tunics down to I In; lliinkin;,' fac-
ulty, you know Hint we can not compete will) llio white- num. We
are not up lo the top notch of educational ability. (Applause-—
mild.) As far back as the Indian race may recall history, mid all the
dealings with the Government, of Hie United Suites; In ull thu
treaties and act cements llirre tins always l/ei-n inserted one Inser-
tion that 1ms been a di-lrlmcni lo the; Indl in.-, ull the way through,
and that Is the Insertion ol ";»l Iliu iliscn-ilnn of Hie Si-en.Uiry of
the Interior." One uf the faults urUiiij Jiom the misunderstand-
ings, etc., of the old treaties und nuie.iiu.'iil.j, has been tills. We
have not had the efficient Inlcrprulullon of all these treaties In Hie
post. Now, the Interpreters will tell us one llihi;; and Ihc real word-
ing nf the low when it becomes a liiw is dllli rtnl from the Inicr-
prctutlon, and therefore our people ure caused lo misunderstand
and tuffer for it Inter on. Now. tit thi:; meet In;;, It we are going to
tako action, transiict any Uusinc.;:;, cr come lo iiiiy nyreemenls, let
us have a full understanding. The powers und the authority that
the Indian may have and Hint cun be exercised; let us have a full
understanding of the relationship Hint we may have with those
powers and the authorities he may (jain. There Is one Ihlnu that I
feel thankful for. In the last few minutes of the speaking of Mr.
Collhr, the proposition is brought up Hint they will eliminate this
Clvlnf! unlimited power lo the SecrcUuy of thu Interior as far as
Indian matters are concerned. If they would eliminate that, how
thanKful I would be.
Our fathers have Instructed us, our fathers have told us, that
we must watch our step, every step; there arc hundreds and thou-
sand? of unscrupulous while men, deceitful. They will deceive us.
(App'.ause.) (Interpreter speaks.) Now, I want to tell my own
people. He said this. "Watch your step -because It has come lo
light thul if we hod gone on nhi.'nd unde: the same system that
wo had been coming under, there was nn end lo that trail not very
far ahead, and wisely, somebody lias thought out u new way for
us. Now. If we arc going to accept Ihl:; new way be ciireful, think
slow, because your action will nol only affect us but for generation!*
to come. I thank you."
Mr. LUKE GILBERT from Cheyenne River rises: Mr. Chairman.
I would like to Introduce Joic-ph Long ficnn Cheyenne River Res-
ervation.
-------
118
Minutes of Ihe Plains Congrets
Mlnuta of the rialns Congrexs
119
Chntrnmii, Dr. ROE CLOUD: I believe It would b« well to take
this up In the order they nro listed on this sheet ol paper.
(Someone asks that they be token up In alphabetical order—slight
confusion while several nsk (or the floor at the same time. Dr. Roe
Clou J continues.) We will take them up In the order I liavo them
lUtcd here regardless of alphabetical order.
GENTLEMAN from STANDING ROCK: Mr. Chairman, Rose-
biid and Pine Ridge' arc neighboring Reservations. In fact they are
the same locality and conditions that prevail there are about the
same. They arc so close together that we would like to gel a
representative opinion from the different localities. I would iug-
gcst that we hear from Mr. Daniel Grass Rope of Lower Brute.
We have a delegation from Standing Rock but we don't want to
hog the whole thing.
(Several objections are heard to Mr. Daniel Grass Rope being
permitted to speak., but objections are not recognized.)
Me. DANIEL GRASS ROPE, Lower Brule: First I want to say,
that I see some fine men on the platform and I want to thank
them for nit that they have done. I do not think I ever »aw an
assembly, white or otherwise, as big as this, and I am glad to meet
you oil. I see this great Gathering hero and I am asked to speak
and I remember Owl. and I will remember It, and I remember at
the time that I was asked to speak here some time ago that I said
this: Now, my friends, I see many faces and I see that they are all
Indians. They may not be Sioux but just the same they are all
Indtuns. At that time I said there were two or three things for
which I came and In that little short talk I gave the other day I
said, "My friends, whatever you do. think of the rising generation
because It Is coining to the time when we hnve no place (or our
rising generation." I was afraid, my friends, that we would grep
this tiling In a hurry, take hurried action, and suffer from the re-
sults later on. That Is why I cautioned my people to go slow. Now I
have been hearing: the Bill explained and all the good talk and I
hear them all through my ears, and I think I understand fairly
well what It means, For the last few days you have been discussing
and listening to this great proposition before us. When I was selec-
ted to come hero, before storting from home there were a number
of people, men and women, who came to me and said this to me,
"You go there. You represent a lot of people. Do careful what you
do. Use your best judgment, and sec that you decide for lha best
Interests of the people at home." Now, my friends, on the platform,
1 wnnt to address you. All the words that I have heard, my
thoughts have been going back to my people at home.
In reiterations back, I know, we know, that there was wild game
on which we could live uiul we cuulU always depend upon that. So,
In those days I grew up as a biillulo eater and deer meat was
common, but I can see now und 'uok around and there is none of
that lift. Wlit'ii thinking iibuiil tlirse thlncs, I come buck to this
new deal, your program, and then my thoughts chance from what
they used to be. and If tills t:>lk, all they I old us, and If this Is
good, I hope my friends, the other Indians, will all throw in with
me und help me now. I liuve just told you u lltllc while ago, that
misunderstandings, the InnbllUy to grasp these Ideas, was among
so muny of us who did not know where we were. Now, your plan
seems to be to enlarge the circus In which we live and In that area
our younger generation will have mom lo roam und do what they
plca.se and this Is wlinl I wunl lo say to you. Mow. I have advised
my people lo go slow, and think right, and do what Is right. I want
lo say also to those who are in authority that they advised us to
join these cominunilleu, and our boys will work In these commu-
nities. Our boys nrc unprepared. Tlicie is nothing to work with,
and I want you to remember that. Thank you. (Applause.)
Chairman, Dr. HOE CLOUD: Now we come to th: next group
of speakers, the Blackfect. We ara through with the Sioux Indians.
If this man (meaning Mr. Grass Hope) Is through, they have lost
their chance (or further speaking.
GENTLEMAN from BLACKKEET: We take plsasure In In-
troducing Rides At The Door, representing thn Bloekfect.
VOICE from AUDIENCE: Mr. Chairman. We hove u spokesman
from Bisscton und would like lo have the chmtr.c to get up niul
tulk. He will i peak fur Sl^elun and Devils Luke, |>i uclk.-ally the
SHIUC tribe.
Chairman, Dr. ROE CLOUD: We can not allow him to speak
at this time, but if we have (line later, we will give him a chance
to speak.
RIDES AT THE DOOR, Blackfect: (Applause.) Natural Ameri-
cans und my brothers, who arc assembled In this great Congress,
and to the gentlemen representing the Interior Department.
I nope this great assembly will sympathize with me for this
reaso.i. That I am handicapped. I do not understand your English
language and I do not know how lo write.
We are hero because we: hnve |;one over the pnst. When we
reach this crisis of our lives we want to be careful ulwuys und want
to lUten very closely. We always want to use our best judgment lo
forge ahead, and to use U In that wuy.
The Blaekfcct Nallon, whom I represent, have raullnnt'd me
-------
120
Minutes of the Mains Congress
thus, to listen to everything that (a «ald here and any move that
Is inudc In this place, to do It very wisely. I have been here and 1
have listened very carefully to the things that have been said here,
and now I know what to do for myself nud my people. We have
been ndvised by the representative of the Interior Department
Hint community policy which means a new history and a new
event In our lives now forthcoming. If we stand by the policy as
It Is advocated to thu Indians of the NoUhwcst^U what Is sold
here Is true, It Is a word of salvation in our future lives and (or our
children. If the things Hint have been said lo us here In this as*
scmbly, as I have staled before, If they arc purely the truth. If
the Ideas of the program are true hi every way, shape or form,
It Is the best thing that we could abide ourselves by. I huvc no
other way If It Is true. I have no other system, no other road
by which I could go around It, but I must go Into It.
Ono of the most Important things that brought me here Is what
I am going to say to you today. My people now own a large area of
oil land and we have now on our Reservation three producing wells,
and that Is the reason I came here, and I want some law or protec-
tion whereby I can always hold that property Intact so that no
while man can take It away from me, (Applause.)
There Is one thing that we have here, an opportunity which
many of us do not have, and that Is the opportunity of being hero
with these gentlemen from the Interior Department. You know we
:an not always go to Washington, but today we are all In Washlng-
?n with these gentlemen.
I h. lie requested that I Interpret for him.
ARNOLD COSTA. Speaker for Hie Crow delegation: Mr. Chair-
man und members of the Interior Depui Iment and follow American
Indlii'.s. I am glad to be here und express my sentiments. In years
past we did not meet In a Congress of this kind, and our wishes
today hove come true. In all these years \vc have come under the
administration of the Indian Hureau where regulations have been
prescribed and we have not been ul/cii any voice In.the mailer
and i.t this time we arc given this opportunity to voice our senti-
ments In the regulations lo be put Into the Bill. I do not want lo
take up too much time at this Congress as there arc delegations
from ether Reservations that wish the opportunity of saying a few
words and I am very thankful to the Commissioner of Indian
Affair* In giving me an opportunity to say that we should be ex-
cluded from the BUI. We have a number of bulfalo eaters on our
Reservation, since the younger gcnitnttlon has been up at this age
of time, It was for that reason Dial I am speaking. It in at this
time that we understood that this tribe should be excluded from
this proposed BUI. I do mean to say that any action should not be
taken upon as our final decision at this present Council, because
when I was selected as a delegate 1 was not given the authority to
make any final decision in respect lo the proposed Bill but we arc
golnn lo take It home to our people and let our people decide and
give 'heir decision on this question. On behalf of my delegation I
wish to express my thanks to the Indian Commissioner and his
staff and also lo the Indian people In this assembly. That Is all.
Dr. ROE CLOUD: Thu next speaker Is from Fort Bel I hold.
ARTHUR MAN DAN: There lire two Clros Venire Tribes, one
Is up In Montana and the other tribe Is from the Port IJerlhold
Reservation, although they uro dlllerenl tribes. We huve selected
Chief Drags Wolf lo speak for the Fort Uurlhold delegation. I
will attempt to Interpret for him.
CHIEF DRAGS WOLF, Foil Bcrlhold: I have had the pleasure
-------
in Minutes of the Plaint Congress
of being called on to say a few words by the Commissioner of
Indian Alfalrs to this great assembly of the Plains people. Wo
have heard the deliberations on this Bill for a few days now.
The post administrations did not fulfill their promises. The In-
dians did not have a voice in the proposed legislation. Even If
they did they were never carried out. It was always subject to
Congress.
I want to say thiis much. On all the Uesei vatlou there has been
about 3CO allotments ihul have been sold right back to the In-
dians. On these allotments we have put on a program where we
have established our homes, our barns, and improvements that
arc necessary.
There Is one. objections! point that I want to bring up In this
new proposed measure and lhat Is Inheritance.
Today, tho Commissioner of Indian Affairs and all his staff
here are silling on the platform. I want to say that we do not
know whether or not we own the Improvements on our own lund.
They may bury us stx feet under the ground and we are not sure
lhat that land can bo Inherited for future generations so lhat
wo can Ho In peace under this six feut of soil.
There is another tiling I would like to bo Informed about. There
are over 360 ullotmciUs which have been sold directly to thu In-
dians and Hint applies mostly to our children. They have paid
for those lands In cash value. When this new government system
coined we would like lo find nut whether these children are going
to be reimbursed for whatever they have paid for these lands.
This branch of the Government, (he Indian Bureau, Is our pro-
tector and guardian. Eighty-three years ago wo made peace with
the United States Government and we have abided by the trealy
but (he Government luui not. When we have biought suit against
the Government there was nothing In that treaty to provide for
giving this money back to the Indians. They tine Government)
went to work and every cent that was spent, the Government
took It back. Since then the Government and the Indian Bureau
arc trying to rectify all the evils of the past and we would like
to be rectified.
There arc only a few complaints that I had brought here about
thccc treaty rights and this proposed measure. Wo are consider-
ing this proposed measure from day to day and we would like lo
lake homo what has been cald In tho minutes of tho uucllng and
what has been explained here In the last few days and tell It to
our people at home and let them decide on this proposed measure.
Wo will abide by the wishes of tho majority of the people and not
tho minority.
Minutes of the Plains Congress
123
Mr. COLLIER: I just wnnl lo rrnsstiro the Chief there Is noth-
ing In our minds ,nhd I lie re Is nothing In tho UIII to keep the
children from Inheriting the hou:c nml burn and stock, the Im-
provements, the properly. What the Chief wants Is the thing he
will get.
I don't wnnt to lake tiny more time from the old man.
Dr. ROE CLOUD: The while man In Ihj jcais gone by and
even today Is rushing cveiyHim;;, Thai I.-: why be 1ms tried to rush
the American Indian Into civilisation lung IK I or u he was prepared.
Fort Belknap.
Tho BOY, Fort Belknap: My friends, while men and Indians
here In this assembly: I urcct you.
Away bai.-k In 1055 my fmrfiilhrrs marly a liv: United
States Government und one of Die object:; of llml treaty was to
make peace with the while r.mn. ;o that (litre w< uld be peace from
then on. The treaty' made in !t8"> was an extending of the right
hand of friendship by the while 11:1111 and the Indians accepted it.
They have been living under those condition:! ever since al-
though they were very trying. Many of the proini.se;; made to
them In that- trimly have been bnihcn. Afln (luil treaty was made
and signed and cxcuted (his .souvenir was made (indlcullng what
he hoids in Ms hand) with u picture of Iv.o hands shaking to-
gether and two peace pipes. Thnt represented the things that we
had 10 do, that we were lo be friends all ll'c I hue. The descendants
of those forefathers down to me nlw.iy:; tried lo live (hat way.
We arc asKi'mblcd here today something on that .same order lo
keep on being peaceful nncl try and think up something that will
do as gocd In the future.
A'.i;ordlni; lo thai treaty of IliJ'i, lip.- while iiiun put on n piece
of paper certain thing* '.hat lie was to do aU.-ng wllh what the
Indian had lo Uo. II- wii:>n't Inn;; before the white: man came down
and Ignored and trumped on lib Udc of lluil afciceiucnt. And
shire that day ho has laid down a lot of one-sided rules and rc-
gulullons end laws Dial he compels the Indians to live uiylcr
because they arc hopelessly in the minority. V/hcn they make r,n
alUmipt lo have these one-sided law:: cmrclcd, the white man
Crabs him by the face and turns him rich- about fncir.
I have served my people a toud many years now itnd this In
one of the Ihhujs I huvi: trivd lo do- lo change tho.jc one-sided
hi'.v.s. But I have fallrd bwau.sc I have mrl vllh the .'.nine op-
puuillon. I lii'.vc looked jiiitimd iiiid planned and l:il
-------
194
Minute* o/ the Plolni Congrett
has fought In behalf of the Indians (or * long time and today
I think I sec him In the midst of these white men seated on the
platform. And that particular white man has a program that
this assembly Is considering and getting an explanation of and
this program Is what has come from this white man's experience
over a long period of years.
This white man has a program which ho U presenting to us
Which Is very good as a whole, to try to remedy these sad condi-
tions under which we are living today.
As representative of the Port Belknap Indians I was told to
listen closely to everything that took place In this Congress. I
am going to lako the news back to my people, everything that I
heard. But, I say that personally I think It Is a very good pro-
gram as a whole.
(Asks the Chair for permission to say something else In one
breath to the Indians.)
My friends: I want to tell you something. This something Is
one of the downfalls of the Indian. When they get assembled In
council or some meeting they always disagree. There Is always a
friction and there Is no co-operation and there Is no united ac-
tion and there Is no serious thought given to the question that
caused that particular meeting. From now on, let us try and co-
operate. Let us try to work as a whole, lay our Individual desires
aside and work for something that concents everybody. In this
assembly there Is a wire In the middle that Is not the dividing
line. We are all one because we arc Indians. There Is another
group of Indians who use their privileges as full-fledged citizens
of tho Untied States and have sqviandcrcd their homes and are
now penniless. Don't exclude that elms of Indians.
Dr. ROB CLOUD: Rocky Boy next.
MAN from AUDIENCE: I am a delegate from the Shoshone
delegation. We have seemed to overlook that we have a tribe of
Indians from Wyoming who have not been given a chance to
express their views- We would like to give them a chance—the
Arapahoe from Wyoming.
Dr. ROE CLOUD: Just as soon as we get through they can
speak. We will give tho speaker five minutes.
SAMATT, Rocky Boy: I have been here four days to listen
to this Congress. They say they have set the table and that every-
thing Is on It. When you eat too much you got to get medicine
to cure you. He Is going to doctor us. That Is the first thing I
am setting on the table. Every year we want the chance to take
the cake and pies. We got to have a man to help ua do that. We
got to have a man who has the education to help me Jrom be-
Mtnutei of Me Plaint Congrea
125
hind. I have been trying quite a luw timer.. I am tied up just
like I was staked at the rope. I hope you have good luck on your
trip.
Dr. ROE CLOUD: Now the Arapahoe chief. Chief Orocsbcck
Chief GROESBECK: My friends: Representing this Reser-
vation and the different tribe:;, I am mcri-ly wanting to ask a
few questions In regard to my lU-scivutlun Unit I do not under-
stand.
Back In 1904. the Government .vent 11 rcpie.senl:itlvc from Wash-
ington to buy, or have the Tribe of iho Slici>hone und Ampullae
cede, a large portion of whnt 1:; known ns Iliu Wind River, lociilcd
In Bhoshone Reservation U\ Wyomlu-j. Thcru wcrv. Agreements
made between the Government and I Hues lueiilccl there and only
two of those agra-mcnls have been fulfilled. Now I am asking
the Honorable Commissioner Collier lo sec about the other agree-
ments that have not been fulfilled. Look to that.
I, as one of the representatives at, tlinl lime, signed and con-
sented to cede (hot portion. In onu of ihc iiyrubincnls there was
lo be & certain portion ol monies rccrlvvd I rum this portion Vo-
ward the educational use of the Indians of those particular tribes.
In ono of Ihe agreements there WPS to be a cci'tuln portion of the
money ret aside toward building nn Irrigation cmiul from streams
flowing or originating on these Itfscrvnllons, but It was stipulated
In the agreement that the Indian was to havu u froo use of Ihc
water. Up to this lime, we understand th:il 11 if water Is a Hen
on the land. Thut Is the question I wluh (o us): the Commissioner
to explain. Al the present lime Ihe ceded pmllun of Unit Reser-
vation Is lying Idle, not being occupied, not being taken up, and
I wish to at.k the Department of (he InUilor .Secretary to with-
draw all the portions not being occupied at, the present lime
back to the Indian status.
Dr. ROE CLOUD: It Is almost dinner time und these questions
that have been raised by Ihc Chief will be answered after dinner.
Now I call for the last speaker—from the Wlnnebago jurisdiction
that has several Sioux nrcus in U. Is the .speaker here?
MAN from AUDIENCE: Mr. Chairman: Haic you ommlllcd
the Turtle Mountain Chlppcwu?
Dr. ROE CLOUD: We ommlllud them became of lack of time.
(Please remain scaled. This Is the last spanker. We will be through
In a few minutes.)
Mr. KENICK, Turtle Mountain Reservation: I am glad to
meet the Commissioner of Indian Affairs. My greatest desire
was to see him. I am a poor man. I am just us glad lo see the
Commissioner as I would be lo sec him In Washington, The
-------
IU Jtflnutei of the Plaint Congreit
reason why I am so glad to meet him to because of what I have
hoard which Is all for the benefit of the people. Of course, when
I get up they all look at me as a poor man.
Upon my return the people will be looking to me to find out
what I have learned from this meeting. I will tell my people what
this great man has told me.
By the way I understand these Bills, the Commissioner of In-
dian Aflalrs wants to help me. The rcaron I am glad to meet
him Is that I have seen the BUI which he has presented to me.
I am going to report it to the people that have sent me and I
am pretty sure .they will be .pleased with It.
Concerning this self-government I am not quite ready to accept
It yet because my people are Just starting. I desire to say I
will recommend to extend It a few years. That is my desire. Thank
you.
Dr. ROE CLOUD: The meeting will resume hero at this hotel
at 1:46 p. m. for the afternoon session. If business Is not completed
there will be an evening session. We stand adjourned for the din-
ner hour.
AFTERNOON SESSION
The afternoon session of the Plain* Congress brought to order
by Chairman Woehlko at 1:45 p. m.
Mr. Brown of Blackfeet requests flvt minutes to moke an un-
nouccment from the platform. Granted. Members of the Black-
feet tribe come on the stage and announced that'they are going to
adopt Commissioner Collier Into their Irlbc. One of (he tribesmen
Fpcnks:
My friends, fellow Americans. There nrc several different tribes
assembled In this auditorium. You people are a IIUlo too slow.
wo are going to adopt the Commissioner Into Ihe Dlackfcct In-
dian.-!. (Applause.) And we are going to have him a leader In
this community plan. Now, our Honorable Commissioner, when we
adopt him In this tribe, we expect him to do more for us. (Ap-
plause.) The name which we are going to give our leader here,
ar)d you may call him by his Indian name when you meet him. Is
Spotted Eagle. That name, Spotted Euglo, represents the Indian
Rcs-Mvatlons, the way they arc checkerboardod. Wo hope that those
rpols will bo rubbed off so that every Indian Reservation will be
all In one spot. The Commissioner Is going to ba our Chairman.
We further Invite the Commissioner to come out In our Reser-
vation, which Is bordering on the Glacier National Park. When
Minulet of the Plaint Congress
127
he comes out there he can have a snow ball In one hand end a
bunch of flowers on the oilier hand. (Here '.hoy slug n native
song, closing the ceremony, after pies-.-nllne Comml^iloncr Col-
lier with a native hutul die:;-;.)
CHAIRMAN WOEULKli: I bvlfevv v.-o aix- nil ijrcuUy apprecia-
tive of the honor the Coininl'sloner has bct-n slio\vn Ijy the HJack-
fcct irlbo. I just want to sui;.;cst that If lla-ru Is smother tribe that
wants to honor the Assistant. Commission! r they inl(;ht muni: lilm
the man who Is silent In nil liinguiibrs. Now, I Ix'liove that the
Commissioner wlsneu (o continue where the ses-ltin was left off
at 12:00 o'clock this morning.
Mr. LaPOINT. Rosebud: Mr. Chnlrmnn: Just two minutes please.
There Is something Hint wo would Itkc to Insert Into the re-
cord at this time. It won't tnkc but just two minulis. Every
Sioux Reservation, so fur; I do not know of one ncsorvnlion among
the Sioux that has eclunlly accepted the program, but this Is
the position that we arc In to fur as the Sioux tiro concerned;
we want to BO on record that we have nil been Instructed (o tnkc
the matter back to our people fur their limit decision; Hint, our
delegates arc not Inking any nc'.ion In this mutter here. Tlinnk
you.
Mr. WOEHLKE: That will go In the record.
Mr. COLLIER: There is only one thing on whlrh we arc going
to Invlto n show of hands nt this incelint'. H )i;i.,n't gut any-
thing to do with this Bill. We arc going to a<:U you v,lit!her
you would be Interested In having this 1'lalns Indian Congrcr.s
become a regular oniiuiil gy Hiring. I can't promt: o that It would
be, because we have to yet the funds tor pitying the rxpeiv.cr.,
but If the Plains tribes dciifro it, we will try (o ucl the funds so
thnt the Congress nuiy become an unntiul event hereafter. (In-
terpreted by Mr. LaPolnt.)
Mr. WOEHLKE: Now, I would like to ask those who arc In
favor of having this Pin Ins Congress mi.du an nnnunl affair to
stand up.
(Great number slnnd.)
Oppa:cd arc requested to i.'.iunl. (One uluncls.)
Carried. That one delegate had the coinage of his convictions.
CHAIRMAN or BLACKFEET COUNCIL: He Can't help himself.
his >!!\me Is Standing Bear,
Mr. COLLIER: We will now l:ikc up Ihu question nskcd Just
before lunch and then I ;mi uoli'ij lo p:iv; un to n nuillcr ol gnat
final Importance. He iiskcd two or three question anil I will 117
to answer them. One question was about the ceded lunch which
were signed away by treaty to be disposed to whiles, but they
-------
138
Minutes o/ the Plains Congren
of the rinlns Congras
120
were not disposed of nnd now they arc lying Idle. Under existing
laws there Is nothing we con do about that. Under the new Bill
If It becomes law, then undisposed, ceded and surplus lands will
be restored to the Tribe. Another question, was connected with the
use thnl hnd been made bf trlbul funds derived Irani the cession
of this land or from some land cession. Where the treaty promised
Hint they would bo used' for education but they were not used,
but they were used (or something cl.'ic. Answer: I do not know
about the particular facts, but It sounds like what we have been
doing nil over- I assume Chat the money was diverted to adminis-
trative costs, Jusl BS another hundred million dollars of tribal
funds hnd been diverted In the last 34 years. This BUI would not
correct a thing that took place In the past. It would only pre-
vent that kind of thing from happening In the future. For the
past happenings Uie tribe would have to serk redress In the Court
of Claims. Then the other question was about a water system
where the Government 'hnd piomlscd free water but a charge
has been piled upon the Indians for that water. Answer: Under
an act passed two years' arjo. the Lcavltt Act, wo have power to
cancel the reimbursable debts which have been pliiccd on Indian
tribal nud allotted lands. These reimbursable charges have totaled
several million dollars against the various Indian lands. To date
about four million dollars of reimbursable charges have already
been written oil under the Leavtlt Act. We shall proceed and
write oil more of them. The new Bill would prohibit the Govern-
ment from making reimbursable charges against Indian lands
except with the consent of the Indian communities. Now I am
going to turn aslda from the ansivcrlng of written question for
n few minutes In order to answer wiiat may be called an unasked
question Hint Is In the minds of muny people, and I am now going
to address myself not only and primarily to you here but rather
to the Indian:! all over the country and to their whlto friends.
First I wnnt you to let me tell you about the Indians In another
part of the country lor u ramni that you will soon understand.
I refer to the Indians of the SUttc of Oklahoma. The Oklahoma
Indlitns po.sscuscd twenty thrre million acre* of Innd before allot-
ment. All of their land except about, three million acres Is now
lost, nnd nearly half of (hat three million acres have been brought
under taxation by a upccUtl n;t of Congress. There are 100,000
members of the Five Civilized Tribes of Oklahoma and they all
got land. Our latest Information Is that 72.000 of them have now
lost nil thulr Innd. Many thousands of the Oklahoma Indians now
live In desperate poverty, and In addition to losing their land
and their money they Imvc been victimized In all kinds of cruel
ways In Oklahoma. Probably the Indians In Eastern Oklahoma nrc
worse off than the ic:.L of the Indians In Ilic whole riuinlry. Tills
UII1 we arc discussing extends protect inn (o ;hc Ol'.lalmuia Indians
and there Is a companion Bill, (lie llu.vnui Hill, which cxl-nds
oilier protection to Ihfin, Now I uild yiMcrdiiy In the meeting In
Dili Civic Hull. In the Auditorium, lli:it v.e all wanli-d (In: ijreiilest
freedom of expression and opinion about sill lhe:e Italian nmll'.T.'i.
We do want all views lo have the fullest e.\pie.:,Uni:; whether we
agree with them or not nnd In the :...mc- «:iy. we. \vlio are hpcaklng
for the Administration frel fiec to Mali; our vii-.w;; ami .slain the
facts as we understnnd (In in. Then? I:; di:,rii:, ion uf Mils Indian
Bill going on sill over tie; United Stales ninony I he while.1; as
well ns the Indian::, nnd In a : .eii.se we arc compelled to dhcuss the
Bill before (he Amerlcnn publ.'i:. I now \v:ml lo ivad to you a dis-
patch that went out lo I he nuw.--papi.Ts all over the country, an
Associated Press Dispatch. 1 1 bear.-; the dale of February 21, and
It went out from the headquarters of OIL- Five Civilized Tribes In
Oklahoma, Miiskogcc. From that area when- tin: Indians arc- in
the condition that I have described lo yon. I n.sk your very el'we
attention lo what I have rend, this Associated Pruss Dlspale.li.
"Dr. LlndqulBt Renounces Collier'* IncJIiin Policy." l>r. K. E. Mndqitlst
Of lAWtcnco, Knnu.. a former adviser lo linlliui Ui'ijurlinulil ull)< Inl'i. i.ulcl
hero todny that CommUMonur John Col HIT'S new Iiullini bill In "tiiH'In-
llunt and CoiiiintiiilKin In the rnnkchl i.rm.ir."
Interpreter SAM LaPOINT: Please explain conniiutiiMu,
Mr. COLLIER: I will continue to read.
"It U * total revered of the former policy of the Indian (l«i|)arlmcnt
In tending to bring; Indiana Into tho ucm-ral body of citizenship" mlil
Dr. UnquUt. who U In tho FIve-Clvlll/ed Tribes territory lor u wuck'u
visit. "It would put them back on n->-,crvalUiiis and In blnnkcta."
Ho laid Oklahoma bus solved the Indian prohh in butter limn nny
other utrilo nnd la most threatened by Colili-r'* im.v mil wlili-h. IV.
Lmdqulat contended. piuposts to (jive the ludluii cnininlsslonCr uiithur-
Hy to tat tip communistic KcUlemoiiU. not i,nl))c( t to Ktuto cunil.H or
l«w», but aimwvroblc only lo it new Uilciul liiillun tonil uf i»vvcn
I hove read this to you because II repre;;enls what has been ex-
exprcsscd by oilier people bc.sKk-j tny [;(««! Irleiid, Dr. l
-------
ISO
Minute* of fie Plafni Conpresj
Minutes ol the I'lulns
131
to some of our Southwestern IrlbM, the Pueblo Tribes. The plan
was to take their tltl'fs and give them to the whites. These tribes
organized for self-dtfonsc. They carried their case and their
battle to Conorcts nnd Into the courts. In the middle of this battle
the Indian Bureau gttvo out n statement that these tribes were
being financed by Eovlot Moscow. They were guilty of communism
nnd socialism In trj-lh-,; to hokl on to their lands. Down the ycnrs
every so often thU thing fUtuicj up again that the effort Of the
Indians to hold on to llwlr lands Is communism or socialism, and
now we find that this Administration, because It Is determined to
help Indians hold on to their lands, Is cmlly of rank communism
nnd socialism.
NO-.V, we will Just make n series of straight propositions and I
will stand on them. This United States government has an obliga-
tion to Its Indians. It Is the guardian nnd they aro Us wards. To
assert that obligation and fulfill It Is plain honest Americanism
nnd not communism. It Is not communistic to extend the trust
pcrlon on our Indian lands and keep you free from taxes. It Is not
com 'iunlstlc to extend to you the constitutional rlphts possessed by
the i-ther citizens of the United States. It is not communistic to
extend to you the rliilit la orgunlr.o for mutual nld. It Is not com-
munistic to allow yon to have the same Instruments of power which
lire (jossessrd by nil of the other people, but not by you.
Local suit-government was not Instituted by the Communists,
but It. the oldest Institution in (he United stales, founded In the
New England towns of loin ngo. White.people nil over tho United
Stales own Innd In partnership!! ;md companies and corporations.
It Is not comimini; in to allow Indians to da the snmc If they want
to. The jurisdiction over the Indians by the United States Govern-
ment was declared by Congress »nd by thn Supreme Court of the
United Slates more than one hundred ycnrs ago. When we propose
that that Jurisdiction shall be continued nnd that the Indians shall
not bo turned over to the state of Oklahoma or nny state, and lo
the tux collectors of Oklahoma nnd the other States, we are not
propjslnij something thut we learned from Russia or any other
communist place, but nrc following the counsel of John Marshall,
the greatest of the Supreme Court Judges nnd the policy of the
Unlti'd Slates for the last hundred years. If It were true that civil
comtltullonnl rights nrc communism, and that old-fashioned
American home rule wnu communism, and that all of the other
rights nnd advantages which Indians arc entitled to; It they are
all communism, then Ihcre would be nothing for the Indians to do
but h,-come commuiilbts. It la not true nnd thcso rights and privi-
leges have nothing to do with communlun and therefore the In-
dians do not need (o become c'liumtinl.-.t1;. Thaw U'liu tell the
Indians that for them lo usicil llu-ir ilr.M.; Is lo bo conrnunl.sU
are Inciting the Indians to bi-coniu tonmmnlM:;. (Applause.) And,
as for holding up Urn Okbhum.i )inli:iii nx.inl us dm model of
what we want for the rest ol UK.- Indians, llml I:, cumlnmlng tho
Indians of the United Stairs lu ruin :uul liiiinili.aiun itnd extinc-
tion. I have spoken, as I said, net priimniiy to you here. but in
ordar that my words umy b:> ran if)) on DM- win-:; lo ilic> IinlliiiM
over the whole country. Hut al:o I utu :.)>::. kin:: lu you. that HUTU
will hn Increasing clfotlu lu fri;:hUn you Indians and to stampede
you. Throughout the lucal CDinn-imilli-.s iipjiiiul (he Indian Rescr-
VollOMS there are hitore:;ls llml du IK, I v.anl UK; Indian property
prot.i. ted and you nil know Unit. (Applause.) Your Inturuls arc. of
necessity, In opposition to innny local InlprvuU around you. You
want to keep your lands, r.tul of coinsu tliL-ru nrc oilier people
who want to get your Innd:;. That (:; inevitable. You want your
lands to be exempt from taxation, mill of course there arc people
who v.nnt to put tuxi'3 on lltcm. You want to have (he capital to
put rtock on your own lands and yomsi.lt enjoy the proliu of the
caltl',1 business, nnd, of conr.su there uru while cattle men and les-
sees nnd bnnks Unit dun'i waul yjii lo do it
I tnlnk wo have imiuu tk'.ir that we do not v/anl yi,u lo follow us
bliudiy or bcllcvo anything we tell you without Investigating It.
And, when you go back to your louul comiiiunllk'';, rtmuhibsr thut
you ought not to follow anybody ch.u blindly or bdit-vu what he
tells you without your own InvuAii-.alion. (Ai)iil:i\r^j
Mr. LaPOINT: Mr. Chalnium. will you (;ivc l-'r.inuij Hud Toma-
hawk of Slaiidlng Hock thu lluor for :>cvcnil minutes, llu bus a
resolution which he would lil;u lu read lu II m couvtnllon.
(Omnted.)
Mr. RED TOMAHAWK from Standing nock: Aflur having been
here these four days In tln-su councils I k-ll thai we had a duty lo
discf.nrge and with that motive In view I drew up a resolution tu
be considered by you and 1 would like lo have 11 pa.uud unaiiU
mousfy,
Whereat" It U Hie sense "f the I'lttlru uroiip of
here In Itnpld Clly from lliv vailoim nL-.-.vrvutlvnx ri.-|.resciiicd In tlic
"Great Plains Connrtss" held ul tliu Iiullun Uclioiil ut tlic uliu'.c ntuiicil
city, Hint wo owe our uhlluiiLluiiK t>> the Ilonui.iljlu C'liiniuliii-li/iiur or
Indian Allalra and Ills kluir unU Lo UujjiTlnlcmk-iil Ul.iL-y ut Da- l}.i|)!(l
City Indian School mid lil-i ulllck-ut cuiju of i-iiipl.iyii.-s, u-U'-Hior wllli
the Doy Scouts, and lust l;til nut the Uust the |,lrh «r tlic ln:ii.llutloii
Who guvt of their time umi'llMily to inulic our Muy lure i.iin ».,UL' l't
be rciiicmbiTi'd, anil.
-------
139
Minutes of the Plaint Congrets
Whereas. In recognition of each and every lorvlce and courtesy ex-
tended In our bclmlf we hereby unanimously thank each and every
person for their untiring ellorli to make our stuy as near home-like
a* possible, that we could not receive anywhere, ccrvlce atipcrlor lo that
whlrh hai been accorded us while wo were litre, now there be It.
Resolved. That we again heartily thank yon all. that words fnll lo
fully convey to you alt our deep and heartfelt thanks and appreciation
and may tho "Clrcut Spirit" who rules tho Universe keep and i>uldu you
snlcly through all your lives. Is the wish of your friends, I he Delegates
to tho "Great Plains Conrjrcso." held at the Indian School In Rapid
City. South Dakota, this Sill day of March. 1034.
HENRY BTANDINb BEAR. JOHN BUCKMAN,
Chairman, Pino Rldgo Oclcg-Ulon. Chairman, Fort Delknap Council.
C. T. ROWLAND. CHARLES M. DUBKELL.
Chairman. Tongtw River Council. Chairman, Shoshone Tribal
MELCOLM MITCUEI.L. Council.
Chairman" Rocky Boy Council. JOHN B. AZURE No I.
ALBERT HEMINOER. Chairman Turtle Mountain
Chairman. Blsselon Council. Council.
.„__„,„ UAMDAM LOUIS "VRICK,
ChaVrman Fort Bcr'thold Council. Chairman. Fort Tott.n Council.
^•tintrq RAMSEY OEOROE YELLOW.
Chalnnat 8UnX Rock Council. Chairman. Lower Bru,. Council.
_--..u WILLIAM WHIPPLE.
OEOROK EASTMAN Chairman, Sante. Council.
Chairman. Flandrcau Council. n,LnERT
RUSSELL HARRISON c"a^n°n Clfe^nn. River
Chairman. Crow Creek Council.
JOSEPH W. BROWN.
Chairman. Blacktcct Council.
QU8 U. HEDDERICK
Council.
8AM La POINT.
Chairman. Roxcbud Council.
MAX BIO MAN.
Chairmen. Crow Tribal Council.
FRANK HEAVER,
Chairman, Wlnnebogo Council.
Chairman. Fort Peck Council.
ELWOOD HARLAN.
Clialrman, Omaha Council.
cLTmaTponc»Coimc.l. Delegate.. "Oreat Plain. Congrcss."
M- WOEHLKE: I am not a member of this Congress. 1 am only
the Chairman, but I would suggest, If you will accept It, an a-
mcndmcnt lo this resolution to Include In your gratitude with
special force, the two young women and the young man who, for
four days now hove been embalming our words; who have been
working harder than anybody else In this Congress and who.
wlihln ten minutes after you have said your words, had them
down on paper. Will you Include this In your resolution?
Mr. Red Tomahawk agrees to have the amendment Included.
Gentleman asks to delay the procedure a moment to Interpret
to the BlaeMeet. Granted by the Chair.
Mr- WOEHLKE: AH those in favor of Mr. Red Tomahawk's
resolution will answer by saying "aye." Those opposed. Tho "aye'a"
have It.
Minutes nl the I'luins Coiigresi 133
(Mr. Red Tomahawk Mill having the l!u.
liiipld cuv. B. D.ik..
M.H.II r>, IKH.
Hon. John Collier.
C'oiiiiiil'.blouer ol InUlu:! Alluli ..
Hii|)ld City. Soiilli l):.l;i.l:;.
Dear Mr. CoinmlsUiuii-r : We, tin- (uiiihlnul <]<-li;;.ilir. fn.in tin- var-
ious rcbervalluiia. us:,t;liil>lfU here :illi-liillli|; tl:i' "On-ill I'l.iln-i (;HH|;II :<:,"
do hereby take IhU o|i|i»rl\inlly In ixlrud (u ymi I: llc.n inn)
gratlludv for yuur t-lluil to iinilur It |in..!.lliU- l»r u» tu i.tiKicr Inn- vvllli
you to tlUcUba Die lni|ii>rl»iit li-;;l:.l.ilhe niMli-i:. |>tn]io:>i il l»r 1,111 lutiiru
wclfiirc, (or your every niiiiilli.-.suiili>ii nf yi/iu cual linen. I In our iiili.u ..
For your blnceilly In nil yu>ir illiol. ti»,»nl ni;.l:lni; u.-, li Itri rlll/.i us
and the prcKcrvulloit ol nil (lint l.t r.<»"> v.liliin \i.; lur tin: liii'd'iiii you
hatt accorded In exer<'l..lni; our IIMI.I- < ii-.h.ins, anil |i..i iltuliirly for
the treat opiioi'tutilly by your ]>n>|j pJeiisiux- of thi: Cun-
gress? Do you want lo iiulhorixo Ihe chainnnn of Hie vailous
delegations lo sign that Iftu-r? I :;uuBf!.t that II tnll:hl peihap-i
be the best way lo have every delegation which nBiws will, u,,,
spirit of this Icltcr to (uilhorlzc H.s Chaiiiuai, (0 sii-n H,,.,l
-------
134
Minutes o/ i/ie flalm Congrest
Mr. Red Tomnhnwlc Informs me that the letter will be in the
school room In the North wing and that oil those Chairmen of
the various delegations who are authorized by their members to
sign that letter ore requested to step In to that room before they
go and put their slana.lurt-5 down on the paper. Now what is the
pleasure of this Congress? Would you like to have the Commis-
sioner and his Unff answer more of the questions which have been
handed to us. or would you porter to have your various delegations
speak further and stale their opinions concerning this Bill to the
rest of the delegates and to the Commissioner? What would you
prefer lo hnvo us do?
Mr. STANDING DEAR: Mr. Chairman. I would request the
Chairman to continue these questions thai have been fllcd. There
have been a number of questions prepared by the various dele-
gallons. A number of them have not been answered.
FRANK WILSON: To eliminate a great deal of time that would
bo coiiisumed here on these questions, I wish to have the last part
of this BUI turned over to the attorneys, Mr. Ralph Coco, Mr.
Hastings Robinson and Mr. A. O. Granger. It will eliminate a
great deal of discussion If these attorneys can take up this matter.
Mr. WOEHLKE: If Mr. Case and the other attorneys will come
to the ornce of the Indian Bureau In Washington, our attorneys
will bo glnd to talk wflh them.
Mr. ELWOOD HARLAN: I think we have submitted questions
to Mr. Shepard the other nlyht which I bullcvo very different
from any of these Sioux matters hero. Wo have been hero three
duys and we would like lo hear something about our Nebraska
problem.
Mr. WOEHLKE. We have those Wlnncbajo questions right hero
and if It Is the pleasure of this Congress, we will proceed to answer
them now.
M.\ WILSON: I want that committee to take the action this eve-
ning because they arc all here, not at Wasltlngton. but here.
Mr. WOEIILKE: Some of our attorneys have Ml. but It will bo
done tonight.
Wu will now proceed to discuss some of the questions submitted
by iho Wlnnebago delegation. I would like to point out to the
members of the Congress that a great many questions have been
ixnsw.-rud two or three times and that we havo moru questions on
the some points before us. All these answers wll appear In the
record which Is to be printed by Dr. Roe Cloud's Haskell Institute
and which will reach you In a short time. You will also have avail-
able n transcript of Ihc hearings before the House Commltltee on
Minute) o/ the Plains Canutes*
135
Indian Affairs In a short tlni-. In this Hearing a great many of the
same questions which you are asking hove been asked by the Mem-
bers of Congress and have been answered in far greater detail than
we could answer them. So. from the record here and the record of
the House Hearings and the record of future Congresses, you will
be able to And an answer lo every possible conceivable question
that you could ask. I just wanted to bring that to your attention.
Now. I think we will proceed to the Wlnnebago questions.
Mr. COLLIER: Several of your delegates have told me that there
Is a general wish among the delegations to hold a general meeting
tonight Just for the Indians in order to talk everything over. If that
Is your desire. I think that is the thing to do. I think, however. It
should be determined so as lo enable us lo decide what else Is to be
done.
Mr. LaPOINT: I think that Is a misunderstanding. The party
who came to me at noon to make the request had In mind pleasure.
A dance Is what they wont. They wont to wind up with a big
dancj but we did not know what your plans are. If you have
planned for a night session we will have Hint, but If not they want
to uss the gymnasium for a dance.
Mi*. COLLIER: Thai Is for you to decide. We will be here, but
maybe everybody Is tired out.
Dr. ROE CLOUD: Now, docs the Chair understand that the Con-
gress wants the answering of questions continued by the Com-
missioner. If so. now he will proceed.
M»*. COLLIER: The Wlnnebago delegation has submitted thir-
teen questions They are different from most of the other questions
In thut they call for an expression of opinion rather than a state-
ment of fact. I sliall try to answer them Just as briefly as It Is
possible.
Thi first question Is this: What docs the experience of the best
educated Indians prove? Did they receive mote help on segregated
Reservations or away from them? Did they get more help from the
Ucsarvallon or oil the Reservation?
ANSWER: I do not know what It proves In the past the Indians
have gotten their education mostly from non-Reservation boarding
schools. Some of them have gone off to college. Some of the best
brains are found among the Indians and among the people who
have lived all their lives on the Reservation, so I do not know how
to answer that by yes or no. I would like lo state what It seems to
me ought to be looked forward lo. We ought too try to have real
good schools near the homes of the Indians first, and then when
the Indian young man or woman wants lo go ahead with cduca-
-------
138
Minute* of the Plaint Congresi
tlon, we ought lo enable them to go on In places like Haskell
where Dr. Roe Cloud Is In charge, or Into the agricultural colleges
and universities, medical schools, and nursing schools, but I be-
lieve that the home, the faintly and the home, are the beginning
of life and that they are Important to every child. Now the next
question Is similar. Dq we need any legislation for the old people.
or rather should we look forward and do what Is best for future
generations? I answer.this, that It Is quite clear that we need new
legislation for old pepple and the young people. Third question.
Shall we again build pit worn out traditions and superstitions, or
on an enlightened civilization? Answer: I will have to preach you
» sermon If I go ahead on this.
FRANK WILSON of Pine Ridge, 8. Dak.: Wo object to those
questions because they ore taking up our time and deal with things
that do not pertain to our discussions.
ELWOOD HARLAND: I believe those questions were asked by
the Wlnnebago Indians. I think Dr. Roe Cloud knows about them.
They took them when we had our meeting the other night at the
dining hall.
Dr. ROE CLOUD: He Is referring to the very same paper that
was taken from me the other night. Most of them are expressions
of opinion and have very little to do with this.
Mr. COLLIER: (Continuing to read questions.) Question No. 12.
Who will support the old people after their lands have been sold
to the community and no more rental received?
Mr. HARLAND: Mr. Collier, I handed the Omaha questions to
Mr. Shepard and they were In pencil. I was the Chairman of the
grouo meeting that night In that hail. We are different from these
people in allotment lows. We oiler them because they are different
land titles. On the Wlnnebago and Omaha Reservation under the
Brown Bill of 1916 the trust lands are taxable.
Dr. ROE CLOUD: On the Wlnnebago and the Omaha Reserva-
tion under the Brown BUI of 1916 the lands are taxable. The ques-
tion that was expressed the other night was this—Since the
Omaha Tribe was not allotted under the law of 1807 like other
tribe:, but allotted under a dliTcrcnt act of Congress, does this new
Bill .'.over the Wlnnebago and Omaha Indians?
Mr. COLLIER: It mokes no difference. This Bill would cover
them all.
Mr. HARLAND: Will It take a special act to repeal the tax law
of December 30,1916?
Mr. STEWART: Yesterday afternoon at the Auditorium one of
your delegates come lo me with some penciled questions. I would
Minutes o/ the Plains Congress
137
like to hove that mnn fctond up. (Frank Beaver, Wlnnebago Indian,
etan:!* up. Mr. Stewart continues.) I am now working on this and
draMng n new Bill to fit the Omaha and Wlnncnago land alone.
Mr. HAULAND: Whu-n I get home that Is one question the In-
dians will wont lo know, wlicllier llils new BUI would repeal that
Bill?
Mr. STEWART: Another question raised was concerning title to
some accretion land.
Mr. HARLAND: I oskccj another question. This Is a special act
of Congress of May 11, 1012 and that land was to be sold and pro-
ceeds divided equally to the children living on the dale of the pass-
age of the net. This net was amended In 1925. Would we hove to get
speclil legislation to repeal that act?
Mr. STEWART: Special legislation Is not necessary In this case.
RALPH. II. CASE: Mr. Chairman. I am the attorney for the
Wlnnebago as well as the Sioux. We ire studying legislation now to
repeal the Brown Act which affects the Wlnnebago and Omaha
lands regardless of the fact tnat this new Bill is being proposed.
Mr. Stewart— will you In your repeal IcgLsbUon put In there a pro-
vision for the repayment to the W.-nnebago and Omaha people for
the taxes that have been collected from them Illegally?
Me. STEWART: I suggest that Major Case and I get together In
Washington on that point and work out something together.
Dr. ROE CLOUD: The Chair wants to say that your remarks
are \ery much in point and also that of Mr. Cose and I hope
that repayment provisions will be made In this new Bill.
Mr. WOEHLKE: I would like to Interpose at this lime.
As you are also seen In the educational section of this BUI, pro-
vision Is made for the encouragement of native Indian artists
when you people have a great many talented young artists who
need encouragement, for instance, there Is among the Northern
Cheyenne a young man, D. C. Wheeler, who has painted a portrait
of iht Northern Cheyenne Chief, Victor Little Chief, and he has
oske'l that this portrait be presented to the Commissioner In ap-
preciation from the Northern Cheyenne.
Mr. COLLIER: I want to most heartily thank Mr. Wheeler for
his Rift and through him to thank -the Northern Cheyenne. The
picture will be sent to Washington and will there be looked at by
a grout many people, and In acknowledging Uiis picture I would like
to remind you all of a fuct which Is that a number of the most
famous and greatest painters living In the United States today arc
Indians. What I menn Is, that the people who know the art of
Eurone and Die art of China nncl Japan consider that some of you
-------
130
Mlnutei of the Plaint Conpresi
Indian artists ire great artists and compare favorably with a great
number In China and Japan.
I want to remind you also that In some parts or the Indian
country ft very large Income Is received by the Indians from their
works of art. In ordinary yonrs, Ihe Navaho Indians receive an
Income of more than a million dollars every year from their blan-
kets and their turquoise jewelry. There are many hundreds and
perhaps thousands of your young men and women who, with the
proper chance for training in the arts, can go out In the world, and
establish themselves In the matter of Income and with the respect
of the whole country. It Is one of the purposes of this BUI and of
the present administration both to extend this educational oppor-
tunity to your young people, and to organize the market for your
arts and craft producU so that you can see advantageously all
over the world.
I Know tltat your are all feeling fatigued and you are certainly
tired of hearing from me. I am perfectly willing to remain here
and answer questions without end. It might be better If they are
answered to the delegations that are asking them rather than to
the whole audience, and I want to say that we hope you will not
coiu'.rter that you an bound by courtesy to come here again tonight
and listen to us. The work connected with this new legislation must
go on through weeks and months ahead, back In every one of your
own tribes. You will have, and you will read over all of these pro-
ceedings here. Already the hearings, the printed hearings of the
House Committee on Indian Affairs, have been sent to your dif-
ferent Reservations. You will And them there when you get home,
and there Is no possibility of exhausting this subject even though
we stay here till midnight and even though we remain here the
rest of this week, and I think that probably you would rather
adjourn at an early hour. I Uo not know. We are at your service.
I want to try, Anally to make clcnr to you some things about the
Bill and how we are proposing to proceed with the legislation.
In the flnt place, as to the matter of how fast things are likely
to move. The hearings have been adjourned In both the House and
Senate Indian Committees. We asked that they be adjourned until
Congress could know more about the desires of tho Indians them-
selves. We have ahead of us cither eight or nine Congresses In
different parts of the Indian country before we go back to Wash-
ington, so that the hearings of the committees In Congress can
not be resumed until at least the end of the present month, and
thow hearings, when they ore resumed, will go forward probably
for several weeks. In other words, there will be abundant time for
Minute* of the Plaint Conureu
130
you and all of the other Indians to BO over the whole thing back
ham?—send In any Ideas and Congress will not move ahead of you.
Therefore It is Important for you to keep right on sludylnc the BUI
and discussing It but do not (eel that you ure being hurried too
much.
And second. As I stated yesterday, this Icul.slallon as a whole Is
not uoing to be forced on u tribe which docs not want It. The tribe
whose members desire to be excluded from the operations of the
Bill has only got to let us and to let Congress know Dint they de-
sire to be excluded. I would hope Hint no irlbe would reach such a
decision in a hurry, because f believe that all trib-js, or at cast
most of them, will want the BUI unU waul It with all their hearts
when they understand It thoroughly. I believe you will find that It
takes nothing from you or from liny Individual among you, but
that It adds a great deal that you waul and have long wanted.
There are some of you In greater need than others. I merely now
desire to emphasize that the tribe which, after mature thought,
decides that It wants to be excluded will be excluded, Insofar as
we have power In Congress. I think you will flnd a great many
points at which you will be a)>!c to suggest Improvements in the
BUI. I expect that after all of the Improvements arc put In, If the
Bill Is passed, still there will be other Improvements put In by
amendment the next year, but I think thai as you study the BUI
and tiace out exactly the wny It will work In your case, you will
flnd that we have already tnkcn out of the BUI the one thing
which you might object to. Nnmcly. this feature of compulsion, so
that Ihe Bill In Us essence Is wholly an optional matter. Not only
optional with the community nnd the tribe but with the individ-
ual. That Is not wholly true bccjni.sc the Bill would forbid an In-
dian Iroiii getting a fee patent and disposing of his Kind. It would
forbid that.
Now, one thing more before I stop. Thu men from the Indian
Offlcj who are with you here at this meeting are in most cases men
who have been brought in by the present administration, except
Mr. Stewart, who wns placed at the head of the Land Division by
the Administration. We arc not In any way concerned with de-
fending any element of the past record of the Indian Bureau. In
fact we hold office precisely because the President knew and the
Secretary of the Interior knew, thai we were not going to protect
the old record, but were going lo try to mitke a new one. Other-
wise we would not hold olllcc ftl nil. Now, I do not know that wo
are pnrtlculary wise. I do not suggest Ihiil at all, but I do know
that we all value one thing more than any olhcr thing. We want
-------
110 Minutet of th« Plaint Congress
the Indiana to continue to believe that wo have been truthful and
faithful. Should we, at some future date, appear to have misin-
formed you, to have told you things that were not true, as we un-
derstood the truth, then we should consider that we hnd failed and
lost the most precious thing that we possess, which Is your con-
fidence. To me It would be the failure of my life and the ruin of
my ambitions and hopes if I lost the confidence of the Indians. I
am merely trying to'convey to you that we have a stake of out
own, just as much as you have, in making good. In playing fair,
and In telling truth.
Now. if we haven't by this time put all our cards on the table
and told you everything that we really think. It Is just because we
haven't had time enough or haven't known how to get it In words,
and you may be sure that before these Congresses with the Indians
get finished, -everything we know will have been put Into the
record, If It hasn't been already, because, just as you men here have
gone right on probing down, down to the heart of this thing, and
demanded straight answers from us; you have done that—so will
the other Indian Congresses do.
More Important than this BUI, more Important than any particu-
lar proposal is one other thing, and It Is that the Indians shall
realize that we are placing their case In their own hands; that wo
are doing that In dead earnest; that not merely are we willing, wo
are, determined that the Indians shall do their own thinking and
reach their own conclusions about these Important matters, and
that purpose, though it might result In our not getting results that
we want, is still more Important than getting those results. I can
only here convey a feeling to you rather than slate It In any words;
that jou are now your own judge and your own jury In these legis-
lative and all other Important matters, and from the point of view
of the future of Indian life, there Is something even more Im-
port «nt than this land legislation. It Is that the Indians shall take
the icsponslblllly, here and now, of thinking out their own prob-
lems and arriving at their own conclusions and detei mining their
own future, and we are determined to be nothing but your agents
In carrying out your own natural conclusions. That Is all I shall
say now. (Applause.)
Chairman, Dr. ROE CLOUD: Now, there Is one thing that the
Chairman would like to settle before we go any further, and that
Is the question of whether tonight there should be sectional meet-
ings to dlscu&s the technical affairs of each special group, as we
hnd other nights, or whether we should have some entertainment.
Now. the technical affairs of one group, however Interesting they
Minutes of the Plains Concren
141
may be to that group, arc of no Importance to another. Therefore
it is a question If whellior there should be toniuht, these Divisional
meetings or whether there should be :.ome entertainment.
Mr. LABAN WHITE. Ho::cbod: Mr. Chnirmnn. (He Is granted
the Poor.) We. the delegates from the various Reservations, would
like to sny that we want to continue Mr. Collier's answering ques-
tions for the reason tlv.it we were sent hare to study this matter
out, pnrt If we hud sonwlhltii; else tin1, rumor would go out back
hoin» that wo went up as delegates mill instead of continuing In
the examination of this BUI, why v;c got. Into some pubtlme and
tha; would be a reflection on us ns delcijaic:; back home.
The CHAIRMAN: I have just brcn Informed (hat due to the fact
that the CommlJ.slontv'5 votcc Is very nu.rly played out, he can
not answer nny more questions. It Is a physical Impossibility. Bo It
Is a question of whether we ha\e divisional group meetings or
entertainment, 'llio.sc In favor of divisional muctlncs raise their
right hands. (Considerable number do so.) Opposed the same sign.
(AbMUt the same number vote). The Chair will decide. It Is just
about even, so the Chairman will decide on recreation tonight with
the piovlslon that those that want to meet In divisional meetings
can do so. (Applause.)
Dr. ROE CLOUD: The Chair has something to say to you. Mr.
Llndqulst has asked for the privilege of the floor and I know of
no man who likes to give everyone n chance to present his views
more- than the Commlsiiontr himself, even though those vlcwu
may be averse to his. We asked Mr. Llndqiilit to ttli.-k to the ac-
tual provisions of the Bill In their relation to the llfu of the In-
dians, the States, mid the United Stales-
I would also like to u;,k him to in;ikc his tiilk as brief as pos-
sible because there are more thlng.s coming on.
Mr. LINDQUIST: Mr. Chalrmun, Indies and gentlemen. Just a
very brief statement, my friends, und In order not to be misquoted
or the statement misrepresented. I have put It In writing In a
single paragraph. This Is the statement.
The Muskogee, Oklahoma, pnpzr, according to the report of
Fcbrimry 24, made an editorial addition to my remarks, faying
that Commissioner Collier's plan l.s bci.lullsllc or communistic. I
did not say that. While I do not none with many of the provl-
clons of the Hov/nrd-Whcclcr Bill. I consider It neither commu-
nistic nor socialistic, nor both In one. As to Oklahoma, this was
my MiUcment. From Vanlla. In (he nurlh. to Diuiint. In Hie .south.
omitting those who foiled to mukc adjustment and drifted back
to the hills, you have one of the best examples of racial avslmlla-
lion anywhere. I nm thinking of tho.se who made this adjustment;
-------
1O UlnuUt o/ ttu Plaint Congrtn
the Commissioner, of those who did not. Both groups are facts.
Thank you.
Dr. ROE CLOUD: I want to call on Mr. Stewart to make an
Important announcement at this time.
Mr. STEWART: Many of you probably have some of your allot-
ted land subject to sale on deferred payment plan. I know that
many Indians of other Rcssrvatlons thru are here represented
do. Under existing law, aisale made under that plan requires the
white purchaser to pay 25 per cent of the sale price down at (he
time and the balance In Installments. Under the regulations and
law, If he pays his flr.it payment and he pays his second payment
or his third payment, and then docs not want to continue paying
out. he can ask for a refund for oil but the first 2$ per cent pay-
ment and get It.
A short time before 1 left for this trip a Bill come down to the
Office tor report. Major Case, the attorney here, largely aided In
Its Introduction. Mr. Collier favorably passed that Bill and tho
Secretary of the Interior favoraoly passed that Bill back to tho
Committee.
Now, the terms of that Bill were to this effect: That In future
cases where a white purchaser of your allotment who wants to
stop payment after he has made the first 25 percent will not get
any refund. You allottees Involved will keep all the money. The
progress that that Bill Is now making before Congress Is reflected
in this telegram which I will now read to you. This telegram Is
dated March 6 and Is addressed to Honorable George J. Crllly,
Rapid City, South Dakota.
"HR 5073 Introduced by me was unanimously passed by the Home
this afternoon STOP This law will give the Indian greater protection
In land tales made on deferred payments In that all sums paid before
default will be forfeited 8TOP Advlio Case who Is thoroughly fsmlllar
with the provisions of my bill and al« Indians lathered there.
Tfceo. B. Werner"
Before handing this to tho Interpreter to read to you, I am
going to Invite Major Case to follow the Interpreter with a few
remarks. This telegram Is signed by the Honorable Theodore B.
Werner.
Dr. ROE CLOUD: The Chair will now recognize Ralph H. Case.
attorney for the Bloux and Wlnncbago for a brief remark. Ralph
II. Case.
Mr. RALPH H. CASE: My friends, there Is nothing I like belter
than to bring you good news. While wo have talked for four days
about this Commissioner's Bill, remember we have been talking
aboui things that are going to happen In the future, they are not
here yet and the old laws still press us down; the old law Is still a
Mlnutei of (he Plains Congrcn
143
burden to us There Is one pnitlculnr matter nnd that I; section
one, of the Act of June 25. 1010, WHS vciy. very iipprvuilvc. If a mnn
bought heliship Innd and paid more limn onc-Iourtli of the pnr-
chace price he could G«l his money buck from the litlr If he could
not pay any more, but If he bought land from a while man or
from the Government and he paid 00 pur cent. If he made three
out of four payments, and didn't pay any more. Hum he forfeited
everything he paid. (Pointing men In audience.) Some of these
people that arc silting right here cnmc lo Washington nnd said
why should they trcnt us different than they treat (he man that
buys land from the Government ur buys land from the white
man? I said, there Is no reason why they should not be treated
the same, so you got lo change the law and the only way you
can change the law Is first to get a Congressman that will try
to get It through for you. nnd at the .same lime you have got lo
have a Commissioner of Indian Aftnlrs that will Bay what he
honestly thinks about the proposed change. Now this Just shows
you that Is possible that you have got. some friends In Washing-
ton. X went Into this gentleman's oflirc, of the Commissioner of
Indian Affairs and sat down with him and told him Just what I
thought about this matter nnd lie said of course that Is what
ought to be done. (Applause.) Now do not think that this Bill
affects only the Sioux and the Wlnncbngo Tribes; It affects every
tribe In the United Slates of America who has any Inherited trib-
al land. I went to the Congicr.smnn from this district because
I know him better than any other man In the House and I said
"Werner will you put that bill In?" nnd he said, "Yes I will."
Now here Is a good one. Tlml bill passed the House of Represen-
tatives- That means It Is half way through. Now I have just a
final word that Is good news. That 13111 Is half way through. I
am not asking you gentlemen what you want lo do, but betorc
I leave here I want to tell all you friends that you ought to give
Mr. Collier a rising vote and thank him tor all he has done as
he certainly has earned the name of Iron Man. (Applause.)
Dr. ROE CLOUD: Now the Commissioner wants a brief word
again, but before he speaks I want to say that the Chairman of
each delegation Is appointed by the Chair lo provide the enter-
tainment for tonight. You arc to meet here right utter the meet-
ing Is over with.
Mr. COLLIER,: I only wont to soy Ihiit I glndly accept Dr. Llnd-
qulsVs correction of thc> Associated Report which I read lo you.
The foet that a detailed elaborate misquotation went over the wires
all over the United States merely serves lo Indicate what you have
to contend with, and I know thai tho Oklahoma Indians will be
-------
144
KNnutct o/ the Plaint Congres*
glad to Icam that lie will bo In the foreground with fighting to
correct those unjust laws for Oklahoma.
Dr. ROE CLOUD: Now I have one or two things that I want to
announce. Here Is a notice left with me: "Left In the Alex John-
son Hotel, 317, a brief case, If found scud to Porcupine, collect, to
P. S. Fielder." Now awhile ago Frnncls Red Tomahawk Introduced
n resolution and also read a Icltcr of thanks mid warm commenda-
tion of what tlio Commissioner has done for us and requested that
the Chairman of (he delegations sign those resolutions and I have
them In my hand nnd will hand them to the Commissioner. I want
to make this announcement, which Is very gratifying to me, and
that is that the Santec Mission School, of which I am a graduate,
has offered to translate the Howard-Wheeler Bill Into the Indian
langimge_so that >ou will have this Bill In the Indian language be-
fore very long.
I hive a notice here of particular Interest: "Honorable Commis-
sioner of Indian Affairs. Mr. Collier—Not one Indian woman had a
voice In this Indian council and may I submit In writing—this
new plan Is our only salvation. Let's all Join In and accept the new
Bill rnd make the best of our advantages." She said more In that
one line than all the speeches put together. This Is a member of
the Vine Rldgo Sioux delegation. She docs not give her name.
Now, before I go to the next thing, I want to say Just a word my-
self. I am In favor of I his BUI, although it will be of no benefit to
me whatsoever, either way It goes. The Commissioner announced
awhl'c back that now Is the time to get active and do something
because the thing Is In a fluid condition nnd hns not been rrmdo
solid yet, has not been set. If we are to get anything done for the
American Indian, now to the time to do It. Friends, there Is only
one John Collier In the United Stales. I do not believe h: Is a twin.
He has the brains, the personality, the friendship, the sympathy
and possesses the technique to put all this Into proper form for
the benefit of the Indians. We will never have another John Collier
os Commissioner of Indian Affairs. I have always felt sorry for the
Commissioners of Indian Affairs In years gone by. They have al-
ways seemed to mo men who were bound by ropes round and
round their bodies, wishing to do something In there heart but un-
able to do anything. Here for the first lime a Commissioner of In-
dian Affairs has broken that rope from his body and finding abun-
dant freedom early In his career to woik out good things for the
Indian race. Now I have many other things I would like to say but
Mr. Woehlke wants to take the stand on behalf of the Commis-
sioner of Indian Affairs nnd I will call on him now. Mr. Woelilke.
Minutes of the Plaint Congress 148
INDIAN from FORT DERTHOI-D: I would like to call on Mr.
A. F. Johnson to explain (o us how (h y me going to handle (he
translation of the BUI Into the Dakota language, and how It is to
be distributed.
Dr. ROE CLOUD: Mr. Johnson you may tell us
Mr. JOHNSON: The 13111 Is (juing to lie pul Into the Dakota
language and this genllcnmn wants to know uf'.cr it Is translated
how it Is to be distributed after It hns bucn pul Into the Indian
language. We arc eolng to -send copies to all Indians, missionaries,
etc.
Mr. WOEHLKE: Just a few words. I am Inking the plncc of the
Commissioner's throat now. We will all gel together again a year
from now when the next Pin in;; Indian Congrv.'is will be held, but
before that Congress convene,: ru-xl year, in all probability this
new legislation will hr.vo pnsa-.'d, ntul If It passes Ihnl Is when the
real work begins. The Commissioner wants me to Irll you that If
this legislation passes, he, himself, nnd hi:; representatives will
come out to visit and consult with cjirh trlba that is here repre-
sented. So that he and his representatives will discuss wl'h your
business committees nnd with your general council;; of 'each tribe
Juut what you want to do and Jiu;l how much you want to do In
your sp?clflc Reservation (o take advantage of this new legislation.
He and his representative.1! want to listen to what you huve to say
concerning the reorganization of your Reservation or of your tribe
under this new legislation, as lo how much of 11 you want—If you
want anything at nil, and how to go about gutting whnt you want
on cpch specific Reservation. As was ssitd this morning, lh'< (able
will be set for you nnd he wants to find out then from cnch tribe,
from each Reservation, whether you wnnl to cat nnd what you
want lo cat, and whnt kind of a fork you wnnt to u;;c. and I can
tell you on bchnlf of the Conimls;,loncr's stalf that we nil hope
to be able to get together with your various Ulbcs nnd your general
councils before the mow begins lo fly next year again, (Loud ap-
plause.)
Dr. ROE CLOUD: In the absence of any further announce-
ments and seeing the audience Is (letting very restless, the chair Is
ready to dismiss If some one will put It Into a motion.
Rev. DAVID CLARK: Words of appreciation have come lo me
to be presented to Mr. Collier and to Mr. Btnley from the delegates,
I would like on behalf of many people who ure here, both white
and Indians, Missionaries and others, to express our appreciation
of his courtesy in allowing us lo sit In and listen to these dl.s-
*. We appreciate it very much and arc glad that we have
-------
ttt Nlnutei of tha Plaint Congrat
been here and we have enjoyed It all and like to carry back home
our appreciation of the courtesy of (he Iron MHO. We appreciate
Mr. Collier, the Intensities of your Interest and effort In behalf of
all the Indian people. I believe I speak the voice of all these people.
Dr. ROE CLOUD: The Chair will order those remarks Into the
records.
Mr. LaPOINT: Have Mr. Clark speak tn Indian BO that the In-
diana will understand. (Mr. Clark talks In Indian.)
Dr. ROE CLOUD: On behalf of the Commissioner and all his
staff we wish to thank you lor your patience and cooperation In
making (his great Congress a great tuccss.
Mr. BAM LaPOINT: Mr. Chairman I move we adjourn.
Dr. ROE CLOUD: la there a second to that motion.
(Motion seconded unanimously.)
AU In favor arise. (All arise.)
Congress Is adjourned.
Rxhtbils
Letter of Tribal Business Council of (hu Standing Uuck Sioux
Reservation, handed to Chairman by Francis Red Tomahawk of
Standing Rock.
Korl Vulva, North Uukoln.
February 8. 1»34.
Mr. John Collier.
Commissioner of Indian Allaire.
Washington, n. C.
Sir: We the Tribal Business Council of the Bunding Ruck Sioux Res-
ervation of North and South Dakota, have Ilic honor to submit the
report of the action Inkun In connection with ulrculur dated January
20. 1834. Re "Indian 8elf-Kovernincnl" addressed lo Superintendent*.
Tribal Council! and Individual Indluinl.
Pot the purpose of promoting the MICCCSS of the proposed new policy
outlined. In the clrculur and tu further tho cifurt* of the udntliiltttra-
tlon to secure beneficial Icultlullon which will I'linblv It tu rcullzc UK
objective the complete reconstructing of the whole Indlun problem, we
hereby endorse the plan* contained In the ubove mentioned circular
with certain reservations, which will be thown under Hie hcudlnu
"Land Problem)."
1. Evils of the Allotment System: After a thorough and comprrhcn-
alve survey of the evlti of Hie allotment KyMem 11:1 wu liuve experienced
them on the Standing Rock Blutix Uc^ervallun wo have listed the
various source* of evils by which we huvu buaulncd lo-;t>cu In htnd
tales and Other benetlu us will be tten on uttuchctl report dnlfd hVlj-
ruary 7, 1934.
l.und Problem*
Under this heading we favor legislation positively prohlliltlng Indian
land sales to outside parlies, that no more patents be granted, that
complicated helrnhlp land and other hclri.h!p lands of like clmructcr
be sold and purchased (or the iihc of the tribe, that deeded lands lorulcd
lit areas predominated by Indftm ulloiiiitntH be- pnrcliu-.t-U fur Hit use
of the tribe, that timber luuds lout to the tribe throuuh lund kales
and opening of the Kci>ervatlcm be restored to tribal status which bliull
Include mineral land oluo. that lundx eolO fur taxes be rcutorcd to
original allottees wherever practicable, and tu Include landu Bold under
mortgage foreclosure* wherever jiihtuiuhlc. The Icul&lullun to conform
to the whit* man's land snlc law be enacted and the present Indlun
land sale law be discarded fur good.
We reserve all rights as to trust land owned by the original allottee*
and all helrshlp lands pot complicated so lung as they retain the Btutu*
Of "complicated helrshlp laiidn."
147
-------
148
Minutes of the Plains Congress
Minutes of the Plains Congress
149
Wt believe that th« plan to accqulre land for the use of the trlba,
landless and future generation*, it one worthy of consideration by every
Indian; the henlth Improvement pl»n; the establishment of eclf-govern-
nicnl and ttta stabilization of' community llta; (lie development mnil
preservation of Indian land In Indian ownership and the provision of
opportunity for economic livelihood for Indian community life.
Tlie action of the Tribal Business Council of the Standing Rock
Sioux Reservation of the state* of North and South Dakota l« for all
of the foregoing and for the exprou purpose of supiwrtlng the present
administration tn securing enabling legislation to bolter the itntu* of
the Indian, that In the end he may tako hi* placa la the economic
Hie of the nation and not be a dead-weight economically.
Ai to the "Program of Administration" and "Sugge»ted Problem! and
Poulble Solution!" we endorse the verdl:t of our cub-committee
unanlmouily.
Respectfully submitted,
(Signed) CHARLES RAMSEY,
Chairman. Trlbil Bualnes* Council.
(Sinned) FRANCIS RED TOMAHAWK.
Secretary, Tribal Business Council.
Fort Yatei, North Dakota.
February 7, 1031.
Business session of the Sub-Commlltce of the Tribal Business
Council.
The above named sub-committee met. at the Agency Hall end
decided to organize by electing Edward Young Eagle as Chairman,
and Francis Red Tomahawk, Secretary.
The first mailer taken up In connection with the Indian Office
Circular In rcgnrtl to "Indian Self-Oovcrntnent, dated Junuary
20, 1634," was the "Evils of the Allotment System," which com-
mittee nftcr careful survey of the land losses find as follows:
1. Opening of the Reservation by Congress.
3. Allotment of the Reiervallon.
3. Voluntary Land Bale*.
4. Forced patent! without knowledge of allottee*.
S. Bale of helrihlp allotment*.
0. Loe» of large tract* of valuable grazing land through ialci and
plowing for agricultural purpo*e*.
7. Lou of timber allotment* through land *alec and opening of Reser-
vallon.
I. Lot* of mineral land* through opening of Reservation and land lale*.
I. Lou of land by granting school land to the State* of North and
South Dakota for school purpose*,
10. Los* of land through tax *ale*.
11. Lou of land through mortgage foreclosure*.
12. Lou of Und through right of way* for rallroadf snd Federal and
fltul* »nd County Hlr>hwtyt.
13. Lose of land unlc proceeds through pro ent land tnlc law which calls
for refund of all payments except tin- original 25 pur cent und
Intercut.
14. Lou of lund by establishment of Guvcuiiiiout tu..vt\va.
IS. Los* of lund through (jiunta to Ml./.Ion:, unU i.llii-r Rtllyloim orfanl-
cotlons.
Lund Problems
We favor In Ihc fullusl clcuix-u (ho |).ntlin:,c of compile ulctl liclr-
shlp lands und other lands which will b:i.'unu.> co.i.pllc.itcd and
deeded lands located In urcus iirt-doiniiiatcd by Indian iillountnls
for the use o[ llic lillH-.
We favor the aboil: luncnt of the l:ind division us operated on
the Reservation us soon us :,uilu1>le iniiiiltiir.il or liibul URDUS
can be worked out to vaUsfucLurlly liunille Us woik.
I'rocratn of Adinlnluiiitluii
Wo favor the progrum of the Administration as outlined In
Indian Office Circular "Indian Self-Government dated January
20, 1934" appearing on pnyts 3, 4, and 5. by uiuinlmoiis vole.
Suicestcd I'roblcins and I'oiklblc boliiilviis
In connection wiih this portion of the Coinml- skitter's Circular
wo agree und hereby vole unanimously In favor of Hit;
plans as outlined In this sec lion of the communication.
Respectfully submitted.
Bub-Commlttcc:
EDWARD YOUKUEAOtB.
LOUIS II. TII1EP
WILLIAM CLAYMORE.
JOHN IllONUOULDfeU.
Approved February U. 1031 by the Tribal liusliiL-ss Council.
Standing Reck lluseivntlon, For I Yulis, North Dukola.
KRANC18 RED TOMAHAWK.
jostni IIUKK.
EUGEUE YOUNOHAWK.
CHARLES RAMSEY.
Vlce-Clinlrinun.
P. U. TOMAHAWK.
Secretary.
RALPH WHITE.
JOGEl'H WHITE TEMPLE.
PIUS BIOSIIIELD.
QEORQE OADE.
FRED WHITE COAT
LOUIO II. THIEF.
joaKiui nui-r.
VITAL UBARFACE.
I.UICE EAOI.EMAN.
-------
April 19, 1934
-------
/N
0
Z
u
DEPARTMENT OF THE INTERIOR
OFFICE OF INDIAN AFFAIRS
FILES
CAUTION!
Positively no papers to be
added to or taken from this
file, except by an employee of
the Mails and Files Division.
Indian Organization
•.*.«ovt*mic«T ramnm ornci *—M06
-------
•em
mo
lion. Peter Horbeofc.
United State* Senate.
HAY 29 1936
Uy dear Jleantor Jlorboek:
I bare your.JL«tter-o( Vey 19 trnnt-oitting a vetitlon .
by nenby a largf n»jorit,y
of tha Indian* in Trlpr> County.
Undor tlm Inagu-ije nr. uced ID thx Jict It ncpllno la Ito
entirety or not at all. aM thin «onlil olto \>o truti at to Itf
to a pnrticulr.r rnnnrratlon. It nn?>li<>t to the «ntlr«
or If rejected It \t In.-v;:cllcn)il8 to th« eatlrn terri-
tory.
'th# Indlnn« of Rocelud TotM on th« implication of tbr> ;ict on
October 37, 19?4. r.ad \>y r »oti of ««« to *f>4 tv.»y rteclflod not to
rnjoct It. fron which yau will not* thnt It »P» carrlH by .1 »ot*
of 2 to 1. ^Htr. th» conr.tS tutlon -7nr votnrt upon Vj the Indlnn« of
uorobud it irrir ratified hy thna b.r u rol<» of 993 to G43. tt in
ftppnrtnt fron thcee fipiros th».\. tl't Indipus of rlot«'bua «ro quite
farornblo to the Jndion Heorjp.nl zntion Act. Trlcp County cannot
tie nltlidrcwn nt requ*«ttJ %y the p*t)tionor> *xoe?t through »ptcl»l
MiH RO vould not favor eny ruoh r.etlon.
Sincerely youra,
('Sieved) John Collier
< ° Coofllesloner.
ec - fiocebud Agencyl
Secretary, Roeebud Sioux Council, through Supt., Koeebxid Agency.
5 Jc 22
Ctrbon for Indian Offio?
-------
<-*—& "^ff-w l*isl*4^_/
\
.^. Jvrlfl
Ttdw
-------
A
-------
Hon. Harold L. JcheOf Secretaryof •JM6.!*.01'' ,,..
**flS** 1 *^ovOT*>JJ** »'f11* • «• •. ---•••
Gentlemen:
-4.~ undersigned beine all full blooded Sioux Indians^ ,„ ^
residing upon the ^oaebud Indian Reservation in south Dakota, en
We represent that we have conserved Trust Property which has
been allotted wno. set o'ver to us to the beat of our ability, as well a5
to h«ve preserved and rflnintained In tact Tribal lands such as tirab
agency reservations and school lands and farm stations to tho end
said property and its use and opportunity to maintain their tribal
izatl&ns might be made permanent for the benefit of ourselves and -our"
children.
V/e represent further to you that heretofore a great majority
of the youncer generation of mixed blood Indians who have been allotted
Innds in t rust have voluntarily alienated said lands by conveyance*; that
they have not attempted or desired to establish residences on their
various allottnients, and that the proceeds of sale of said land have been
in a great majority of cases dissipated with no thought of provision for
the future; that such alienation by said mixed bloods has boon in utter
disregard of spirit and intent of allottment acts by which they acquired
a trunt interest in aaid lands; that there has been generally among
oald particular class of Indiana no disposition to establish residences,
upon said lands, to improve 6r occupy the same, or to make a hone thoreou.
V/e further represent that the present rnovemont under said
Re-organization •"ct is e belated Act on the part of said particular class
of Indians to benefit by the conservation of land and property on the part
of these particular Applicants, and others to whom the situation herein
stated e. ppltos.
r'o further represent that c:iese ratit^cners cr.? ",•»•<-
full-blooded Indians on the above reservation, and other reservations,
arc not vorsod, or skilled in political manipulations aid or.-.anJsatl-ons;
thaftho jnixod blood element on tuis and other reservations, by reason of
their employment by tho "overnmcnt and in other nays, have become more
adopt and skilled in these respects than these petitioner^; that we
txnti others in oxvr situation arc in a minority, and that voting by majority
is an inequitable and unconscionable method of bringing In to effect or
-------
enforcing the terms ofsaid ^-organization Act.
we who atill hold our lands and property and having
acted to comply with the spirit and intent of the treaties between t
tribes, and the Government and having acted to maintain our property
and tribal organizations,do respectfully request that the Trust Pate:
Indiana xihom IMC comprise and represent be allowed to continue as her<
tofoi'O in our tribal organizations and in the use, benefit and enjoyi
of OUT allotted trust landa and triDal properties of whatsoever kind
nature.
rO
I A
-------
(^/mx^
(ft (H.fi r—}. i • f-*"--"*^
c»-X -
/^
-------
5—3 t9 o
INDIAN OFFICE
FILES
CAUTION!
Positively no papers to be
added to or taken from this
file, except by an employee of
the Mails and Files Division.
Fl
m
o
3 > v
33 '
eo _
~ CD
3:
M g
_ O
I
n ^
> °
33 ±
" O
3D
•\^
^* OJ
o E
3 E
^ -n
i P
CD
0
X.
CO
-------
GENERAL RECORDS CONCERNING INDIAN ORGANIZATION, ca. 193*1-56. l6 ft.
1012
Letters received; copies of letters sent; memoranda; reports; copies
of proposed and approved constitutions, bylaws, and charters; petitions;
resolutions; census rolls; voting lists; completed questionnaires; clip-
pings; and other kinds of records concerning the organization of Indian.
tribes as provided by the Wheeler-Howard Act. The records relate to pre-
liminary surveys; the drawing up and submission of constitutions, bylaws,
and charters;- determination of tribal membership; elections; opposition
to organization; and other subjects. The records are in files most of
which were a part of the classified files of the Bureau (entry 121) until
1938. More records vexe added after the transfer to the Indian Reorgani-
zation Division. Arranged by jurisdiction and thereunder by file number.
The individual files are often divided into several parts; the records in
each part are usually arranged chronologically. There are other records
concerning Indian organization in the appropriate classifications of the
central classified files of the Bureau.
CORRESPONDENCE WITH OFFICIALS. 193^6. 8 in. 1013
Letters, reports, and memoranda received from field officials and
from some central office officials of the Bureau and the Department of
the Interior; and copies of letters and memoranda sent to them. Included
are some records concerning the officials. There are comparatively few
records dated later than 19l«-3. Arranged alphabetically by name of of-
ficial and thereunder chronologically. For other correspondence with
these officials, see the general records concerning organization activ-
ities (entry 1012).
QUESTIONNAIRES CONCERNING TIZBAL ORGANIZATION IN ALASKA. 193^-35.
3 in. 1011)-
Completed questionnaires, on mimeographed forms, submitted by field
officials in Alaska. Arranged alphabetically by name of village. At
one time these records were in the custody of the Alaska Division. Among
the general records concerning Indian organization (entry 1012) there are
questionnaires, on the same mimeographed form, for Indians in other areas
and also other records concerning organization in Alaska,
293
-------
6— 349 a
r
UNITED STATES fH
DEPARTMENT OF THE INTERIOR _
BUREAU OF INDIAN AFFAIRS 2
0
1
S
CAUTION! ^
Positively no papers to be
added to or taken from this
file, except by an employee of
the Mails and Files Division.
CD
0.5
0
KL
i i
o
- • /••">
0 R
ui
•.1. MvfftKaiiT Mi Html write !•• t3«*-l
-------
Mr. John Collier.
Stoshin/Jjton, U.C.
My Dear Sir:
As per your Letter Pile Number 9624, ParaGraph/ as
•ne accepted the Act passed by Congress, end the constitution
of the Ofilala Sioux Tribe, !7e took the act to znecn citizen
ship for self government in the plain maanine, of same and not
it the li^ht that You have explainod the matter to us under this
particular Paragraph as you gave. The explanation that you have
dreamed of as to the said selfi Government irjll aeon, aothine,
to us, as we do not/fake the matter in that lipnt.
You have placed a supertindcnt in this section that was not wanted
this person haa not shown any cooperation toward .the new council
since the day he arrived and done all he could to down this so.
called self f.overninont you pushed down the throats 66 the Oglale
Sioux Tribe , I have sent several letters written by Roberta
for consideration, this was done some three Keeks passed and to
date I have had no answer to any of these letters. I am aT/eitinp
reply to these letters to this date.
ae stated under this section, token from your letter of maySI 1936.
If the council or ercutire committee endeavors in the very be-in-
nine, to take over and to deal with evjry phase of Belf-r.overnraent
and to r.o into matters with rhich it is not foiuiliar or over '.vhlch
it has no control dp-authority, such ao reservation personnel, ccd
BO conduct its business as to show a lack of responsibility nnd a
sense of fairness and justice, then the council will not succeed.
Youshould remombar ebove all that yov represent oil the people of
Pine Ridpe end that the interests of ull ere your Problems and
and reepoaiibllity. T/ei^h carefully all sidos of the question,
all rroupe through their representatives and opportunity to bo heard
anfl th*M? t'&ka yonr decision "
Mony t'ijr.T. Vove accurcd since you wrote these atatemente to me,
T linvo taken lot more precaution than it Is best for the natters,
to ro on any lon^r, T will start to check up on all your warnings
from now on. Under our constitution, it states this ''for homo
rule for the welfare of the Or,lala Sioux Tribe, and its members.'
as approved by you and the Mon. Secretary? of the Interior.
!7e have an\ employee hers rho married ono of our Indian Girls
This gentleman has been norkinr in the Office 'or sevcrel yeers,
The Supertinflent onC the Chsif clerk ^ho have hern trr.nsfered were
tryinc all in their power to remove this man from his position while
they ?:ere here for quist a -rhilc. How Roberts has stepod ia d4i»f. the
aama thinp, '.7e object to this, This man is. entiled to employment here
in our oun reservation, as his rife Is allotted here and has full
right to stay here and if able to hold a place in the classified
service should be allowed to ctey.
I am satified that this self Fovornment ia not what we want,
It is natter that must hove an attention oo soon as the congress
Rcts to Aether to anen* same. 0aU Jt self poVQrnment or ,hat aot>
This self rjovernmont is not for the Indian, Its for the Personnel
solf Governnent 1 -^ould term the issue, There is nothing for the
Council to do but look on to see its members ttarvinp end kicked off
the Jobs, because some one reported that they had enter ceded
throng the Council. This ?..'an J refer to is man naned Meyers.
Under Seetitnr-52 of the reorronizotlon ect, tie ^
-------
9664
»1r. Iraak 0.
President, Oglala Sioux Tribal Council, M/W •> j
Through Svint., fins Bldge Agency,' **-
Pine Ridge. South Dakota.
Mr. Wilsoni
the letter of April 28 signed 137 you and the nembere
of tho Executive Committee and your superintendent, in which
various matters are presented for consideration and decision.
It io extremely difficult to deal satisfactorily with such nattcrc
through correspondence. However, I an presenting ay views on some
of the questions tmbmitted.
1. The matter of self-government in one of great importance.
er.pecip.lly to the Indlen, who hr\s "been under governmental super-
vision and control over c. long period of year* and has not had
thn opportunity to povern himaelf . The mnnner in which tho coun-
cil and ite officers exereir.e those new potters conferred in the
constitution p,nd tho window which in dieplnyed in that exercise
of power irlll raoftn f.iijuro or sxjccep". If the council or execu-
tive committee eaflonvors in the very becinninfi; to talre over and
to deal with every phr.Ro of self-government and to go into matters
with which it ie not fnmiliar or over which it hns no control or
authority, cuch nn reservation perconnol , And so conduct it»
business c.n to nhow P. Inch of rccponRi"bilit.Y wid a sonne of falr-
nece nnft justice, then the council will not succeed. You should
remoiaber above all that you roprcncnt nil the people of Pine
Ridge and that the interests of r.ll we your pro'blerao and rccuonni-
Ijility. Tieigh cnrofully all sides of the question, give all groups
through th*jir representatives on opportunity to fce heard, and then
make your dccicion.
The question is asked, "Row do you expect this Governmental
juschinery to operate without finances'? n If thin refers to funds
for r&h&bilitation and the economic development of ths reoorvation,
they cnn "be provided r.ftar the tribe IP incorporated, either through
ths rovolrln^ fund or upon Authorisation "by Congreea of my tribal
funds that tha tribe aw>y Jv\ve. These funds will provide tho Indian*
with a marois of entnblintolng a credit system.
Carbon for Indian Office
-------
Mention ia nlso made of other things that you should hare,
namely, liberty of conscience, worship, speech, press, asseably,
association, and justice at law; also to receive compensation in
interest in property; to..prevent dissipation of capital; the pre-
serve the resources of the reservation; and to adjust dinerlmina.-
tion in the apportionment of income: r.nd for the gradual elimina-
tion of the administrative supervision of the Indian Bureau. Tour
ideals are high and most torthy, but I am cure you realise that
they cannot bo accomplished in a year or even tea years. This
Government founded more than 150 years ngo is still struggling
over these things and to expect the Indian tribes, just reborn
or rededicated to self-government, to Accomplish those things
•within n short time is entirely beyond the reals of possibility.
My advice to the executive committee in to know the problems of
the reservation and itr. people, to study the"i carefully over an
extended period of tlae, to ceok advice nnd guidance from the
reservation personnel irho b-ivc dealt tilth them for years, to seek
cooperation nnd help from technical advisers of the Indian Service,
your etate university, etc., and then in conjunction with the
council and. your superintendent, who is n member of the executive
committee under the provision? of the constitution, work out a
definite program.
Reference is na.de to a statement that no expenditures here-
after authorized by Congress shall be charged to offset treaty
obligations. This ifl virtually the Innguage a? contained in
section 15 of the Indinn Keorgnnlzation Act. Ie have no right to
p> beyond that. Unfortunately, however, p.e you probably know.
Congress has already in effect modified this provision in the
Second Deficiency Act of August 12, 1935, (see Circular 3107),
^herein it provides that any expenditures for the purchase of
land under the Indian Reorganization Act may be an offset against
any tribal claim.
Ueferring to the part that the council shall ploy in the
budget formation, request is mn.de that a program be sent out at
once. If by that statement reference is had to the budget of ex-
penditures for the fiscal year 1938, that will be presented through
your superintendent at the proper time. If you have in mind a
reservation proerara covering rehabilitation and economic develop-
ment, it In our belief that such a program should be worked out by
the council with the superintendent, the credit agent, and other
specialized personnel which can be made available.
-------
2. Ion a«k what routine matters ars as referr«d to In the
constitution and by-law*. That in difficult for the Office to
angrier. That :aay "be routine at Pine Ridge might be something
special elpe-shere. Routine matters penerally aean the usual un-
important questions that como ur> frora day to day or week to wftek.
3. To negotiate r?ith the Federal, State, and local covern-
mentr. on behalf of the tribe nnd to advise or consult with repre-
sentatives of the Interior Department on all activities of the
Department, is simply a porer to pcrnlt the council to take up
Trlth the various governmental nrencie? mr.tterc of health, edu-
cation, etc. For Instance, should the council *ant the Depart-
ment of Education of the State of South Dakota to come on the
reservation to nake a study of any kind, the council would hr.vs
the rifht to nafee mich ue^otintiona with the proper authorities.
To employ legal counsel, etc., simply means that the council
hns a rifht to hire attorneys to represent the tribe provided,
firct, that there are tribal funds with which to pay .euch attorney,
and, second, that the Secretary reproves of the selection of the
attorney and tho fees which are to bo -paid. The contract made by
the tribe with the attorney nny provide that he is to act for
individual mnmbern of the tribe ns woll ae the tribe itself. Thoso
will be mutters entirely subject to apreement between the tribe
and the attorneys selected.
4. Future powers have reference to any additional powerr that
nay be found desirnble to delegate to the council. Reserve powern
merely nnfegnard to the tribe any poweru that Bay not have been
specifically listed in the constitution.
5. Judicial powers enable the council to establish its oim
court Inste.id of having the present court of Indian offenses.
It ir said that the executive committee has interpreted the
constitution to indicate thrct said executive committee shall be in
session constantly. By reference to article 5 of the by-law* it
rrill be noted thst the council moets four tines ft y*ar and that
special raeetingc w.ny be called by the president. Instead of delay-
ing matters for the repslsr meeting or culling the council together
for a special meeting, section 5 of article 1 provides that the
executive committee shall act on behalf of the council and fihnll
have charge of all routine natters xthicb. may arise during such
-------
recess. This does not aeon that the executive committee oust "be
In session all the tine. The executive commit toe ie to net only
on those mattora that ure nentioned in this cection. The approval
of attorneys' contract!!, the ravins of contracts for health or
educational surveyc, the natter of enrollment of Indian? under the
1>rovinlon> of tha eonntitution. and the like., ipald not be routine
matters In the opinion of thle Office.
Instead of the executive conraittee being in session a.11 the
time, it would seem that Finch of its business could be handled and
dispatched by aeeting once n week or once every two weeks. Xhilo
we appreciate the deep interest vhicb you are taking in the natter
of organization, it is not apparent wherein there are so Bony
problems before the tribe as to require this committee to be in
cone tant session.
Tou bring up the question of the payment of calories for those
•who are Riving full time to such natters. There are no funde to
pay nalariea at thle tine. Jterefl on a joint letter from Chairmpji
Gilbert of Cheyenne River, Chairman Roubidenxtx of Rosebud, and your-
self, we are writing you about this matter nnd etating just how you
con D04t some of the expenses involved.
Uoinp your otrn language that, "this change from the old council
to the he* has raised a greater breeze than I hnd anticipated", I
hope you pill not lot tlxic breeze become no strong as to sweep you
off your feet. An I have attempted to indicate in thir letter, you
:oupt net cautiously after due deliberation and consideration of the
various problems and frith the helj.-, advice, and guidance of your
nuoerintendent. liic years of experience in the administration of
reservation problonif; can be of auch help to the executive committee
and the council if properly utilir-ed.
I hope that this long letter may be of help to you and the
newborn of the committee. I want you to feol free to seek advice
and fuidance of your superintendent. In the problems and responsi-
bilities thnt you must face in handling the affairs of your people
you are ss children junt learning hon to wall: and the superintendent'
supporting hand will help you over many difficulties and prevent you
from falling and through such fall brine failure or ruin to your
tribal orfanlsAtion and all that it means to the future of the
ladia&s of Fine jiidge.
Sincerely yours,
fSkned) John Collier
cc - Pine Hidge Agency. « a ConaUsloner.
Ben Reifel, Field Agent.
C. H. MountJoy, Credit Agent.
5 .1c 16
-------
DEPARTMBN-r OK Tum ITS i i_,
OFFICE OF INDIAN AFFAIRS
FIELD SERVICE
i-ine Kidge Agency,
Ridge, Soutn Dakota,
April 28, 1936.
lir. John Collier,
Commissioner of Indion Affairs,
Washington, JJ. C.
Dear Jar. Collier:
This special letter is wri Hen yd\j/^ith the .Executive
Committee of the nearly elected CovhfttHrSrr who are assisting me
in composing the letter, here at my desk.
As you know, the newly elected councils on the various
reservations, as well as the superintendents and other offi-
cials, are at sea as to just what to do. This Council will
be the trail-blazers for future Indian councils to follow.
v/a do not want to make a mistake; we do not want to set into
3. controversy or be confused by the duties of the executive
Committee or the Council. V/e, therefore, have the honor to
ask you the following questions:
1. xou, fir. Collier, bein? interested in the rehabilita-
tion of the American Indian under self-government;"government
of the people, for the people, and by tne people,1* is a nome
rule, according to the preamble of our constitution; and we,
as representatives of the Executive Board, are to direct the
affairs of the reservation; to take care of their every day
business, under the \Vheeler-noward Act, draft and ratify our
constitution. The Oglala Sioux people have nominated and
elected these representatives, and other Tribal officials,
who have just taken the oath of office, wow do you expect
this Governmental machinery to operate without finances? The
next important step will be drafting of a charter, whicn will
take a groat deal of time, and an educational program amongst
the people. How are we to function without funds? We nust
have a credit system, privileges, coordinating organizations
of various kinds to enjoy civil liberties--liberty of con-
science, worship, speech, prens, assembly, association, and
justice at law; the rip.ht to receive compensation in interest
in property; to prevent dissipation of capital; to preserve
the resources of this Reservation; and to adjust discrimina-
tion in the apportionment of income; and for the gradual elim-
ination of the administrative supervision of the Indian Bureau,
Citing your ov/n r/ords; what do you mean by this? flo expendi-
tures hereafter authorized by Congress shall be charged to
-------
s.
ofi'sct trort;/ obli^o tions. /c chill b«» fr.ctors In netprmini ng
tne plans here for an adniiistratjve budget n mm ally, in ac-
cordance with the foregoing statement that is granted by you
and Congress, I, Frank G. V;"ilsonf bein.r? the newly elected
President of this Jurisdiction by popular vote of the people
of Pine Hidge Reservation, do ask that a. program be sent at
once which will enable us to proceed with such Governmental
machinery.
2. To be more definite, there are a few additional ques-
tions that the other members •-of the Committee wish to ask.
For example, the Secretary, K.r. Pugh, asks: M-7rtiat is meant by
routine matters1,1 as referred to in the Constitution and .By-
laws of the .Pine Hid^e Ur;lala Tribe?
3. To negotiate with the Federal, State and local gov-
ernments on behalf of the Tribe: and to advise or consult
v;ith the representatives of the interior department on all
matters of the department that may effect the jfine Ridge res-
ervation; to employ le^al counsel, for the protection and tne
advancement of the uglala Sioux Tribe; it's members allowed
choice of counsel, and to fix the fees; all to be subject to
the Secretary of the Interior; and other powers as enumerated
under Article 4 of the Constitution.
4. Section 2, future powers, as quoted; Section 3, re-
served pov/ers, as quoted,
5. Under article 5 of the Constitution, judicial powers.
A. The Executive Committee have interpreted the Consti-
tution to indicate that they should be in session constantly,
as per By-lav/s, Article 1, Section 5. Therefore, they want
Oovcrnracnt quarters for themselves and their families, i-len.se
advise if this was intended. 1 can furnish an office, a desk
and filing cabinets; but t?e have no quarters; and it 'vould be
necessary to secure on appropriation if it is intended for
tftem to be in session constantly, it i-Quld, like-wise, be nec-
essary to provide funds for their salaries, as none of them
are wealthy, and they could not afford to vork unless they ?.re
on a stated salary whereby they could provide for tnemselves
antJ families.
As heretofore explained, some of these councilmen live
1053 miles from the Agency. The roads are often bad and it is
expensive to 3et in here. Some provision should be made for
tneir tz'aveling expenses; and for the two or three days tney
wil} be here in special or regular session they will need ex-
pense money. 1 desired to call this to your attention at tnis
time.
-------
3.
These questions constantly come up, a.nd, as stated ce-
fore, this Council is blo.zin>3 the we.y, and we want every-
thing to go harmoniously betv/een the Council -and tnis office,
between the Council and your office, and bet7/een tne Council
and the people.
1 mi.njht add further that this change from the old Coun-
cil to the ne\? has raised a greater breeze than I had antic-
ipated. The people are really excited; do not know what to
expect; do not know what powers the ne\T Council may nave,
nor neither does the Council know.
I hope, therefore, yon V;D 11 answer this letter very
promptly, making clear to us the various things mentioned,
and giving us any additional information that will assist
us in finding ourselves in this new order of things.
Very respectfully,
J*Ui:SNS
James H. we Gregor,
Superintendent.
0. Wilson,
President.
Secretary.
Tedd Craven,
Trensurer.
Diehard Tihalan,
Member of Executive Committee,
-------
;i= Regional Transit Authority.
TO: Chuck Kirchner
FROM: Mike Wold
DATE: July 21,1994
SUBJECT: RTA Relations with Indian Governments
As the RTA moves further into project-level planning, it is important that it establish good
working relationships with the four treaty Ind'ian tribal governments that exercise various kinds
of jurisdiction within RTA boundaries. There are a number of critical issues that will require
close coordination with the tribes to avoid delays in the environmental and permitting processes.
Examples include:
• right-of-way issues through the Puyallup reservation
• fisheries issues along Puget Sound and in the Green/Puyallup River valleys
• likelihood or finding archaeological resources on commuter rail alignments in the
Green River valley and adjacent to Puget Sound.
While the four tribal governments - Muckleshoot, Puyallup, Tulalip, and Suquamish - have
shown a willingness to work with other governmental agencies, they are also sensitive about the.
degree to which they are treated as equals by other governments. Thus far, the RTA has not
made any special effort to coordinate with or establish strong contacts with Indian tribal
governments. As long as the project is in the planning stage, this may not cause any particular
problem. As we move into project implementation, the failure to establish a good basis for
relationships with Indian tribes couid lead to project delays.
For this reason, I am proposing that the RTA undertake the following steps to establish good
relations with Indian tribal governments:
• Acquaint 'the management team with the issues regarding relations with Indian
tribes. As a first step, I suggest we invite Bob Peterson of Metro to give a
presentation to RTA on how Metro has handled relations with the tribes. This
would be a useful forum for raising the issue, driving home its importance, and
providing a framework for discussion for future steps.
• Set up meetings with the. chairs of each of the four treaty tribes or their
representatives, at the respective tribal headquarters. Because these meetings
would preferably involve tribal administrators and/or elected officials, it would be
best if equivalent RTA representatives (i.e., management and elected officials)
could attend. Besides establishing an official relationship for our new agency,
-------
Thuck Kirchner
iuly2l, 1994
Page 2
this would signal to tribal leaders that the agency is taking their concerns
seriously.
• Establish good working connections between tribal planners and RTA planners as
one outgrowth of the initial meetings. Hold followup meetings with tribal
planners and include tribal planners in relevant meetings involving the RTA and
other local governments.
• Provide cultural sensitivity training for staff who will be working with Indian
tribes. Understanding cultural differences, starting with issues as small as how
strongly you shake somebody's hand or how important it is to be on time, can
make an impact on how well relationships are established. A couple of
organizations in the area, such as the Northwest Renewable Resources Center and
Ravenwing, do workshops for government staff to promote cultural sensitivity
and good relationships between Indian tribes and government agencies. Cultural
sensitivity training could take place concurrently with initial meetings with tribal
governments.
• Work toward Memoranda of Agreement with each of the tribes as to how cultural
and fisheries resource issues would be raised and resolved during the project
planning stage. MO As will both increase trust and expedite later project
coordination.
Although this proposal involves a number of steps, and requires commitment from upper
management and some involvement from the RTA board, I believe it fill an major gap in the
agency's intergovernmental coordination thus far.
cc: Bob Peterson, Metro
-------
THE WHITE HOUSE
WASHINGTON
June IB, 1991
Dear Tribal Leader:
I aa pleased, to enclose President Bush's recent statement
reaffirming the governaent-to-government relationship between the
Federal Government and tribal governments.
As the President states, he takes "pride in acknowledging and
reaffirming the existence and durability of our governaent-to-
government relationship."
The Office of Intergovernmental Affairs will continue to serve as
the official White House liaison with all Indian tribes. We look
forward to working with you in the future.
Sincerely,
Mary HqCiure
Special Assistant "£o the President
for Intergovernmental Affairs
-------
THE WHITE HOUSE
Office of the press Secretary
(Los Angeles, California)
For Jaaediata Release June 14, 1991
STATEMENT BY THE PRESIDENT
REAFFIRMING THE GOVERNKSKT-TO-GOVERNMEKT RELATIONSHIP
BETWEEN THE FEDERAL GOVERNMENT AND TRXBAL GOVERNMENTS
On January 24, 1983, the Reagan-Bush Administration issued
a statement on Indian policy recognizing and reaffirming a
governBent-to-governinent relationship between Indian tribes and
the Federal Govemaent. This relationship is the cornerstone of
the Bush-Quayle Administration 's policy of fostering tribal
self -government ond self— determination .
This governnent-to-governaent relationship is the
result of sovereign and independent tribal governments being
incorporated into the fabric of our Nation, of Indian tribes
becoming what our courts have come to refer to as quasi-
sovereign doaestic dependent nations. Over the years the
relationship has flourished, grown, and avclved into a vibrant
partnership in which over 500 tribal governments stand shoulder
to shoulder with the other governmental units that fora our
Republic.
This is now a relationship in which tribal governments nay
chooee to assume the adainistration oil nutaerouc Federal programs
pursuant to the 1975 Indian Self -De termination and Education
Assistance
This is a partnership in which an Office of Self-Governance
has been established in the Department of the Interior and given
the responsibility of working with tribes to craft creative ways
of transferring decision-saving powers over tribal government
functions from the Department to tribal governments,
An Office of American Indian Trust vill be established in
the Department of the Interior and given the responsibility of
overseeing the trust responsibility of the Department and of
insuring that no Departmental action will b* taken that will
adversely affect or destroy those physical assets that th«
Federal Government holds in trust for the tribes.
I take pride in acknowledging and reaffirming
existence and durability of our unique govemaent-t
relationship.
Within the White House I hav« designated a s
staff member, my Director of Intergovernmental A7
ay personal liaivan vith all Indian tribes. Whi
possible for a President or his small staff to r
with the taultiplicity of issues and problems pr
of the Sio tribal entities in the Nation now rr
dealing vith the Department of the Interior, the *_
-------
For Immediate Release June 14, 1991
STATEMENT BY THE PRESIDENT
REAFFIRMING THE GOVERNKENT-TO-GOVEEWHEKT RELATIONSHIP
BETWEEN THE FEDERAL GOVERNMENT AND TRIBAL GOVERNMENTS
On January 24, 1983, the Reagan-Bush Administration issued
a statement on Indian policy recognizing and reaffirming a
governaent-to-govesmment relationship between Indian tribes and
the Federal Government. This relationship is the cornerstone of
the Bush-Quayle Administration's policy of fostering tribal
self-governaent and self-determination.
This government-to-govenunent relationship is the
result of sovereign and independent tribal governments being
incorporated into the fabric of our Nation, of Indian tribes
becoming what our courts have coaa to refer to as quasi-
sovereign domestic dependent nations. Over the years the
relationship has flourished, grown, and evolved into a vibrant
partnership in which over 5DO tribal governments stand shoulder
to shoulder with the other governmental units that form our
Republic.
This is now a relationship in vhich tribal governments may
choose to assume the administration of numerous Federal programs
pursuant to the 1975 Indian Self-Deteraination and Education
Assistance Act.
This is a partnership in which an Office of Self-Governance
has been established in the Department of the Interior and given
the responsibility of working with tribes to craft creative ways
of transferring decision-making powers over tribal government
functions from the Department to tribal governments.
An Office of American Indian Trust will be established in
the Department of the Interior and given the responsibility of
overseeing the trust responsibility of the Department and Of
insuring that no Departmental action will be taken that will
adversely affect or destroy those physical assets that the
Federal Government holds in trust for the tribes.
I take pride in acknowledging and reaffirming the
existence and durability of our unique government-to-government
relationship.
Within the White House I have designated a senior
staff member, ay Director of Intergovernmental Affairs, as
ay personal liaison with all Indian tribes. While it is not
possible for a president or his small staff to deal directly
with the multiplicity of issues and problems presented by each
of the 510 tribal entities in the Nation now recognized by and
dealing with the Department of the Interior, the White House
will continue to interact with Indian tribes on an
intergovernmental basis.
The concepts of forced termination and excessive
dependency on the Federal Government must now be relegated,
once and for all, to the history books. Today we move forward
toward a permanent relationship of understanding and trust, a
relationship in which the tribes of the nation sit in positions
of dependent sovereignty along with the other governments that
compose the family that is America..
-------
THE WHITE HOUSE
WASHINGTON
June 18, 1991
Dear Tribal Leader:
I an pleased to enclose President Bush's recent statement
reaffirming the government-to-govermnent relationship between the
Federal Government and tribal governments.
As the President states, he takes "pride in acknowledging and
reaffirming the existence and durability of our government-to-
governaent relationship."
The Office of Intergovernmental Affairs will continue to serve as
the official White House liaison with all Indian tribes. We look
forward to working with you in the future.
Sincerely,
Mary McC^ure
Special Assistant To the President
for Intergovernmental Affairs
-------
THE WHITE HOUSE
Office of the Press Secretary
(Los Angeles, California)
For Isaaediate Release June 14 , 1991
STATEMENT BY THE PRESIDENT
REAFFIRMING THE GOVETtNKENT-TO-GOVERHKEKT RELATIONSHIP
BETWEEN THE FEDERAL GOVERNMENT AND TRIBAL GOVERNMENTS
On January 24, 1983, the Reagan-Bush Administration issued
a statement on Indian policy recognizing and reaffirming a
government-to-government relationship between Indian tribes and
the Federal Government. This relationship is the cornerstone of
the Bush-Quayle Administration's policy of fostering tribal
self-government and self-determination.
This govemment~to-cfovernment relationship is the
result of sovereign and independent tribal governments being
incorporated into the fabric of our Nation, of Indian tribes
becoming what our courts have cone to refer to as quasi-
sovereign domestic dependent nations. Over the years the
relationship has flourished/ grown, and evolved into a vibrant
partnership in which over 50O tribal governments stand shoulder
to shoulder with the other governmental units that form our
Republic.
This is now a relationship in which tribal governments may
choose to assume the administration of numerous Federal programs
pursuant to the 1975 Indian Self-Determination and Education
Assistance Act.
This is a partnership in which an Office of Self-Governance
has been established in the Department of the Interior and given
the responsibility of working with tribes to craft creative ways
of transferring decision-making powers over tribal government
functions from the Department to tribal governments.
An Office of American Indian Trust will be established in
the Department of the Interior and given the responsibility of
overseeing the trust responsibility of tile Department and of
insuring that no Departmental action will b« taken that will
adversely affect or destroy those physical assets that th«
Federal Government holds in trust for the tribes.
I take pride in acknowledging and reaffirming -the
existence and durability of our unique government-to-government
relationship.
Within the White House I hav« designated & senior
staff member, my Director of Intergovernmental Affairs, as
ay personal liaison vith all Indian tribes. While it is not
possible for a president or his small staff to deal directly
vith the multiplicity of issues and problems presented by each
of the Sio tribal entities in the Kation now recognized by and
dealing with the Department of the Interior, the White House
-------
For laanediate Release
June 14, 1991
BY THE PRESIDENT
REAFFIRMING THE GOVERNKENT-TO-GOVERNKZhT RELATIONSHIP
BETWEEN THE FEDERAL GOVERNMENT AND TRIBAL GOVERNMENTS
On January 24, 1983, the Reagan-Bush Administration issued
a statement on Indian policy recognizing and reaffirming a
governaent-to-govemaent relationship between Indian tribes and
the Federal Government. This relationship is the cornerstone of
the Bush-Quayle Administration's policy of fostering tribal
self-government and self-determination.
This government-to-government relationship is the
result of sovereign and independent tribal governments being
incorporated into the fabric of our Nation, of Indian tribes
becoming what our courts have coae to refer to as quasi -
sovereign domestic dependent nations. Over the years the
relationship has flourished/ grown, and evolved into a vibrant
partnership in which over 500 tribal govemnents stand shoulder
to shoulder with the other governmental units that fora our
Republic.
This is now a relationship in which tribal governments nay
chooee to accuse the administration of numerous Federal programs
pursuant to the 1975 Indian Self -De termination and Education
Assistance Act.
This is a partnership in which an Office of Self-Governance
has been established in the Department of the Interior and given
the responsibility of working with tribe* to craft creative ways
of transferring decision-making powers over tribal government
functions from the Departaent to tribal governments,
An Office of American Indian Trust vill be established in
the Departaent of the Interior and given the responsibility of
overseeing the trust responsibility of the Departaent and. of
insuring that no Departmental action will be taken that will
adversely affect or destroy those physical assets that th«
Federal Government holds in trust for the tribes.
I take pride in acknowledging and reaffirming the
existence and durability of our unique gavemanent-to-government
relationship.
Within the White House I have designated a senior
staff member, ay Director of Intergovernmental Affairs, as
my personal liaison with all Indian tribes. While it is not
possible for a President or his small staff to deal directly
with the multiplicity of issues and problems presented by each
of the 510 tribal entities in the Nation nov recognized by and
dealing vith the Department of the Interior, the White House
will continue to interact vith Indian tribes on an
intergovernmental basis.
The concepts of forced termination and excessive
dependency on the Federal Government must bow be relegated,
once and for all, to the history books. Today we move forward
toward a permanent relationship of understanding and trust, a
relationship in which the tribes of the nation Bit in positions
of dependent sovereignty along with the other governments that
compose the family that is America.
-------
Appendix C
MEMORANDUM OF UNDERSTANDING
between
FEDERALLY RECOGNIZED TRIBES OF WASHINGTON STATE
and the
STATE OF WASHINGTON
ENVIRONMENTAL PROTECTION:
1.0 PREAMBLE
Fisheries and wildlife resources are of great value and importance to Washington citizens.
Protection of these resources is a matter of high priority for Washington's Indian tribes and
agencies and departments of Washington state government.
The State and the Tribes are interested in making a major commitment to protecting the
habitat and increasing production of the fisheries resource. Cooperative efforts between state
agencies and Tribal governments wiH assure protection of habitat and full success of en-
hancement programs.
Each of the parties desires to restore, where appropriate, habitat that has been degraded
through prior activities and to enhance potentially productive habitat. The parties agree that
the development of a cooperative plan to protect, restore, and enhance habitat is an essential
element of the discussions outlined in this memorandum. The parties agree to use good faith
efforts to jointly seek funding necessary to carry out the activities contemplated in this
agreement.
2.0 SUMMARY OF UNITED STATES V. WASHINGTON
Tribal governments in 1970 brought suit in United States v. Washington against the State
seeking a declaration and enforcement of their treaty fishing rights. There were two distinct
segments in that lawsuit Phase I involved the determination of the nature and extent of the
fishery harvest rights. Those basic harvest rights were affirmed by the United States Supreme
Court in 1979 and the federal court has retained jurisdiction- to fully implement those fishing
rights.
In Phase II, the Tribes allege that the state agencies have been unsuccessful in property
protecting the habitat The Tribes seek a declaration that the treaties guarantee habitat protec-
tion and have alleged first, that state agencies have an obligation to protect the supply of fish
and second, that agency actions which damage, degrade, or destroy habitat or current levels
of harvestable fish violate treaty rights.
The parties of United States v. Washington recognize the potential for litigation of the
Phase H issues in. either the general or specific sense. However, the parries have learned that
the benefits of cooperative resolution of disputes may exceed those obtainable through
litigation. The Tribes have expressed an interest in working cooperatively with the state in
habitat and water protection matters, rather than pursue this expensive and time consuming
litigation.
-------
Further, the parties recognize that prior efforts of the State and the Tribes to resolve issues
of mutual concern have been enhanced by the active cooperation and participation of non-
parties representing private interests. The parties recognize that the state will seek to coop-
eratively involve these private interests in achieving the objectives stated in the PREAMBLE
to protect natural resources, improve, where appropriate, degraded habitat, and enhance
potentially productive habitat
Accordingly, the parties join in this memorandum of understanding for the purpose of
initiating a cooperative approach to protection, enhancement, and restoration of fisheries
habitat
3.0 GENERAL PRINCIPLES
The State recognizes the tribes as sovereign entities under federal law-with certain govern-
mental authorities and responsibilities. Accordingly, discussions under this Memorandum
will be conducted between the parties on a govemment-to-govemment basis. "While the
parties agree to pursue the cooperative approach outlined in this Memorandum, they recog-
nize that the litigation was initiated for the purpose of establishing tribal rights to habitat
protection.
3.1 TRIBAL CONCERNS AND GOALS
The Tribes believe and contend that this right obligates the State to protect the supply of
fish, and actions which damage, degrade, or destroy habitat, such that the rearing or produc-
tion potential of the fish will be impaired or the size or quality of the run will be diminished,
violates tribal treaty fishing rights.
The Tribes contend that the state does not give enough priority to protection of the fish
habitat and therefore subordinates treaty-protected rights to other interests. The Tribes
believe that the state's legal and fiscal authorities should be used to ensure that activities
ondertaken, managed, regulated, or permitted by the State shall result in a net gain to the
oroductive capacity of the fish and wildlife habitats.
The Tribes' general long term policy objective of this Memorandum is the achievement of
m overall net gain of the productive capacity offish and wildlife habitats. Achievement of
his objective shall occur through the acts of protection and conservation of the productive
•.apacity of habitats, the restoration of damaged habitats, enhancement of potentially produc-
ive habitats, and where appropriate, proper mitigation techniques.
3.2 STATE CONCERNS AND GOALS
Within the context of the litigation, the State has contested the nature and extent of the
*aty environmental rights alleged by the tribes. The State however acknowledges the
snefit of attempting to address and resolve the undeiiying problems in a non-Etigative
:ntext.
The parties further recognize that, although they may have differing views of the legal
eories, the State shares interest and concern about protecting.the fishery habitat Therefore,
e state enters into this Memorandum committed to cooperatively resolving environmental
mcerns raised in the litigation and further protecting fisheries resources.
34
-------
Washington has unique physical characteristics which support a variety of interests.
Washington benefits from a multi-faceted economy with diverse fishing, agriculture, and
timber industries, as well as industrial, retail and commercial entities. Washington's natural
features make the state a highly desirable place to live. Because of these characteristics, the
parries anticipate increases in population and economic growth, The goal of the state is to
accommodate growth in a manner which will protect the unique environment of the state.
Local governments exist under legal and fiscal authorities which create a govemment-to-
govemment relationship between them and the State. The Tribes recognize the importance
of relationships with local governments throughout the state. The parties recognize the state
will afford an opportunity for local government to properly represent their authorities and re-
sponsibilities within discussions contemplated by this Memorandum of Understanding.
3.3 HABITAT PROTECTION AND WATER USE
The parties agree that they must increase their understanding of the laws, regulations,
ordinances, and jurisdictional system currently used that affect Washington's habitat and
regulated use of water within the state. Additionally, the parties agree that the level of public
education concerning these matters must be increased. The parties pledge to cooperatively
undertake projects designed to carry out these agreements.
It is anticipated that the parties will review 1) information about the existing system of
habitat protection and 2) proposed procedures for future protection in order to 3) determine
the appropriate strategy to implement agreed measures to address the concerns of the parties
and fulfill the goals of this Memorandum.
3.4 HABITAT RESTORATION AND ENHANCEMENT
The parries recognize that the magnitude of the opportunity to restore, where appropriate,
degraded, damaged, or destroyed habitat, and to enhance potentially productive habitat
presents issues of coordination, priority, funding and organization-
In recent years, various state agencies, the Tribes, federal officials, and/or members of the
business community have engaged in discussions concerning habitat issues. Some of these
discussions have focused on the effect on fisheries and wildlife resources by forest practices.
Others have focused on what measures are necessary to provide the optimum production of
fish on a watershed basis. Still others have focused on the steps necessary to improve and
maintain the water quality in Puget Sound. These activities are positive, cooperative, and
constructive steps towards addressing habitat restoration and enhancement.
The parties recognize that a process to deal with the breadth and complexity of habitat
restoration and enhancement opportunities presented by Phase n must be developed. Suc-
cessful restoration and enhancement efforts will require educational efforts involving con-
stituencies of each of the parties, particularly so that full advantage can be taken of funding
opportunities. The priorities, which may be regional, species, or conservation related, must
be developed within the govemment-to-govemment relationship envisioned in this Memo-
randum.
Accordingly, the parties agree to review current processes for resolution of habitat issues.
The parties shall then determine whether those processes should be modified, or new proc-
esses created, in the spirit of this Memorandum.
35
-------
0 COOPERATIVE RESOLUTION
ic of the principal purposes of this process is to resolve environmental issues so thai
aon might be avoided. The parries continue to be involved in ongoing activities related
aeries and wildlife habitat Each party agrees that it will, to the best of its ability and
irity, take actions which cooperatively identify and attempt resolution of specific issues
ncem which may arise from time to time in relation to the fish and wildlife habitat.
ever, nothing in this Memorandum shall limit, preclude, restrict, or in any way affect the
of any party to act in any administrative, judicial or legislative forum, or in any other
; or way, to protect its rights or challenge the actions of any other parry to this agree -
he parties acknowledge that success of this process may be dependent upon informed
ideration of the concerns of other governmental entities and private interests. The
es agree, therefore, of the need to keep interested entities informed of this process.
"he parties are committed to complete the tasks outlined in this Memorandum by June
1990. The parties-recognize that their significant fisheries-related and other commit-
ts during the term of this agreement also will be contributing to the restoration and
.agement of. the fishery resources. Throughout the term of this agreement, the parties
1 communicate to each other their view about the progress of discussions and the fulfill-
st of responsibilities outlined in this Memorandum. Prior to June 30,1990, the parties
confer to determine whether the progress to date and the activities under the Memoran-
i warrant an extension of its term.
36
TT11
-------
PALINEEWAS: A TRADITIONAL CULTURAL PROPERTY OF THE
UMATILLA, CAYUSE, WALLA WALLA AND NEZ PERCE
OF THE SOUTHERN PLATEAU OF THE PACIFIC NORTHWEST
A PAPER PREPARED FOR THE 46TH ANNUAL NORTHWEST
ANTHROPOLOGICAL CONFERENCE, WESTERN WASHINGTON
UNIVERSITY, BELLINGHAM, WASHINGTON
MARCH 26 -28, 1993
BY
MICHAEL S. BURNEY,
TRIBAL ARCHAEOLOGIST
JEFFERY VAN PELT,
CULTURAL RESOURCES PROTECTION COORDINATOR
PAUL MINTHORN,
CULTURAL RESOURCES/LEGAL STAFF
CONFEDERATED TRIBES OF THE UMATILLA INDIAN FESERVATIQN7
MISSION, OREGON
ABSTRACT
Located in northeastern Oregon "Palineewas" is a traditional cultural property significant
to the Umatilla, Cayuse, Walla Walla (CTUIR), and Nez Perce tribes of the southeastern
Plateau. Although it is not known how long Palineewas has been important oral history
indicates it to be of special signficance. Indian informants told of Palineewas being a
preferred hunting area favored for its subsistence activities such as root digging, berrv
picking, and fishing. Contrary opinion states that Palineewas was a powerfully religious
area carefully avoided of all subsistence activities. Regardless, Palineewas is a sacred
place worthy of respect and preservation.
-------
PREFACE
What tribes seek to preserve through management, research, interpretation, protection
and development are not only historic sites and structures, but the integritv of their
cultures in general. Thus "historic preservation," or more accurately "cultural resource
management," to Indian tribes involves integrated efforts to do all of the following
things: to preserve and transmit language and oral tradition, arts and crafts, and
traditional uses of plants and land; to maintain and practice traditional religion and
culture; to preserve sacred places; to record and retain oral history; to communicate
aspects of tribal culture to others; and to use cultural resources to maintain the integrity
of communities and advance social and economic development.
While tribes are certainly concerned about preserving historic properties and other
cultural resources on reservation lands, they are often equally or even more concerned
about preserving ancestral sites and traditional use areas on lands that they no longer
control, whether these lands are now under Federal, State, or local control or in private
ownership (Parker 1990:67).
TEXT
The Umatilla, Cayuse, and Wallawalla (little river) people were semi-sedentary people of
the southeastern Plateau who shared among themselves, the Nez Perce, and other
neighboring Indian peoples, common fishing stations, root gathering grounds, berry
grounds, medicines and other flora, and big game. Winter villages were located along the
Columbia River and many of the smaller watercourses such as Butter, McKay, and Willow
creeks, and the Umatilla, Walla Walla, Imnaha, Grande Ronde, and Snake rivers
(Footnotes 1 and 2). The Nez Perce occupy lands adjacent to the CTUIR in parts of
Idaho, Oregon, and Washington. Ownership of territory and its specific resources appears
to have had significant meaning only in close proximity to a winter village. The further
away the resource, the less ownership and control were recognized (Swendell 1942:292).
Today, members of the four tribes continue to occupy their traditional lands in Idaho,
Oregon, and Washington.
-------
The CTUIR world view, in which cultural resources are a part, includes, themselves and
their treaty rights, religious beliefs, their communities, and their way of life; Indian
elders with their unique information regarding their personal histories as well as tribal
histories; clean air; clean water for the salmon and other varieties of fish, eels, and
riverine resources; and the root grounds and berry patches, especially huckleberries,
scattered throughout the Blue Mountains (Abee 1982:3, 9).
The hunting, fishing, and gathering of roots and berries traditional to the CTUIR way of
life constitute "subsistence magic" oftentimes associated with specific geographic
locations as part of the larger world view of sacred geography (Walker 1985:2; Footnote
3); that is, such resources as sacred sites, religious areas, prehistoric and historic sites,
areas for gathering traditional foods (fish, animals, roots, and berries), and medicines for
secular and non-secular use (Burney 1991a:6-8; Umatilla Tribal Code, Chapter 490:19-20:
emphasis mine).
Sacred geography has been recognized by the Advisory Council on Historic Preservation
-------
Parker and King (n.d.:9) appropriately note:
A Culturally significant natural landscape may be classified as a site, as
may the specific location where significant traditional events, activities, or
cultural observances have taken place. A natural object such as a tree or a
rock outcrop if it is associated with a significant tradition or use.
Natural features significant to American Indians can .be found eligible for the NRHP
under criterion (a), "A religious property may be eligible under Criterion A for its
significance in the history of religion if that significance has scholarly secular
recognition, or for other historical significance under a theme such as.exploration and
settlement, social philanthropy, or education (USDI-National Park Service 1982:45).
A natural feature important in Native American religion and mythology is
eligible if its importance has been ethnohistorically documented and if the
site can be clearly defined. An example of this type of historic resource
could be the natural feature from which a particular cultural group is
believed to have originated (USDI-National Park Service 1982:47).
Examples would include the Middle Columbia-Priest Rapids area in southeastern
Washington for one or more aboriginal groups; and McKay Creek in northeastern Oregon
for the Cayuse (Footnote 5).
A traditional cultural property is a property that,
is eligible for inclusion in the National Register because of its association
with cultural practices or beliefs of a living community that (a) are rooted
in that community's history, and (b) are important in maintaining the
continuing cultural identity of the community (National Register Bulletin
38, Parker and King n.d.:l).
Examples of traditional cultural properties applicable to Pahliinwaas include (1)
"locations where Native American or other groups traditionally gather wfld foods or
medicines;" or (2) "landforms" associated with Native American traditions and religious
practices" (Parker and King n.d.:9; emphasis mine). "Traditional cultural properties are
often hard to recognize, however. A traditional ceremonial location may look like
merely a mountaintop, a lake, or a stretch of river" (Parker and King n.d.:2).
-------
Palineewas, the original name for this tribal traditional cultural property. It is the name
currently used by tribal members, and both the place and the name connote a forboding
power and presence. Three different spellings and pronunciations exist: Palineewas,
Palineemepah, and Pahliinwaas, representing the differing dialects used by different
bands and Tribes. Palineewas is uniquej there is no other place within CTUIR ceded lands
that contains the history, teachings, and ethnological identity of this area (Muniz and
George 1990:3). The real significance of Pahliinwaas is found in the ethnographic
literature and oral traditions and stories shared by Indian informants. Elders of the
Yakima Nation, the Confederated Tribes of the Warm Springs Reservation, and CTUIR
were interviewed for their knowledge of Pahliinwaas. Many of the potential elders were
hesitant to participate because Pahliinwaas means lose your mind place or get lost
place." Other local Sahaptin tribal languages similarly define the place although it may
be spelled and pronounced differently. Muniz (1990a) noted the traditional Sahaptin
name for the Big Sink Area to be Palineemepah and the Nez Perce name to be
Palineewas.
The oral history and contributions by Alphonse Half moon, Mary Jim, and others have
demonstrated tribal informants continue to possess knowledge unique to them about their
culture, oral traditions, and traditional places. Significant information has been obtained
regarding past stories of Pahliinwaas and the special sacredness and power it is known to
have. Strong feelings about Pahliinwaas are held by the elders and young traditionalists
which has influenced many of the tribal members respect for this traditional cultural
property. The names that come to mind when Pahliinwaas is mentioned are , Clarence,
Richard and Robert Burke, Charlie Johnson, Charlie Whirlwind, Chief Joseph, Willie
Wocatsie, Jim Kanine, and PeoPeoMoxMox.
Oral history shared by these tribal informants elicits a tradition of reverence, respect,
and spirituality for Pahliinwaas. Ethnographic work done years earlier supports two
important facts. First, traditional use areas surround the Pahliinwaas area; and secondly,
there is scant mention of Pahliinwaas being used by the CTUIR for subsistence
purposes. Pahliinwaas was a sacred area apparently avoided by the Umatilla, Cayuse,
and Walla Walla for secular purposes. Rather, Pahliinwaas was a place of spiritual power
where burials are known to exist. Indian doctors were known to frequent Pahliinwaas to
make medicine as wen as individuals on spirit quests in search of their tutelary soiritfe).
-------
Although it is reported that some members of the CTUIR consider Pahliinwaas a
preferred hunting area, or for other subsistence activities such as root digging, berry
picking, or fishing, the tribal interviewees strongly indicate Pahliinwaas was generally
avoided for everyday subsistence activities or camping activities. Neither does the
literature identify any subsistence activities having taken .place within Pahliinwaas.
Numerous hunting, fishing, berry picking, and root gathering areas are identified ,
however, all around Pahliinwaas,
The Umatilla, Cayuse, and Walla Walla utilized their entire ceded area for fishing,
hunting, root digging, berry picking, and medicine gathering. Travel to and from these
hunting and gathering areas was often directly past Pahliinwaas. The inhabitants never
traveled through the sacred timbered area but all the way around it. According to a
tribal elder the last known time the people camped near Pahliinwaas for subsistence
gathering was in the late 1930s. This was the result of the upcoming timber industry and
road access which disrupted many of the traditional campsite locations. There are still
tribal people who respectfully go pick huckleberries, dig roots, gather black moss, and
collect medicines in the area of Pahliinwaas (Footnote 6).
Many of the Indian elders are concerned about future activity in Pahliinwaas due to the
burial sites scattered throughout this area and the devastation that is certain to come
about through the accumulation of activities such as artifact collecting and/or site
molestation, timber harvesting, road construction, recreation, and hunting. Pahliinwaas
is a memorial representation of various activities that occurred in this area, some of
these activities have been recalled by elders having memories of Pahliinwaas. Young
people are being taught the importance of protecting these sacred grounds of Pahliinwaas
and other parts of their ceded lands possessing significance to the Umatilla, Cayuse, and
Walla Walla people.
-------
ATTACHMENT 1
FOOTNOTES
Footnote 1
Numerous CTUIR sites and landmarks of the reservation have been identified. These include:
(1) fishing areas; (2) hunting areas; (3) root digging areas; (4) berry picking areas: (5)
campgrounds; (6) hot springs; (7) historic sites; and (8) geographic areas {CH2M Hill 1973:49-
60). "Geographic areas" are identified as certain locations within the reservation having Indian
names. These names oftentimes result from prominent geographic features. Several examples
of geographic areas within the reservation have been identified in Attachment 1.
Footnote 2
Suphan (1959:82-83) has identified a number of traditional geographic areas, or sites, utilized bv
the Umatflla, Cayuse, Walla Walla, Nez Perce, and Palus. These traditional subsistence areas,
or sites, have been listed in Attachment 2.
Footnote3
The Forest Service has a category pertinent to sacred geography and traditional geographic
areas known as "Special Cultural Resource Areas." These are "Areas having cultural values
which are of particular importance" (USDA-Forest Service 1978:2361.1; emphasis mine). The
word "areas" is significant in that is goes beyond "tangible cultural properties" as used in the
USDA-Forest Service Region I/Region 6 "Position Statement on Traditional Cultural Sites"
(USDA-Forest Service 1991).
Footnote 4
A site is...the place where a significant event or pattern of events occurred. It may be the
location of prehistoric or historic occupations or activities that may be marked by physicaj
remains; or it may be the symbolic focus of a significant event or pattern of events that may
not have been actively occupied. A site need not be marked by physical remains if it is the
location of a prehistoric or historic event or pattern of events and if no buildings, structures, or
objects marked it at the time of events (USDI-National Park Service 1982:6; 1986; emphasis
mine).
Footnote 5
"Lands...having special cultural association to the Native American community" (USDA-Forest
Service 1990b:4-31; emphasis mine) have been defined as culrural-historical areas. Not only are
sites "tangible cultural properties where historic, traditional cultural activities or values can be
documented" (USDA-Forest Service 1991:1) but "areas associated with Native American
traditions" as well (USDA-Forest Service 1990e:III-116; emphasis mine). "Sites or areas
associated with Native American traditions also may be unusual physiographic or geological
areas" (USDA-Forest Service 1978:2362.02).
Footnote 6
Certain sites on the Forest (i.e., the Umatilla National Forest) are important to the descendents
of these groups (Cayuse, Umatilla, Nez Perce, and Northern Paiute) for spititual and religious
reasons. Maintenance of the culture and religion depends on a reaffirmation of the connection
of the food resource of the land to the life cycle of nature; food is life. Knowledge of the
locations of traditional hunting and fishing grounds is interwined with family history. Forest
resources form an important part of the link between the past, present, and future (parentheses
mine) (USDA-Forest Service 1990e:III-116).
-------
ATTACHMENT 2
CTDIR SITES AND LANDMARKS WITHIN THE RESERVATION
(1) The Umatflla River (U-o-tala);
(2) The confluence of Meacham Creek with the UmatiUa River CRm Min Is Icum—
means "Big Forks");
(3) Squaw Creek {Is School Pa);
(4) Telephone Ridge Area (Pan Tom Tome);
(5) Parker's Well (Pa Leesh Pa—means "Dug Well");
(6) Emigrant Springs or Emigrant Hill (Tim In Is Pa);
(7) Site where Chief Eekan was captured and later killed CEekan);
(8) North Fork McKay Creek (Shee Shet Knee—means "Tangly Brush"):
(9) Te Heto Ispa—means "White Tail Deer");
(10) McKay Creek (How Toe Me; Tuc Pie Cap En Wes—means "Hill goes right into
creek"; Cay Ich Pa—means "Knoll where you can see all directions"); and
(11) Spring Hollow (Tughs Pa; Shesh Nim Mish Pa—means "Bunch of Thorns") (CH2V
Hill 1973:59-60).
-------
ATTACHMENT 3
TRADITIONAL GEOGRAPHIC AREAS OR SITES
UTILIZED BY THE UMATILLA, CAYUSE, WALLA WALLA,
NEZ PERCE, AND PALDS
Es-la-me-sin-ma, a fishing site located at the confluence of Looking Glass Creek and
Grande Ronde River. It was used by the Walla Walla and Cayuse; also by the Umatilla
and Palus Indians, who spent 3 weeks-month here. Salmon taken on hooks and spears and
dried in big sheds (from Swindell 1942).
La-pi t-tacher, a hunting and root digging area for the Walla Walla and Cayuse at Jarbeau
Meadows on Jarbeau Creek.
Te-peep-a-watum, two fishing sites used for about one month, at the junction of the
Wallowa and Grande Ronde rivers, used by the Walla Walla and Cayuse Indians. They also
hunted, gathered roots, and picked berries from this camp; others who used it were the
Nez Perce, Palus, and Umatillas. Fishing was communal; catch divided equally (from
Swindell 1942).
Wiss-wa-ya-kass, this was a fishing area at the confluence of Minam and
rivers. This was a large camping place, about 20 acres, for several Indian groups; Nez
Perce, Walla Walla, Umatilla, Cayuse, and Palus. 150-200 Indians fished for salmon,
trout, whitefish at one time; spears, hooks, dip nets (from Swindell 1942).
Luckow Luckow, a fishing site on the Grand Ronde River within the city limits of Elgin,
Oregon. It was used by the Walla Walla, Cayuse, and Nez Perce.
Nusnu-pa, at the junction of the north and south forks of the Walla Walla River. It was a
fishing site of the Walla Walla and Cayuse.
Tuk-kin-tuk-kin, a hunting and root-digging area for the Walla Walla and Cayuse at what
is now Langdon Lake. This is near Tollgate just south of Target Meadows.
Koohettacken, a hunting and root-digging area for the Walla Walla and Cayuse on Sheen
Creek at Fry Meadows.
Wenaha, a fishing site of the Walla Walla and Cayuse Indians at the confluence of the
north and south forks of Wenaha River.
A Walla Walla fishing site at the headwaters of the Wenaha River at Timothy Springs.
Kewn-peepa, at Bone Spring near the previous site. This was not a fishing site, but a
Walla Walla campsite.
Imnaha, at Mottet Guard Station on the head of the north fork of the Walla Walla River.
A hunting ground for the Walla Walla and Cayuse.
Islumishin Ticum, at the falls on Looking Glass Creek approximately 3 miles above its
mouth. This fishing site was used by the Walla Walla and Cayuse.
Luckow Luckow, a fishing site for the Walla Walla and Cayuse on the Grande Ronde
River near the confluence with Looking Glass Creek.
-------
ATTACHMENT 3 CONTINUED
Taakeen, a root digging and hunting ground of the Walla Walla and Cayuse on Summer
Creek, a tributary of Looking Glass Creek.
CTDIR tribal members assisting in the above project (Conner, and Temple 1942) included:
Jim Kanine Born 1872 Walla Walla
Imowatanic Born 1864 Walla Walla
Gilbert Minthorn Born 1876 Cayuse
George Red Hawk Born 1862 Cayuse
Jim Billy Born 1879 Umatffla
Tom Joe Born 1870 Umatilla
William Barnhart Born 187(?) Umatflla
-------
10
ATTACHMENT 4
SELECTED DEFINITIONS
Traditional; Traditional "applies to beliefs and behaviors that have been transmitted
across generations, and are identified by their Native American practitioners to be
necessary for the perpetuation of their cultures. Characteristically, cultural practices
are so interrelated that religious activities are not totally separable from subsistence,
family life or other feature. Traditional also applies to the sites, objects, or places
intimately associated with those beliefs or behaviors" (USDI-National Park Service
1987:35676; emphasis mine).
Ethnographic Resources; "Ethnographic Resources" refer to those resources "with
traditional subsistence, sacred ceremonial or religious, or other cultural meaning for
contemporary Native Americans" (USDI-National Park Service 1987:35676).
Sacred Resources; "Sacred Resources" are those resources that apply "to traditional
sites, places or objects that Native American tribes or groups, or their members,
perceive as having religious significance" (USDI-National Park Service 1987:35676;
emphasis mine).
Traditional Cultural Value; A traditional cultural value "means the contribution made bv
an historic property to an ongoing society or cultural value that has historical depth; a
non-traditonal cultural value is a cultural value that lacks such depth" (Advisory Council
on Historic Preservation n.d.:3). There are several kinds of historic values including ("0
Architectural value; (2) Associative value; (3) Use value; (4) Information value; and (5^
Cultural value.
The Advisory Council on Historic Preservation (n.d.:5) defines Associative value as "the
importance of a property as a remineder of an event, a person, a process or trend
affecting the history of the world, the nation, or a region, community, or group." They
define Cultural value as "the contribution made by an historic property to an ongoing
society or cultural system. It is this sort of value that is the focus of these guidelines"
(Advisory Council on Historic Preservation (n.d.:5).
-------
ATTACHMENT 4 CONTINUED
Traditional Cultural Significance: Traditional cultural significance is one kind of cultural
significance that may make a property eligible for inclusion in the NRHP. Parker and
King Cn.d.:l) explain traditional cultural significance:
"Traditional" in this context refers to those beliefs, customs, and practices
of a living community of people that have been passed down through the
generations, usually orally or through practice. The traditional cultural
significance of a historic property, then, is significance derived from the
role the property plays in a community's historically rooted beliefs,
customs, and practices. Examples of properties possessing such
significance include:
o a location associated with the traditional beliefs of a Native
American group about its origins, its cultural history, or the
nature of the world;
o a location where Native American religious practitioners have
historically gone, and are known or thought to go today, to
perform cermonial activities in accordance with traditional
cultural rules of practice (emphasis mine).
-------
12
BIBLIOGRAPHY
Abee, Albert
1982 Forest Management Plan, Umatilla Indian Reservation, Oregon. Prepared by
the USDI-Bureau of Indian Affairs, Umatilla Indian Agency, Mission, Oregon.
Advisory Council on Historic Preservation
1980 Treatment of Archeological Properties: A Handbook'. A Guide to Principles,
Procedures, and Methods for the Treatment of Archeological Properties in
Accordance with 36 CFR 800.
Advisory Council on Historic Preservation
n.d. Draft Guidelines for Consideration of Traditional Cultural Values in Historic
Preservation Review. Washington, B.C.
Alvord, (Brevet Major) Benjamin
1857 Report of Brevet Major Benjamin Alvord.,.Concerning the Indians of Oregon
and Washington, East of the Cascades, etc. 1853. Indian Affairs of the
Pacific, Ex. Doc. 76, House of Representatives, 34 Congress, 3rd Session.
Bearchum, Ben
n.d. Cultural Resource Management Program for the Protection and Preservation
of the Cultural Resources Within'All Treaty Established Lands (Draft). Ms. on
file, Confederated Tribes of the Umatilla Indian Reservation, Pendleton,
Oregon.
Berreman, Joel V.
1937 Tribal Distribution in Oregon. American Anthropological Association Memoir
47. Menasha, Wisconsin.
Bosley, Butch
1981 Cultural Resource Inventory of the Sinks Timber Sale. Report on file,
Umatilla National Forest, Supervisor's Office, Pendleton, Oregon.
Burney, Michael S., Jeffery Van Pelt, and Paul Minthorn
1993 Archaeological Contracting Between the U.S. Forest Service and the
Umatilla, Cayuse, and Walla Walla Tribes of Northeast Oregon. A paoer
prepared for the 1st Biennial Rocky Mountain Anthropology Conference,
Jackson, Wyoming, September 30-October 2, 1993. Paper prepared for the
Confederated Tribes of the Umatflla Indian Reservation, Mission, Oregon.
Burney, Michael S., Jeffery Van Pelt, and Paul Minthorn
1993 Native Americans Have Always Managed Their Cultural Resources: A
Cultural Resource Management Perspective From the Umatilla, Cayuse, and
Walla Walla Tribes of the Pacific Northwest. A paper prepared for the "Wa
Aba'Am, Place of Plunging Water: A Gathering to Honor Western Nevada's
First People." Sponsored by the Nevada Bureau of Land Management and the
Washoe Tribe, Cal-Neva Lodge, Incline Village, Nevada, May 7th and 8th,
1993.
-------
13
Burney, Michael S.
1991a American Indian Consultation Regarding Treaty Rights and Cultural
Resources: A Response from the Confederated Tribes of the Umatilla Oayuse,
and Walla Walla of Northeastern Oregon. A paper prepared for the Multi-
State/Province Archaeological Conference, Northwestern Plains
Archaeological Symposium: State of the Art, Billings, Montana, April 12-14,
1991. Hosted by the Montana Archaeological Society. Paper on file, Burney
and Associates, Boulder, Colorado.
Burney, Michael S.
199Ib The Participatory Role, of the Umatilla, Cayuse, and Walla Walla Tribes of
Northeast Oregon as Co-Partners in the Management of Those Cultural
Resources on Reservation and Ceded Lands. A paper prepared for the 49th
Plains Anthropological Conference, -Lawrence, Kansas, November 13-16,
1991. Hosted by the University of Kansas Museum of Anthropology, the
Department of Anthropology, and the Kansas State Historical Society. Paper
of file, Burney and Associates, Boulder, Colorado.
Burney, Michael S.
1989 American Indian Resources and the Hanford Reach: A Legacy of Middle
Columbia River Indian Heritage. Paper presented at the 42nd Annual
Northwest Anthropological Conference, Session 14-Sacred Site Archaeology,
Lawr V. Salo, Chairman, Spokane, Washington, March 23-25. Hosted by the
Department of Antrhoplogy and Historical Services, Eastern Washington
University, Cheney. Paper of file, Burney and Associates, Boulder, Colorado.
Burney, Michael S.
1986 The Results of Cultural Resource Surveys of the Dollar Basin and Stink
Timber Sales Southeast of the Strawberry Wilderness Area, Prairie City
Ranger District, Malheur National Forest, Grant County, Oregon. Report on
ffle, USDA-Forest Service, Malheur National Forest, Supervisor's Office, John
Day, Oregon.
Burney, Michael S.
1985 The Results of Test Excavations Conducted at Sites 45GA119, 45GA120,
45GA122, and 45GA124, in the Blue Mountains South of Pomerov, Garfield
County, Washington. Report on file, USDA-Forest Service, Umatilla National
Forest, Supervisor's Office, Pendleton, Oregon.
Burney, Michael S., Jeffery Van Pelt, and Louie Dick, Jr.
1990 The Cultural Resource Program of the Confederated Tribes of the Umatilla
Indian Reservation: A Progress Report. A Paper prepared for the 43rd Annual
Northwest Anthropological Conference, Eugene, Oregon March 22-24, 1990.
Hosted by the .USDA-Forest Service, Willamette National Forest.
Burney, Michael S., Steven F. Mehls, and Games Grady
1985 Archaeological & Historical Surveys of Selected Portions of the Umatilla
Basin Project, Umatflla County, Oregon. Report on file, USDI-Bureau of
Reclamation, Pacific Northwest Region, Boise, Idaho.
CH2M Hffl
1973 Planning for the Umatilla Indian Reservation: Initial Comprehensive Planning
Investigation. Program Planning Committee, Confederated Tribes of the
Umatilla Indian Reservation, Ms. of file, CTUIR, Pendleton, Oregon.
-------
14
McGimsey, Charles R. m and Hester A. Davis
1977 The Management of Archeological Resources: The Airlie House Report.
Special Publication of the Society for American Archaeology.
Mengarini, Gregory
1871 Indians of Oregon. Journal of the Anthropological Institution of New York
1:81-88.
Muniz, Mildred
1990a Sinks Basin Project. Letter to Louie H. Dick, Vice Chairman, CTUTR Board of
Trustees and Rick George, Environmental Planner, dated Wednesday,
November 7, 1990. Letter on ffle, Confederated Tribes of the Umatilla Indian
Reservation, Department of Natural Resources, Mission, Oregon.
Muniz, Mildred
1990b Oral History of Sinks Basin and Surrounding Areas; An Interview with Mary
Jim. Letter to Rick George, CTUIR Environmental Planner, dated December
13, 1990. Letter on ffle, Confederated Tribes of the Umatilla Indian
Reservation, Department of Natural Resources, Mission, Oregon.
Muniz, Mildred and Rick George
1990 Sinks Planning Area - Ethnohistory and Cultural Resource Report. A Draft
report completed in cooperation with, and with partial funding from, the
Umatilla National Forest. Report on file, Confederated Tribes of the
Umatilla Indian Reservation, Mission, Oregon; and the USDA-Forest Service,
Umatilla National Forest, Supervisor's Office, Pendleton, Oregon.
Parker, Patricia L.
1991 America's Tribal Cultures—A Renaissance in the 1990s. CRM 14(5). USDI-
National Park Service, Cultural Resources, Washington, D.C.
Parker, Patricia L. (Senior Author and Editor)
1990 Keepers of the Treasures: Proteetine Historic Properties and Cultural
Traditions on Indian Lands. A Report on Tribal Preservation Funding Needs
Submitted to Congress by the National Park Service, United States
Department of the Interior, National Park Service, Interagency Resource
Division, Branch of Preservation Planning, Washington, D.C.
Parker, Patricia L.
1987 What Are the National Register Criteria? National Park Service, Interagency
Resources Division, Washington, D.C.
Parker, Patricia L. and Thomas F. King
1991 What Are Traditional Cultural Properties? (In) America's Tribal Cultures—A
Renaissance in the 1990s. CRM 14(5):9. National Park Service, Washington,
D.C.
Parker, Patricia L. and Thomas F. King
n.d. Guidelines for Evaluating and Documenting Traditional Cultural Properties.
National Register Bulletin 38. U.S. Department of the Interior, National Park
Service, Interagency Resources Division, Washington, D.C.
-------
15
Peterson, Ethel M.
1939 Oregon Indians and Indian Policy, 1849-1871. Unpublished M.S. thesis,
Univeristy of Oregon, Eugene.
Ray, Verne F.
1938 Tribal Distribution in Eastern Oregon and Adjacent Regions. American
Anthropologist. n.s., 4G(3):384-415.
Ray, Vern F.
1939 Cultural Relations in the Plateau of Northwestern America. Publications of
the Frederick Webb Hodge Aniversarv Publication Fund 3. Los Angeles:
Southwest Museum. Reprinted in 1964.
Ray, Vern F.
1959 Tribal Territories and Village Locations of the Walla Walla, Cayuse and
Umatflla Tribes (Map), Together with Testimony in Confederated Tribes of the
Umatilla Indian Reservation v. United States of America, Petitioner's
Proposed Findings of Fact and Brief, Docket No. 1 264, Before the Indians
Claims Commission.
Ray, Vern F.
n.d. Villages of the Walla Walla, Cayuse and Umatilla Tribes. Ms. on file, Whitman
College, Walla Walla Washington, and the Confederated Tribes of the Umatilla
Indian Reservaton, Mission, Oregon.
Ray, Vern F., e£ aL
1938 Tribal Distribution in Eastern Oregon and Adjacent Regions. American
Anthropologist 4Q{3}:384-415.
Ruby, Robert H. and John A. Brown
1972 The Cayuse Indians: Imperial Tribesmen of Old Oregon. Civilization of the
American Indian Series 158. Norman: University of Oklahoma Press.
Sehaeffer, Claude E.
1959 Indian Tribes and Languages of the Old Oregon Country: A New Map. Oregon
Historical Quarterly 60:129-133.
Stern, Theodore
I.P. Cayuse, Wallawalla, and Umatilla. (In) Handbook of North American Indians,
Volume 12, Plateau, Dr. Deward E. Walker, Jr., editor. Washington, D.C.:
Smithsonian Institution.
StDlman, A.D.
1899 Eastern Oregon Indians. Oregon Native Son 1(3);120-125.
Suphan, Robert J.
1974 Ethnological Report on the Umatilla, Walla Walla, and Cayuse Indian Relative
to Socio-Political Organization and Land Use. (In) Oregon Indians II, edited by
David Agee Horr. American Indian Ethnohistory Series. New York: Garland
Publishing Company.
-------
16
Suphan, Robert J.
n.d. Ethnological Report on the Umatilla, Walla Walla, and Cayuse Indians
Relative to Socio-Political Organization and Land Use. RE: The Confederated
Tribes of the Umatilla Indian Reservation of Oregon v. The United States of
America. Indian Land Claims Commission Docket #'s 264 and 198, Defense
Exhibit # 18.
Suphan, Robert J.
1959 The Socio-Political Organization and Land Use Patterns of the Umatilla,
Walla Walla, and Cayuse Indians. Unpublished M.A. thesis, Department of
Political Science, Columbia University, New York, New York.
Swanton, John R.
1953 The Indian Tribes of North America. Bureau of American Ethnology Bulletin
No. 145.
Swanton, John R.
1968 Indian Tribes of Washington, Oregon, and Idaho. Fairfield, Washington: Ye
Galleon Press.
Swindell, Edward G.
1942 Report on Source, Nature and Extent of the Fishing, Hunting, and
Miscellaneous Related Rights of Certain Indian Tribes in Washington and
Oregon Together With Affidavits Snowing Location of a Number of Usual and
Accustomed Fishing Grounds and Stations. United States Department of the
Interior, Office of Indian Affairs, Division of Forestry and Grazing.
Washington, D.C.
Tucker, Gerald J.
1940 History of the Blue Mountains. Ms. on file, USDA-Forest Service, Umatilla
National Forest, Supervisor's Office, Pendleton, Oregon.
U.S. Commission on Civil Rights (CCR)
1983 Religion in the Constitution: A Delicate Balance. Clearing-house Publication
No. 80, U.S. Commission on Civil Rights, Washington, D.C.
USDA-Forest Service
1991 Traditional Cultural Values for Historic Properties. USDA-Forest Service,
Joint R-l/R-6 Position Statement on Traditional Cultural Sites and -National
Park Service Bulletin 38. USDA-Forest Service, Pacific Northwest Region (R-
6), Portland, Oregon, and Northern Region (R-l), Missoula, Montana.
USDA-Forest Service
1990a Record of Decision. Land and Resource Management Plan, Umatilla National
Forest. On file, USDA-Forest Service, Umatilla National Forest, Supervisor's
Office, Pendleton, Oregon.
USDA-Forest Service
1990b Land and Resource Management Plan, Umatilla National Forest. On fEe,
USDA-Forest Service, Umatilla National Forest, Supervisor's Office,
Pendleton, Oregon.
-------
17
US DA-Forest Service
1990c Maps, Land and Resource Management Plan, UmatiUa National Forest. On
ffle, USDA-Forest Service, Umatffla National Forest, Supervisor's Office,
Pendleton, Oregon.
USDA-Forest Service
1990d Summary, Final Environmental Impact Statement,'Umatilla National Forest.
On ffle, USDA-Forest Service, Umatflla National Forest, Supervisor's Office,
Pendleton, Oregon.
USDA-Forest Service
1990e Final Environmental Impact Statement, Land and Resource Management Plan,
Umatilla National Forest. On ffle, USDA-Forest Service, Umatilla National
Forest, Supervisor's Office, Pendleton, Oregon.
USDA-Forest Service
1990f Appendices-Volume 1, Final Environmental Impact Statement, Land and
Resource Management Plan, Umatflla National Forest. On file, USDA-Forest
Service, Umatilla National Forest, Supervisor's Office, Pendleton, Oregon.
USDA-Forest Service
1990g Appendices-Volume II, Final Environmental Impact Statement, Land and
Resource Management Plan, Umatflla National Forest. On ffle, USDA-Forest
Service, Umatilla National Forest, Supervisor's Office, Pendleton, Oregon.
USDA-Forest Service
1979 Umatilla National Forest 10-year Timber Resource Plan. Draft
Environmental Statement, USDA, Forest Service, Umatilla National Forest,
Pacific Northwest Region.
USDA-Forest Service
1978 Title 2300-Recreation Management (2361-Cultural Resources). Amended in
1980.
USDI-National Park Service
1990 Questions and Answers About the National Register of Historic Places. USDI-
National Park Service, Interagency Resources Division, National Register
Branch, August, 1990. Washington, D.C.
USDI-National Park Service
1987 Part ffl, Department of the Interior, National Park Service, Native American
Relationships Managment Policy; Final Management Policy. Federal Register
52(183):35674-35678, Tuesday, September 22, 1987.
USDI-National Park Service
1986 Guidelines for Completing National Register of Historic Places Forms.
National Register of Historic Places Bulletin No. 16. U.S. Department of the
Interior, National Park Service, Washington, D.C., September 30,1986.
USDI-National Park Service
1985 Nomination of Archeological Properties: Definition of National Register
Boundaries for Archeological Properties. National Register of Historic Places
Bulletin 12. USDI-National Park Service, Interagency Resources Division,
Washington, D.C.
-------
18
USDI-National Park Service
1982 How to Apply the National Register Criteria for Evaluation. National.
Register of Historic Places Bulletin 15. Department of the Interior, National
Park Service, Washington, B.C., June 1, 1982 (Draft).
Victor, Frances Fuller (pseudonym)
1902 The Oregon Indians. Overland Monthly 7(2).
Walker, Deward E., Jr.
1987 Protection of American Indian Sacred Geography: Toward a Functional
Understanding of Indian Religion Focusing on a Protective Standard of
Integrity. Paper presented at the Workshop on Sacred Geography, Harvard
Center for the Study of World Religions, May 5-6, Cambridge, MA.
Walker, Deward E., Jr.
1985 Synopsis of Comments on Native American Religions and Sacred Georgraphy
in the Central Rocky Mountains. Paper prepared for a National Park Service
Conference, October 29, 1985.
White, Barbara Ann
1986 Cultural Resource Inventory Report of the Little Wall Creek Andromous Fish
Project. Report on file, USDA-Forest Service, UmatQla National Forest,
Supervisor's Office, Pendleton, Oregon.
Wilburn, June B.
1984 Cultural Resource Inventory of the Skookum Timber Sale. Report on file,
USDA-Forest Service, Umatflla National Forest, Supervisor's Office,
Pendleton, Oregon.
-------
Cross-Cultural Management in the Public Sector.
Indian Tribes in Washington State
by:
Greg Andranovich, PhD
Department of Political Science and Cooperative Extension
Washington State University
Pullman, WA 99164-4880
March 1992
Washington State University
Program for Local Government Education
-------
Cross-Cultural Management in the Public Sector:
Indian Tribes in Washington State
by:
Greg Andranovich, PhD
Department of Political Science and Cooperative Extension
Washington State University
Pullman, WA 99164-4880
This paper was supported in part by a grant
from the W. K. Kellogg Foundation.
-------
Contents
I. Introduction 1
II. Tribal Sovereignty and the Differences of Paradigms 2
III. Cross-Cultura! Public Management Vignette's 5
A. Seattle Water Department and the Muckleshoot
Tribe 6
B. METRO and the Suquamish Tribe 9
C. The Lummi Indian Nation and Whatcom County 14
IV. Cross-Cultural Management: Preconditions for Success 17
Endnotes 20
References 22
Figures:
Figure 1: Washington State Indian Reservations
Figure 2: Treaty Areas in Washington
Figure 3: Seven-Point Protocol between the Suquamish
Tribe and METRO
Figure 4: Preconditions for Success
-------
Cross-Cultural Management in the Public Sector:
Indian Tribes in Washington State
I. Introduction
Washington state has experienced rapid growth in the past decade,
especially along the 1-5 corridor in the region west of the Cascades, and
the Legislature has responded by passing the Growth Management Act of
1990 (E5HB 2929) and follow-up amendments in 1991 (E5HB 1025). The
Growth Management Act takes a bottom-up approach to planning, with
counties having the responsibility of coordinating municipal, county, and
special district planning efforts. The Growth Management Act also adopts
a statewide economic development strategy aimed at dispersing the
benefits and costs of growth. But not all governments are included in the
GMA planning. There are 26 federally-recognized Indian tribes in
Washington, 22 of which are in fast-growing western Washington (see
Figure 1 which shows current reservation lands). As sovereign entities
within Washington state (see Figure 2 which illustrates territory covered
by treaty), the issue of the tribes' relations with the general purpose (i.e.,
state,, county, municipal) and special purpose (i.e., special district)
governments has become a significant one for public management under
the Growth Management Act.
In this paper, three vignettes of cross-cultural management
(representing city, county, and special purpose government units) are
presented and the lessons for public management are highlighted. As
state and local government officials begin to realize the complex
interdependence of Indian and non-Indian futures in a geographically
defined area, cross-cultural management skills will become critical to
strategic planning and successful policy implementation. Developing
cultural sensitivity, however, comes neither easily nor without pain.
-------
Figures I and 2 about here
N. Tribal Sovereignty and the Differences of Paradigms
The long history of broken treaties, reorganizations, and cultural
repression has left a legacy of mistrust between Indian and non-Indian
peoples in the US. Nationally, there are about 400 federally-recognized
and 113 non-recognized tribes within the US (Butterfield, 1990). Since the
mid-1970s, tribes have been more forceful in demanding their rights,
which are guaranteed by treaty, as sovereign nations. The "issue" of
sovereignty, and the government-to-government relations that stem from
it, have led to numerous tensions and confrontations at the subnational
(i.e., state and local) level in the US. The tribes have historically
maintained that their treaties are with the US government rather than the
many subnational units; land-use planning and regulation, a major
responsibility of-subnational government rather than the US government,
is an arena in which institutional linkages between state and local
governments and tribal governments are rare and often based on litigation.
In Washington state, for example, the Federal District.Court decision
in US v Washington in 1974 first recognized the rights of tribes in
western Washington over the management of the western Washington
fishery. Although the Boldt decision was not upheld in its entirety by the
US Supreme Court, the legitimacy of the tribes' role in managing the
state's natural resources had been established (see Olson, 1988). The late
1980s witnessed a flurry of activities in state-tribal cooperation in the
water resources field, in part as a response to unresolved issues (e.g., the
protection, enhancement, and restoration of the fisheries habitat) from
-------
the Boldt decision (hetzgar, 1991, p. 17).
In 1989, government-to-government relations were established
between the state of Washington and the 26 federally recognized tribes
through the Centennial Accord (which established a formal structure for
government-to-government relations) and the Environmental Memorandum
of Understanding (protecting fisheries habitat); these were followed in
1990 by the Chelan Agreement (a multiparty agreement to manage water
by hydrologic unit [Williams, 1991; Beaulieu, 1991; Northwest Indian
Fisheries Commission, n.d. aj). The importance of these agreements and
others (such as the 1986 Timber/Fish/Wildlife agreement) is that they
have opened the window for technical- and policy-level cooperation and
have established a process for establishing institutional linkages; formal
legal disputes and other management options have not been precluded,
however.
One of the keys to cooperation is respect; underlying respect is
understanding. The Northwest Indian Fisheries Commission, in its
analysis of the Centennial Accord, wrote (n.d. b, p. 6): "One of the most
important aspects of the Accord is its call for a comprehensive
educational effort to promote understanding of the relationship within
state and tribal governments and with the public." One of the keys to
understanding differences in non-Indian and Indian people is to examine
their paradigms, or world views. At its most simplified level, a paradigm
helps us focus our understanding of time and space (history and place), as
well as our relationship with a particular history and place. It is here
that non-Indian and Indian cultural differences become apparent; it is at
this level that educational efforts can attain their greatest potential. At
the same time, paradigms are reflected in institutionalized practices,
-------
which often then become problematic for cross-cultural management (see
Adler, 1983; Leung & Wu, 1990). For example, the lack of institutional
links between state and local governments and tribal governments at the
government-to-government level suggests that basic knowledge about
decision making styles, communication styles, and strategy development-
-processes basic to government—are unknown to the participants (for a
general treatment, see Nadler, Nadler & Broome, 1985).
At the level of history; non-Indian culture' in the US can be defined
by its belief in individualism, property rights, competition, limited
government and progress though scientific specialization; the so-called
Lockian Five (Lodge & Henderson, 1979, pp. 267-69). This view of history
is often short-term (cynics would point to the quarterly earnings report
or the electoral cycle as the time horizon of choice); the relationship with
history is discrete and removed (indicated by selective, or lack of,
memory). Regarding place, non-Indian cultures in the US tend to see the
environment as an obstacle or condition to be overcome and improved
upon; this relationship with the environment is often described in
hierarchical (and dualistic) terms, such as "man" over nature (see Smith,
1984, part I; also, Yoshikawa,. 1988). This dominant cultural tendency in
the US has been referred to as individualism, or the narrow concern for
the consequences of one's behavior on one's own interests (see Leung &
V/u, 1990, p. 222). Adler (1983, pp. 485-489) has linked this paradigm
with four common and misleading assumptions about our world: we are all
the same; they are just like me; our way is the only way; and our way is
the best way. These assumptions have become rules of thumb or standard
operating procedures that are applied under conditions of uncertainty,
such as when confronted by a different culture.
-------
By contrast, in most Indian cultures, history and place are
intimately intertwined with the here-and-now.. A seven-generations
planning horizon is not unknown; phrases such as "from time immemorial"
signify the respect for history and a linkage with the past for gleaning the
"wisdom of the ages" or the lessons passed from generation to generation.
Regarding place, in Indian cultures the environment has a special status
and connection with culture, and the interconnectedness between people
and nature represents a special relationship, one of harmony (see, for
example, Northwest Indian Fisheries Commission News, 1991). This
cultural tendency may be described as collectivism, or the concern with
the consequences of one's behavior on one's in-group, resulting In the
willingness to sacrifice personal interests for the attainment of group
interests (see Leung & Wu, 1990, p. 222; also Bochner, 1982, pp. 11-15).
As Washington state seeks to enhance its planning efforts, attract
environmentally sensitive economic development, and better meet the
needs of all the state's residents as the millennium approaches, the need
to reconceptualize paradigms becomes more apparent. But paradigm
change is not the same as changing shoes; for public managers, paradigm
change points to a reframing of management capacity (practice-based
skills and decision rules) as well as organizational needs (interests).
111. Cross-Cultural Public Management Vignettes
That cross-cultural management has become more significant for
public managers in general purpose and special purpose governments
reflects a newly arrived and still evolving proposition in the public
sector. As a consequence, there are no primers for implementing a cross-
cultural approach to public decision making. For each case that may be
-------
described as a success, there are many other cases in which culture-clash
(cf. culture shock; Furnham, 1988; Kim, 1988, ch. 2) may be a more
appropriate description of cross-cultural interaction. The following three
vignettes of the experiences of cross-cultur'al management in Washington
state serve to illustrate different approaches and highlight different
preconditions that may drive strategic planning efforts in the public
sector to minimize or obviate culture-clash. The first two vignettes are
from the perspective of public sector agency officials, the third is from
the perspective of an Indian official. Before proceeding, several caveats
should be noted. First, each vignette presents events from either the
public sector or tribal view; while not mutually exclusive, events are
colored differentially by culture as well as history. Second, the
organizational culture of the public agency or tribal agency in each
vignette is not fleshed out as a mediating or determining influence. Third,
it is not proper to generalize about tribes; tribes are no more
homogeneous than are "Americans" and represent different cultural,
governmental and resource capacities and perspectives.2
A. Seattle Water Department and the Muckleshoot Tribe
Background. In 1989 the Washington state legislature passed a bill
mandating a spawning channel on the Cedar River to assist the passage of
fish by a small diversion dam.3 Because of the investment involved in the
construction of a spawning channel, the Seattle Water Department
believed that bringing all of the parties—federal, state, local, and the
Muckleshoot Tribe—together was important to ensure that the decisions
made today were not the cause of litigation tomorrow. The Muckleshoot
-------
were a reluctant partner because attending a policy round table
represented a pull on resources in an arena in which the tribe had little
organizational capability. At a technical level, however, the tribe
supported a hatchery over the proposed spawning channel due to the
tribe's technical capacity in hatchery management. As a result of
differently perceived goals and organizational and staff capacities, the
Muckleshoot Tribe stopped attending the policy round table meetings.
At this critical juncture, the Water Department superintendent and
staff started working separately with the Muckleshoot. Because the
history of tribal relations in public sector policy making had been one of
litigation, it was strategically important to include the tribe in policy
planning. In the September 1990, a Memorandum of Intent (MOD was
signed by the city of Seattle and the Muckleshoot Tribal Council; Mayor
Norm Rice and Tribal Chairperson Virginia Cross signed the MO! on the
Muckleshoot reservation. The MOI was a significant move forward; it
established a way to work together on issues related to the Cedar River
and its several clauses (1) established an open government-to-government
relationship between the-city and the tribe, recognizing the sovereignty of
the Muckleshoot Tribe and its expertise in water resource management at
a technical level; (2) discussed mutual benefits from working together;
(3) recognized the tribe's longstanding rights under the Point Elliott
Treaty (one of five treaties in the US v Washington): (4) recognized the
tribe's reserved rights; and (5) in turn, the tribe recognized the city's
rights on the Cedar River.
The MOI set broad parameters for the discussion of water use, water
quality, fishery management and the cultural and spiritual resources of
the Cedar River to the Muckleshoot. This led to discussions with the
-------
8
tribe's fisheries experts regarding the hatchery proposal and with their
support, both parties decided to build both a spawning channel and a
hatchery, to monitor both, and to the leave the future path for fish
migration open. In addition, the city and tribe signed a support agreement
in which the city provided some financial resources for building the
tribe's organizational capacity for policy-level meetings. The city also
insisted on a historical losses proposal from the Muckleshoot to fully
ascertain tribal claims on the Cedar River.
During the three year period reviewed, a major technical issue
threatened policy decision making. The King County Council raised the
question of the management of the fishery via either a hatchery or a
spawning channel. This issue, with its philosophically polarizing effect,
has historically led'to tension and delays in implementing water
resources policy. For the Seattle Water Department, a push by the County
Council for the development of a Cedar River basin plan before discussing
the spawning channel proposal would have meant an additional two to
three year delay (due to litigation). The Muckleshoot were very active in
working this issue and provided technical information based on their
expertise and experience in hatchery management; the end result was King
County became a full partner in the process. At this time, there has been
staff turnover in the Muckleshoot fishery; an interim director is currently
in place. However, the project is proceeding through the first design
phase.
Lessons from the Cedar River Experience. One of the keys to the
initial success in cross-cultural management was the recognition of
tribal sovereignty through the Memorandum of Intent. By focusing on the
process of working together, the M01 signaled the beginning of an
-------
understanding of the relationship between the city and the tribe. For
example, in recognition of tribal sovereignty, the Mayor went to the
Muckleshoot Reservation and attended a ceremonial signing, complete with
the exchange of gifts. The Mayor presented a framed photograph of Elliott
Bay and a proclamation from the City along with individual gifts (Seattle
city souvenirs). In return, the Mayor received a ceremonial drum made by
one to the tribal elders.
A second key to success was sticking to the issues on the table that
were identified as mutually beneficial through the MOI, particularly in the
. case of issues with the King County Council, This gave the tribe an
opportunity to participate as a full-fledged "expert" in the decision
process in an area in which the tribe had technical experience and shared
an underlying interest with the city. The mutual support and
reaffirmation of the importance of establishing a relationship, as well as
the practical experience of working in a decision making setting, helped
build commitment to the process.
Finally, the third key to the success of cross-cultural management
in the Cedar River city-tribal interaction was open lines of
communication, including face-to-face meetings between technical staff
and policy staff, the accommodation of key tribal decision makers, daily
. telephone calls and the faxing .of drafts, and the building in of attorney
time to run proposals past both city and tribal attorneys to assure that no
treaty rights were being abrogated without intent.
8. METRO and the Suquamish Tribe
Background. METRO (Municipality of Metropolitan Seattle) is a
regional special district that was legislated into existence in 1958 to
-------
10
attend to advanced levels of pollution in Lake Washington (see
Andranovich & Lovrich, 1992). In the late 1980s, the issue of secondary
treatment of sewerage was addressed by METRO within the context of its
interest of .improving the quality of water in the Puget Sound and its
responsibility for the construction, operation and maintenance of
treatment facilities. One of the specific projects associated with this
effort is the West Point secondary treatment upgrade project. The seven-
year West Point upgrade project requires complex construction planning
including the provision for a water approach for much of the project
construction; the water approach passes through a fishery in which five
Indian tribes hold commercial treaty fishing rights reserved in the Point
Elliott Treaty. Only two of the tribes—the Suquamish and the
Muckleshoot—hold offshore commercial treaty fishing rights in Salmon
Management Area 10 as established by the state Department of Fisheries.
Three other Point Elliott Treaty tribes (the Lummi, Swinomish and Tulalip
tribes) have an occasional commercial treaty fishery in Area 10 (the
center of the Puget Sound) while the balance of the Point Elliott Treaty
tribes fish primarily in western Washington rivers within their ceded
areas. METRO has had its first extended experience in cross-cultural
management as a result of this project.4
For METRO, the West Point secondary treatment upgrade project's
issues of concern included managing 90-plus separate procurement and
construction contracts, planning construction and operation traffic
management, establishing and maintaining a community relations program,
and developing acceptable mitigation measures. For the Suquamish (Port
Madison Reservation in Figure 1), the first tribe approached, key issues
among others included the location of the construction dock, the impact of
-------
11
construction activities on their commercial treaty harvest management
and habitat impacts such as to eelgrass. Although both METRO and the
Suquamish shared the same interests—improving water quality in the
Puget Sound—the West Point secondary treatment upgrade project
affected the West Point North Beach environment and a significant part of
the Suquamish'commercial treaty harvest. These concerns led to the
establishment of both technical- and policy-level relationships between
METRO and the Suquamish.
The process for drafting a construction dock operational plan (i.e.,
designated barge routes, hours of operation, approach and departure routes
during the commercial treaty harvest fishing season, zones of resource
protection through construction buoys and other navigation markers, and
provided for an elaborate monitoring system that includes barge operation
restrictions particularly during treaty fishing operations and the
provision of calling cards—plastic-laminated identification cards to all
treaty fishers with the names of contact persons in METRO on one side and
Suquamish tribal contacts on the other) and the exchange of mitigation
and barge operation drafts during a six month period (August 1990 to
January 1991) led to common understandings between technical staff in
METRO and the Suquamish Tribe.
At the same time, informal meetings between the METRO Council
Chairwoman,-the Water Quality Committee Chairwoman, the METRO
Oversight Subcommittee Chairwoman and the Suquamish Tribal Council
Chairwoman and members of the Tribal Council at the Suquamish Tribal
Center provided METRO policy-level officials the opportunity to listen to
tribal concerns. The result was that both METRO and the Suquamish
recognized: (1) their mutual interests in improving the water quality in
-------
12
the Puget Sound; (2) that each was a major actor in identifying regional
resource issues; (3) that the 1989 Centennial Accord provided a broad
framework within which government-to-government relationships could
be established; and (4) the importance of tribal treaty rights and
authorities. Working together on both the technical and policy levels
therefore represented good public policy. From a policy management
perspective, establishing a long-term government-to-government
relationship seemed to be in the interests of METRO and the Suquamish.
This led to the Suquamish Tribe-METRO protocol agreement of January,
1991.
The protocol agreement respected the responsibilities of both the
tribe and METRO toward their respective constituencies. The seven
procedural points covered in the agreement included are shown in Figure 3.
Figure 3 about here
In addition and as part of the commitment expressed on both a
technical (i.e., mitigation plan) and on a policy level, a joint committee of
METRO and Suquamish representatives was .established to provide a forum
to periodically review the progress of the barge facility operational plan
and make any recommendations for changes. For example, two of the
responsibilities of the Joint Committee are to develop a process for
verifying responsibility for commercial fishing gear damage in timely
manner and to develop a dispute resolution process between the Tribe and
METRO. A similar effort is currently being undertaken with the
Muckleshoot. While this may on the the surface seem to be a duplication
of staff time and effort, the Suquamish and Muckleshoot participate in a
-------
13
system of inter-tribal governance and fishery management that has Its
own politics, and these politics have their own internal logic and
legitimacy. Thus, separate efforts with each tribe by METRO are
necessary.
Lessons from the West Point Secondary Treatment Project. METRO
is a large-scale complex public organization. One of the critical METRO
management decisions was to establish a single-point of contact for tribal
concerns in the Water Pollution Control Department's Office of Water
Quality with staff who had broad experience in working with Indian tribes.
METRO is working closely with the tribes in its service area on other
issues related to water quality; joint water sampling, evaluating best
management practices in agricultural areas, and database sharing for
shellfish analysis represent only a few of the technical issues in which
METRO and the tribes are cooperating.
At the policy level, open lines of communication, including the
METRO Council Chairwoman's going to the Suquamish Tribal Center, helped,
in some manner, each culture experience the other. Establishing a long-
term relationship means building an understanding based upon respect;
this is a long-term process that cannot be circumvented. The simplicity
of the protocol agreement, and its focus on interests and process, makes
it a powerful guide for building a relationship.
In the field, the sharing of information on the commercial treaty
fishery, the novel use of the plastic-laminated calling cards, and the
creativity of METRO in managing the construction of the West Point
secondary treatment upgrade project provide, to this date, a host of
successes in cross-cultural management.
-------
14
C. The Lummi Indian Nation and Whatcom County
Background. The Lummi reservation, near Bellingham along the ]-5
growth corridor, includes a peninsula with spectacular views of the Puget
Sound. The attractiveness of this land for development has resulted in a
history of land-use and water rights litigation, due in part to tribal
sovereignty and land ownership, the multiplicity of governmental units
resulting in fragmentation of policy responsibility (among municipal and
county governments and special districts), as well as differences in the
perceived use value of the land (on use values, see Logan and Molotch,
1987).
Like many reservations, the Lummi Reservation is composed of a
complex system of land ownership and use by Indians and non-Indians. The
Lummi people own over 70 percent of the reservation's 12,000 upland
acres and the tribe owns all of the 8,000 acres of tidelands.5 The
nontribal ownership is primarily located on the much coveted coastal area
of the reservation. Special purpose districts were set up to provide these
high density subdivisions with services. During the 1970s and 1980s, the
Lummi Indian Nation was involved in a lawsuit on the purveyance of water
and sewer services on the reservation, and other jurisdictional questions.
The settlement of the suit by consent decree in federal district court in
1982 recognized the tribe's right to manage its own sewer system on the
reservation; Whatcom County also recognized the Lummi Indian Nation as
as self-governing entity on the reservation^ (Lummi Indian Tribe, et al.. v.
Hallauer. et al.. 1982). This sewer system is administered by a five-
member board consisting of two tribal and two nontribal members, and
one representative (a tribal council member) appointed the tribal council.
-------
15
The rapid growth in Whatcom County in the late 1980s and early
1990s highlighted the need for land-use planning at both the tribal and
county governmental levels. An attempt to establish a-government-to-
government process to achieve comprehensive land-use planning was
initiated at the technical (tribal planning staff and county planners) level
in November 1990. The Swinomish Tribal Community-Skagit County
regional planning memorandum of understanding (MOU) provided the
general framework used to develop a cooperative planning process. A
meeting between the County Executive and tribal council members helped
to smooth what has been a contentious intergovernmental relationship. In
1991, the creation of a planning process at the policy-level was initiated,
and after considerable effort the Lummi Tribal Council approved a
cooperative government-to-government land-use planning process which
then was then sent to the Whatcom County Council for consideration and
approval.
At the same time, however, a state law establishing a coordinated
water systems planning process had been put in motion. A local process—
administered and primarily funded by the state Department of Health--
was started with the local Public Utility District as lead agency. The
major point of contention in this state of Washington-Whatcom County
process was the drawing of the planning area boundaries so that the
Lummi Reservation was included in the plan. The justification for this
inclusion was to allow the seven individual nontribal water systems to be
in the coordinated water systems planning process.
The Lummi Indian Nation protested this inclusion of reservation
lands in the water systems plan. Their protests were based upon Section
Five of the 1982 consent decree.7 The state Departments of Health and
-------
16
Ecology, fearful that litigation might ensue (which would jeopardize the
entire Whatcom County coordinated water systems planning process)
requested the county to exclude the reservation from this process. Yet,
bowing to a vocal outcry from the nontribal residents on the reservation
(there are, in addition to the tribal water system, seven nontribal water
associations on the reservation), the County Council voted to include all
nontribal water systems on the reservation in the coordinated water
system plan.
An indirect outcome of the politics of coordinated water system
planning in Whatcom County was that the cooperative government-to-
government land-use planning process agreement was never acted upon by
the Whatcom County Council, resulting in the Lummi Tribal Council having
taken a large risk without reciprocation by the County Council. This, in
turn, has hurt future attempts for cooperative planning ventures. At the
present time, planning is conducted only through interaction at a technical
level on an issue-by-issue basis. This does not allow comprehensive land-
use planning to occur, and thus, any resolution of policy issues.
Lessons from the Lummi Nation-Whatcom County Case. Cross-
cultural policy making means establishing institutional links between
governments and forging new relationships between people. It requires
time and a certain amount of risk taking; strategically, these risks must
be balanced against benefits using a different calculus than is standard.
First, while technical-level interaction was occurring between tribal and
county planners, this relationship did not assure the establishment of a
policy-level relationship. Second, the politics of water planning and the
politics'of establishing government-to-government relations are of two
different orders, each with its own unique structure and activities, yet
-------
17
linked through common participants and shared organizational issues and
responsibilities. These two critical points were not read early enough in
the attempt to establish government-to-government relations. From a
strategic standpoint, identifying all other ongoing processes early and
bringing the participants together may have helped establish policy-level
relations in the Whatcom County case.
The next steps for the Lummi Indian Nation and Whatcom County
include a broad-based education campaign to address western water law,
state-level policy planning processes, and tribal sovereignty and self-
governance.
IV. Cross-Cultura) Management: Preconditions for Success
The lessons from the three vignettes presented above are, at their
root, simple lessons basic to the success of relationships. The realities
of cross-cultural management, however, should be characterized as
anything but simple. As state and local government officials begin to
realize the complex interdependence of Indian and non-Indian futures in a
geographically defined area, the impact of working together has the
potential to transform state and local government. At the same time, if
old habits and wounds resurface before lifelines between our different
cultures can be secured, the transformation may result in ineffective and
costly government. Reframihg organizational interests so that
cooperation rather than competition becomes the order of the day often
requires radically rethinking an organizational paradigm. Because the new
paradigm requires establishing a government-to-government relationship,
people as well as public organizations must come to know and value their
new partners. This requires change at several levels (see Figure 4).
-------
18
First, the time element involved in establishing a new relationship
—from setting up informal meetings, identifying points of mutual
interest, establishing procedures for communicating on technical and
policy levels, and maintaining open lines of communication within and
between different sets of policy actors—cannot be underestimated.
Establishing a relationship may translate into starting slow and building
trust around common interests. For each case in which there has been
X
success, there are many more cases in which the outcome has been less
effective, often resulting in loss of trust, undermined commitments, or
litigation.
Second, the lessons of successful cross-cultural management often
include a healthy dose of education, both of technical staff and higher
level policy managers (this is a two-way process and the capacities'at
different levels of responsibility in different organizations does vary; see
Lynn, 1987, pp. 59-64). This paper has not examined the
intraorganizational education efforts that have been employed to make
each of the public agencies more ready to adapt to other cultures. For
example, METRO has such a program that includes the context of Indian
culture, treaty history, organization of tribal government, tribal
accountability, and reasons to cooperate. Underpinning this, the
recognition of treaty rights and the validity of cultural claims to
resources are hot commonly taught to public sector managers; interest-
based negotiation is another infrequently covered topic.
Third, a focus on process—how do we work together and what are
the implications of working together on our organizations and our
constituencies—is an essential first step to resolving substantive
differences that stem from different cultural values and priorities. The
-------
19
ability to provide a structure to process that is based on mutual interests
is a critical organizational capacity that has been only recently
recognized in the public sector (see Huelsberg & Lincoln, 1985; Richman,
White & Wilkinson, 1986; Singer 1990; Kartez, 1990). Further,
understanding different decision-making styles—who has the power
decide, how are stakes defined and prioritized, who can block
implementation—as well as how diverse styles may adapt to one another
remains an under-researched area.
From a strategic vantage point, cross-cultural management in the
public sector is an opportunity to promote a broad-based reframing of how
public organizations are governed (e.g., Hult and Walcott, 1990). The
issues of opening lines of communication, developing and implementing
interest-based problem solving, and establishing broader-based
participation processes are only the beginning of significant changes in
public governance coming in the third millennium.
-------
20
Endnotes
1 The use of the "non-Indian and Indian" dichotomy is for heuristic
purposes only. Both non-Indian and Indian cultures consist of diverse
values that have been historically and geographically constructed and
should not be construed as homogeneous groups (see Adler, 1983). This
paper benefited from the comments of T. Batayola (Seattle Water
Department), B. Peterson (METRO), T. Hostetler (Lummi Indian Nation), and
S. Solomon (Northwest Renewable Resources Center).
2 Bob Peterson pointed out the different dimensions of heterogeneity.
^ The information provided in all three vignettes comes from several
sources. First, the Planning Association of Washington's 1991 Fall
conference addressed land-use and the relationship between public
agencies and Indian tribes in Washington; part of the conference was held
on the Swinomish reservation. Second, the three individuals interviewed
were first contacted during the conference. In addition to the Revised
Code of Washington (RCW Ch. 75.52) and other public documents, a
personal interview with Teresita Batayola (Seattle Water Department)
facilitated the writing of this vignette.
4 A personal interview with Bob Peterson (METRO, Water Pollution Control
Department, Office of Water Quality) and public documents contributed to.
this vignette.
-------
21
Background information for this vignette was provided in the Indian Law
Reporter (see 9 ILR 3025-28, March 1982: Lummi Indian Tribe, et al.. v
Hallauer. et al.. No. C79-68212) and through a persona) interview with Tim
Hostetler (Resource Planning Specialist, Lummi Indian Nation).
6 From Section 7 of the decree: "...Whatcom County agrees formally to
recognize the Lummi Indian Tribe as the government of the Lummi Indian
Reservation with the framework of Federal, Tribal, and State law, and to
treat the Lummi Indian Tribe as a self-governing entity."
7From Section 5 of the decree: "As part of this consent decree, Whatcom
County agrees to recognize the Lummi Indian Tribe as the only purveyor of
water and sewer services upon and within the Lummi Indian Reservation
so far as such recognition is within the discretionary power of Whatcom
County..."
° Some sources of expertise available in Washington are the Northwest
Renewable Resources Center in Seattle, the Planning Association of
Washington, and the state Department of Community Development's
Growth Management Division in Olympia.
-------
22
References
Adler, N. J. (1983). Domestic multicultural ism: Cross-cultural
management in the public sector. In W. B. Eddy (Ed.), Handbook of
organization manaoement. New York: Marcel Dekker.
Andranovich, G. & Lovrich, N. P. (1992). Local government then and now: The
growth management challenge in the 1990s. In C. Sheldon et a)..
(Eds.), Political life in Washington. Pullman, Wash,: Washington State
University Press.
Beaulieu, P. D. (1991, April). The Chelan agreement: Co-responsibility in
water resources management. Paper presented at the Western Social
Science Association annual meeting, Reno, Nevada.
Bochner, S. (1982). The social psychology of cross-cultural relations. In S.
Bochner (Ed.), Cultures in contact. New York: Pergamon.
Butterfield, N. (1990). Small state tribes in federal twilight zone.
Seattle Times. January 19.
Furnham, A. (1988). the adjustment of sojourners. In Y. Y. Kim & W. B.
Gudykunst (Eds.), Cross-cultural adaptation (DO. 42-61). Newbury
Park: Sage.
Huelsberg, N. A. & Lincoln, W. F..(Ed.). 1985. Successful negotiating in local
government. Washington, DC: I CM A.
Hult, K. M. & Walcott, C. (1990). Governing public organizations. Pacific
Grove: Brooks/Cole.
Kartez, J. D. (1990). Planning for cooperation: Local government choices.
Pullman: Program for Local Government Education, Washington State
University.
Kim, Y. Y. (1988). Communication and cross-cultural adaptation: An
-------
23
inteqrative theory. Philadelphia: Multilingual Matters Ltd.
Leung, K. & Wu, P.-G. (1990). Dispute processing: A cross-cultural analysis.
In R. W. Brislin (Ed.), Applied cross-cultural psychology. Newbury
Park: Sage.
Lodge, G. & Henderson, K. (1979). United States of America. In B. Roberts
(Ed.), Towards industrial democracy. Montclair, NJ: Allanheld, Osmun
and Co.
Logan, J. R. & Molotch, H. L. (1987). Urban fortunes. Berkeley: University of
California Press.
Lynn, L. E., Jr. (1987). Managing public policy. Boston: Little, Brown & Co.
Metzgar, R. G. (1991, April). Washington state water resources planning: A
collaborative attempt at revision. Paper presented at the Western
Social Science Association annual meeting, Reno, Nevada.
Nadler, L B., Nadler, M. K. & Broome, B. J. (1982). Culture and the
management of conflict. In W. B. Gudykunst, L. 0. Stewart & S. Ting-
Toomey, (Eds.), Communication, culture, and organizational
processes (DP. 87-1 13). Newbury Park: Sage.
Northw'est Indian Fisheries Commission, (n.d. aj. The Chelan agreement: A
partnership of responsibilities. Olyrnpia, Wash.: Northwest Indian
Fisheries Commission.
Northwest Indian Fisheries Commission,.(n.d. bj.. Comprehensive -tribal
fisheries-management: A holistic approach. Olympia, Wash.:
Northwest Indian Fisheries Commission.
Northwest Indian Fisheries Commission News, (1991). Wisdom of the ages
(Special insert on tribes and the environment). Northwest Indian
Fisheries Commission News. Vol. 17 (1).
-------
24
Olson, n B. (1988). The legal road to economic development: Fishing rights
in western Washington. In C. h. Snipp (Ed.), Public policy Impacts on
American Indian economic development (DP. 77-1 12). University of
New Mexico: Institute for Native American Development.
Ricnman, R., White, 0. F. & Wilkinson, M. H. (1986). Intergovernmental
mediation: Negotiation in local government disputes. Boulder:
Westview.
Singer, L. R. (1990). Settling disputes: Conflict resolution in business.
families, and the legal system. Boulder: Westview.
Smith, N. (1984). Uneven development. New York: Basil Blackwell.
Tedrow, L M. & Swanson, 0. A. (1991). Demographic analysis of the Lummi
Indian reservation. Bellingham: Demographic Research Laboratory,
Western Washington University.
Williams, T. (1991, April). Cooperation: A pacific northwest Indian
perspective. Paper presented at the Western Social Science
Association annual meeting, Reno, Nevada.
Yoshikawa, M. J. (1988). Cross-cultural adaptation and perceptual
development. In Y. Y. Kim & W. B. Gudykunst (Eds.), Cross-cultural
adaptation (pp. 140-149). Newbury Park: Sage.
-------
WASHINGTON STATE INOT&N RESERVATIONS
i I !Mmj \
.._..i_. n..
/
-------
CANADA
sgp ||;;;|),.h
l*A I**.!. - V. ! -111.
Ipf.y JIM l*fw**l*K
~^ r.r ( n.ji*.«
i 4 hu*t>f««h«»}
II Fuy.l IMP
1! Hl.«-.l ly
II »,„.,!»
,
•-.l
Horlh»cil
I D d i ID
M ibcrici
C o mm i 11 I o n
STATE OF WASHINGTON
Ceded Tribal Land, and fieisrialion
Figure 2
-------
Figure 3
Seven-Point Protocol between the Suquamish Tribe and METRO
1. We acknowledge that 'each.brings legitimate purposes and goals of our respective'
jurisdictions. We recognize the legitimacy of each other's goals and objectives and agree
to respect these goals and objectives. We will attempt to maximize, to the extent
possible, the attainment of all goals.
2. We agree that our cooperative efforts are priorities in terms of our attendance and
time pursuant to mutually agreed agendas. We accept responsibility for the progress of
all discussions.
3. Questions and discussions will be directed toward achieving mutual understanding of
various positions and toward clarifying areas of disagreements as expressed in policy or
through the parties or assigned participant.
4. .We request that if a party or assigned participant to a group discussion should
disavow the process, the participant first advise the group and allow the group the
opportunity to seek a remedy. In the event a particular effort for remedy is
unsuccessful, any party or participant may withdraw without prejudice.
5. We agree that, in the interest of direct and open dialogue, we will not publicly
attribute any suggestion, comment or idea to a participant of either party.
6. We are encouraged to seek information and advice from others.
7. We agree that any public communications related to the development of any
specifically negotiated memoranda of understanding or other inter local agreement will
be mutually approved.
Source: Protocol Between the Suquamish Indian Tribe a'nd the Municipality
of Metropolitan Seattle, implemented by METRO Council Resolution No.
6021, January 3, 1991.
-------
Figure 4
Preconditions for Success
A. Establishing a new government-to-government relationship
-• what is the context for working together--cultural values, governmental
perspectives and capacities, resource capacities (the balance of power)
• how does this context affect our respective organizations—establish working
agreements; tie into other ongoing processes
• go slow
• focus on process rather than substance, but
• keep to a narrow range of substantive concerns
t media management is a joint endeavor
B.. Education
• \ve are not all the same (how are decisions made?)
• they are not just like me (how are stakes identified and prioritized?)
• our way is not the only way (who has the power to decide?)
• our way may not even be the best way (who can block implementation?)
• be flexible and open (how many interests do we have in common?)
• think creatively (what will it take to achieve our interests?)
C. Process focus
• give the process time to work
• set up procedures for communication, both technical- and policy-level
• plan for many, many meetings (informal and formal)
• identify common interests and why these are important
Q
• who should be involved--if you're new to this, get expert help0
a show commitment—learn, be prepared, and remain open
-------
ALASKA BAR
AS S DC I AT I ON
7th Annual Alaska Native Law Conference
October 12, 1994
Anchorage, Alaska
"Environmental Regulation on Native Lands:
Who's in Charge?"
Materials submitted by Janice Adair,
Regional Administrator, DEC/Anchorage
SUPPLEMENT
Sponsored by the Alaska Native Law Section
Alaska Bar Association
.P.O. Box 100279 • Anchorage, Alaska 99510-0279
907-272-7469 • Fax 907-272-2932
-------
jGataa*
|Ml«»o
Hopornibl.tr L»x«a.lnW"
IViUfl
forS
fcomiDunhy
>cn»bMn
Er^
BwouBhUcxodlr.
Ml«»on9«c
,
ICanmMi
_Ds:
|a») |3td
Fining Wo
SWInratniiHnl
Alograk
Aktfok
Kodak bland Borouok
Kodak btaixl Borough
Borough
:Uo»»«SHSk)pro4o»»«Kfc»«
Akiaotok
JmgwuM
Jnomaniiad
NoertMmMn
CayhaaMquaaMdDECJuwM
leraMida«»v«lopm»nt
Law/Shmrf
CO
~f>
to
517
VM
total**
623 2nd C
Unoro»rn»d
Sft_
Boiough
v^y
UnatganlzW
Caym
No
loundarw
VB.O.
1M
JndOu»Cil»
Unoroariad
Lowfihand
AtakakM
Unoigaruad
Storth»»HAre1cBc»PHBri
bowShaiod
Amfefcr
Mo or Unknown
OK_
Boraugn
Vilao*
Anataiwuk p»s
2S1
P^«»
UnorBirind
No or Unknown
Mo or Unknown
NMI St Mu/» ««1 Wtai ft; my
Angoon
Unorgannd
VH
Civ
Ariak
Am*
ArdicViteg* y~
„/
551
MoorUnknowfl
IM
113
83
Uraneuponvd
NoartMiaoiMi
LJnixsuiMd
ZndCtauCUl)'
UnoigaiuM
S.
ra«'
Tjtt
Yot"
Of
Vlteg*
ctv
AMSharod
V»»o»
flur«i»i SRS lo priNk* union
jmrstmvi
244
2nd Clan C*r
Unoi0^»e»,^ on>»*1» Mrv
cvj
TO
Betwl
BftMcontSlouph
«>«• Unknown
Nooilbiknom
ttx In Kiig Cow; mqr t* •umrMr
WlCMW
Noo< Unknown
NB kmooi accupfarf; ttemmfews
>M ki Ifadk; may bo aumma. Ml
to a Unknown
yaaga
naoainSBStepioylaMivieat
Hjfc_
BuCHjnd
YM
HoctlwMt Atrtic Soroush
HoattMinown
«»_
Borough
DMOfBorauah
MoorUnfcnown NoorUhAnoMi
Onh(li«);in*y VM raoxral
Soroush
Bom DOHA fteiMKti Analpii Swai
d on Commwiily Ouahcn. Conaa 465-4752
-------
- U
rAMlywi
Comrrwritr
>
tChahpUik y
;hefanwk
IhenegaBe* */
:hmk
Chkftakwn
>niQrth
!hjgnk lagoon
MgnkUto
Ch*a« Indian Vtoge (Hainm
CNtiDdvia •/
a*ht '
;hui»*«k*
Chufoonawick
CJlde
Claik* Point
Copper On tar
Cotnd
Cnlfl
GrookedCreek /
Devting
Dahghun
Dioro.de
DolUh*
->>«*-»... i(
Dougb. '•
ConmuntjrllwiMponwn
PopUaton (Type '' "
Borouoh
•
S3
346
ft*
606
204
170
60
142
U77
63
61
100
as
73
470
7
1,455
102
)61
2.095
110
7S
U/K
a>dCtu*ci^
Lkmoofpuktoo
Aid Out CiV
Urancofporalad
ZndCUwOty
LMnoorponWd
Urancocporated
UnncnpofMad
.>-L_--^'. . . - '
2ndClutCHr
Unncorporaud
UinaxpoMd
2ndC)M«Cilr
UNnoorporm»d
IsCtattCky
UmofpaniBd
2ndd*»Ci9
IctCUcsCiV
IndOaatCitr
JfmoofpuiUBd
IMtedHom
(UaUiinkaprflr
IGaftXH.
Mated In ICetedtonSvc
UndH
Avtifo*
UnorgMUed
Jnaomiiied
Unorgu^ed
Malw»l
Sorooflh
Borough
HanotB
»-Susn»
oreugh
Uncfgirized
Llnwgjnied
Unoipanled
LJnoipan
led
UnofBubad
Unofgimud
UK»B»n
(ad
Unoi0mrbed
UnagMUd
NortiMU Arctic BOIOU^I
Unorganced
Unoroan
Unagvi
i
ClytBc
ted
uxl
rough of Junovu
^jodJWuvxm
Ym
fte or UnknoMn
Moor l>*no«m
NoorLMumm
MoorlMuMum
Itoe/lMumm
Y«
MoorUnknowi
•iowUntavimi
NkiorlMmoNn
NoorlMuiooit
MoorlMuiOMi
MoorLHuKxm
NoorLMuXxm
y«
MoorUJuiOMi
ftoorUHotom
y«*
No
NaorUrkMWi
Yu
V«
Y«
Yw
r*t
Ye*
Noer Unknown
YM
Ye.
Ye* .
No or Unknown
r*i
NonUnivioOTi
Vm
YM
So or Unknown
No or Unknown
YM
YM
YM
Yae
•;
Rtteomtt* »or Umatil, il any
1«l (2nd • 13rd
miwd raliv* ft navniliv*
miy uw rtgtoml kwdftl
• ' ' »
locaud wtai City ol HMDM
Daundutot
2kxalenlikM: CtelMtWM pubic
Safety » Cown Drf and VAhg*
Counot *iy
oi SW Irwolvemer*
»•» . SRS la provide WKVWM
i
lecrtue IH" In rirrniirli >irrirm
"*
.
VM»ge 0o» SfiS toprovid*
Buough MTvtr.M
i
1
[V*»8e («cnoi leoenm SHS to
|praiid»M(ViCM
FAKWIM SAS toeiovid. urvun
•|
•
/too.
Comm >weoc. Beoebe SRS la
•raJO. MI no known agency
irwohwnenL
Reooiwr SRS to provide eervioM
C*f tmt requMtod Cap Ualdi
pottt noBim SRS te prwide
eanrloti
•%h
AKSIured
«#»
jowAlared
Low
-
JM>
JDW
MkVStuied
Hit*
*
aw/Shared
aw
Md/Slttrerf
UMfShend
MdVShved
Low
jow/Stered
«0k
JW
MiSnared
LowrShwed
low
O
3-
From DCRA n°»»trtri Atalytk S»e«oii. taeed on Comrnwily DetobaM. Conaa 4»5-47S2
-------
nUxl iMfe* EMU** b Ahuk»-
jcomownw
iPoputefan
jccnvnun* txcffcaHon~
I*g
BMpoOBt* lor Lmdil, 1 «nr
IVitog*
]or SW
Communlur
iBomueftLtolad In
ICoDK«an Svc
UndBI
Awbfel
ICommami
JM_
Jl2!L
Sum Pundino, Wo
Boat laeaw, SRS to pfowd*T
EaokVttafla
Unonaruad
NoorUnkimm
>jo or Unkntxci PtobaMy t*» Cily
T
C«y
ffl^ h
Lowfilwrad
133
lei
Borough
NooiUrtinewn
ft*
Borouflh
Urn
EWutna
Muok»aliyot»BC>>B<»9»
jrttntxmUtoalntidiibouKlatiatolAKiKoBa
Boraugh
a*
Eduk
Uhofoanttad
aitMuwiMi
'Jocn'Jrtmewn camp
reund POD; Biay l» K*nm*r kah
vtteg*
UM
Bowk
1132nd
HaeelMmmm
E5*T
724
.Unocotnatd
•to at Unknown
.MMShatdd
q Urincorooafcd
SRS lo pfcuiid* tarvioBt
174
Unot
MowUnlmwn
VJUg>
2ndqa»OV
VM
s:
Vilaoa
Uwirgal^bd
&£
ViUoe
Gakana
Ho or LMuiawn
go ex Unknown
High_
821
Cny
Gamtol
Uno»9anit»d '
C*
VOag*
Nokwo*
UnonjanitDd
Unotainiibl
NoarlMincMm
No of Unknown camp
^-ir
KlaoUNUiawn
Ye.
GacdnewsBar
MxyUnfcnaw)
Ua*v*i5d
V»ao*
BacaivajftS » pioviaa
Giduna
Unnoorpontod
Unanganued
NootUnknoim
Hoof Unknown
Hiflh_
^
•X
s
HamJion
Nokmgar
NocxlMaiown
>to or UnknMm
in Kottfc; Minn* >m Omp
Vlioa
Uihcorpoutod
Unoqwmd
(Noe»Urtine»»i
Htatf»! JUS lo piovidB t«vio»»
KatyCnw
277
2nd Ctalt City
Unacgwuid
iNo or Unkno-n
tt> or Unknown
car_
Vtag.
Haonh
86aicClanCay
Vn
Hooper Bay
UratgaiUMi
Cj»_
V»*B»
jw/SMrad
242
Umeanud
424
/•afl»
40 UhinoorpoMfcd
Borough
.NaorLMcncMn
goorUnkniMn
Baouflh
JJW
MocrlMaxMR
Botough
»rup«il CommuriQr al r* Arc
UK
Boraugh
jjMJLaopt Borouflh
•nd etiar Mtagaa; NSB i»o«do« U
twice*: watat. >0war, oartaaa*.
40 Uanoooao/alad
Bcreuoh ,
Enough
Kaguyak
UnncorponKd
Kodak blnd BUM*
No Of Unknovn
No or Unknown
Umcu|pi.d «nd J** now fwn Jn
aprough
S228
ftrxr OCR* Rmavch Analyni Serton. bood on CofMmnnY Oatebua. Conua 46$-47S2
-------
F*dar»B>-l)*cogneT*0NatlmEnlU*tla.AaMa»-Lec*IUr
Community |PapuMonhVp»
(aha
KaMovik
(ahag
Karolak
<*K*
Kauan
Knsiglgk
Koranic (K«nai Peninsula)
KteMon
Kiina
tingCov*
King Island
Kipnuk ./
Kftulna
Ktowock
Klukwan
Knik
KotuJr
KoUonok
Ke*jane» «x
KonoigaAak ^
KoftK
Koaebue
Koyuk
KoyiAuk
KvtfNuk
KwgUngok
UivxiBay ' ]
712
217
257
UK
74
47
*64
6.613
B.6S2
408
871
0
£(1
365
774
130
296
97
138
194
322
su
281
12»
641
291
144
Utnm (Woody Wand) i 0
Unlock
lirmValage
l« CUw Cily
2nd Ct*» City
EndCtattCay
Jrafad HOKM
JIWWQIPDO100
2ndCt»sCay
2nddauC«y
Horn* Rut* Cily
Home Rute City
BorougflU
IGarfeag*
olad In (CdlacMn Svc
LanSH
Avalbbl*
UnorgariMtf
North Stop
Unorgarix
a&onugh
AiKtengj
Kodak Wand Borougn
Unorguukd
UraiBinia
KtnaiPan
>d
nsub BoTOMoh
Kakttkan palMMiy
Bomugh 1
2nd Clan Oty Not tiwaUiAioic Bctowgh
1UCl»itC«ty )Al#i*»i«E*« Borough
Jnincncpotated lUnorovu
-
Uninoorporatad lUnocgarizbd
2nd Oaxs Cily 'NoflhwMl'AJtJic Borauoti
l»Cl3»C«y !Unocganzi
K)
UnincoipoulBd Unotgarizcd
(Mnooipoialad
2f)d Clws Chy
UnitKoipofatBd.
UnlncaporaMd
Unincorpocatad
2nd dm C%
2nd On* City
2ndCta*sC«V
Urmoofporaud
2ndCtH
PHilPI
Maonutka-SuMna
Borough •
Northwest Arefc Booogh
Botough 1
Unorpuiiad
Unargtniiad
Umgaiiiad
Northmen' Aralc Botoos*i
UnorgMUod
Uwrgmiud
Urwguiied
Unorg«uad
Kodak Wand Bwoucft
KaditkU
ind Baroufjh
47)(Mnoarpara!«d Ururguuad
YM
No a Unknown
YM
Yw
No a Unknown
YM
No or Unknown
YM
YM
MpalMmown
YM
No
YM
No « Unknown
Yex
NoaUnknown
Moot Unknown
MOM Unknown
YM
NoaUnknown
HDotUnknom
No at Unknown
YM
YM
No o> Unknown
YM
No of Unknown
Yn
No
YM
Mo or Unknown
YM
YM
YM
YM
YM
YM
No v Unknown
Yn
YM
YM
Yn
No
YK
YM
YK
No of Unknown
Unknown t km
YM
YM
YM
Y«
YM
YM
YM
fat
YM
YM
YM
No
YM
Ma or Unknown
Ratponsfate lor land)*. 1 any
Comma lltt |2nd |3y
toot*
Cily
Bo-ougfi
Ory
V*aoo
C*y
(%
City
=*/...
Vattage
Ctty
Ciy «»
Boouah
Sofougn
V*»OB
VJjge
Ci^
City
Coy
Coy
Vil*ge
Cay
Borough
VTUoe
V0a0*
CiV
vaag.
ViUfl*
Vi»*3«
Oj
Boicwgh
BofOMBN
Boieush
borough
Borough
Wag*
-
/ltoflt)
Borough
vttaga
Vllaov
Boraugti
VUaga
V*ao.
-
iofough
.
VlaO*
• .._ _
Vitog.
VilaoB
Ytag.
VMao*
Vittaoa
IVBbge
Suie Fuming Into
Raeatv* CRS :o provid* cvrviou
-
Vibge
* ' iRtcvwt iJftS to Piowio t*wic*tt
IFtacawi SRS » povtte MCVIOH
Ai>a«
i
:
•Rucaiva SRS to provide Mmco>
Vitago
Aaoaw* SflS to provid* aarvioa
Vitag* RaaponaMcy, 1
o/SWkwoh>om»fil I
Low/ShatedT
Low
Low/Sriaiad
Low
U-. ,
Low/Shared
H*h
Low
Low
Low
Low
Low
Nigh .._ _
-OW
Low/Stinted
JCM»
JOW
.aw
*oh
rtgh
ow
jow/Srwrcd
j«uSh««d
jow/Stwwl
i^n
AW
Low
JMT
CO
LO
CO
O
Oi
tp
>-
B
ficm PCB* Bmanch Analy»i» Sacaeri. bmid ao Comnmniiy CaBbata. Cooaa 46S-4752
-------
Ff4*nh>-B*oc>gnfnd NaOm &**•»• to Ate*k» - Loo* UM» r
Community
Lower K»l»kag
MarieyHM Springe
Manokotak
Marshal (Ohogamul)
Mvyf. I0k>o
McGntl .
Mekoryuk
Manuua U>k»
Matlakalfa V*
Uto*> __ ./.
ylounuun Vifooa
Kbdvwk
Nanwatok
Napaimule
Nsfakn*
Mapaskiak
Vebon lagoon
Nenana
Now SluyahoK
>) ewtialen
Newtek" '
Nighmulft
Nfcolai
NikoUki
toniUak
Noatak
Nonw
iNondallon
Noon*
Nortway
Nuiqsut
NubK>
Nuntpilcauk '
Old Harbor
Otcwvil*
Ouzrikw
Community
''opuiaijon
Inaxpontton
Tn»
29«
106
4oe
316
0
533
236
83
1.S60
232
B02
588
171
3
322
36Z
87
SOB
408
IBS
2S9
178
106
22
40S
365
4.184
217
542
132
393
378
47^
307
56
21 D
2nd Class C|r
Unncwpomwd
2nddnsCilr
ZndCtessCily
Urinowponwl
2ndCtowC*y
2MClM»Ci!r
UranoMpDraigd
F«J««IUw
UnincaponBd
2ndCl»»Ciiy
UnimponM
IMtoMpomlnd
UrancacponlDd
taiCtanCilr
2nd Class Cilf
Unraorpoaud
Home Ht*« Civ
2nd Out <%
2ndCUttC%
2nd dux Ci^
2nd Out C%
ZndCtucCty
UniWDipecaMd
IMnoxponMd
^vworaoniMi
IstCtocCiv
2nd Oast City
ZntCbttCily
UnincaipoalBd
2nd Ctau City
2nd Clan Ciy
ZndCtaCily
2ndOuftC4V
UnincorpMMad
2ndOassCiV
Borough Located In
I
Jnor0«niz*d
Unerj)*rized
Jmxganztd
Unorganized
I
Unorearilftd
Unorganix»d
Jnoraaniznd
Jnoiganznd
Unefganued
UHOPDAMZftd
Unerganzad
Bristol Bay Borough
Kanai PanintUa Borough
I
I
Uncxganiwi
UnorovuUd
UnoqHni»d
Aleuun East Borough
Uno>9»nilftd
Unoiganzcd
Sonxj^i '
Unofgaimud •
Unagttnind
Unagaiind
Unwgarind
Kerai PanintUa Bttougti
NortuwWAWic Borough
Unonjamed
Borough <
Naflhwost Aiaic Borough
Unarganilad
No* Slops Borough
linarganuad
Unargarizad
Kodiak Wand Borough
Unoiaanxid
KodiakltitndBorouaii
Gartug*
ColedionSvc
NeertMwiown
Mo o« Unknown
NootUnknoMt
Now Unknown
No or Unknown
NaorLMcnoim
hre*
^k> or Unhnotm
Ye*' ,
No or Unknown
NowUnkntwn
No or Unknown
No or Unknown
No or Unknown
Y«
Yes
Now Unknown
No or Unknown
No 01 Unknown
No oi Unknown
No or Unknown
Yn
No of Unknown
No or Unknown
NO or Unknown
No or Unknown
Yes
No or Unknown
Moor Unknown
No or Unknown
No of Unknown
Ye*
yn
Now Unknown
No or Unknown
UndH
A
Y«c
Yw
Y«
No or Unknown
No or Unknown
rYw,
v«
No or Unknown
Y«
Yn
Yet
NoorUrfcnown
No or Unknown
No or Unknown
Yw
No or Unknown
Yet
Y«
Yn
Ytt
Mo or Unknown
hfe
Ym
No or Unknown
KfeefUrfcnown
Y«*
Yot
in
VM
No ot Unknown
Yw
YD*
y«
Y«a
Kto or Unknown
Yw jY«
Commooa
2*r*iliac: Mankty Conmurwy
Aa«9evidVi»a*Coundl
n Norm; uMd at turwnaf (Ml
carnp
FtdonHftMwvMion
Moy*ar-reund (Xty.mtatifn aw*
in Ctwilhbaluk: utad as tummat
fahcamp
Ctvi.noi(Lix»or»nQ
Responsible to> Undfit il any
1H 12nd |3rd
cay
Comn
AiiOC
aw
CAy
VKigt
Oly
City
VUifle
V piovide servioM
•
.'
RK*»« S»S to provide *arvioa>
toceWk $nS to provide mervion
\auts* SRS to ptovide aervioM
Vftage Ha^oncMty
orSWImotMfnMil
.ow^narorl
utoystiwod
Low/Shared
Low/Shued
•
Low
Low/ShaiMl
Low/Shared
r**
High
l*gh
LowrSluivd
Low •
Low
Low
Low/Shar«t
Low/Sruuod
LOW
.OWfSflMBd
Low/Shared
.ow
High
jw/Shatcd
jOW/Shuvd
••Bh
.ow
.ow
.ow/Shared
-OW
JOW
*gh
J3W-
A«/Snatad
jDw/Sharwd
JOW
Hioh
LT>
OJ
From DCRA Rauarch AnaVsm Secuon. based on Community Oat»b»M>. Conua 46&-47S2
-------
n)l»d H*Ott lMf»t In Aluk>
Cotnrntfjtg
ConnuM)* tacaperaMn
aorauon IccMgd In
:oll»axxiSyc |>iva«able
B«tix»w«st* tot LtfMi it ao»
Comfnona
jjs:
Ja*.
Sute Funding Mo
orSWInvDAxnmnl
CM
CO
Paunul
PaiAolf Harbor
&adio6ay
{Po«nHopc
Port Graham
Ponaqe C»ocH
Sattt George
SaniMan/t
SMilMicttaal
SandfVml
Savoono.*
ScammonBaj*
Slunk*
0 UiMiootpoiaad
NaattMaiam
qior Unknown camp
ui Bemugh
tummar tehcamp
US Uoinoprporaiod
HcOI» Slope Borough
Notm Slope Baough
133 and Clag Kg/
K»n«iPcn«auiaBc;ouoh
NocrV,
Nott Llrtiaomi
Ziaiand Cats Co
ftaieurjn
)to<>«> Ijland Boroi>»h
Not. Ur*uio«ii
VK
YM
r Umeorpofalad
10>5
K»m> Pmmtutt
AHuiiwu Cut aoiaugti
Urwrgaiiixl
Wjlna Cat, C*r
Bereugh
2921
Ho»»tneu»jac Borough
IB ind CUx» Cay
DnoioafMJd
» ind Cti«a Cjt,
Y«
htooltMinowrT
Not otxupi*d;
Hoopw 8>r. "»r o> uimrmt CKt
Vj»aa«
tofouoh
Joiougl,
.SSL.
Sma&yeai tojndpop, Kfoiy a
tunny.' i»Ji cariip ^_
Bonawoh
ftproyotT IVHapj
CIB;
[Vi«ag»
£0-
Sorr)joh_
ear
J3J9i_
ViUoi
iSa-
S^.
£&_
Borough
Vi»ap»
yitey
ViUoj
Va provrit
Vifaaa
Loo
Low/snawd
R«o>nv 5A^ to provide
Low
jow"
Low/Sha/od
LowAlwntf
-Ml
.cw/Slurad1
tow/Snafad
fiom OCflA R«»j.ch AnaVM SeeW*. Ouad or, CoMnunO 0«W>i«. Ccolacl 466-» '52
-------
aiy-B.
Hi NMte* EnlM» a. Mrnh* - Lot* LM«M R**a«ny
UJneocpocjtod
Unncorpofaled
lMnoeq»nw<>
Ui'inoorpotaud
luCteuCi^
UnilKapecamt
UranoM pcfatod
II Utinowpomxid
235;2m)ClaEcC«Y
TSjUnoxxporutd
7TB
$10
3»
296
330
63
156
s
0
756
2ndOu»Civ -
2ndOui.Cilr
2ntCb»Civ
Uranoorpcmad
2nd Oats Qlr
UnincarpoiiMI
IMncorponiad
Unmoipor*i«l
DnjnooiponUBd
2nd Ows City
O17|lnCkMtCi*
Vortnmst Arcw BorouDh
a**Bw0U9ftg1Si(ka
Jnorganxod
Joofpiftn*o
3m Id Bw Borough
Jnxparind
Unoroaraixl
Unofganizad
Unotaaniicd
Unoi Banned
Uhwoaraxtd
Umxpahizcd
Unocoanxed
Unorganixod
Unorganizad
Unorgaruod
laft~31~T"< -
Uncxgaraiod
Unoigariud
Unorgan2«d
Uootgaiiiad
Unanjatiiad
Kanai Perwwutt Buouoh
Late t Formula
Borough
Uhtxoaniud
Unor{auai*d
Unoroanzid
*) of Unknown
YM
rat
Ho of Unknown
Now Unknown
No or Unknown
Y«
No or Unknown
Y»
Y«
Yat
hi> or Unknown
NoorUMmown
No or Unknown
Ym
Vaa
>ioo» Unfcnpwd >No of Unknown
...-
No 01 Unknown
No 01 Unknown
Ya>
l«> Of Unknown
NODI Unknown
Mo 01 Unknown
y«
No oi Unknown
YM
VM
No o> Unknown
No 01 Unknown
No ex Unknown
No oi Unknown
Yu
No
No or Unknown
No or Unknown
Yat
No Of Unknown
Yat
Y«
Ye>
No Of Unknown
>to oi Unknown
Vat
VM
YM
Yot
No Of Unknown
No or Unknown
>YM
•to Of Unknown
No a Unknown
No
Mow Unknown
YM
Yoi
m in Norm; may ba surnmai
etmp
2 commumr an«Ma: Takoaia
Comm Auoc and VKaga Cauncl
2 community enliliM: Th> Auoc
ol Tatiina nesdcnte t tm nlag*
council
Small year-found pop
City « not kmctonng
City B ml (unaanmi
Smal yuf-iound pop: inad at ash
camp
N«af C»y of Tokiook B*y: no
kxioar oocmwd; my to ivmrmr
ishavnp
Car
Cny
Cnv
Was.
Vtaa.
Borouolt
c«y
Vfiaga
VHagc
Comm
Auae
Vboa
Cky
Vlaga
Cornm
Anoc
VBagc
Oily
Vilaga
C«f
Civ ._.
VJt»a«
ViUoa
V*ag»
Vtttga
Borough
Borou^i
V*5oe
Ciy
Cty
e«ac.
V*>0.
Vlage
VHagi
VKatie
Wiilaoa
V«J9»
V*agc
V**ge
. *t*
Vllao*
Vdago
Vilaga
Vilige
!««»fl«__
ViUaaj
-
Vdlaoa /•
RaeaM* SRS B piovida tatvieBS
HOOBN* SftS e picMid* Mtven.
Now landBi tlvdr lundo i bf DEC
inFYBJ. Coraiucion icqueslad
inFY9S
Recast SRS lo pmnM Mtvwet
Cornm Atnc racBNct E US lo
provide »enncB»
RacvWtt SRS lo provide aanjioaa
-
RKcin SftS 10 oiovio* unncox
Cotnm AtMc. itf»ii m :^RS k>
^towidc tonnoe^
Aooeiw^ SAS o provide ««fvioat
Racam SRS to pio«d« wvnat
RaeaM SRS to pnrwid* fwvicM
RoquMladD€Clundtil FYMtt
ooouaaii garbaoB ooixkon and
develop • paonnao ouno
tow
Low
low/Snaiad
HKH.
Low
Low
low/Shu ad
High
H«n
MidrShaiwk
Hgh
LovrSnvad
Hiali
MdrShaiad
Low
I.ow/Sria>ed
High
Low/Snaiad
Low/Srwad
LowiSnarad
rtflO
LovfSharatf
High
Low
Low
Low
LewiShaied
Low«Sraiad
ftont OCRA Rauardi Analytic Saclion.
on Communily Daubaia. Canuo 4«S-47S2
-------
•Uud H«Uy» EMUM IB AlMln - l*e»l UMUI Rnpowlbny Amlyito
Commwiiy
Unpa
Upfwi Kahkag
Vowfae
Muwnpht
Watot
MM* Mountain
wungtl
Yjikuot
Ccmmriqr
PopOaion
IM
231
»6
14$
1&S
2.M3
671
noGipQfttAMi
TYP»
UnwoHoorMed
ZndCUttCilr
Unmcetpoufed
2w) Ctaw ctiy
2nd Otss Qly
I4nd CUu Cay
HoonRutoCity
HomcRul*
Borou^l
Boough located In
Gutag*
Collodion Svc
Undlil
AwOabl,
Rcxpora'Me lor UndM. il «ny
CommcnB flu
Alsuliam Eul Boreugh
UnngMiud
Unwgonad
North Stof* Borouph
Uncxffinud
Unngmiwl
Unorganixi
C«y 1 Baouoh oi Y*kuw
No « Unknown
Y«
NowllnknoMi
Vn
No« Unknown
No o> Unknown
Y.i
No 01 Unknown
NevUnkiBMr
Yw
Y«
Y«
Y«t
Yw
Y«
Yci
tU»iS*MPoiii;Ho)otion
occupw). mar >>• urarav fen
camp
2Vtt»B»OMX*
Borough
c%-
V«a9B
BorauoJi
s*»
c*
Ci^
Borou*
2nd (3rd
IVitog* fW*ponrtK(uy 1
Sme Funding Into lor SW kwohnmant 1
v«»e» k _
Vtoo. I
j
ViUo, L
U»
jUw/Snww*
OmnowMtSRSttpiovicl* j
Hnno« !Higti
UndH xtpmuan napmSl 'ti
DECbiFYM
Viltg* • ;
VX*(ic
VUjjxj
Vtogi !-
1
Ux.
LoWSh»»d
Lmn/Shmd
UM/Snanxt
UM>
o
>-
s
«
Rero DCRA R«ean*> Araiyut Socuon. baud on Comnjniy DmbteM. Contact 465-47S2
8
-------
IN THE UNITED STATES DISTRICT COUHT
FOR THE DISTRICT OF IDAHO
NEZ PERCE TRIBE, )
Plaintiff, ) Case No. GV 91-0517-S-HLR
v. )
) REPORT AND
) RECOMMENDATION
IDAHO POWER COMPANY, )
Defendant. )
I.
INTRODUCTION
The Nez Peres Indian Tribe (hereinafter the "Tribe") brought this action seeking an
award of monetary damages from Idaho Power Company for the negative effect the
power company's constfuctioa and maintenance of three dams on the Snake River has had
on the fall and spring chinook and steelhead runs. Idaho Power Company and/or its
predecessors (hereinafter "Idaho Power") began construction of the dsras in 1955, when
the Federal Power Commission issued it a license pursuant to the Federal Power Act
(hereinafter 8FPA8), 16 U.S.C. § 791 et seq. Pursuant to that license, the Hell's Canyon
dam, the Oxbow dam and the Brownlee dam (hereinafter the "Hell's Dam Complex")
were constructed during the mid 1950's and early 196Q's.
The Tribe bases its claims on the terms of the 1855 treaty with the United States
which reserved to the Tribe exclusive rights to take fish in streams "where running
-------
through or bordering* its reservation, as well as "the right of taking nsh at ail usual and
accustomed places in common with citizens of the Territory." Art. 'HI, Treaty with the
Nez Perces, 12 Stet 957 (June 11, 1855) (hereinafter the "treaty0).
The Tribe alleges that the manner in which Idaho Power has constructed and operated
the Hell's Dam Complex violates its treaty fishing rights by reducing fhs number of fish
on the annual runs and claims it is entitled to compensation for that loss in the form of
monetary damages.1 Idaho Power denies that it constructed or operated the Hell's Dam
Complex in a negligent manner or that it has violated FPA regulations. However, neither
parry disputes that the number of salmon and steeUiead in the Soaks River has greatly
declined since the Hell's Darn Complex was commenced in the raid 1950's.
Idaho Power asserts that the fish conservation issues posed by the Hell's Dam
Complex were finally determined as a result of a 1976 petition Sled with the Federal
Energy Regulatory Commission (hereinafter "FERC") by the Fish and Game agencies of
the states of Idaho, Oregon and Washington. In the 1976 petition, the three states sought
a declaratory order pursuant to section 10(a) of the FPA requiring Idaho Power to expand
and renovate the Rapid River, Pahsimeroi -River and Niagara Springs hatcheries and to
produce greater numbers of juvenile fish in those facilities. Tne Tribe intervened in that
action in August, 1977. Negotiations among the parties resulted in a settlement
agreement dated February 14, 1980, executed by the United States Department of
Commerce, the states of Washington, Idaho and Oregon, and Idaho Power. The Tribe
participated in those negotiations but did not sign the settlement agreement. The parties
to the settlement agreement agreed that their compromise would settle all issues
concerning the actual number of salmon and steelhead destroyed by the Hell's Dam
Complex. All three states, but not the Department of Commeircs, also agreed that the
1 See Nez Perce Statement of Disputed Facts in which the Tribe jiUeges numerous license
and regulatory violations by Idaho Power in the construction and operation of the dams
between 1950 and 1980.
REPORT AND 3RECOMMENDATIOH - 2
-------
settlement agreement would constitute full and complete mitigation for all numerical
lasses of salmon and steslhead caused by Idaho Power. In its Order of February 27,
1980 (hereinafter "Order8) FERC approved the settlement agreement.
Although the Tribe intervened in the action and participated in the negotiations, it
contends that it is not bound by the Order because it did not sign the 'settlement agreement
and because Idaho Power has failed to comply with the terms and requirements of the
settlement agreement.
n.
SUMMARY OF THE COURTS OPPffOff
Currently before the Court is Defendant's Motion for Sutnmszy judgment (Docket
No. 31) wherein Idaho Power contends that it should be granted summary judgment on
the grounds that the Tribe does not have a valid claim or causs of sciion for monetary
damages. In the alternative, Idaho Power asserts that because Congress intended the FPA
to be a comprehensive plan of development, it preempts any common law claim for
damages asserted by the Tribe. Further, Idaho Power argues that the FERC Order of
February 27,1980 precludes any action by the Tribe for monetary damages because the
Order constituted a final determination of the Tribe's fishing losses. Finally, Idaho
Power contends that even if the Tribe has a stats common law cause of action for
damages, the United States courts do not have subject matter jmtsdiction to hear that
action.
The Tribe responds by asserting that it has both a state ana a federal common law
cause of action for damages, neither of which has been preempted by the FPA. The
Tribe asserts that even if this Court finds that the Tribe's cause of action is grounded in
state common law, that this Court has jurisdiction pursuant to 16 U.S.C. § 803(c). in
the alternative, the Tribs argues that rather than preempting iis cause of action, 16
U.S.C. § 803(c) expressly provides the Tribe with an action for monstary damages to its
REPORT AND RECOMMENDATION - 3
-------
property. Finally, the Tribs asserts that it is not precluded by the 1980 FERC Order
because it did not sign the settlement agreement and also becau£3 the Order addresses
only mitigation of the Hell's Dam Complex's effect on the fish runs and not the issue of
monetary damages for the loss of the fish runs.
After a careful and extensive review of the record, the Court is of the opinion that
the Tribe does not have a legally cognizable cause of action for an award of monetary
damages.
The United States courts have subject matter jurisdiction to hear any Tribal claim for
protection of rights created by United States treaty. See 28 U.S.C. § 1362. Accordingly,
in the Court's view, the federal courts have subject matter jurisdiction to hear and
determine the state common law claim alleged by the Tribe.2
The Court also concludes that because FERG does not have jurisdiction to award
monetary damages, FERC could not have considered the Tribe's present damage claims
and, therefore, the 1980 FERC Order does not preclude the Tribe from bringing an action
for damages here.3
Having concluded that the United States courts have jurisdiction to hear this
proceeding and that the 1980 FERC Order does not bar consideration of this instant
action, the Court will analyze and resolve in this Report and Recommendation all of the
substantive issues presented herein by the parties. The Court has considered each of the
Tribe's asserted grounds for an award of monetary damages, i.e. 16 U.S.C. § 803(c),
federal common law and state common law.* In the Court's vie^: Congress intended
section 803(c) to preserve existing causes of action, but not to creste new ones. The
Court has studied the extensive case law on this issue and concludes that there is no legal
1 Bee Section ffl.A.L, p. 7.
3 See Section IJ3.A.2., p. 13.
4&eSectionHJ.B.i-3.,p. 20.
REPORT AND RECOMMENDATION -4
-------
precedent establishing a cause of action for monetary damages due to violation of tribal
treaty fishing rights on the grounds of reduction of the number of fish available to catch.
The Court concludes that the primary reason that Indian tribes havs not been awarded
damages for their treaty fishing rights in the past is because the tribes do not own the
fish, but only have a treaty right which provides an opportunity to, catch fish if they are
present at the accustomed fishing grounds. In the Court's view, monetary damages for
loss of property cannot be awarded for injury to a fish run in which the plaintiff tribe
owns only an opportunity to exploit.
The Tribe has asserted that if it does not have a cause c* action for monetary
damages stemming from injury to the fish runs, its treaty fishing rights are meaningless.
In this respect, the Court has examined the effect that changing circumstances, such as
the construction of the Hell's Dam Complex, has had on tribal treaty fishing rights in the
past.5 After careful analysis, the Court concludes that while treaty fishing rights are
subject to changes in circumstances, the treaty fishing rights that tfis tribes reserved to
themselves have not been rendered meaningless because of the hatchery facilities and
other mitigation and protection programs.
Having concluded that the Tribe does not have a cause of action for an award of
monetary damages, and that the lack of such a remedy does not cnuiiifyB the Tribe's
treaty fishing rights, the Court has also seriously considered whether it is able to establish
a new cause of action for the Tribe.4 After extensive analysis cad consideration, this
Court declines to create a new cause of action for several reasons. First, the FPA is
sufncieady broad aed comprehensive that it would preempt almost a*:y, if not all, causes
of action the Court might devise. Second, the creation of federal common law is a
disfavored expedient. Finally, the injunctive remedies already avsikble, the Clean "Water
5 See Section HLB.4, p. 39.
6-See Section ffl.B.5., p. 42.
REPORT AND RECOMMENDATION - 5
-------
Act, the Endangered Species Act, and the FPA itself, all provide some degree of
protection for the fish runs.
Finally, the Court has reviewed the Fed. R. Civ. P, 56 summary judgment standard
and concludes that even assuming that all of the Tribe's factual allegations as to the
significant damage to the fish runs are true, the Tribe would still not have a cause of
action .for an award of monetary damages.7 Therefore, inasmuch as there are no genuine
issues of material fact, this Court recommends that Defendant's Motion for Summary
Judgment be GRANTED.
m.
After an in-depth review of the parties' briefs and having read and considered the
many cases, statutes, treaties and other authorities cited and relied upon by the parties,
and having conducted its own extensive research, it is clear that the threshold question
presented here is whether the Tribe has a legally cognizable action for monetary damages
due to the destruction of the Snake River salmon and chinook nsh runs caused by the
construction and operation of the Hell's Dam Complex. In essence, the Tribe is seeking
an award of monetary damages stemming from the destruction of z natural resource, i.e.
the Snake River chinook salmon and steelhead, to which the Tribe clearly has treaty
fishing rights to fish at all of their usual and accustomed places.
However, before this ultimate question can be resolved, the Court must consider the
asserted procedural bar issues raised by Idaho Power relating to the Court's subject
matter jurisdiction, and the effect of the 1980 FERC Order on the instant proceedings.
A. Asserted Procedural Bars
Idaho Power contends that the Court should not consider the merits of the instant
action because it docs not have subject matter jurisdiction over ihs action or, in the
7 See Section 'XV. „ p. 47.
REPORT AND liECOWRoENDATION - 6
-------
alternative, because FERC's 19SO Order was a final decision on ths merits of the claims
which the Tribe has raised in this action. In the Court's view, Idaho Power's oosition
on both issues is without merit.
1. Subject Matffir TTirisdlcticm
It is well established that "subject matter jurisdiction ... must be raised sua spome
by a federal court when there is'an indication that jurisdiction is lacking,1* Thereforer
this Court will begin by first considering and determining whether it has jurisdiction to
consider the matters al issue in the instant action.
Idaho Power contends that if the Tribe's cause of action is based upon state common
law, the United Slates courts do not have subject matter jurisdicdoa over the matters
raised herein. The Tribe argues that it has: [1] a state common kw cause of action
preserved by 16 U.S.C. § 803(c); '[2] a federal common law cause of action not
preempted by the FPA; and p] a federal cause of action created by 16 U.S.C. § 803(c).
Idaho Power's contention that this Court lacks subject matter jurisdiction relates only to
the Tribe's claim that li has a state common law causa of action.9
It is obvious that the Court has subject matter jurisdiction to consider a federal
common law claim. Likewise, if 16 U.S.C, § §03(c) creates a federal cause of action,
this Court would have jurisdiction over that action. See 16 tJ.S.C.A. jj 825(p).10
1 Alwnta Mill Prcds., Inc, v. Congress fin. Corp., 912 F.2d S96,1002 (8th Cir. 1990)
(quoting Hughs v. Patrolman's Benevolent Ass 'n of City ofN&v York, Inc., 850 F.2d 376,
881 (2nd Cir.) cert, denied, 488 U.S. 967, 109 S.CL 495, 102 L.Ed. 532 (1988)),
9 Idaho Power does cot concede that the Tribs has a cause cf action for monetary
damages, whether bassd upon stale or federal law.
10 16 U.S.C.A. § 825dj) provides in part:
The District Courts of the United States ... shall have oxslusive jurisdiction of
violations of mis chapter or the rules, regulations, and orders thereunder, and of all
suiis in equity and actions at law brought to enforce any liability or duty created by,
or to enjoin any violation of, [the FPAJ.
REPORT AND 1KECOMM3ENDATION - 7
-------
However, the Tribe also contends that 16 U.S.C, § 803(c) creates original jurisdiction
in the United States district courts to hear any state law claims brought under 16
U.S.C.A. § 803(c), which is one of the nine 'Conditions of License" listed in the FPA
and provides in pertinent part:
Each licensee hereunder shall be liable for aU damages
occasioned to the property of others by the construction,
maintenance, or operation of the project works or of ins works
appurtenant or accessory thereto, constructed under the Ecense,
and in no event shall the United States be liable therefor.
As written, the above statutory condition provides that the licenses & liable to property
owners for all damages caused by its activities. The statute is primarily for the benefit
of the United States because it exculpates the government from liability for the actions
of licensees. Although this statutory 'condition preserves causes of scuon against licensees
for damages to property, it doss not expressly address .whether the United States district
courts have jurisdiction to hear the preserved causes of action.
A review of the legislative history of the FPA discloses the 'vigorous determination
of Congress ... to avoid unconstitutional invasion of the jurisdiction of the Slates." First
Iowa Rydro-Elecmc Cooperative v. Federal Power Com., 328 U.S. 152, 171, 66 S.Ct.
906, 915, 90 L.Ed. 1143 (1946). The legislative history of stccon 803(c) itself is
representative of Congress' determination to avoid impinging upoa a state's jurisdiction.
After an extensive examination of the legislative history of sectbn 203 (c) in an action
brought to determine whether the FPA created United States district court jurisdiction,
the D.C. Circuit Court summarized the Congressional record as fellows:
The original version of § 10 [16 U.S.C. § 803(0)] reported to
the Houss of Representatives by the Committes o;t Water
Power provided that u[n]o license hereunder shall fcave the
effect of relieving the licensee from liability for any injury or
damage occasioned by the construction, maintenance, or
operation of said project works; and the United States shall in
no event be liable therefor.0 During the floor ciifaate in ths
REPORT AMD RECOMMENDATION - S
-------
House, Representative Graham of Illinois suggested £LI: &g
provision be amended to require that, before they ssgcn
construction, licensees make settlement or compensation for &1I
damages caused by the construction of their projects according
to the laws of the state where the project was to be built £23
56 Cong.Rec. 9913-14 (Sept 3, 1918). Although
Representative Dempsey objected to the amendment on the
ground that it would be impracticable to mate the parties settle
"in advance before they can know the amount cf the
settlement," no participant in the floor debate questioned the
premise that damages should be determined according to state
law. See id. Thus, both the Graham amendment, which was
accepted, ses Cong.Rec. 9972 (Sept. 4, 1918), [footnote
omitted] and ths language of the original provision demonstrate
that the House intended for damages (whether ascsrtaintd
before or after construction) to be determined in accosdaisca
with state law. Nothing in the legislative history indicates that
this understanding was ever altered during later discussions of
the Act [the FPA]. In particular, while the amendment
requiring payment before construction was supsrceded, .iw
conference with the Senate, by the current language af § 10(c)
[16 U.S.C. § S03(c)]t the Conference Report, H.I1. Sep. No.
1147, 65th Cong.,-3d Sess. 16 (1919), does not indicate any
intention to abandon the principle that property damages caused
by licensees should be determined in accordance with state kw.
South Carolina Public Service Authority v, FERC, 850 F.2a 788, 794-95 (D.C. Cir.
1983).
In addition, the legislative history of section SQ3(c) has been rjialyzsd as follows:
During the course of House debate on the bill, in tie years
prior to passage of the Federal Water Power Aci,
Representative LsFoIlette of Washington, a member of ihs
Spatial Committee on Water Power, stated: "Tfe± propifty
rights are within the State, It can dispose of beda. c? parts of
liiaa!, regardless of the riparian ownership of the banks, if it
dsdtes to, and that has been dons in some States, 'ir ws put
this language, $ 9(b)] which is practically tsfcsvs ^oai tli5
Supreme Court decision [United Stales v. Cress, 243 U.S. 316P
$7 S.Ct. 380V 61 L.Ed. 746], as to the propsrcj' sights of 'die
REPORT AJfO>
-------
States as to the bsd and the bants and to the diversion of tLs
water, than it is sure that we have not infringed any of the
rights of the Ststss in that respect, or any of their "rales of
property, and we are trying in this bill above everything eiss to
overcome a divided authority and pass a bill that will m&kfi it
possible to get development. We are earnestly trying not to
infringe the rights of the States. If possible we want a biH that
cannot be defeated in the Supreme Court because of omissions,
because of a lack of some provision that we should have put in
the bill to safeguard the States." 56 CongJtec. 9810 (1918).
DiLaura v. Power Authority of New York. 786 F.Supp. 241, 248, n.4 (W.D.N,Y. 1991),
qrfd, 982 F.2d 73 (2nd Cii-. 1992).
Based upon the above legislative history, and the Supreme Court's admonition against
interpretations of the FPA which create a "futile duplication of two authorities over the
same subject matter,"11 the D.C. Circuit Court held that the federal courts did not have
jurisdiction over state causes of action preserved by section S03(c), Id. £t 242-49.
Applying these principles, the court in DiLaura concluded:
Congress did not intend for the determination of when licensees
would bs liable to their neighbors for property damsgtts 10 ba
made in federal couit. Instead, Congress intended that such a
determination would "remain under the jurisdiction of ths
States,0 nad would be decided exclusively by stsss courts
applying stale tort law, [footnote omitted] Ses Soieh Carolina
Pub. Sarv. Aiah., 850 F.2d at 795.
DiLaura, 786 F.Supp. at 247.
This Court agrws with the analysis and holdings in DiLaura and Satah Carolina Pub.
Serv. AuiL to the extent that Congress did not intend to grant ths federal courts subject
matter jurisdiction over state law causes of action which were preserved by 16 U.S.C.
11 first fava aydyo-Ehctric Cooperative v. Federal Fewer Com., 323 U.S. at 171, 66
S.Ct. at 915 (as quoted by Soistfi CuroUna Public Service Ax*koYty v. fiSRC, S5Q ?.2d
at 795.)
REPORT ^ND KECOMEWDAHOW - 10
-------
§ S03(c).li Thus, it would appear that the federal courts have jurisaiction to hear only
those claims which are based upon either federal common law or upon the FPA. In
addition, 28 U.S.C.A. § 1362 provides:
The district courts shall have original jurisdiction of all civil
actions, brought by any Indian tribe or band with a governing
body duly recognized by the Secretary of the Interior, wherein
the matter in controversy arises under the Constitution, laws,
or treaties of the United States.
In the instant action, it is beyond any reasonable dispute that the Tribe's fishing rights
and their claims in this regard are derived from the 1855 treaty. The courts have
consistently held that 2S U.S.C. § 1362 creates federal jurisdiction when en Indian tribe
brings a tort action, if ihe interest which the tribe alleges to nave besn injured or
damaged is created by treaty or other federal law. In Oneida Indian Neman v. Cauruy
of Oneida, 414 U.S. 651T 94 S.Ct. 772, .39 L.Ed.2d 73 (1974}: the United States
Supreme Court considered whether the district court had jurisdiction TO determine a quiet
title action brought by the Oneida Tribe:
Here, the right to possession itself is claimed to arise under
federal law in the first instance. Allegedly, aboriginal fc!e of
an Indian tribe'guaranteed by treaty and protected by statute hss
never been extinguished.
• «• •
[TJhe assertion of a federal controversy does not rest solely on
the claim of & right to possession derived from a federal greet
of title whose scope wUl be governed by state law. Ralfer, it
rests on the not insubstantial claim that federal kw saw
protects, and baa continuously protected from the time of the
formation of the United States, possessory rights to tribal lands,
wholly apart &om me application of state law principles which
normally and separately protect a valid right of possession.
13 Obviously, if there existed diversity of citizenship between the tsscic^ this Court would
have subject jurisdiction under 28 U.S.C. § 1332, See Lilaiya, 7S6 P.Supp. at: 247 n.
5.
REPORT AND RECOJ/ZMENEATION - 11
-------
For the same reasons, we think the complaint before us
satisfies the additional requirement formulated Ln some cases
that the complaint reveal a 'dispute or controversy respecting
the validity, construction, or effect of such a law, upon ths
determination of which the result depends," [citations omitted,
footnote omitted]. Here, the Oneidas assert a present right to
possession based in part on their aboriginal right of occupancy
which was not terminable except by act of the United States.
Their claim is also asserted to arise from treaties guaranteeing
their possessory right until terminated by the United States, and
'it is to these treaties (that) we must look to ascertain the nature
of these (Indian) rights, and the extent of them.' [citation
omitted] ... To us, it is sufficiently clear that the controversy
stated in the complaint arises under the federal law within the
meaning of the jurisdictional statutes and our decided esses.
414 U.S. at 675-78.
The principle quoted above has also been applied to actions brought against private
defendants. In Mescalsro Apache Tribe v. Burgett Floral Co., 503 S?.2d 335 (lOih Cir.
1974) the court, citing Oneida, held that because the Apsche Tribe's title to its
reservation knd was confirmed by treaty, that it had original jurisdiction over the Oneida
Tribe's action agauisi defendants for allegedly entering csmo the reservation ir.di
destroying trees. Id. d: 333.
However, sn opposite result occurred in Cfiilkat Indian Vill««2 y. John&n, 870 F.2d
1469 (9th Cif, 1989) wherein the Chiliat Indian Village brought aa action for possession
of four carved woadsa psis and 3 wooden partition called £ rsii? strssn. The Chill'Pt
Indians alleged both conversion and violation of a tribal orciaarscs prohibiting tsiing
*
traditiomj Indian swaost from either reservation or privets tzzid cwnsd by ths tribal
membert without the permission of tribal counsel. Id. at 1471. Tie UaiOa States district
court ruled, sua spone, that it did not have jurisdiction over eiifer the conversion claim
or the violation of tribal ordinances. On appeal, the Ninth Cii-cdt sgiesd that the tribe's
conversion claim did not tttise a question of federal law and distinguished Onsida as
REPORT AlsrD l^OfcfREWDAtlON -12
-------
follows:
The Village strongly ssserts that its possessory interest ifiscs
under and is protected fay federal law, but it has neither alleged
nor offered any factual or legal bias for that assertion. The
artifacts arc not alleged to be trust property, nor proKrty hsld
pursuant to federal statute or federal common law. 'whatever
proprietary interest the Village has in the artifacts is a crssture
of tribal law or tradition wholly unconnected with fedevsl law.
No construction of federal law is necessary to adjudicate title.
The claim is therefore entirely different from the claim
successfully maintained in Oneida [citation omitted] • & that
case, the Oneida Nation was suing on a possessory interest, a
right of occupancy, that had been shaped and protected by
federal common law, reinforced by a treaty and the federal
Nonintercoufss Acts [citations omitted]. No suck federal
foundation underlies the Village's conversion claims in this
case,
Id. at 1472-73. In the instaat action, however, the Tribes right id nsh is aboriginal in
origin, as it was in Onsida% and is reinforced by federal common bw end the 1855 treaty.
As will be discusssd hfcfcinbdlow, there is substantial federal c«ss hw devoted to the
determination of infringements of Indian fishing treaty rights.
Accordingly, after a csfeful considsratioa of the issues, this Co^rt concludes pursuant
to 28 U.S.C. § 1362 and the Supreme Court's holding in Onsidz that the United States
courts have subject matter jurisdiction over the Tribes' claim in tfiis action alleging that
its treaty fishing rights have been violated.13
2. 3SRB gE
Having determined that the Court has subject matter jurisdzccon ovsr iia Tries 's
claims, it will now consider Idaho Power's contention that the 1980 FERC Order was a
13 Although the Court finds that it has subject matter jurisdiction in obtsnsine the matter
of tortious interference wiih the Tribe's treaty fishing rights, it reserves for discussion the
question of whether the Tribe has a cause of action far mon&ory compensation for
injuries to die fish runs.
REPORT AMB liHCOKiiJENDATION - 13
-------
final determination of the Tribs's claims' which precludes it from bringing the present
action. In the Court's opinion, the present action is not barred by the 1980 administrative
proceeding because the nature of this litigation differs significantly from the FERC
proceedings. In the FERC action, the primary matters at issue were the conditions of
Idaho Power's license. The resulting settlement agreement concerted .what action Idaho
Power would be required to take to mitigate the anadromous fish losses caused by the
Hell's Dam Complex. The FERC proceeding was concerned with and limited to
regulatory requirements, whereas the instant action is an ecticn for monetary
compensation for damage to the Tribe's asserted fishing rights.14
It is clear that FERC doss not have jurisdiction to adjudicate property disputes or to
award monetary damages. In South Carolina Public Service AuzlioHty v. FERC, 850
F,2d. 788, the South Carolina Public Service Authority (hereinafter the "Authority")
appealed one of the conditions imposed by FERC for the renewal or its F?A license on
the Santee North Daon. The challenged condition was that the Authority provide
compensation for all foreseeable property damage caused by sekraicdiy induced dara
failure. Id, at 789. In that proceeding, the Authority contended th£t F£SC did not have
jurisdiction to impose liability for property damages. In responds, F£BLC argued that
because sections 10(a) snd (c) of the FPA obligated it to ensure that each project is safe
before licensing it, FEftC's requirement that the Authority compensate its neighbors rbr
property damsgea fesultiag from sn earthquake-induced flooding v/ss a proper exercise
of its authority. Id. at 752. On sppcai, the D.C. Circuit Court or Awpaals disagreed icd
held:
We fkd this proposition ... troubling. This is sppaifeatly ihs
first tiras an agency authorized to regulate in the barest of
safety has interpreted that authority to support a compensation
14 Whether the Tribe's treaty right to the fish is the kind of property right for which this
Court can awasrd damages to compensate for injury to the fish will be addressed.
REPORT AND llECOK-iHEl^ATION -14
-------
scheme. The dearth of authority to support the Commission's
[FERC] interpretation, which equates "the prctectkn c-i?...
property8 with "compensation for damage to property./ is not
surprising: "compensation" bears little resemblance to
'protection8 as those terms are used in ordinary language or in
statutes regulating various hazards. Unlike a requirement tha£
a licensee take a measure to prevent a loss from occumcg, such
as installing an elarm' system or rebuilding e. dam, the
compensation condition does not contribute in any way to the
protection of property. Instead, it merely substitutes ihy
Commission's preferred rule of compensation for exiEtmg state
law in the evens that the earth should move and the dam give
way. We do fiot believe that Congress intended such a result
when it authorized the Commission to issue licenses and to
condition those licenses upon conformity to "regulations ... for
the protection of ... property.0 The impossibility cf the
Commission's position is manifest when one considers the
linguistically necessary irapEcatfon, namely, that it cculd also
require compensation for death or disease in Eeu of "protection
of life [and] health.8
Id. at 792."
In South Carolina Public Serv. Aiah., the D.C. Circuit Court 02 Appeals also noted
that while 16 U.S.C. § 803(c) specifically addressed the issue of^'opsrty damages, thai
section merely preserved aiiy existing cause of action under stnfc :2W. 'id, st 794.
In the 1930 Order, FERC acted only to protect the anadrcmous fish runs.15 FERC
u See also Idaho Power Co., 29 F.P.C. 572 (1963) wherein ?ERC dismissed the State
of Oregon's claim for damages caused by the negligence of Msho Power Co., the
licensee, in the cpsraiQa of the Oxbow Dam; BES Hydro Co., 411-.H.1LC. V 61,084 at
61,215 (1987).
16 Subsequent to entry cfihe 1980 FERC Order, Congress sdded 15 U.S.C.A. § S03(j)
to the FPA:
(1) Thatin order to adequately and equitably protect, mitigsii damages to, and
enhance, fisfc and wildlife fmcluding related spawning gtousds and habitat)
affected by the d£ve!opai=ntT operation,, and management cf ihs praject, each
(contiaued...)
REPORT AMD KECOwiJS/iiENDArnON - 15
-------
did not, and indeed could not, order monetary compensation for past or present injury to
the fish runs. In the present action, the Tribe stela such rncnscry compensation for
injury to the fish runs. Such an action is properly brought in &2 courts, not before
FERC. Therefore, as the matter was not, and could not have besn, at issue therein, the
Court concludes that the Tribe's action for damages to its treaty fishing rights is not
barred by the 1980 FERC Order."
Idaho Power also contends, in reliance on Tacoma v. Taxpayers of Tacoma, 357 U.S.
320,78 S.Ct 1209, 2 L.Ed.2d 1345 (1958) that because a tavorcblg verdict for the Tribe
may threaten the economic viability of the Hefl*s Dam Complex, this action is, in effect,
a collateral attack on FERC's 1980 Order. In Tacoma^ FERC granted a license to
construct a facility on the CowEtz River. The State of Washington intervened in FERC
hearings to raise objections concerning the facility's adverse affects on the Cowlitz River.
The State of Washington contended that the facility could not be binlt absent its approval.
FERC granted the license and Washington State ultimately appealed FERC's Order to the
Ninth Circuit, which confirmed FERC's Order. The Supreme Court da&ied csraorari.
Id. at 323-29. In the fees of the State's objections, the City filed ai action w state court
seeking a declarationi that the bond issue the City contemplated using to rfosncs to project
was valid. The Stats responded, alleging that the project itself ws« contrary to state law.
This time, however, the Slate based its objection on a different stsiiits thss the one it had
16(... continued)
license issued usufer this subchapter shall include casaiiions for such
protection, mitigation, and enhancement... [as amended 19SS]
Similar to section 10 of the FPA, this section dees not authorize F5RC to award damages
for injuries to wildlife, but rather requires it to take actions to protect wildlife.
17 However, trie Court &6«ss that mitigation efforts undertr.Vfm by Idaho Power may have
lessened the injury iis dam complex caused to the fish-runs, thereby fcducing the amount
of damages the Tribe may ultimately recover, should it os allowed to proceed on the
merits.
REPORT AND RECOMMENDATION - 16
-------
relied on in its objections before FERC. The Washington trial court enjoined ths City
from constructing the facility and the Washington Supreme Court sfnrnjed, holding that
FERC could not grant the City power to condemn the State's hatch&.-y when state-law did
not provide the City with such authority. Id. at 329-33.
The United States Supreme Court reversed on the grounds that the State's acuon
constituted an impermissible collateral attack on the FERC Order granting the license.
The Supreme Court relied on 16 U.S.C. § 825/(b) which provides t&et jurisdiction of the
federal courts in reviewing a FERC decision "shall be exclusive^ to affirm, modify, or
set aside such order in whole or in part" and that H[t]he judgment aad decree of the court,
affirming, modifying, or setting aside, in whole or in part any such order of the
commission, shall bs final, subject to review by the Supreme Ccmrt...0 The Supreme
Court held:
Tliis statute is written in simple words of plain msaning and
leaves ao room to doubt the congressional purpose and intsnt.
It can hsrdly bs doubted that Congress, acting within its
constitutional powers, may prescribe the procedures and
conditions under which, and the courts in wnicus judicial
review of administrative orders may be had.... So <• sting,
Congress is § 313(fa) prescribed the specific, conralste and
exclusive mode for judicial review of the Ccasaiissica's
orders.... It thereby jiacessarily precluded de nerve, riiigation
between tha parties of ail issues inhering in the cor.trsv6fsy,
aid sll oihof racdes of judicial review. Hence, epcss judicial
review of tk? Commission's order, all objections to the order,
to the license it directs to be issued, and to the legal
competence of the licensee to execute its terms, must be made
in the Court or Appeals or not at all.
Tacoma, 357 U,S. 320 it 335-37.
The Supreme Coioi continued by emphasizing than
[Ejven if it might bs thought that this issue was nci; raised in
ths Court of Appeals, it cannot bs doubted that it could and
REPORT AKD SECOikiK*EHI>A.'nOH - '17
-------
should have beefi, for that was the court to which Congress hsd
given "exclusive jurisdiction to affirm, mc&fy, c? sst aside3
the [FERC] Commission's order. And the State may not
reserve the point, for another round of piecemeal litigation....
Id. at 339.
After a careful review of the record and the cited legal authoriiiss, this Court agrees
with Idaho Power to fhs extent that if the Tribe had brought this sction to amend the
conditions of the 1980 FERC Order, or of Idaho Power's license ia general, or to bar
Idaho Power from operating the Hell's Dam Complex in compliance with its license, that
the Tribe's action would be a coEateral attack on the 1980 FERC Order. However, the
Tribe's present action cannot reasonably be construed as a coUatetfd attack on the 1980
FERC Order because the Tribe does not seek herein cither to modify, rescind or
otherwise alter the 1980 FERC Order, or to prohibit Idaho Power from availing itself of
the privileges granted by the 1580 Order. Rather, in this instant action, the Tribe seeks
monetary compensation for property damage, a remedy, which as discussed above, is not
within FERC's jurisdiction. See South Carolina Pub. Serv Auth. v. F.EJL C.
Finally, Idaho Power contends that the Tribe's present action threatens the economic
feasibility of the Hell's Dsiti Complex, and thst to allow the Tries to recover monetary
damages would provide the Tribe with a "back door veto3 over all hydro-electrical
projects which srfeci tribil fishing rights. See Defendant's Meniosianduni in Support of
Idaho Power Company's Motion for Summary Judgment, pp. 71-72. Idcho Power
further contends that while Congress intended FERC to consider uis recommendations
of Indian tribes regarding Rsturel resources (SB* 16 U.S.O.A. § S03(j))lc, If did net
18 Section 8030 provides:
-(1) That in order to adequately and equitably protect, mitigate damages to, and
enhance, fish snd wildlife (including related spawning grounds find habitat) affected by
the development, opcsstioa* ad management of the project, each iicsnse issued under this
subchapter shall include conditions for such protection, riuag'adcns and enhancement.
(continued...)
REPORT AND RECOMMENDATIOW - 18
-------
Intend to give any Indian tribs affected by a proposed power project _ sight to veto that
project.
This Court agrees with Idaho Power to the extent that Congress did not intend to
require FERC to accept the recommendations of Indian tribes. However, ths Court
cannot accept Idaho Power's further contention that because Congress .gave the Indian
tribes the right to advise FERC regarding mitigation of damage to wildlife, that Congress
also intended to preclude any actions for damages to Indian property. Although FERC
is required to consider the safety of the pubEc when licensing power projects, its
consideration of public safety clearly and obviously does not relsass the licensee from
liability for any injury or damage it may causa to private property. S*& 16 U.S.C. §
803 (c). Nor does FERC'a determination that a project is economically feasible constitute
a guarantee that it will bs economically feasible. For example, if FERC licensed a
project which would submerge private property, it is naturally to be expected that in
determining ths economic feasibility of the project, both FE2.C sad ths licensee would
lc(.,.contitju&d)
Subject to paragraph (2), such conditions shall bs based on recommendations received
pursuant to the Fisfc and Wildlife Coordination Act (16 U.S.C. 661 etseq.) [16 U.S.C.A.
§ 651 et ssq.] from the National Marine Fisheries Service, the Ui'dtsd States Fish snd
Wildlife Service, and State fish and wildlife agencies.
(2) Whenever the Commission believes that any recommendation referred to in
paragraph (1) may ks inconsistent with ths purposes and requirements of this subchapter
or other applicable law, ths Commission and the agencies referred to in paragraph (I)
shall attempt to resolve any such inconsistency, giving due weight to the
recommendations, expertise, and statutory responsibilities of such agencies. If, after such
attempt, ihe Commission does not adopt in whole or in part s. recommendation of any
such agency, the Commission shall publish each of the following findings (together with
a statement of the basis for each of the findings):
(A) A finding thsU: adoption, of such recommendation is inconsistent with the purposes
and requirements of this subchspter or with other applicable provisions of law.
(B) A finding that the conditions selected by the Cormmssicn comply with the
requirements of paragraph (I).
PvEPORT AND aECQyi.iENDA.TTON - 19
-------
attempt to place a value oft the submerged or otherwise damaged property.- However, as
discussed above, the stats courts, not FERC, have the ultimate responsibility for
determining the value of the submerged land and awarding damages. If ihs state court
determined that the submerged land was substantially more valuable than FERC and the
licensee had estimated, it is entirely possible that the owner* s clairn for damages would
terminate the project. The courts could not justify, under those circumstances, preclusion
of the submerged owner's action on the grounds that it constituted a back door veto of
FERC's decision, no more than it could justify precluding ihe'Tnbs's present action on
the grounds that the Tribe's treaty fishing rights are worth more or are more valuable
than FERC and Idaho Power had originally anticipated.
In summary, FERC does not have jurisdiction or authority to tasks an award of
monetary damages, thus the Tribe's-claim for ait award of cicmfctary damages is not
barred by the 1980 FERC Order.
B. Aetioas For Toterfemiffi With Ffch ..ftws
Having concluded in the preceding sections that the United States district court has
subject matter jurisdiction over this action, and that the Tribe* s action is not bsrrfcd by
the 1980 FERC Order, tk> Court will now consider whether &s Tribe has a claim or
cause of action for: damage to of destruction of the fish runs to which its members hav«
a treaty right to fish.
1. Section fM3fe).Cfflfffifi
In determining whether & federal statute provides a privets litigant with a cause of
action, the United States Supreme Court has held "[tike ultimate issue is whether
Congress intended io ctttaie a private cause of action...." j&rahaUos v. National
Federation of Federal Etftpbyses, LotdL 1263, 4S9 U.S. 527,532, 109 S.Ct 1282,103
L.Ed.2d 539 (1989) (quoting California v. Siatra Club, 451 U.S. 2B7, 293, (1981)).
"Unless this congressional iatoflt can bs inferred from the language of the statute, the
statutory structure, or some other sourcs, ihe csseoctal YXrcdicafe i'cr impEcation of a
REPORT* A>ID RECOMMENDATION - 20
-------
private remedy simply dees no:exist.' Thompson v. Tnampson, 4S4 U.S. 174, 179, IDS
S.Ct. 513, 516, 98 L.Ed.2d 512 (1988). To assist the coiircs in making.this
determination, ths Supreme Court has established a four part test: [1] is the plaintiff one
of the class for whose benefit the statute was enacted; [2] is there any indication of
legislative intent, implicit or explicit, to create or deny a private remedy; P] would the
Creadon of such a remedy be consistent with the underlying purposes of the legislative
scheme; and [4] is the cause of action traditionally regulated by state law, in an area
basically regulated by the states, making it inappropriate to infer a cause of action based
solely on federal law. Con v. Ash, 422 U.S. 66, 78, 95 S.Ct. 20SO, 2088, 45 L.Ed.2d-
26 (1975).
The above test was obviously intended to be applied to statutes which either prohibit
an act or require an action, and not to a statute like 16 TJ.S.C. §. 803(c) which provides
on its face an action for an award of private monetary damages, but doss not prohibit or
require an act. Nevertheless, the test does give the Court an indication of the matters it
should consider in determining whether section 803 (c) creates a cause of action fot
monetary damages under these circumstances.
The language of section 803(c) makes it clear that the statute was intended to protect
two parties: the United States* which it expressly protects rVom liability for property
damage caused by the licenses; and owners whose property is damaged. Thus, to the
extent that the Tribe's treaty fishing rights are considered property, the Tribe is a member
of a class which the statute appcass to protect.
However. It is clear from the legislative history of the sscaoji ihsi Congress1 intent
when, passing section 803(c) was to preserve existing state law causes of action, not to
create new causes of action, (See discussion regarding the affect of 16 U.S.C, § 803(c)
on subject matter jurisdiction, pp. 7-13, supra,) Thus, in the Court's considered opinion,
it is clear that Congress, in adopting section 803(c), did not intend to create a new private
cause of action. Rather, it intended to preserve state common law rights. Most courts,
REPORT AKD RECOiviktEHDATIOH - 21
-------
when considering whether section 803(c) creates a *iiw privats cause of action, have
reached the conclusion that it does not.19 DiT mira v. Power Authority of New York, 786
F.Supp. 241 at 249 (s& quoted portion ofDilaura, pp. 9-10, i'w>/c).
Torts involving damage to property are an area of law traditionally regulated by state
law. Thus, in this instant action the Court concludes that it would be inappropriate to •
imply or assume that section 803(c) creates a federal cause of action for property damage.
Finally, the Court notes that the FPA is a comprehensive regulatory scheme intended
to foster the development of hydro-electric power. "Hie Act also considers and creates
compromises and provisions for the protection of wildfire, 16 U.S.C. g 803(j).
Therefore, the comets should not judicially create further causes or action or implement
additional protections from those already existing in section 803(c).
Accordingly, uu Court concludes that 16 U.S.C, § B03 does «ot create s federal
cause of action for monetary damages due to reduction in the rurnibssr of nsh in the runs.
See authorities cited in footnote 19.
2. Fettered Capmrm YJ?W
The Tribe contends that it has a federal common law cause; of action for monetary
damages based upon its 1855 treaty fishing rights and spidnciuly seehs compensation for
damages to a natural recourse (i.e. anadromous fish runs) which it has the right in
^
common xrith son-treaty fishermen to exploit.23 Tns Tribe's right to share in the
29 See. e.g. South Carolina Pub. &FV. Auth., 850F.2d vt
v. Minneapolis, Si. P. & S.Ste. AT. R. Co., 99 F.2d 902, 911-912 (Sth Cir. 193S), cert.
denied, 305 U.S. 640, 59 S.Ct 488, 83 L.Ed. 1040 (1939); Ssaunst Corp.- v. Alabama
Power Co., 370 F.Supp. 1044, 10SO-1051 (N.D.AJbL 1573); JiT^y Sides Co. v. South
Carolina EUc. & Gas Co., 290 F.Supp. 8, 23 (D.S.C. 1968), aff d, 422 F.2d 389 (4th
Cir. 1970); Alabama Power Co. v. Smith, 229 Ala. 105, 155 -So. 601, 604 (1934).
20 In oral argument, me Tribs also sdvised the C6Urt tfcai -t sects daiiiHgca for the loss
of its usual and accustomed nshiag places which verts flooded by ihs Hell's Dam
(continued...)
REPORT ANE RECOMRJENDATIOM - 12
-------
harvest of thai natural resource was created by die 1255 tridry which reserved to the
Tribe the exclusive right to take fish in streams "where running through or bardedn"0
^C... continued)
Complex:
"One final taking which-occurred, Your Honor, and that is ths taking of the
usual and accustomed fishing spots, places upon which the Tribe previously had
access to. They WCK simply flooded by these various darrts. The dams created
huge reservoirs in back of ths dams, and those reservoirs inundated our usual
and accustomed fishing places. That, in a geographic sense, ins nature of the
right, has been recognized by the Ninth Circuit. That was a tmng of our rights
given to us under the 1855 treaty, for which there has been no compensation."
See Nez Peres Tribe v. Idaho Power Co., Transcript, January 19,1933 Hearing on All
Pending Motions. Mr. Houtsma, p. 54V 11. 14-25.
The Tribe then went on to note that 16 U.S.C. § 814 provides Idaho Power and other
licensees with a method of obtaining the land or property of others if it MUSI take land
in order to proceed wife construction. See Transcript, January 19,19$3 hearing, pp. 60-
61.
Section 814 provides:
When any licenses cannot acquire by contract or pledges an unimproved dam site
or the right to use or damage the lands or property or others necessary to the
construction, maintenance* or operation of any dsmt reservoir, diversion
structure, or ths works appurtenant or accessory thereto^ in conjunction with an
improvement which in the judgment of the commission is desirable and justified
in the public interest for the purpose of improving of developing a waterway or
waterways for ths us= 6? teasnr of interstate o? foreign comrncrcs, it may
acquire the same by the exercise of the right of eminent domain in the district
court of the United Starts for the district in which such Isnd or o&cr property
may be located, oar in tha State courts....
With the exception of the Trie's Third Claim for Sfc&f, &t 3?teiniiS*s Am&ndcd
Complaint seeks damages for injury to its property rights bat decs not explain whether
those rights are to the nsh thernssives, to the nsh runsy or to ths Tribe's fishing grounds.
Plaintiffs Third Claua for Relief iefew clearly to the right to possess u certain quantities
of fish." The brbft submitted to this Court do not address tks indter or preclusion from
the historic fishing grounds. Wone of the affidavits or othei" evictefccs submitted to this
Court suggests thai ibs Tribe seeks damages for flooding of tcacitional fishing grounds.
Therefore, the issue is not property before the Court, satd & cMm xbr damages caused by
the flooding of traditional fishing grounds or s^ciiic locadons is not before the Court.
See section 20b), pp. 28-34, Infra.
REPORT A
-
-------
the Tribe's reservation as well *s °the right of taking fish at Ell usual and accustomed
places [off reservation] in common with citizens of the Territory.0 Art. ffl, Treaty with
the Nez Perces, 12 Slat. 957 Qfnnc 11, 1SS5). The Trite is not seeking damages for any
infringement of its tribal members' ability to fish, or because other fishermen are taking
an unfair proportion of the fish. Rather, the Tribe seeks an award of'monetary damages
for destruction of the quantity of fish in the runs. Thus, in the Court's view, a threshold
question presented is whether the Tribe's treaty right to harvest fish from certain
accustomed fishing places includes a right to bring an action for damages against licensees
or other parsons for damages Arising iron? interference with the fish mas.
Idaho Power contends that the fishing rights reserved to ths I&dians under the 1855
treaty are subject to the effects of the passage of time wti thet the United States
government can make policy choices which affect the available number of fish without
violating its treaties with ths various Indian tribes. Idaho i'owef argues that the need for
electricity and the passage of the FPA constitute such a. change in circumstances and that
Congress knowingly limited the Indian's treaty rights xyhefc it passed the FPA. The Tribe
argues, however, that although the United States government can make such a policy
choice, to limit the Tribe's treaty fishing rights requires sctiofl on &e pert of Congress
and that legislative body has not so expressly acted.
In response, Idaho Power asserts that Congress modified the 1855 treaty by passage
of the FPA and further, that 16 U.S.C. § 803{c) was inifiitcicd to apply only to state
causes of action and argues that the Tribs's fishing rights are federal in nature. Finally,
Idaho Power assarts that the nature of the Tribes fishing rights preclude aa award of
monetary damages.
a) Tire IRKS Stavfetts Trasw
The determination of all of ths above questions is rektsd to tha nature and extent of
the Tribe's treaty fisKing rights. Thex%rorev it w aesc&mry id cxanrhie; me Hstory cf tha
Tribe's treaty fishing rights and ike remedies which other courts have wrcviously awarded
REPORT AKG-fiECOMWENDATlON - 24
-------
to the Trite in regard to those historical rights. thd 1855 treaty at issue in the instant
action was on* of a number of treaties (hereinafter referred to as ths =St£vens treaties u)
negotiated by Territorial Governor Isaac Stevens with the various Pacific Northwest
Indian Tribes during the mid 1800's- In addition to the Nez Peres treaty at issue here,
the Treaty of Medicine Creek, Slat 1132 (1S53), Treaty with the Yalamas, 12 Stat. 951
(1855), and Treaty of Point Elliott, 12 Stat. 927 (1855) ware all negotiated during this
same general psriod of time. The United States negotiated these treaties for the purpose
of extinguishing tribal claims to portions of what were theii ths Washington and Oregon
Territories, in order to allow settlement of the region by its citizens*-1 In return for the
Tribe's relinquishnaent of its claim to portions of whit is now the northwestern United
States, the United States made certain payments to the tribss end promised future
assistance. The tribes reserved certain rights over the relinquished lands, including ths
rights to fish and hunt off-reservation. Typically, the reserved right to nsh and hunt was
exclusive on reservation lands and hi common with non-bobs! members on relinquished
or off-reservation lands. Centrally, in these treaties oft-i-eservation sights to take fish
were limited to ° the usual and accustomed places,"
Because of the similarity of these treaties, and the almost identical language employed
therein, the United States Supreme Court has, when mfcrpreon* cr-c of these treaties,
generally looked to cases construing other Stevens treaties for .guidance. The Ninth
Circuit has likewise considered oi&cf Stevens treaties whctt consuming mdisn rights under
the various tfesrJsa. $22, e.g. Uwttd States v. Oregon, 71S ?.2d 259, 301-302 £ n.2
(9th Or. 1923); SohapW v. Swite, 529 F.2d 570, 573-574 C3ih C& 1976). Therefore,
this Court will coasidar siot osly cisas construing Ihfi 1855 Sc=vens treaty at issue here,
but also cases and authorities construing other Stevens treaties ift deisrmining the Tribe's
21 For a general discussion ssu Weshlnstott v. Wasnsxgf&t •&£& Csxi-mssdal Passenger
Fishing Vz;s<>t Ax'*, 443 U.S. 658, 6ol-o62v 99 S.CL 3055, 61 L.£d.2d 823 (1979).
REPORT AWB RHCOMKd3ENBATTON - 25
-------
treaty rights asserted in this instant action.
In general, the Tribe's treaty rights to fish arc limited geographically to their
historical fishing grounds, and in instances where the Indians have; tx^n precluded from
their historic fishing grounds, the courts have awarded injunctions prohibiting others from
interfering. See Urited States v. Winans, 198 U.S. 371, 25 S.Q. 662, 49 L.Ed. 1089
(1905) (fishing wheel destroyed access to fishing grounds); siid Confederated Tribes of
Umatilla Indian Reservation v. Alexander, 440 F.Supp. 553,555 (D.Cz.1977) (the Corp,
of Engineers flooding Indian fishing stations with two hundred feat of water would violate
treaty rights unless Congress gave specific approval of the project). In Confederated
Tribes of Umatilla, the Supreme Court hfcld that because Congress had authorized the
taking of the Indian fishing stations, iha United States government would have to
compensate the tribe.
When interpreting Indian treaties, it is well established thai cermiii canons are of
special importance and the courts are required to consider the treaties' central purpose
and construe the treaties as they were originally understood by the ftifaal representatives.
In addition, the courts have traditionally resolved arnbiguitiis in favor of the tribes and
interpreted the treaties in the Indians" fevor. Washington v. Washington State
Commercial Passenser FisUng VessdAss'^, 443 U.S. 652, 675, 61 L.Ed.2d 833, 99
S.Ct. 3055 (1979) (hereinafter referred to as "Fishing TCaK*/u); Joms v. MeeJt&i, 175
U.S. 1,20 S. Ct 1, 44 L. Ed. 49 (1899); fljfe* v. Washington, 315 U.S. 681, 62 S. Ct.
862, 86 L. Ed. 1113 (1942); SafinBrotlters Co. v. United $i&ast 249 U.S. 194,39 S. Ct.
203, 63 L. Ed. 555 (1919); Vt&ad Sto&t v. Woiattst 198 U.S. &c 380-81; as cited in
United States V. Washington, 759 P.2d 1353y 1358 (9th Cir. 1985).
In interpreting the several Stevens treaties, the courts have consistently held that the
reserved fishing rights grant the Indians aw °opportunity to isbs, by reasonable means,
a fair and equitable share of all fish from any given nm." Ofewarf States v. Oregon, 769
F.2d 1410,1416 (9th Cir. 1985). Similarly, the United Stai:* District Ccurt for Oregon
REPORT AMJO RECOtwOwDENDATION - 2a
-------
has held that the; tribes have a right to harvest °a fair share of 'the fish produced by the
Columbia River system.0 Sohappy v. Smith, 302 F.Supp. 899, 911 (D.C. Or. 1969).
While construing the Medicine Creak Treaty, the United States Supreme Court in Fishing
Vessel, 443 U.S. 658, held thai c[b]oth sides [Tribal and aon-Tribalj have a right,
secured by treaty, to take a faif share of the available fish." Id. •&£ 684-85. According
to this doctrine, the percentage of the total available fish the Tribe is entitled to take may
be limited by tribal population, the abandonment of the- fisheries by ihe tribal members
as they find other means of support, and the number of fish necessary to provide the
tribal members with a moderate living. Id. at 6S6-87. In any event, the maximum
percentage of fish the Tribe is entitled to fal-a was held by the United States Siroreme
Court in fishing Vessel to be fifty percent (50%). Id,
It should ba noted, however, th&t the "fair shsrc decfcrias" was adopted for the
purpose of protecting Indiana ss well as non-treaty fisherman. In Fishing Vessel, the
various state game and fishery departments argued that the trcao&s gave the Indians no
more rights than that given to non-treaty fishermen with ms exception of the? right to
cross over private land to access their usual and accustomed fishing grounds. Id. at 670-
71. In Fishing Vessel, the Supreme Court held that the treaties reserved more to the
Indians than the mere oppoituhity to fish, therefore, wlhila boih the Indians and the non-
Indians have the right to fish, neither gf oup may deny the other of their feir share of fish.
Id. at 685. Thus, the fsir shore doctrine protects, as xvell &s limits, ths Tribe's trcsty
fishing rights.
In summary, the cases demonstrate thai the relief granted ico boih treaty and non-
treaty fishermen for viohiioti of the fair share doctrma to this point in txms ha3 besn
injuactive, raih'ar than monetery. Historically, Jiccording to 'fishing Vessel, tribes
deprived of their feir shsofc of nsh in ons seasort sfb grsnted & larger percentage offish
in a subsequent season to mabr up ihs fair share dcncit.
The Tribe's right to feh is sko limiisd by the need to prctsci ths fish runs from
REPORT AND RECOMS^WDATiON - 27
-------
over-harvest It is well established that the states and the federal government can regulate
the total treaty and non-treaty fish catch if regulation becomes necessary for the
preservation of the species, is tailored to the conservation of that spscies, aid is non-
discriminatory in its treatment of the Indians. Ste Sohappy v. Smiih, 302 F. Supp. at
908; United States v. Oregon, 769 F.2d at 1416; United Slztss v. Qregm, 657 F.2d
1009, 1016-1017 (1981) (affirming a total ban on tribal harvest of spring chinook
salmon); Puydlup Tribe, Inc, v. Dspartmsjtf of 'Game, 433 U.S. Io5, 176477 (1977)
(affirming the right to regulate on-reservation fishing).
The instant action, however, doss not involve either limiisticfis oa catch or exclusion
from traditional hunting grounds. Rather, the Tribe ssebs compensation for the
destruction of the fish runs themselves. In other words, ihs Trios argues that
developments such as dams which damage, jfcduce or destroy ths nsh runs violate their
1855 Stevens treaty fishing rights and entitles them to an stx/ard of monfecsry
The ultimatfr issus presented is whether the teeaiy provides the.Traje with an absolute
right to preservation of the nsh runs in the condiaoii existing m 1855, fires from
environmental damage caused by a changing and developing society. Only if such e right
exists is the Tribe entitled to sn award of monetary dsrasgeg.
The parties have cited, and the Court*s own indepcad&ni tesestck has disclosed only
thres cases which directly address this ultimata issES. Mterf fflafis v. Wo^/uwfroH,
(hereinafter 'Waslttogtm 1982?), 694 F.2d 1374 (9ch Cii". 1982)j Uy&sshcat 'tribe v.
Puger Sound Power end Ugte,. CV No. 472-72C2V (W.D. Wash. 1985); wdNlsqualfy
Tribe v. City qfC&antlto, No. C75-31 (W.D. Wcsh. SSI). HowdVer, Washington 1952
was vacated by ths Ninth Circuit on o'thesr grounds ia a subssqueni eft bane decision,
United £#£? v. ftfcsAmgttw, 759 F.2d 1353 (9ih Ck. 1985), xfuddesJioof Tribe v. j^r
Soumf eypvcssiy relied aft the WasMngion 1982 o£>aiioji whick was aat vscsted until after
the decisiori in Muddzstoer was issued. Therefore, it appcirjj that this Court is required
REPORT AND RECOiva-iENDATION - 2S
-------
to address and determine an issue or fivsi impression xvithout the benefit ofzr.v bindin*
* ~ S
precedent available for guidance and direction. Sue Lss Angles Nsws Ssrvics y. Tidlo,
973 F,2d 791, 795 n. 4 (llth Cm 1992) which held that a vacated decision is j.ot binding
precedent.
However, it is noteworthy that the Ninth Circuit, in subsequently vacating its
Washington 2982 holding did not overrule its decision or reverse the analysis of the legal
issues and its reasoning. See Uniisd States v. Washington, 759 F.2d 1353 (9th Cif.
1985). In its" 1985 United States v. Washington opinion, the Ninth Circuit vacated its
1982 decision on the environments! declaratory judgment issue. IE its $85 decision, the
Ninth Circuit held:
"That portion of the district court's judgment granting a
declaratory judgment with regard to the hatchery fish issue .is
AFFIRMED. The declaratory relief granted with reg&rd to the
environmental issue is VACATED."
Id. at 1360 (capitalization in original).
After car&fully and thoroughly analyzing the legal ksuctf presented in the instant
action, the Court has independently reached a coftclusioa 6ri thd ircsry rights issue similar
to that reached by the Ninth Circuit ia its Washington 1932 opfoic!L Although the Ninth
Circuit's 1982 opinion was vacated on other grounds, the; Court ut &e instant action has
considered snd analyzed the legal analysis and holdmg contsintd m that opinion acd
concludes that tht rationale uiilbsd therein is sound sitd weft reasoned. Rather than
paraphrasing the analysis of that opinion sad its jfcssaiimg without candidly
acknowledging iiist ikt Court considered tiist isnguagc in rcsalvkg these issues would
be inappropriate. The Court ia of the view that the raiioiisla of ibs Washington 1982
opinion is persussive and thus his considsred its legal oinilyidi iKd language in the sarne
context as if it li&d beari a law review ai-ticla &? other non-binding:, tut wall reasoned legal
authority. On occasion, ihd Hindi Circuit lias relied ca £ reported opinion which has
been subsequently vacated on oihc? grounds. ttiAb&sx y. Wteitey, 743 l~.2d 1372, 1375
REPORT ANJi> Ii£COUMEHDAllOH - 29
-------
(9th Cir. 1984) ihe Ninth Circuit hwwingiy relied en did rzii'criu^ contained IT. an
earlier decision which Bad been vscated to sllow for an e>- zzne i-chesdng.
In this rtgssd, it is obvious that the Court is t^ssr.tcd wirh s di!f&tw;i la resolving
the instant action. If ths Court considers the language cij legl! snslyaie contained In the
vacated WizrA&tgatos 7P52 opinion, regardless of now WcE Kssaacd tint decision or
language may bs, any decision reidefea k subject to c«£ilcri§;e cr cndcism an the
grounds that it was based in part on language, reasoning or enalysis from an opinion that
had been vacated. On the other hand, to avoid consideidbg sound legal reasoning and
analysis which has aot been reversed solely because it. is set fcriu nt an opinicui tliat has
been vacated on othsr grounds is wot good juiistirodcucd sdia is lliiewiso subject to
criticism. Thw-e k no truly atiifacnvd alternative or solution tcs mis dilemma other than
»
to address thfe issues dkectly and uolib£ the b'ssfc legtl fc£S05aia^ and cadysis sr^ailablc.
Therefore, thg Court in resolving .the instant issues, has 5i>nsidared the legal gssiysis and
reasoning conckkcd ia the 1DS2 opktion. Howevsy., &6 Csusri woisid Ustve ^cschad the
same legal conclusion and ultimate decisititi ia fids aciioE- 3W£^ v/Ethoci ccnsidsti^g th&
1982 decision.
In the Ccuii's vidw* Indian cnbss do cot have 01 dssol'i-t: ligh- ^ ^ pi
of the fish runs in thtir1 original 1855 condiuon, eric frisc sil irivItiosin
caused by the roigfiaiiaH of iiicncismg numbers of settlers sri ihe ?csu!Sn^ dsvclopmsr.t
of the land. A vovisw of th& Isagfuago us^d in W^;Az>fg^ W%3 is issbiicfivd oa this!
issue wherein the Ninth Circuit Court of Appeals coasiaierod chexh^r the courei shotild
imply a righi t^ fe^vironttidntsl praiection of fc'esiy jresiewcd i5sl> itsss.- lb that acaoa the?
court was concerned with ivhciiicf there should be tu SaipJied i'istc dEiy to ircfciia rrom
degrading o/ fcuihowjng the dcgradaiion of ihe fish HiEbivii o i:t e^rcat that would
dcpdve ihs IndiiiTS as IfceiV modcrita living needs. la vci.cfitr.ij iti ccnd^sion that &e
Stevens tre^ucs do not create an absolute bin on dcvelopiviciii which iisde,^^^ or injures
the nsh runsv ilie i^indi Circuit cJ3L*nin£d tr.e rights cariiei! vhy the Supreme Court's
inoy - 30
-------
holding in Fitting Vessel. The analysis and reasojiing of the Kinih Circuit is helpful sue
the following language from the Washington 1DB2 decision is In^cavc.
The Supreme Court in Fishing Vessel hsld thai: indits treaty
rights exceeded those envisioned by the saa^i opportunity
theory. Beyond its holding that the Indians szt enciled to a
share of the fish, the Court did not indicate in what rr.s.nner or
under what circumstances this share was entitled! to Detection.
It certainly did not adopt a comprehensive
servitude.
Washington 1982, 694 F.2d at 1381.
The specter the district court raises or tibd -j^her
unprotected by the environmental right dipping their victs into
the water and bringing thew out empty [citation osnittcc] cannot
altar the scope of Fishing Vessel. Only the cxisash;-* of the
servitude to ban even non-discriramatory development cccumng
both within and without treaty fishing areas could £SS*-i.-= sgainst
any decline in the amount of nsh iakcft. Ths creaty -dtzs not
^raist such assurance. In its absence, lossci sri£ag from
reasonable development should be boras fifty/Siry by tristy and
rsofc-trcaty nshenttcfl. This is what ths £iipirc:T.j Caurt
necessarily intended by holding that the Ifidiju^ ^rc j;:iiilad to
a fffcwg of toe available fish, 443 U.S. si 6S5-S7 cii a. 27»
[citation omitted] rather thatt to a fixed qttatttiiy of ^r..
A patifciti of dcvelopmeat which
effects of growth on treaty fish tuiftss and sc&
runs, of cou«e, would violate the tres-iy ngf:i rio
exmroamental right based oa moderais living weeds! or
historic catch level need be created to reascdy such £ violation,
however. State regulation cannot dkcrmikeid s^d&st ifcs
Indian fishery. Puyallix> HI, 414 U.S. si 48V 94 S.Ci st 333,
This principle is faroad enough to encompasii Glscrrminatory
granting of permits for projects with pots-iiislly odvcfse
environmental effects.
Id. at 1382.
In addition,, the Kfinth Circuit xtjccied ilic trial coiirx''i c:^.-.il\iiic^ il:£i tlticr previous
REPORT AND K£COWMEWDATTOW - Si
-------
cases implied a general right to environmental protsciioiz c? &« fLiii:
Like the district court, we interpret the treaty KJ ssoiy to ths
building of dams, factories, and highways provides mey s±fc
State-authorized. But unlike the district court, ^5 acl^-owledgs
the danger of overreaching what the treaty rairly requires, by
framing the obligation to compensate for adverse environmental
impact in terras of reasonableness. See supra, m>< 1320-1381.
Id. at 1382-83, ruI7.
Thus, according to the Ninth Circuit's persuasive reasoning in. Washington 1982, the
states may allow or even authorize development which redness the number of nsh in the
annual runs as long as such action do&s not discriminate sgsics>: treaty fishermen in
determining what development will be authorized. Although the opinion was vacated on
other grounds, the Court agrees with the legal analysis ifi Washington 1932. in the
Court's view, the Stevens treaties do not protect the Indiana from degradation, of the nsh
runs caused by development which is not part of a pattern of d:icri>iliiation against Indian
treaty fish runs.
The court in Washington 1982 did not hold tkac the st-a-* have ao obligations with
regard to the degradation of th& fish runs. Rather, it concluded thti oij "...States =ud the
Tribes must each take reasonable steps commensurate with this i-K^jrces and abilities of
each to preserve and enhance the fishery when their projects tti'catsr; ihan-ensdng harvest
levels." Id. at 1389.
Ths "reasonable steps8 duty we find implied by &c tsr™s of the
fcr&ary focuses o« whether the State's (or tho zLtdisas'}
compiwsatory steps to protect and enhancs the fishery - whtthsar
made necessary by non-fishing of fishing sciivitici; - zre
reasonable.
Id. at 1389.
In Washington 1982, the Hkdi Circuit did not, hcwevc:-., scg^sc or ia-piyt e^cspi
in exceptional cu-cumsiances which are nor present hard, mat -iOiici-ry dsinages \vss tli&
appropriate remedy in the event eidier pany railed to take such reas j^ible? siaps. Furthir,
REPORT ^JvTD RECOMKiEKTDAT][QN - 32
-------
the damages discussed therein were contemplated to be against a siE^ or against &n Indian
tribe or band, but not against a private individual ov licensee. When discussing
"compensation," the Ninth Circuit spolre in terms of "protection" End "enhancement," not
monetary .damages. Id. at 1389.
All of the cases and legal authorities cited to the Court, and all of'the cases this Court
has independently examined, have required mitigation or protection efforts rather than
providing for an award of damages. Accordingly, this Court concludes, as discussed at
length in the following section, that an award of monetary damages to tha Trihe for a
reduction of the number of fish in the chinook runs k not tri appropriate legal remedy
because Plaintiff does not have a property ownership interest in tr.s fish runs.
Fishing Vessel is the only binding opinioa which evea e^pcfrs to suggest that the
Stevens treaties gave the Indian tribes an absolute right to ths preservation of rhe nsh runs
in the condition existing in 1855, free fVom environmental dassLgs csnsed by a changing
and developing society. However, after a careful coasidcr^doa si the issues presented
here, the Court is of the view that the IMtcd States Supreme Com- in jfiST&ng Vessel did
^iot hold or intend that the 1855 treaty would create a siruaticu «hii-e future development
would be prohibited even if it caused damage to the nsh rci-s csr £.t fsvitQarattL In
Fishing Vessel, the Supreme Court held that the Indi&is hive aiore than an equal
opportunity to fish, held in common with the citizens of th= ssverii Etsi63 aid it held that
the tribes may be entitled to as much as fifty percent (50 %} zzihz ivaiisbli nsh. Tois
Court is not able to accept Plaintiffs &ijgument that a right to a Certain pcrcentaga of the
available fish can be construed to include a guarantee; thai s. cci-bii: -rdn'ibsr of fish will
be available. Therefore, this Court concludes that Fishing V&szl dci2 riot hold that the
Stevens treaties protect the Plainaffs i^eaty fishing rights Srccs d=^i:±dmoa cf the fish
runs caused by construciion End operation of hydrcndbetdc c:uvis i:: the Columbia River
system.
Those cases cited by the Tribe which establish a. right to ::^r.itry sompcnsuxan ivom
REPORT AND RECOW3s4EMDA.inOW - 33
-------
the United States government for* damage to property COT- dearly fiiiinguishable because
in those actions the injured parry actually owned the damaged ^•ooiriy. In the instsnt
acdon, the Tribe does not own a property interest in ihfi fish, bur ,-j.ther1 has only i treaty
right entitling their members to take fish at the usual and sccusvo-iicd places.
IE the Court's view, the 18S5 treaty does not provide £. susrsniee that there will be
no decline in the amount of fish available to take. The only method that would guarantee
such protection would be to prevent all types of dcvelopriisnt, whether or not it is
discriminatory of Indian treaty rights. The Stevens treaties simply do not provide the
Tribe widi such assurance or protection.22
c) A waft! of
The Tribe contends that there is case law authority for the preposition that damages
to property similar to the Tribe's property interest in ths nsh nr:.£ in the instant action
is compensable by award of monetary damages. Although ike Court has concluded in the
preceding section that the Tribe is not entitled to the same •iuxribc:--' c? quantity of fish in
22 In the two Washington district court cases $faddisskc,vi Jh'l^ •;. ?u*et $c&id and
Ni'squally Tribe v. Cay of Centraliz) which rely on Wcuhing&x I>o2, 654F.2d 1374, the
Washington district court reached the same conclusion £s ihk Ciiiri for a different
reason:
Any claim for monetary dsmages aiisiag out cf iiic: ttijcis wciild bs
appropriate only as against the United Seated cr cae cf iis politkai
subdivisions. In consaquence, the motion of Pugdc to d-^ifriiii; the esone&ry
and punitive damages claims fof alleged isfcary viols£iii2 ar.^st be granted.
Muddeshaot Ttib^ v. Pugtt Sownd Power & Light, Cas& Ho;, 472-72C2V, Ordir dated
October 8, 1986 at pp. 3-S; sse also Nisquatty Irtdlan 'fribz v. Gfry qf Czxtrdiz.
This Court agrees with ins Washington district court that ths 'i'dlsiss may act obtain
damages from private parties re* treaty violations. Hoover, if tha ladisms had a
property interest in the fish, regardless of whether that mtcrssi wa£: :-reat&d by treaty, ths
Indians would have a recognized cause of acdon agakis any private parry who
intentionally or negligently injured the fish. Therefore, this Court hs-ses its decision on
the fact that the Indiana do not have a property interest in th5 Sir. 'runs* rather thrm on
the fact that Idaho Powtr is a private party.
REPORT AND RECOiviKiJENBATION - 34
-------
the modern nsh runs that existed in 1855, it is r^ciss^iry is disc..-::; In this opiruon, for
purposes of subsequent review, whether the Tribe is nonetheless c.idded to :ui award of
monetary damages.
The Tribe contends that the Supreme 'Court's ruling in 'Mmzndnzz Trios of Indians
v. United Stales, 391 U.S. 404, 88 S.Ct. 1705, 20 L,Ed.2c 6^7 (1968) requires that
destruction of the fish and exclusion of the Tribe from its ancient £shing places must be
compensated. The circumstances leading up to the filing of the friariOYnimz action began
with the passage of the Termination Act of 1954, 25 U.S.C. §§ S91-902, the purpose of
which was to provide for "orderly termination of Federal supsrvfdcn over- the property
of the Menominee Tribe" and several other Indian tribes, 'jrcis'divrc tc the Termination
Act, the Menominee Tribe submitted a plan which conoei^pliicd the creation of a
Wisconsin county out of the former reservation and of a Wisionsiri cooperation to hold
other property for the Tribe and its members. The Act provided ir. rJECONQwDENSA.TIOM - 35
-------
under Federal treaty ... or statute with respect to hunting, inp^ii-ig, o/ rlsrting or the
control, licensing, or regulation thereof." The latter portion of thi opinion, suggests that
if Congress had terminated the Menominees* hunting and fishing rights, the United States
would be obligated to compensate the Tribe for its loss of ire«ty rights,
Assuming that in Menomime the United States Supreme Court did-expressly hold that
where the United States deprives an Indian tribe of hunting nnd fehing rights secured by
treaty, that it must compensate the tribe for such loss, ilus Court u; of the view that the
Menomime decision is not applicable to the instant action. Hire, ths Tribe has not
brought an action against the United States for depriving 1> of i:± histavicd or treaty
fishing rights. Rather, the Wes Peres Tribe seels an av^rd of eimages from Idaho
Power, a private party licensee, for reduction to the spring niri ml Chinook salmon fish
runs to which the Tribe has a treaty right to fish, in corr.c-.cn w^Ii the ciihaas of the
United States. In the Court's-view, thfc Tribe does not have L Vcsic2 property interest in
a certain fixed quantity of fish in the annual nsh runs and ccaciaccs that the Tribe! does
not have a cause of action for in award of monetary damages ugaivisi idsho Power. The
basis of the Court's conclusion is diat the Tribe docs not own the fiiii JLTIKS or the rlsh but
rather, it owns a treaty right to take fish from its usual and c^si^r^ry places »s specified
in the 1855 treaty.23 Neiiher tha Ne2 Pes-ce Tribe cor any Oa7 its ix-oEcd members have
a property interest m any particular number of fish in the r^ts L.J.c£^ fish sre actaally
present in the river and can be caught. In this respect* the '£/i£nz'rfzr.2:: hciciug is dearly
distinguishable.24
23 Likewise, the states do not own fish swimming vw&in ihiir wS-tirs, '£>G»%tas v.
Seacoast Predicts, Inc., 431 U.S. 265, 234V 97 S.CL 1740, 52 L.^J,2d 304 (1377).
11 The Tribe also cites and relies upon Oppsnliaixr-jr fatesxrlz;, !/•=. y. Johnson
Co., 112 Idaho 423, 426, 732 P.2d 661, 664 (1986) end >i^/s cfldssa scrsl Lzcsro
v. Universal Constructors, fa., 570 F.2d 300 (lOifc Cir. 197S). .=u tlassa esses discuss
primarily stare law, the Court will discuss these casts
REPORT AND RECOiviK-iErrDATIOW - 36
-------
d) Tvmnrt'snr.ia ftf YTsnsT sad AmistnmfirV IFrchm^ ?K;gv
Although not plead as part of its pleadings, st orcl argtirflcr:-: I'hs Tribe argued that
the backwaters of the Hell's Dara Complex have inuudatbd the u£ual and accustomed
fishing places which constitutes a "taking" for which tHsr^ Lss biai 110 compensation.
See footnote 20. Obviously, many of the rocks, ashing spot; or holes immediately
adjacent to or located in the Snake River from which me Tribi'i ancestors' fished have
been inundated by the Hell's Dara Complex backwaters. However', the inundation of
specific fishing places, holes, rocks of spots does not change the issues presented here.
In the Court's view, the focus must be kept on the damage ssscrrrd by the Tribe in its
complaint, namely the environmentally damage induced reduction of the number of fish
in the fish runs caused by the construction and operation of tae riHT's Dam Complex.
The issue before the Court is monetary damages and Ionics cs^iiTlag ss a. result of
destruction of the fish runs, and not for damages arising i-;: cr ui sction sounding in
conversion of s. particular rock, outcropping -oy vtfiicrf-Jl ihii" v.-ii i trsdictod rishing
location. Conversion claims are ruit before &£ Court srid wl£ z.z; bi considered when
raised for the first time at oral argument.
By way of summary of this entire section, the Court is of ihi opinion th:\t the Tribe
does not have a federal causa of action for mosactsry daAT^ci' ^ 2— -c -dsno ^ov^cr for
injuries to the fish runs caused by its actions and conduct 12 &c coi^ivjcdoa, rfiiiiv£c?iancc
and operario'n of th& Hc!T<; Daw
3. Jsfata
The Tribe has sl^o asserted that it has an Idaho coc^c1.;. isv ^cdor. for da^ugi to
the nsh runs, jnowevex1), &fc5r oKarnbxivig the cited cau&orliici yri^ -iS5i Li coa^!dciT.bl-c
length, this Court is unable to accept ths Tribsi'^ pcsiiic;!: vhli Lk:= Tribe his a sts.™:
common la;v csus& of sxaOii for compctisaiioii or monciiry Jmu^cS io ti:t iish roiu;
caused by a licensee constructing and muintaining * dara. r'vTi'i!.'.^:', &c Court'2 own
independent research his not revealed any c^scs or audiority suyttordng ihe Tribe's claim
REPORT ANb kECOMlMB^OATIOH - 37
-------
for' a monetary award for damage or destruction 10 £.t ..i>. tutt under these
circumstances. Nonetheless, the Court \vill address the vsrlcoi L.;-OHC£ acivcncsd by ens
Tribe in asserting a state common law tort action.
a) Prcamfltfoo fry Farters? PAW^F Act
It is necessary to consider Idaho Power's contention (hue e:vy z**it. cause of action the
Tribe may have is preempted by the FPA. As discussed abov= ir. 'the analysis of subject
matter jurisdiction, Congress has made it clear by the enactment cr lc U.S.C. S03(c) that
it did not intend to preempt state common law property rights, iiowavetv Idaho Power
contends that section 8Q3(c) protects only the property tights, or -private owners" and
because the Tribe's treaty fishing rights are held by it as £ s^Vci-cign nation, ics treaty
Jishing rights are not protected by this statute because it is a soves^*?- nation, this Court
disagrees with this narrow interpretation. Section SOS h*s bc-sri wpiied to the property
rights of state agencies. SM Tacoma v. Tc^cyew of Tcax,;*^ S57 U.S. 320 (1958).
Lilcewise, in Owida, 414 U.S. 6S1 (1974), the United S&tss S^-iMs Court held that
for purposes of protecting property interests, Indiai tritci; i.^ifir. i; 'yt&terpj Liiercsts in
common for their members may act s5 privare owcir^ ii> b.-Ir:gv.'.£ ^CQOES for pfopcrty
damages. In the Court's view, the Tribe's causs of action for •pvJG^i_-cy damage is clesr'iy
not preempted by the FPA.
b) Siteta Comfl!nrt T-axy ^n&TyCTg
With trie; ciiCcption viOppZMzi'tizrlltidissrriZSt J/irr. v, Jt'iu^d/. Czzfe Cc>., 1121'dziho
423, 426, 732 £.2d 661, 664 (1986) and J*^& ^/&.Vi ix- ?--•''. li-'csw v, Urdvtrsal
Constructor., bw.t 570 FJ^ 300, 302 (10th Ca1. 197S), ihi r^bi liis ftat cited *ay Isgai
authorities which establish a state common law cause oi* action, iz cacSc circumscaaces.
In the Court's view, both actions £re clearly dlsiinguisuihii.' Li •Cpv
-------
seeks damages, but only has Lhc treaty right to catcii or h:-^-.-^: ;:..- ;lir. dm .vrc aVcJkbls.
In the Court's view, this is not a property right as concsnipiiicd ly irscdon S03(c) or the
established case common law.
In support of its claim for damages, the Tribe cites P'.izlh cf'hhiz £*, rzl Lucsro
v. Universal Constructions, Inc., an action where the Ir4iin iiibi sought monetary
compensation for injuries to reservation property caiissd by cr>reservation blasting.
Because the reservation land in question had never been alloi^d, iiii idee- Tribs held title
to the property in trust for its tribal members. In the: Court*-;- vjc\7i 's'usblo oflslsm is
likewise inapplicable to the instant action for the same rc^oni- CHH Oopenhsimsr is
inapplicablev i.e. the Tribe does not own the fish in the salmon. i-<±-:-.. Sather, the Tribe's
property interest or ownership claim is its right to i~I:e mh n: L£ ^sual and historical
accustomed fishing grounds. This does not amount to a vcsbd o-./r;crship or property
interest in the fish or to s. pardcular nutnbar of fish sumcionc to £\"s i-'s-s to an acdofi as
provided in Puzblo qflskm and Qppzrdizimer.
Thusv it appears to the Court thai the Tribes 'crcsiry' righ; iilc.vi.-j: li ta taJLa or catch
fish in the usual and accustomed places, rather itian i righ-: -:^ iiiy piricular hurnbcr of
fish. Tlie Court therefore coacltidcs that ths Tribs doss AO^ tiive u.-. ucdoa for jnor^tary
damages,, coisverfiion or ronious iatarfei-crico with i prcpcriy .-l^f...
4. Affect fit ChaytgTJVMpf ^ilimvgnscsyir^g nvs Y^dijj-vii Ti-.--.niv Vc:^>-»r.<:
A review of the case law concerning the effecfs of cavL.'Oi'ir.icnii^ chir^ge on tns lights
established unasr tlie Stsveus aid oAcr Indian trcadci ^r-X'ici;: ss^ic insiglii ^r.d
explanation beyond the vested versus non>vesisd propoiT/ rl^iiis conisiitcd m the
preceding sections as to why die Tribe does not have a. CiUir 3f -.-cc-n for dssiagea,
Idaho P'ower has cited ^evcril cises ivi support of iti coritc.i.ior. ::.:.; LV^ Tribe's treaD/
fishing rights da not provide an absoluis enntlomenc. *&?!&::•* V^.xi.. for o>:.-.mplc, trie
United States Supreme Count msi&j it clear that tlii ailoc^dc-, af iii.-. ±si»bli nsa bitw
treaty and uon-treiiy nshcrnicrt w^s aid could be afficiii by i'.i Tiibi's c!:fiagi
REPORT AWD
-------
circumstances.
If, for example, a tribe should dwindle to jusi a. r^v/ r.-ir,iboisv
or if it should find other sources of support WH iiid it co
abandon its fisheries, fi 45% or 50% allocation of in entire run
that passes through its customary fishing grounds would be
manifestly inappropriate because the livelihood of ihe tribe
under those circumstances could not reasonably require an
allotment of a large number of fish.
Fishing Vessel, 443 U.S. 658 at 686-87,
An Indian tribe's treaty rights are also subject to changes outside? the reservation
brought about by circumstances beyond the control of ciihir die -lie; oi* Ivs members.
In Blackfeer, etc. Nations or Tribes of Indians, 81 Ct. Cl. 102 (19S5)V a group of Indian
nations, including the Nez Perec Tribe, brought an action for dsjca^±s against the United
States for depletion of game frequenting the "common hufcdj.g gycusd.'"' The Slackfeet
argued that the United States was responsible for the ssoiciviciis c; ihi common hunting
grounds which lead to the decline in harvesiable big gams ink-ills. The Court of Claims
held that the right to hunt the common grounds did nos iiidadj: v-^.y cirmi guaranteeing
to the Indians 2 maintenance of the sistus quo for sinic^t i ci.itui*y." Id. Li 121.
It is also vveE established thai treaty rights to catca ^.d '-i^r.'c::: nsli ore il^cs subject
to changing outside circumstances. Wh&xt a species k cjidi-r-gevc,:, the states and the
United States csn regulate treaty' fishing rights for the pm-poic: or piisccng me species.
Department of G&m v. Pi^aS.iip Trlbz^ 414 U.S.. 44, & (!£?2;r 5J>i:r^ Stcx&s v,
Oregon, 769 F.2d at 1416; Sohapvy v. 5/ricr/z, 302 F.Supp. &t SOS: sssd Eftwtec? ^a.^ v.
Ore^n, 557 F.2d 1009, 1016-1017 (9iii Cir. IDS!),* Ths su-^L-y -of ihs 'fair sliare"
doctrine discussed above is also His resiilt of dxangixig circxi^.s'^ic^^ d-iic vo the influx of
settlers and the subsequent development of the land over iL= p:^>: _;i2 yssr's.
23 See also "Application of the Endbngered Species Ac: ta •N'^VJ .-...-.j.icai^ vdih Tr
Hunting and Fishing Rigi^is,11 S7 Kdalia- L. Rev. 525 (1080).
REPORT A>OD RECOJwawiJENDA'ilGhy - -0
-------
Liiev/ise, other treaty rights are also subject to chir^rr.j. circunistsncis. For
example, when the character of i reservation changes, -the tribe.'i: right to govern the
reservaJion may also change. In Montana v. Ut&zd Stein*. -:-$£ j'.S. 5^ (1981), the
United States Supreme Court held that the Crow Tribe hsd the righ; b regulate non-tribal
member hunting and fishing within the resirvationv buc not en land owned in fes by non-
tribal members. The Supreme Court reasoned thsr although the Crow Tribe had
originally reserved such governmental powers, those powers xyeri subject to changing
circumstances. The Court noted "treaty rights with *easpcct to reservation lands must be
read in light of the subsequent alienation of thoss lands." 'id. -_t 56L Likewise, in
Brendal* v. Covfedamd Tnb3s & Sands ofYaki^na Indian U+ri^ 492 U.S. 40S, 109
S.Ct. 2994, 106 L.Ed.2d 343 (1989) the United Stabs Su-prc.T.5 Cc^c hold that sithough
the Yatima Indian Nadon has originally reserved the govcsmii.incHi ^o^vci1 to exclude non-
tribal members from its reservation, once non-iribal msmbcri puirr.jissd laiid arid took
up residence within the reservation, ihe Yakima Tribe's righi to cxciiida jiou-members
was accordiwgly limiitd.23
Having concluded that Indian treaties must be iiifcsrpreicd in i:^>.i of ttx. ciid cfc=n
changing, circumstsncea iaciudiug coftdiiions whicii iii-oic tni LVCJ^'O!-;; qusndti' of iish,
it is not surprising that the courts 'have not a^-ardid iiaotiiisry 6:.Lv.r.^=s to K*iditji tribes
for the depiction or destrucdoa of fish and game caused by iivtbpaicnt
This Court is not able to agree; with the Tribe's conefctko tL_; iflr.ciiaa frescos
-------
Nation for more," See Plaintiffs Response to Idaho Power's Motion for Summary
Judgment, p. 39, quoting Puyallup Tribe v. Department of Game, 391 U.S. 392, 397
(1968). In the scope of this action, the Tribe's right to fish pursuant to the 1855 Stevens
treaty only guarantees access to certain off-reservation fishing grounds and the right to
attempt to catch available fish. The treaty does, however, require assurance that the
Tribe will have a "fair share" of the available fish. The law requires the various states,
and private parties in certain circumstances such as those presented here, to take remedial
actions should their development of the rivers or the surrounding land injure the fish
runs. The Stevens treaties require that any development authorized by the states which
injures the fish runs be non-discriminatory in nature, see Fishing Vessel, 443 U.S. 658,
but does not, however, guarantee that subsequent development will not diminish or
eventually, and unfortunately, destroy the fish runs.
5. New Remedy far Damage to Fish Runs
Having concluded that the Tribe has no existing cause of action for depletion and
damage to the fish runs, the Court will now consider whether it is appropriate to fashion
a new federal common law action to protect the Tribe's historical off-reservation treaty
fishing rights.
The Court initially notes that the creation of federal common law is disfavored and
the development of legal rules of decision is properly reserved for the "people [acting]
through their elected representatives in Congress." Milwaukee v. Mrwis, 451 U.S. 304,
313, 101'S.Ct 1784, 68 L.Ed.2d 114 (1981). In the Court's view, federal courts,
because they are "purposely insulated from democratic pressures, are not suited for me
development of legal rules of policy decision. Therefore, preemption of federal common
law by legislative action, rather than judicial activism, is the preferred result.17
27 State common law, as opposed to federal common law, should not be preempted by
Congressional legislation, unless preemption is the clear and manifest purpose of
(continued...)
REPORT AND RECOMMENDATION - 42
-------
In Conner v. Aerovaz, foc.t 730 F.2d 335, S41 (1st Cir. -£-24>s «rr, f, 470
U.S. 1050 (1985) it was held that "once Congress has addressed 2 national concern, our
fundamental commitment to the separation of powers precludes the courts from
scrutinizing the sufficiency of the congressional solution.... 'The susstion is whether .the
field has been occupied, not whether it has been occupied m ± particular manner'."
(footnote and citations omitted) In determining whether the Pcdiisl Water Pollution
Control Act, "the Clean Water Act," 33 U.S.C. § 1251 er s*s., displaced federal
common law regarding a nuisance action to abate water pollution., the United States
Supreme Court examined the Act and its legislative history and dsiinronsd that Congress
had intended to restructure the law of interstate pollution. In jri^I±!j its determination,
the Supreme Court considered the scops of the Act and held it r;rcvided the aggrieved
parties with a remedy. Milwaukee v. Illinois, 451 U.S. 304.^
Idaho Power contends thai because the FPA is similarly brcss in scops as the Clean
Water Act, and offers aggrieved parties an administrative remedy, oie FPA preempts any
federal common law remedy the Tribe might have and that this Cc^n should net fashion
the Tribe with any new cause of action or remedies.
n(... continued)
Congress. Rice v. SantaFeElevator Corp., 331 U.S. 213, 230: £7 S.CL 1146, 91 L.Ed,
1447 (1947).
22 Idaho Power has cited the Court to several other comprehensive Ac-is which it sissits
displaced federal common law: (1) The Clean Water Act displaces federal common kiv
nuisance actions regarding water pollution, see Milwaukee v. Jiliv^is. 451 U.S. 304 st
317-319; (2) Tlie Alsslcan Native Claims Settlement Act preempt the federal common
law remedy for invasion of a possessory interest in land, see Li^ y. United Stains, 629
F.Supp. 721, 728-729 (D. Alaska 1985) affirmed, 809 F.2d 1405 (9m. Cir. 1987); (3)
The Clean Air-Act preempts federal common law of nuisance, s*j Uai'zd States v. Kin-
Sue, Inc., 532 F.Supp. 699 (D. NJ. 1982); RCRA aad CERCLA preempt ihs federal
common law of nuisance, see United States v. Price, 523 F.Susr,. 1055, 1069 (D. N.J.
1981), egjvmid, 688 F.2d 204 (7th Cir. 1982).
REPORT AND RECOKCsiENDATION - 43
-------
The courts have frequently commented on the breadth and sco% of the FPA:
[The FPA] was the outgrowth of a widely supported -effort of
the conservationists to secure enactment of a compbri schema
of national regulation which would promote the comprehensive
development of the water resources of the Nation, hi so far as
it was within the reach of the federal power to do so, instsad of
the piecemeal, restrictive negative approach of ths !
-------
for inclusion in the license.8 16 U.S.C.A. § SOSCaXS).28 HcycviVci', it is clear that
Congress did net intend to give the Indians unlimited rights or Vcfo cower over hydro-
electric projects. In Escondido Mul, Water Co. v. LaJolh Bandcf Mission Indians, 466
U.S. 765, 104 S.Ct. 2105, 80 L.Ed.2d 753 (1984), the Supreme Court noted:
It is equally dear that, when enacting the FPA, Congress did
not intend to give Indians some sort of special authority to
prevent the Commission from exercising the licensing minority
it was receiving from Congress. Indeed, Congress sausrely
considered and rejected such a proposal. During the cstirse of
the debate concerning the legislation, the Senate arssridsd the
bill to require tribal consent for some projects. Section 4(e) of
the Senate version of the bill provided that "in respect io tribal
lands embraced within Indian reservations, which slid lands
were ceded to Indians by the United States by treaty^ r:3 license
shall be issued except by and with the consent of the ccuacu of
the tribe.' 59 Cong.Rec. 1534 (1920). Howivei', that.
amendment was stricken from the bill by the Confe^ics, the
conferees stating that they "saw no reason why wateir^vyc? use
should be singled out from all other uses of Indian s-ciaivstiori
land for special action, of the council of the tribe." HZc. Ccnf.
Rep. No. 910, 66th Cong., 2d Sess., 8 (1920).
[Tribes do not have] the power to override Caisress1
subsequent decision that all lands, including tribal leader could,.
upon compliance with the provisions of the FPA, be udihsd to
facilitate Ucsnsed hydroelectric projects. Under the 1~?AV tha
Secretary [of the Interior], with ths duty to Edssuard
reservations, may condition, but may not veto, ths issuance of
29 See also Escondido Mm. Water Co. v. LaJolla Band ofmssiM ^iditms, 466 U.S. 765
at 774-775 which requires FERC to insert the conditions the Ssci-etary of ths Interior
deems necessary for projects within Indian reservations; Covdc 'indicx Community v.
Federal Energy Regulatory Cbm., 895 F.2d 581, 586 (Qth Cir. Ii)50) which'recognized
that FERC has the sams fiduciary responsibilities to the Indians &i &5 United Ststes; Lzc
Coune Oreilles Band of Lake Superior Chippewa Indians v. F=d?/zl ?o\vzr Com. ,510
F.2d 198, 212 (D,C. Ci?. 1975) which states Indian treaty righis -.-sast be ssssssed as a
precondition to issusiicc of any long-term license affecting ths ci±Ts triboi lands.
REPORT AlsD RECOiviE^ENBAXIOM - 45
-------
a license for project works on an Indian resen'iiio^. We
cannot believe that Congress nevertheless intended is leave a
veto power with the concerned tribe or tribes.
Id. at 787.
Thus, it is clear to this Court that Congress, when passing &3 r?A, considered the
legislation's affect and impact on Indian treaty rights. It is also cbsr that when enacting
the FPA, Congress provided for the impact of hydro-electric projects on fish runs, by
requiring FERC to consider the recommendations of various agencies and of the
Adversely affected tribes, See 16 U.S.C. § 803GXIM?).30 Furte, the remedies which
FERC may impose, i.e. mitigation of damage to the fish runs5 ippsars to support the
various court decisions imposing a duty of mitigation rather ths± swarding damages as
the remedy to protect the Indian's treaty fishing rights,
It is the considered opinion of this Court relating io damLgs is the fish runs that
enactment of the FPA by Congress preempts any federal comnicr: k\v damage remedy
this Court might fashion for the Tribe. Therefore, this Courc dsd^nts to create a new
federal cause of action for the Tribe.
30 The courts have enforced FERC's responsibilities with regard to jrofection offish. Ses
Confederated Tribes and Bands of the YaJdma Indian A/hir-s:'-- ";•„ Federd Energy
Regulatory Com., 746 F.2d at 470-474 (9th Cir. 1934), cert.^dsd, sub nom., Public
Unity Dist. No. 1 v. Confederated Tribes and Bands ofYddma. 'iti£&i Nation, 471 U.S.
1116 (1985); Scenic Hudson Preservation Conference v. Federal P&v&r Com.* 354 ?,2d
608 at 620; WasMngton Dept, of Game v. Federal Power Com., 307 F.2d 391, 295 n.
11 SL 398 n. 20 (9th Cir. 1953), cm. denied, 347 U.S. 936 (1534).
For a general discussion of the causes of the salmon's dedins ££d th-2 efforts to reverse
that decline sez Saving fdsruVs Salmon:' A History of Failure f.vi a Dubious Future.
Michael Blumm, 28 Idaho L.Rev. 667 (1991-1992); and prearMftf Life Back Into a
Mitigating .Wildlife Losse? jn the Cnhiftihia Basiq Under the
Northwest Power Act. Stephen Brown, 18 End. L. 571 (Spring 1928).
REPORT AND RECOMMENDATION - 4t
-------
rv.
STANDARD
Motions for summary judgment are governed by Rule 56 or the Federal Rules of
Civil Procedure. Rule 56 provides, in pertinent part, that judzissiii "shall be rendered
forthwith if the pleadings, depositions, answers to interrogatories. £i\d sdmissions on file,
together with the affidavits, if any, show that there is no genuins issue as to any material
fact and that the moving party is entitled to a judgment as a mattsi- or hw. " Fed. R. Civ.
P. 56(c).
The United States Supreme Court has made it clear that under Kule 56, summary
judgment is required if the non-moving party fails to make * showing sufficient to
establish the existence of an element which is essential to his cas5 Liid upon which he will
bear the burden of proof at trial. See Celotex Corp. v. Catr^ 477 U.S. 317, 322
(1986), If the non-moving party fails to make such a showing c~ ^:;y essential element
of his case, "there can be no 'genuine issue as to any material &&,'• sines a complete
failure of proof concerning an essential element of the Ki^-^cving party's case
necessarily renders all other facts immaterial." Id, at 323. 31
Under Rule 56 it is dear that an issue, in order to preclude snt-y of summary
judgment, must be both "material" and "genuine." An issue is c:n_terhltf if it affects the
outcome of the litigation. An issue is "genuine" when thafo i* "i-ufrlcient evidence;
supporting the claimed factual dispute ... to require a ju*y c_- judge to resolve ths
31 See oho Rule 56(e), which provides in part-
When a motion for summary judgment is mads and supported c£ provided in this
rule, an adverse parry may not rest upon the mere allegations or denials of the
adverse party's pleading, but the adverse pariyTs response, by affidavits or as
otherwise provided in this rule, must set forth specific facts Rowing that mere
is a genuine issue for tdal. If the adverse party does not 20 ::c-sy>ond, summary
judgment; if appropriate, shall be entered against the adverii parry.
U.S.C.S. Court Rules, Rules of Civil Procedure, Rule S6(e) (Lsw. Cs-cp. 1987 & Sup?.
1991),
REPORT AND RECOkCxaE^DATIOH - 47
-------
parties' differing versions of the truth at trial," Hahn v. Sargent, 523 r,2d 451, 464 (1st
Cir. 1975) (quoting Firs: Nat 'I Bank v. Cities Serv. Co., Inc., 391 U.S. 253, 289 (1968)),
cen. denied 425 U.S. 904, 47 L.Ed.2d 754, 96 S.Ct. 1495 (1975) M when the "evidence
is such that a reasonable jury could return a verdict for the non-moving party, * Anderson
v. liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.EcI.2d202, 212 (1986).
The Ninth Circuit cases are in accord. See British Motor Car Eiitfribixors, Lzd* v. San
Francisco Automotive Industries Welfare Fund, 882 F.2d 371 (9& Cir. 1989).
In ruling on summary judgment motions, the court does hoi inssolve conflicting
evidence with .respect to disputed material facts, nor doss ii make credibility
determinations , T. W. Electrical Service, Inc. v. Pacific Electrical Cs'f&actors Asso. t 809
F.2d 626 (9th Cir. 1987). Moreover, all inferences must be ciiw-ii in the light most
favorable to the non-moving party, Id. at 631. As the Ninth Circuit Court of Appeals
has stated, "put another way, if a rational trier of fact might tesclvi tks issue in favor of
the non-moving party, summary judgment must bs denied." H
In order to withstand a motion for summary judgment, the Hindi Circuit has held that
a non-moving party
(1) must make a showing sufficient to establish a gemiks it'sus of race
with respect to any element for which it bears the burden of prcof; (2)
must show that there is an issue that may reasonably ts ^salved is
favor of either party; and (3) must come forward with n:o/s prsuasive
evidence than would otherwise be necessary when the fe.ctaal content
makes the nan-moving party's claim implausible, (citniicr emitted)
British Motor Car Distributors, Lid. v. San Francisco Automct-^ '-^ustriss Welfare
Fund, 882 F.2d 371, 374 (9th Cir. 1989). Moreover, the N&ii-: Circuit has add that
where the moving p.arty meats its initial burden of demonsireiilsvv &s absence of any
genuine issue of material fact, the non-moving party must "produce M&dii.c facts showing
that there remains a genuine factual issue for trial and evidence si^^cantly probative as
to any [material] fact claimed to be disputed.1* Steckl v. Motorola L~&, 703 l-.2d 392,
REPORT Al^ RECOMMENDATION - 48-
-------
393 (9th Cir. 1983) (citing Ruffin v. Cowvy of Los Angeles, 60'? ?.2d 1276, 1280 (9th
Cir. 1979), cert, denied, 445 U.S. 951 (1980)).
The Ninth Circuit Court of Appeals has acknowledged &.-JL b, recent yean the
Supreme Court, 'by clarifying what the non-moving party must de to withstand a motion
for summary judgment, has increased the utility of summary judgment. * California
Architectural Bids. Prods., Inc. v. Franciscan Ceramics, Inc., §12 F.2d 1466, 1468 (9th
Cir. 1987), cert, denied, 4§4 U.S. 1006 (1988). As the Ninth Circuit has expressly
stated: "No longer can it be argued that any disagreement about z date-rial issue of fact
precludes the use of summary judgment.8 id.
Indeed, in addressing the application of "The Summary Judg-.-riciit Test," the Ninth
Circuit has specifically explained that:
A "material" fact is one that is relevant to an element of a claim or
defense and whose existence might affect the outcome oxr "ihe suit The
materiality of a fact is thus determined by the substantive fjrv? governing
the claim or defense. Disputes over irrelevant or unnecfe^-y facts will
not preclude a grant of summary judgment.
T.W. Eizctricd Serv., lite. v. Pacific Ehc. Conrracrors Asso., 2C> ?.2d 626, 630 (9th
Cir. 1987) (tiring Anderson v. Liberty Lobby, Inc., 477 U.S. 242,245 (1586)) (emphasis
added).
Although in the instant action the Tribe has produced clear £^i c^sntiaily undisputed
evidence of damage to the fish runs as a result of ths Hell's Dan-: ^ornplex which would
have been sufficient to create issues of fact regarding fhs d^-^gc issue, this Court
concludes that ths issue presented here is a question of law as i'C. •.vhsihsr ths Tribe has
a cause of actioa for aa award of monetary damages. Assuniii.^ thai ail of the facts
relating to the loss of the fish runs were true and undisputed, whir;;: vhi Court accepts for
summary judgment purpo^s, ths Tribe still dcss not have a cccsi cir ration for raocstary
damages because the Stevens treaty only provided the right of ci.!ii':s; nsli" and did not
provide any specific right that the number of fish would i-i:v.v-::i ths samfe or thst
REPORT AKD liECOMKiErJDATIObi - ^9
-------
environmental circumstances would not change with the passes of time and the
development of the region. Therefore, in the Court's view, there ire no ^enuins issues
of material fact and Idaho Power is entitled to judgment as a mafcr* of kw.
V.
CONCLUSION"
The United States District Court has subject matter jurisdicd-oix co hear all of the
matters at issue herein, including the Tribe's state common law dzfrns. See 28 U.S.C.
§ 1362. In addition, the 1980 Order does not bar the Tribe frcsi briaging the present
action because FERC does not have jurisdiction to award mon&tary damages.
In the Court's view, there is no legal basis to establish a cause d£action for inonetary
damages for reduction in the Salmon nsh runs caused by Idaho Powers construction and
operation of the Hell's Dam Complex. Creation of federal eosa-siss Ii\v k generally
disfavored and several federal acts address the Tribe's concerns Eicut rdiigation efforts
and protection of the nsh. Therefore, it is the conclusion of the C-'it that it should not
fashion a new cause of action.
In analyzing the significant issues presented herein, the Ccirri h±3 applied the rules
of law which require that treaty disputes and ambiguities be '.'Siclvsd m favor of the
Tribes, and also that treaties be construed as originally uadr^icsd by the tribal
representatives. In the Court's view, the language of ths 1SS5 Sevens treaty is not
ambiguous and clearly gives th& Tribe a right to catch nsh at thi ^-aai and accustomed
places. However, the treaty dees not guarantee or assure the Nfc£ iPai'cs that the salmon
runs would always be present in the quantities existing in 1855 IL light of ths changing
circumstances and needs of society to develop the ws.ter resoiirc j^ cf the Siiais River.
Further, ths Tribe doss not own the nsh in the runs, but only hss fee testy right to catch
available nsh. Accordingly, no monetary damages can be iXv-^-did to tiis Tabs for
reduction in the number of fish in the annual steelhead and siilir^ii nins on the Snake
REPORT AMD POECOMMEblDATION - 50
-------
River as a result of the Hell's Dam Complex constructed and cpc.-itiii by Idaho Power.
Therefore, the Court recommends that Defendant's Motion /-ir •Summary Judgment
be GRANTED.
VI.
The Court, being fully advised, recommends for the ibregcbg reasons that
Defendant's Motion for Summary Judgment pocket No. 31) ba GfcAhJTED.
Written objections to this Report and Recommendation musi b3 nied within tea (10)
days pursuant to 28 U.S.C. § 636(b)(l)(B) and Local Rule 72.i
-------
CLERK'S CEKTIFYCATE
I hereby certify that a copy of the attached document was mailed or ho-ia-ceiivered to the
following named persons;
Hon. Harold L. Ryan
United States District Judge
Boise, Idaho 83724
Walter H. Bitheil, Esq.
Box 2527
Boise, ID 83701
Douglas R. Nash, Esq.
P.O. Box 305.
Lapwai, ID 83540
James Tucker, Esq.
Box 2139
Boise, ID 83701
Michael Mirsnde, Esq.
601 Union Sfcr&st
Seattle, WA 98101
John Loweryv Esq.
1001 Fourth Avenue Plaza, Suite 1001
Seattle, WA 98154
Peter Houtsma, Esq.
6613 S. Prescott Way
Littleton, Colorado S1503
Dated: CAMERON S. E-JSICE, CLERK
By
Deputy Clerk
REPORT AWD RECOMMENDATION - 52
-------
Hon. Edward Rafeedie
10
UNITED STATES DISTRICT COURT
11 WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
12
13 UNITED STATES CF AMERICA, et al., )
) No. 9213
14 Plaintiffs, ) Subproceeding 89-3
15 vs. ) CONSENT DECREE
) REGARDING SHELLFISH
16 STATE OF WASHINGTON, et al., ) SANITATION ISSUES
17 Defendants. )
18
I. PARTIES
19
A. This Consent Decree is entered into by and between the
20
plaintiffs United States of America, Hoh Tribe, Jamestown S'Klallam
21
Tribe, Lower Elvha S'Klallam Tribe, Luirmd Nation, Makah Tribe,
22
Muckleshoot Tribe, Nisqually Tribe, Nooksack Tribe, Port Gamble
23
S'Klallam Tribe, Puyallup Tribe, Quileute Tribe, Quinault Indian
24
Nation, Skokomish Tribe, Squaxin Island Tribe, Suquamish Tribe,
25
Swinomish Indian tribal Community, Tulalip Tribes, Upper Skagit
25
Tribe, and Yakama Indian Nation, defendant the State of Washington
27
and defendant state* officers ("the state defendants"), all of whqn;,,
28
EVERGREEN
NAT4VC AMCDICAM
'Ol rcSlCH WAY
-------
plaintiff and defendant, are referred to hereinafter as "the
parties".
B. Plaintiff tribes are federally-recognized Indian tribes.
The plaintiff tribes, or other tribes or bands of which the
plaintiff tribes are successors-in-interest, are parties to
treaties with the plaintiff United States executed by their
representatives in the 1850's, each of which reserves to the
tribes, in..substantially identical language, "the right of taking
fish, at all usual and accustomed grounds and stations, is further
10 secured to said Indians in common with all citizens of the
11 Territory, and of erecting temporary houses for the purpose of
12 curing.... Provided, however, That they shall not take shell-fish
13 from any beds staked or cultivated by citizens." [quoted from Art.
14 III, Treaty of Medicine Creek, 10 Stat. 1133] Tribes regulate the
shellfishing activities of their members to protect public health.
I
16 C. The United states Food and Drug Administration ("FDA"} is
17 the agency of plaintiff United States having primary responsibility
18 for protecting the public from shellfish-borne illness. FDA
19 prepares and publishes the National.Shellfish Sanitation Program
20
("NSSP"} Manual of Operations, which contains standards to be used
21
in regulating commerce in clams, oysters, mussels and scallops in
22
order to protect the public from shellfish-borne illness. FDA also
23
publishes the Interstate Certified Shellfish Shippers List, which
04
identifies all persons and entities who have been determined by FDA
25
or by an FDA-approved Shellfish Sanitation Control Agency to be in
compliance with the NSSP Manual and whose product may be shipped
27
28
CONSENT DECREE — 2
EVERGREEN LEGAL SERVICES
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
interstate.
D. The state regulates shellfish harvest, processing and
sale in order to protect public health. The state is a member of
the Interstate Shellfish Sanitation Conference ("ISSC"), an
organization of states, the shellfish industry, and federal
agencies operating under a Memorandum of Understanding with FDA.
The ISSC provides a forum for its members to discuss shellfish
sanitation issues, and it suggests changes in the NSSP Manual to
the FDA.
II. RECITALS
A. As used in this Decree, "covered claims" means claims of
the plaintiffs, set forth in Part I of the Final Pretrial Order
approved by the Court in this subproceeding, that relate to the
application to or enforcement against the plaintiff tribes of state
laws, regulations, or policies which regulate the taking,
possession, or disposition of shellfish in order to protect the
public from shellfish-borne illness; and the claims of the State of
Washington set forth in Part II.B.I. of that Pretrial Order; and
any claim of any party related to the authority of the state to
regulate treaty shellfishing activities in order to protect the
public from shellfish-borne illness, which claim could have been
adjudicated in this subproceeding had it been prosecuted to final
judgment. For the purpose of determining whether claims could have
been adjudicated, reference shall be made to the facts and
allegations made in the documents filed with the Court in this
subproceeding prior to the date of entry of this Decree vhich
CONSENT DECREE — 3
EVERGREEN LEGAL SE=viC£S
NATIVC AMERICAN »»C.f-*
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
relate to the protection of the public from shellfish-bornii
illness, including facts and allegations made in the Requests for
Determination, the Amended Request for Determination, the Response
of the State to the Requests for Determination, and the Pretrial
Order approved by the Court pursuant to Local Civil Rules 16 and
16.1 of this Court.
B. This subproceeding was filed in 1989 seeking declaratory
and injunctive relief regarding the treaty right to take shellfish,
including a declaration and injunction regarding the authority of
the "state to regulate treaty shellfishing activities for public
health purposes.
C. The United States and the tribes seeking relief in this
subproceeding have claimed that their treaties substantially
restrict state authority; these tribes, however, have acknowledged!
a willingness to abide by state regulation of treaty shellfishing
activities to protect public health, so long as such regulation is
reasonable and necessary, non-discriminatory, and meets appropriate
standards. The United States and these tribes have further claimed
that some state shellfish sanitation laws, regulations and policies
do not meet this test and cannot be enforced against tribal treaty
shellfishing activities.
D. The state defendants claim that they may regulate Indian
treaty shellfishing activities of plaintiff tribes to protect hunan
health, safety and welfare, provided any such regulations are
reasonable and non-discriminatory. The state has denied
plaintiffs' claims regarding the restricted applicability of its
CONSENT DECREE'— 4
EVERGREEN LEGAL SERVICES
MAtlvt AME1-CAH'•
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
shellfish sanitation laws to Indian treaty shellfjshing.
E. Without admission or adjudication of any covered claim,
and without waiving any objection, claim, or defense with regard to
claims other than the covered claims, in settlement of the covered
claims the parties have agreed, upon entry of this Consent Decree,
to participate in a cooperative investigatory and regulatory
program to protect the public from food-borne illness associated
with the consumption of contaminated shellfish. The tribes have
iagreed that the performance criteria and other satisfactory
compliance provisions of the NSSP Manual will govern their treaty
shellfishing activities, with regard to species to which the Manual
applies. In addition, the parties have agreed to mechanisms
whereby any plaintiff tribe having treaty shellfishing rights may
implement certain shellfish sanitation measures independently of
the state.
F. The terms of this Decree are not intended, nor could they
be expected, to specify every detail of the operation of the
cooperative shellfish sanitation program. The parties have
attempted to specify, in the Appendix to the Settlement Agreement
which is part of this Decree, some of the details, particularly
technical ones, involved in the operation of their cooperative
program. Some such details must, of necessity, change as
scientific knowledge of shellfish and public health change.
Therefore, the parties have established mechanisms in the
Settlement Agreement and Appendix for the further refinement of
their cooperative program.
CONSENT DECREE — 5
EVERGREEN LEGAL SE»v:CES
-------
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
G. The parties agree that the covered claims raise matters
of sovereign interest, and that their settlement of the covered1"
claims as set forth in this Decree is fair, adequate, reasonable,
equitable and in the public interest and is made in good faith
5 i; after arms-length negotiations, and that entry of this Consent
Decree is the most appropriate means to resolve the matters covered
herein.
NOW, THEREFORE, before the taking of any testimony, before the
adjudication of the covered claims, and without admission of any
issue of law, fact, or liability by the parties, IT IS HEREBY
ORDERED, ADJUDGED AND DECREED:
III. ORDER
A. The Court has jurisdiction over the subject matter of the
covered claims and over the parties pursuant to 28 U.S.C. §§ 1331,
1345, and 1362. Plaintiffs assert, but the state defendants
contest, that the Court also has jurisdiction pursuant to 28 U.S.C.
§1343(a)(3) and this Court's continuing jurisdiction as declared in
5 24 of the Declaratory Judgment and Decree of February 12, 1974,
384 F.Supp. 312 at 408. All parties to this Decree, for purposes
of the entry and enforcement of this Decree, waive all objections
and defenses they may have to the jurisdiction of the Court, or to
venue in this District, or to service of process prior to the entry
of this Decree but not afterwards.
B. The provisions of this Decree shall apply to and be
binding on the parties, their agencies, subdivisions, boards, and
commissions; all agents and officers thereof, and all successors
CONSENT DECREE — 6
EVERGREEN LEGAL ss^-.-css
HATlVE AMERICAN »»C-£"
•0« -ISiCR W*r ?•_-£ V.
-------
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and assigns of all such entities and individuals; and each of them
are hereby enjoined to comply with the provisions of this Decree.
Changes in the organizational structure of a party or any of its
agencies, subdivisions, boards and commissions shall have no effect
on its obligations under this Decree.
C. The attached Settlement Agreement, .including the
Appendix, is hereby incorporated by reference in and made a part of
this Decree as if fully set forth herein.
D. Except as specifically provided for otherwise in the
Settlement Agreement, the plaintiffs covenant not to sue or to take
any other judicial or administrative action against any state
defendant, and the state defendants covenant not to sue or to take
any other judicial or administrative action against any plaintiff,
or against any member of a plaintiff tribe, for covered claims or
for any claims relating to or arising from the filing and
litigation of the covered claims and the negotiation, terns,
approval and implementation of this Decree.
E. If for any reason the Court should decline to approve
this Decree in the form presented, any statements made in
negotiation and the terms herein may not be used as evidence in any
litigation or administrative proceeding.
F. Each undersigned representative of the parties certifies
that he or she is fully authorized to enter into the terms and
conditions of the Decree and to legally execute, and bind such
party to, the Decree.
G. The terras of this Decree may be modified only by a
CONSENT DECREE — 7
EVERGPEEN LEGAL SERVICES
NATIVE AMERICAN PftO^CCT
-------
8
10
11
12
13
14
15
16
1?
18
19
20
21
22
23
24
25
subsequent written agreement executed by all the parties and
approved by the Court. Notwithstanding the foregoing/ the parties
by written agreement and without the need for Court approval may
modify or amend the Appendix to the Settlement Agreement, other than
Attachment A thereto, relating to procedures for the development of
implementation protocols and policies, which shall not be amended
without Court approval.
H. If for any reason the Court declines to approve this
Decree in the form presented, this Decree and the settlement
embodied herein shall be voidable at the sole discretion of any
party upon written notice to all parties and to the Court.
I. This Consent Decree shall be effective upon the date of
its entry by the Court.
J. The Court shall retain jurisdiction for purposes of
entering such further orders as may be appropriate for the
construction, implementation, or enforcement of the Decree, in the
event that the jurisdiction retained in this paragraph, or the
continuing jurisdiction of the Court over Civil No. 9213 or over
this subproceeding, is terminated, this Decree shall be enforceable
in the same manner as any final judgment and order of the Court.
K. The use of the terms "primary responsibility" and
"concurrent jurisdiction" in the Settlement Agreement shall not be
construed to confer or enlarge the jurisdiction of any plaintiff
tribe over non-Indians.
By signature below all parties consent to entry of this Decree
26 M
CONSENT DECREE — 8
-------
1
2
3
4
5
6
7
a
9
10
11
12
13
14
15
16
18
19
20
21
22
23
24
25
26
as an Order of the Court.
DATED AND SO ORDERED the *j j~k day of
PRESENTED BY:
Harold P. Dyger^
Assistant Attorney General
State of Washington
E. Katzen, Allen H.
Sanders, Riyaz A. Kanji,
Debora Juarez
Attorneys for Nooksack, Upper
Skagit, Nisgually, Squaxin
Island, Skokomish, Port Gamble
S'Klallam, Jamestown S'Klallam
and Lower Elwha S'Klallam
Indian Tribes
Richard M. Berley, Marc D.
Slonim, John B. Arum
Attorneys for Makah Indian
Tribe
Annette M. Klapstein
John Howard Bell
Attorneys for Puyallup
Indian Tribe
CONSENT DECREE —• 9
*f
, 1994.
- .--
Edward Raf eedier> Judge
United States District Court
i^ter C. Monson
ited States Dept. of Justice
Sledd
Ma!ry__Jiinda Pearson
Attorneys for Suquamish
Indian Tribe
L
Mason D. Moris^et
Attorney for/Iulalip
Zndian Tribes
Daniel A. Raas
Harry L. Johnsen
Attorneys for Lummi
Indian Nation
-------
1
2
3
4
5
6
7
8
9
10
11
18
13
14
15
16
17
18
19
20
21
22
23
24
25
26
.Vz .
Allan E. Olson
Sharon I. Haensly
Attorney for Swinomish
Indian Tribal Community
,Jack~W. Fiander
Attorney for Yakama
Indian Nation
Richard Reich< Er^.c Nielsen
Attorneys fox Quinault Indian
Nation / |
G. Lingenbrink
Attorney for Quileute Tribe
Nettie L.
Richard S
Attorneys
Jr.
Robert L. Otsea,
Laura Ann Lavi
Attorneys for Muckleshoot
Indian Tribe
Jef f\roj
Co-cotznsejt^for Nooksack
Indian Tribe
Blip. Tobin \
Co-counsel for Nisgually
Indian Tribe
Kevin RWLyoft
Co-counsel for S>
Indian Tribe
in Island
Harold Chesnin
Edward G. Maloney
Co-counsel for Upper Skagit
Indian Tribe
Kaxhryir Nelson/, Amy C. Lewis
Co-counsel' for'-Skokomish,
Port Gamble S'Klallam,
Jamestown S'Klallam
and Lower Elwha S'Klallam
Indian Tribes
CONSENT DECREE — 10
-------
UNITED STATES V. WASHINGTON
W.D. Wash. Civil No. 9213
Subproceeding 89-3
8
g
10
11
12
13
14 SETTLEMENT AGREEMENT
15 REGULATION OF TREATY SHELLFISHING FOR HEALTH PURPOSES
16
17
18
19
20
21
22
24
25
26
27
28
EVERGREEN t-EGAl. SERVICES
NAUVS *"£«IC»*I "WOJCCT
-------
10
11
12
13
14
15
16
17
18
19
21
22
23
27
28
CONTENTS
I. ESTABLISHMENT OF COOPERATAI VE , INTERGOVERNMENTAL
SHELLFISH SANITATION PROGRAMS ........... 1
A. Objectives/Applicability Of National Shellfish
Sanitation Program Manual .......... 1
B. FDA Approved, Independent Tribal Shellfish
Sanitation Control Agencies ......... 2
C. Development And Expansion Of Intergovernmental
Shellfish Sanitation Programs /Technical
Assistance ............... ... 4
II. LICENSING, INSPECTION AND CERTIFICATION FOR
INTERSTATE AND INTRASTATE SHIPMENT ...... . . 6
B. State To Exercise Primary Responsibility ... 9
C. Tribal Certification — Compliance with NSSP
Manual Part II 10
D. License Fees 11
III. SHELLFISH SANITATION CRITERIA AND MEASURES APPLICABLE
TO TREATY SHELLFISHING ACTIVITIES 11
A. Compliance With NSSP Manual Sufficient .... 11
B. Emergencies - Additional Measures, Including
Closures, May Be Applied To Treaty Shellfishing
When Essential In Responding To A Health
Emergency 13
C. Commercial Harvests From Closed Areas Shall
Be Prohibited 14
D. Commercial Harvests From Closed Areas
Permissible If Not For Human Consumption ... 16
E. Joint Identification And Development Of
Protocols, Standards And Other Guidance For
Implementation Of The NSSP Manual 17
F. Growing Area Classification/Certification. . . 17
IV. EXCHANGE OF REGULATIONS AND DATA/REPORTING
ILLNESSES 21
V. STATE AUDIT OF TRIBAL PROGRAMS 22
VI. ENFORCEMENT 23
VII. NOTIFICATION 28
25 VIII. DISPUTE RESOLUTION ; . . . . 28
A. Matters Reviewable . 28
B. Dispute Resolution Committee 31
C. Appointment Of Master Expert 32
Review Procedure ............... 33
EVERGREEN LEGAL SERVICES
NATIVE AUCRICAN P»OJCCr
10! "ES'.CB WAT SUITC 30'
-------
i.
IX. CONSISTENCY OF AGREEMENT WITH NATIONAL SHELLFISH
SANITATION PROGRAM/ANTI-DISCRIMINATION PROVISION . . 34
X. AMENDMENTS 35
XI. INTENT TO BIND POLITICAL SUBDIVISIONS, ETC 36
XII. JUDICIAL APPROVAL 36
APPENDIX A-l
SHELLSTOCK HARVEST FOR BAIL PROPOSED REQUIREMENTS- B
SHORT-TERM RELAYING PROTOCOL AND GENERAL REQUIREMENTS . . . C-l
PROCEDURES FOR ESTABLISHING SANITARY LINES IN SHELLFISH
q
GROWING AREAS . D
10 PROCEDURES FOR ESTABLISHING SANITARY LINES AROUND
WASTEWATER OUTFALLS E-l
12 PROCEDURES FOR ESTABLISHING SANITARY LINES AROUND MARINAS . E-4
13 MINIMUM QUALIFICATION FOR STANDARDIZED SHELLFISH
INSPECTORS F
14 MINIMUM QUALIFICATIONS FOR CONDUCTING WATER QUALITY
1g STUDIES G
16 MINIMUM QUALIFICATIONS FOR CONDUCTING SHORELINE SURVEYS . . H
17 EXAMPLES OF EFFECTIVE TRIBAL PROGRAMS TO PREVENT SALE OF
CEREMONIAL AND SUBSISTENCE HARVEST 1-1
18
19
20
21
22
23
24
25
26
27
28
EVERGREEN LEGAL SERVICES
MATIVE AMCR1CAN *»WOJ€CT
IOI tCSLEI WAT SUITE 3O1
-------
1
REGULATION OF TREATY SHELLFISEING ACTIVITIES FOR HEALTE PURPOSES
2
SETTLEMENT AGREEMENT
The plaintiff tribes, United States, and State of
Washington, in settlement of the health protection issues raised
in United States v. Washington. W.D. Wash. Civil No. 9213,
Subproceeding 89-3, which involve the scope of state authority to
regulate treaty shellfishing activities for shellfish sanitation,
agree as follows.
10 I. ESTABLISHMENT OF COOPERATIVE, INTERGOVERNMENTAL SHELLFISH
SANITATION PROGRAMS
11
A. Objectives/Applicability of National Shellfish Sanitation
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Program Manual
The tribal, United States, and state governments, which are
parties to this Agreement [hereafter "parties"], recognize that
they share a strong concern for shellfish sanitation and the
enforcement of effective measures to protect the public from
health hazards associated with shellfish contamination. The
parties agree that these mutual objectives can be effectively
addressed by cooperative, intergovernmental shellfish sanitation
programs in .which the state and tribes accept varying degrees of
responsibility for shellfish sanitation matters related to treaty
shellfishing activities. The parties agree that these
intergovernmental programs are appropriate not only in protecting
public health but also in addressing the jurisdictional issues
surrounding treaty shellfishing rights, the special
federal/tribal relationship, and the State of Washington
Centennial Accord. In implementing all aspects of this
Agreement, the parties agree to be guided by the unique legal and
]_ EVERGREEN LEGAL SERVICES
MATIVC AMERICAN »»OJCCT
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
political status of the tribes, to the extent the level of health
protection provided by the programs would not be compromised.
The State of Washington agrees to support separate tribal
representation in the Interstate Shellfish Sanitation Conference
("ISSC") and other intergovernmental organizations involved in
the development of shellfish sanitation standards, data, training
or information. The tribes agree that the performance criteria
and other satisfactory compliance provisions of the National
Shellfish Sanitation Program ("NSSP") Manual, currently in
effect, or as subsequently adopted, shall govern their treaty
shellfishing activities. The tribes retain the right to propose
and pursue changes in the NSSP Manual, in applicable federal law,
and in any state shellfish sanitation laws, regulations, or
policies. In proposing and pursuing such changes, the tribes
will not challenge the application of the terms of this Agreement
to them or their members as inconsistent with their treaty
rights, except that changes in the NSSP manual claimed to
discriminate against treaty shellfishing activities may be
challenged on that ground. Nothing in this Agreement shall
preclude a tribe from enacting ordinances or adopting regulations
more stringent than the NSSP standards.
B. Independent Tribal Shellfish Sanitation- Control Agencies
A tribal government may undertake sole responsibility for
shellfish sanitation in its treaty shellfishing activities. A
tribe having sole responsibility for shellfish sanitation shall
be responsible for ensuring compliance in treaty fishing
activities with the NSSP Manual, both Parts I and II. The state
will have no responsibility for licensing, certifying or
2 EVERGREEN LEGAL SERVICES
NATIVC AMCftlCAW PROJECT
ioi YCSCE" W*Y suite jot
-------
10
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
inspecting such activities or any shellfish operation of such a
tribe, for the purposes of shellfish sanitation. The state also1
will not conduct any shellfish sanitation enforcement as to such
treaty shellfishing. Such tribe could undertake independent
classification of growing areas within its usual and accustomed
areas, consistent with the concurrent jurisdiction provisions of
this Agreement, provided that such tribe may not undertake such
classification as to any bed staked or cultivated by citizens
unless afforded access to the bed by agreement of the owner or
lessee. A tribe in this category is not subject to Parts II,
III, §§B-F, V, VI and the Appendix to this Agreement, but may
choose to participate in any of the joint technical/protocol
development, enforcement, or other intergovernmental measures
provided for in those sections.
The tribes agree that before undertaking sole
responsibility, approval will be obtained from the appropriate
office of the United States Food and Drug Administration ("FDA")
for the tribe's independent shellfish sanitation program
("SSCA"). FDA's approval will be based upon a tribe's ability to
meet the standards set forth in the NSSP Manual. In addition to
facilities, staff, and other resources of a tribal organization,
a contractor, .or consultant may be relied upon to establish a
tribe's qualifications to act as an independent shellfish
sanitation control agency.
The parties recognize that a tribe's status as an
independent shellfish sanitation control agency may present
questions related to concurrent jurisdiction over growing areas
from which both tribal and non-tribal harvest is permitted.
3 EVERGREEN LEGAL SERVICES
NATIVE AMCUfCAN PROJECT
!3I TCSiCB **r SUITE J3)
-------
10
11
12
13
14
15
16
17
18
19
20
Questions will relate, for example, to initial classification,
reclassification, and monitoring of growing areas and response to
actual or perceived emergencies. As part of any tribal request
for recognition as an independent shellfish sanitation control
agency, the state and tribe shall present either a joint proposal
to FDA for addressing these jurisdictional questions or a
statement of their 'respective positions on disputed
jurisdictional questions. Disputes over whether a particular
matter raises a meritorious claim of jurisdiction may be
submitted for federal court resolution. Where the state and
tribes agree or the court determines that concurrent jurisdiction
exists, disputes regarding the appropriate coordination or
exercise of such jurisdiction for public health protection shall
be resolved through the mechanism described in Part VIII, § A.3
of this Agreement. Any jurisdictional question identified after
the approval of a tribe as a 'SSCA, which for whatever reason, was
not addressed earlier shall be addressed and resolved by the
state and tribes and submitted to FDA using the same procedure
applicable to an initial request for recognition.
C. Development And Expansion Of Intergovernmental Shellfish
Sanitation Programs/Technical Assistance
21
The state shall seek funding for a well-qualified individual
22
who would be employed by the state for the purpose of assisting
23
24
25
26
27
28
the tribes in developing expertise in matters of public health
and shellfish sanitation. When funding for this position becomes
available or is reasonably anticipated, the state will provide
the tribes with a list of qualified individuals who have public
health expertise and, more specifically, expertise with respect
EVERGREEN LEGAL SERVICES
KAflve AMCRICAK COOJECT
'01 vCSite WAY SU="E 3OI
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to shellfish sanitation. The state, in consultation with the
tribes, will select from this list one person whose
responsibility would be to advise the tribes with respect to
public health and shellfish sanitation. This individual will be
a state employee and the state will provide this individual's
salary and benefits for a period of five years. It is
contemplated that this individual would be officed in a tribal
facility such as the Northwest Indian Fisheries Commission
(NWIFC) office and will prioritize his or her activities as
determined by'the tribes. During this time, those tribes
desiring to take responsibility for shellfish sanitation matters
will seek funding and/or other necessary support to hire and
integrate into their tribal shellfish programs persons with
experience in public health and shellfish sanitation matters.
The state may seek additional funding for the purpose of
assisting the tribes in developing expertise in matters of public
health and shellfish sanitation.
The state will provide additional technical assistance to
tribes wishing to increase their expertise in matters of public
health and shellfish sanitation subject to resource constraints.
Examples of technical assistance include training, agreements for
use of state laboratory facilities and access to state data, and
advice regarding program design and operation.
It is recognized by the parties that the personnel
infrastructure necessary for a comprehensive shellfish sanitation
program, the wide array of technical expertise, and laboratory
support facilities would be more easily attained through
intertribal cooperation and sharing of resources. In
5 EVERGREEM LEGAL SERVICES
NATIVE AMERICAN »»Oj£Cr
-------
23
24
25
26
27
28
establishing the tribes' abilities to accept varying degrees of
responsibility leading to being recognized as independent tribal
SSCA's, the pooling of tribal resources and expertise shall be
considered consistent with the provisions of this Agreement and
is encouraged.
The tribes and state agree to establish regular meetings, at
least on a quarterly basis, to discuss shellfish sanitation
matters of concern, exchange information and knowledge, and
identify and implement mechanisms to further their cooperative,
intergovernmental approach, consistent with this Agreement.
Tribes shall be notified of and may participate in all
formal FDA and state shellfish sanitation training programs. The
Department of Health will use its best efforts to gain FDA
approval of a state laboratory certification officer. Upon
application, the state's lab certification officer will determine
whether the applicant's laboratory meets the requirements of Part
I of the NSSP Manual. This shall not preclude FDA certification
of a tribal laboratory.
II. LICENSING, INSPECTION AND CERTIFICATION FOR INTERSTATE AND
10
11
12
13
14
15
16
17
18
19M
INTRASTATE SHIPMENT
20
Any state or tribal licensing or certification decision
21
regarding a tribal or individual tribal operation and relating to
22
shellfish sanitation shall be consistent with this Agreement.
The State agrees that, for the purpose, of complying with this
Agreement, a tribe may license individual tribal members and
nonmember assistants to harvest, and to sell the shellfish they
have harvested, under the tribe's state license and certification
number, provided that the licensing of nonmember assistants
EVERGREEN LEGAL SERVICES
WATIve AMERICAN1 PROJCCT
\OI »CSV.C* w»v SUITE 3Q>
-------
Fisheries' Question No. 20).
A. Tribes May Assume Primary Responsibility For Individual And
Tribal Shellfish. Operations
Although not approved as an independent shellfish sanitation
control agency, a tribe may assume primary responsibility for the
inspection and licensing of shellfish operations subject to its
.8
jurisdiction by obtaining FDA recognition that a tribal employee,
q
consultant, or agent satisfies the qualifications for becoming a
10
"standard," in accordance with FDA procedures, and as provided in
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
complies with the ruling of the court in United States v.
Washington. 384 F.Supp. 312, 412 (W.D. Wash. 1974) (Ruling on
the NSSP Manual. .Such responsibility includes responsibility for
ensuring compliance of individual tribal harvesters and tribally
authorized shellfish dealers with Part II of the NSSP Manual.
This Agreement provides for the recognition of such tribal
standards. This provision, the parties agree, is a step toward
tribal autonomy with respect to the regulation of shellfish
sanitation. This provision also reduces burdens on the state
with respect to routine inspections. The standard shall have the
education and experience described in the Appendix, Attachment F.
The standardization requirement may be satisfied by the
standardization of a qualified employee, consultant, or agent of
a tribal organization or other entity from which it may obtain
the required evaluation services.
A "standard"1 who is to provide evaluation services to a
tribe must satisfy all requirements of the FDA or the NSSP which
apply to state standards, including but not limited to periodic
revaluations, unless FDA determines that a particular
EVERGREEN LEGAL SERVICES
NATIVE AMERICA** PQOJCCT
'31 VCSICR WAY SUITC JOI
-------
requirement, or requirements would impair a tribe's ability to
undertake primary shellfish sanitation responsibility and can be
waived without compromising public health protection. A standard
shall not have any inspection authority as to an operation in
which he or she has any proprietary or financial interest,
employment relationship or managerial responsibility.
Tribes under this Part II §A agree to obtain a state
shellstock shipper or shucker/packer license and certificate of
approval and state certification to the FDA for inclusion on the
10 Interstate Certified Shellfish Shippers List (ICSSL) provided
11 that such licensing and certification shall be deemed a voluntary
12 division of responsibility in furtherance of establishing
13 cooperative, intergovernmental shellfish sanitation programs.
14 Tribes and individual tribal operations obtaining a state license
15 and certification pursuant to either this Part II, §A or the
16 following Part II, §B shall not thereby become subject to any
17 state shellfish sanitation laws, regulation, or enforcement
18 authority, except as expressly provided in this Agreement.
19 The state'will not license individual shellfish operations
20 within the jurisdiction of tribes under this Part II, §A. The
21 names of the individual shellfish operations will appear
22 separately on the ICSSL. Individual shellfish operations within
--23 the jurisdiction of tribes, for purposes of this Agreement, means
24 any shellfish operation within the territorial jurisdiction of
25 the tribe, in which the tribe or any tribal member(s) own an
26 interest in excess of 50% and exercise actual management control.
27 The tribe shall notify the state of all such individual shellfish
28 operations. In licensing individual shellfish operations, the
g EVERGREEN LEGAL SERVICES
NATIVC AMERICAN PROJCCT
IOI rESl.CS WAT SUITC 301
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
tribe may retain direct responsibility for compliance with
specific components of Part II of the NSSP Manual.
The "standard" relied on by the tribe shall inspect,
evaluate and, as necessary/ initiate sanctions against any
shellfish operation within the jurisdiction of the tribe. The
standard will perform these functions in accordance with Part II
of the NSSP Manual, as provided fay tribal ordinance or
regulation; The standard will advise the state and FDA of his or
her inspection schedule and will provide copies of all inspection
reports, as well as prompt notice of any adverse action taken in
regard to a shellfish operation. A state and/or FDA standard
will be permitted to accompany the tribal standard on any
inspection. A state standard may independently conduct only such
inspections as are reasonably necessary to audit the tribal
program, pursuant to Part V of this Agreement. Any dispute over
whether state inspections are reasonably necessary to audit the
tribal program shall be subject to dispute resolution pursuant to
Part VIII, §A.3.
B. State to Exercise Primary Responsibility
The state will have primary responsibility for certain
shellfish sanitation matters as to treaty shell'fishing activities
by any tribe not itself a shellfish sanitation control agency and
not-having primary responsibility for inspection and licensing as
provided herein, unless the tribe notifies the state that the
tribe chooses not to permit shellfishing for commercial purposes,
does not itself engage in commercial shellfishing activities, and
identifies effective tribal controls to prohibit subsistence and
ceremonial harvests from being diverted to commercial use.
g EVERGREEN LEGAL SERVICES
NATIVE A«ei»i<:»K 7ROJCCT
i.-.: -C5 . f.=> .-. . f •!• ,-.
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Effective controls are described in Part III, §C of this
Agreement. Primary responsibility means primary responsibility
for ensuring compliance with Part II of the NSSP Manual.
Accordingly, the state shall license, certify, and inspect
operations over which it retains primary responsibility. The
sanction, if any, against a tribe or individual tribal operation
shall be limited to license denial, suspension, modification or
revocation. Any action against a tribe shall be conducted as a
dispute resolution pursuant to Part VIII, §A.3 of this Agreement
with those responsible for'dispute resolution having the power
to deny, suspend, modify or revoke the tribal license.' License
actions against individual tribal operations shall be conducted
under the state administrative process.
C. Tribal Certification — Compliance with NSSP Manual Part II.
If the state believes any tribe employing an FDA recognized
standard, or any shellfish operation subject to the jurisdiction
•of such tribe, is out of compliance with Part II of the NSSP
Manual, the state shall so notify the tribe in writing, detailing
the deficiencies. A reasonable opportunity to take corrective
action shall be offered, consistent with Part II of the NSSP.
Manual. Where consistent with the findings of a tribal standard
and with Part II of the NSSP Manual, the state may, for purposes
of the FDA's Interstate Certified Shellfish Shipper's List,
withhold or withdraw the certification of an individual shellfish
operation within the tribe's jurisdiction, if the deficiencies
are not corrected. The state may also initiate action under the
dispute resolution provisions, Part VIII, to suspend, modify or
revoke the license of any tribe employing an FDA recognized
10 EVERGREEN LEGAL SERVICES
NATIVE AMERICAN PROJECT
101 VCSLER WAY SUITE 301
-------
standard which fails, under this subsection, to comply or insure
compliance with Part II of the NSSP Manual.
D. License Fees
The state shall not charge a fee for licensing any tribal
treaty or individual treaty shellfishing operation as provided
for in this Agreement.
III. SHELLFISH SANITATION CRITERIA AND MEASURES APPLICABLE TO
TREATY SHELLFISHING ACTIVITIES
8
A. Compliance With NSSP Manual Sufficient
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The parties agree that compliance with the performance
criteria and other satisfactory compliance provisions set forth
in the NSSP Manual, with the terms of this Agreement, and with
all applicable federal laws or regulations governing shellfish
sanitation, is adequate to protect public health. The tribes
agree to regulate their treaty shellfishing activities, either
independently or in conjunction with the state as provided
herein, to maintain such compliance. Except as expressly
provided in this Agreement, the state will not apply its
shellfish sanitation laws, regulations, or policies to the "tribes
or their members.
The Manual currently covers clams, mussels/ oysters, and
scallops. The state and tribes agree to develop, as necessary, a
cooperative approach for health regulation of any shellfish
species subject to the tribes' treaty right which is not covered
by the NSSP Manual. This approach shall be consistent with and
modelled after the approach taken herein with respect to clams,
oysters, mussels and scallops. The approach shall provide for:
1) comparable opportunities for increasing, and ultimately
EVERGREEN LEGAL
NATtVE AMEa.-CAIV OSSjCr?
101 rESlEU .V«,Y SU-TC I-:
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
establishing exclusive tribal shellfish sanitation control;
this includes but is not limited to primary reliance on
tribal licensing, inspection, and other regulation;
2) an application of state sanitation laws to treaty
shellfishing which is limited to emergency situations and
those situations where a tribe has not yet developed an
effective program for protection of public health? such
application shall not discriminate against treaty
shellfishing activities;
3) joint development of regulatory protocols and decisions;
4) exclusive tribal enforcement over members where a tribe
has its own regulatory system in place; and
5) intergovernmental cooperation.
The state and tribes shall use the process outlined in the
Appendix, Attachment A to develop this approach, prioritized
according to the level of health concern. Any disputes as to the
state's legal authority in regard to species subject to the
tribes' treaty right and not presently covered by the NSSP
Manual, including questions involving the impairment of treaty
shellfishing rights, may be submitted to the federal court.
Other disputes shall be resolved pursuant to the dispute
resolution provisions of this Agreement. In the interim, if the
.state seeks to apply a state shellfish sanitation-law to a treaty
tribe,, with respect to species subject to a tribe's treaty right
and not covered by the NSSP Manual, the state shall seek the
tribe's agreement including, where appropriate, voluntary
agreement to state licensure, inspection and compliance with
standards applied to non-treaty shellfishers. If the tribe
EVERGREEN LEGAL SERVICES
NATIVE AMERICAN »»Oj£C~
101 VCSLER WAY S-.TC jc*
-------
10
11
objects, the state may submit the matter to the federal court for
resolution, provided that Part III, §B. of this Agreement shall
apply in the case of a health emergency.
B. Emergencies - Additional Measures, Including Closures, May Be
Applied To Treaty Shellfishing When Essential In Responding To A
Health Emergency
1. Notwithstanding any other provision of this Agreement,
the state may take summary administrative action against the
tribal operation including license suspension, closing of growing
areas and seizure or recall of product, in the case of a health
emergency. A health emergency is a situation involving an
immediate danger to the public health requiring immediate action.
12 The state may take only such action as is necessary to prevent or
13 avoid the immediate danger to the public health and justifies use
14 of the emergency action.
15 2. The state agrees that in the case of a health emergency
16 it will notify affected tribes of the situation and will provide
17 available, relevant data as soon as possible. Consistent with
18 the gravity of the health threat and the need for immediate
19 response, the state will provide affected tribes an opportunity
20 for prior consultation and prior technical/policy review.
21 3. Health emergencies may occur, for example: where
22 established shellfish sanitation standards such as paralytic
23 shellfish- poison levels are exceeded; where harvesting areas are
24 implicated in human illness; in the case of a catastrophic
25 polluting event of unknown impact such as floods and oil or
26 sewage spills; where contaminants present unknown health risks as
27 was the case with domoic acid; where commercial shellfish
28 operations engage in the sale of shellfish from closed areas
2.3 EVERGREEN LEGAL SERVICES
KATIVt
LE* WAV SUITE ?0:
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
contrary to the provisions of this Agreement; or where a tribal
shellfish operation fails to meet a critical standard as defined
in Part II of the NSSP Manual.
4. The state shall defer'to measures adopted by a tribe to
address a health emergency, where such measures would effectively
protect public health. Any tribe affected by the state's action
in the case of an alleged health emergency may invoke the dispute
resolution mechanism described in Part VIII, §3 of this Agreement
to challenge the appropriateness of the emergency measures,
either before or after they are implemented, but such measures
shall remain in effect until resolved otherwise through dispute
resolution.
C. commercial Harvests From Closed Areas Shall Be Prohibited
I. A closed area is an area from which commercial shellfish
harvest is not permitted under the terms of this Agreement. Each
tribe will prohibit commercial harvest from closed areas and the
sale of shellfish from closed areas. Sanctions authorized by
tribal law for violation of such provisions shall be sufficient
to deter prohibited conduct. The state and tribes agree that any
harvest for human consumption from growing areas which are
closed, based on a sanitary survey or marine biotoxin report, is
undesirable. The state and tribes also agree that such harvest
should be discouraged through educational or other means.
2. Consistent with subsistence needs for all relevant
species, each tribe will impose restrictions or measures to
prevent the unlawful diversion to commercial use of shellfish
harvested for subsistence purposes. These could include
subsistence .bag limits, restricting subsistence harvest in closed
14 EVERGREEN LEGAL SERVICES
NATIVE AMERICAN fOOJCCT
101 rCSLER WAV SUITE 3OI
5EITT..E ... ls-»«jr,T~., <,„,;<
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
areas to monitored conditions, or such other controls as are
effective. The tribe shall provide the state specific
descriptions of the tribe's restrictions and/or other measures
for review and comment. It is agreed that the current tribal
monitoring systems and controls described in the Appendix,
Attachment I, represent examples of effective restrictions or
measures. Sanctions authorized by tribal law for violation of
provisions established under this paragraph shall be sufficient
to deter prohibited conduct.
3. Tribes will notify the state shellfish sanitation
program in advance of any ceremonial, harvest from closed areas
which does not comply in all respects with the limitations on
closed area subsistence shellfashing. The ceremonial harvests
will be subject to tribal controls similar to those enacted or
adopted to prevent the diversion of subsistence harvest into the
commercial market.
4. If after review and comment the state does not agree
that the tribe's controls for ceremonial or subsistence harvest
would be effective, the matter may be referred to dispute
resolution.
5. Consistent with the limitations on the release of
criminal record information and any other confidentiality
requirements imposed under state law, the state shall timely
notify the tribes of all citations and/or arrests for violation
of RCW 69.30.110, and any other state law imposed to prevent the
unlawful diversion to commercial use of shellfish harvested for
non-commercial purposes, issued or made by Washington Department
of Fish and Wildlife ("WDFW") officers and the disposition of
]_5 EVERGREEN LEGAL SERVICES
NATIVE AMgRICAN PBOjCCT
1OI VESLEB WAT SUITE 20-
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
those cases. Each tribe shall timely notify the state of all
citations and/or arrests for violation of ordinances or
regulations enacted or adopted under paragraphs (1), (2), and (3)
of this section and the disposition of those cases, provided that
the tribes shall not be required to submit information different
in kind or with any greater degree of specificity or breadth of
disclosure than the state submits to the tribes.
6. After reasonable notice and an opportunity to correct
deficiencies, a state licensed tribe shall be subject to
suspension or-revocation of its license and certification for
failure to reasonably prosecute tribal members for violation of
ordinances and/or regulations enacted or adopted under paragraphs
(1), (2) , and (3) of this section or which fails to timely notify
the state of arrests, citations and the disposition of such
cases. Any such action to suspend or revoke a tribe's state
license shall be subject to dispute resolution as provided in
this Agreement.
7. The state will not enforce the state's presumptive
commercial limit as to the exercise of treaty shellfishing rights
by any member of a tribe which complies with the regulatory and
enforcement provisions set forth in paragraphs (1) through (5) of
this section.
D. Commercial Harvests From Closed Areas Permissible If Not For
Human Consumption
24
Notwithstanding Part II, §C, tribes may engage in or
25
authorize closed area shellfishing for bait, seed, or other use
which does not involve human consumption, consistent with the
protocols referenced in the Appendix, Attachment B. Consistent
26
27
28
]_6 EVERGREEN LEGAL SERVICES
NATIVE AMCRICAN POOJCCT
10" fESuEB WAY SUITE 'JO'
-------
18
19
20
21
22
23
24
25
26
27
28
with the protocols presently developed or developed in the
future, and referenced in the Appendix, Attachment A, a tribe,
prior to doing so, shall prepare and submit a plan to the state
for review and concurrence. The state shall complete its review
of the plan within 30 days after receipt.
E. Joint Identification And Development Of Protocols, Standards
And Other Guidance For Implementation Of The KSSP Manual
7
The state and tribes have identified certain elements of the
8
NSSP Manual which they believe require agreed approaches to
9
implementation. These include, among others, standards regarding
10
short-term relays, the placement of sanitary lines, bait and seed
11
harvest, and training requirements. Such shellfish sanitation
12
considerations are addressed in the Appendix to this Agreement,
13
which Appendix is incorporated herein by reference.
14
The Appendix contains protocols for certain matters and
15
procedures and timetables for completion of others. The state
16
and tribes, by agreement, may alter, expand, or limit the
17
measures, protocols, or other provisions set forth in the
Appendix, other than Attachment A.
F. Growing Area Classification/Certification
The state and tribes agree that growing areas shall be
classified and certified according to criteria set out in section
C and other applicable portions of Part I of the NSSP Manual.
Conditionally restricted and conditionally approved
classifications will be utilized according to protocols agreed to
by the state and tribes, which recognize budget limitations. The
adoption of additional or more specific criteria and measures to
implement the Manual shall be by joint agreement of the state and
EVERGREEN LEGAL SERVICES
NATIVE AMERICAN PROJECT
'31 VESUER WAY SUITE 3O1
-------
10
11
12
13
14
15
16
17
18
tribes, pursuant to Part II, §E above.
The state will not, as a prerequisite to growing area
classification, require a tribe to demonstrate ownership,
leasehold interest, or permission from any owner, lessee, or land
manager, of a growing area within the tribe's usual and
accustomed areas and any portions thereof which are not "beds
staked or cultivated by citizens" as adjudicated or as agreed to
by the affected parties including any affected landowners. Nor
shall any review and concurrence as to a non-health related
matter, such as fish resource use priorities, be a condition of
such classification. The state may otherwise continue to request
a demonstration of ownership or landowner permission as a
prerequisite to growing area classification. It will be the
responsibility of the tribe to resolve any challenge to its
treaty right in a particular growing area. The state may
postpone action on a classification application until the dispute
is resolved.
Tribal applications for the classification of new growing
19 areas will be treated separately from nontribal applications for
20 purposes of prioritization. The state agrees to set aside at
21 least 50 % of funds and other resources available for the
22 classification of new growing areas for use in acting on tribal
23 applications for the classification or reclassification of
24 growing areas.• This percentage shall be reevaluated by the state
25 and tribes at such time as any tribe is recognized by FDA as an
26 independent shellfish sanitation control agency. The state and
27 tribes agree to seek additional appropriations.. for classifying
28 and restoring areas identified by the tribes. For the tribes,
18 EVERGREEN LEGAL SERVICES
NATIV£ AMERICAN PBOJCCT
tOI YtSLE" WAT SUITE 301
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
such funding efforts may focus on increasing the ability of the
tribes to gather the data and develop the evaluative expertise
for classification and restoration. By joint agreement among the
tribes, the tribes will develop criteria for prioritization of
tribal applications and identify a priority ranking, provided
that, if the tribes fail to reach agreement on such ranking at a
particular time, the state shall proceed to act on the
applications by random selection among such tribal applications
as have been filed with the department.
Before initially classifying a growing area or changing a
growing area classification, the state shellfish program will
notify affected tribes of facts indicating that a classification
may be appropriate or a classification change may be necessary.
The state and tribes will jointly determine a time period for
collection of pertinent information and analysis consistent with
the protocol for data collection and analysis developed as
indicated in the Appendix, Attachment A, Group 2 (d).
Following such analysis, the state shellfish program will draft a
proposed classification decision and submit the draft to all
affected tribes for review and comment. The tribes will provide
review and comment on a proposed classification decision, if any,
within thirty days.
Where an immediate downgrade in classification, or a
closure, is required by the NSSP Manual because of a failure to
meet the minimum classification criteria of the NSSP, and where
such failure does not constitute a health emergency as defined in
Part III, §B of this Agreement, then the action required by the
NSSP shall be taken. Prior to the action and at the earliest
}_9 EVERGREEN LEGAL SERVICES
NATIVE AUCRICAN PHOJCCT
IOI YESLER WAV SUITE 331
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
possible time, the state will notify affected tribes of the
action and of facts the state believes demonstrate the need for
the action under the NSSP. Within ten days of the action and as
expeditiously as possible, the state and affected tribes will
consult regarding the action and shall jointly determine the need
and the time period for further investigations to confirm the
failure to meet NSSP criteria. The state and tribes may agree to
extend this period as appropriate. Thereafter, the downgrade or
closure decision shall be subject to dispute resolution as
provided in Part VIII of this Agreement. Any immediate downgrade
in classification, or closure, which is required by the NSSP
Manual because of a failure to meet the minimum classification
criteria of the NSSP and which also constitutes a health
emergency as defined in Part III, §B of this Agreement, shall be
handled as such an emergency under Part III, §B.
Any final decision regarding an initial classification or
reclassification shall reflect a thorough consideration of all
information and analysis supplied by a tribe and tribal comments,
which have been timely submitted.
Plans and procedures for water sampling, shoreline surveys,
monitoring, and other investigative work related to the
classification, reclassification, restoration, or monitoring of
growing areas subject to tribal harvest shall be jointly
developed and agreed upon by the state and tribes. Any tribe vho
wishes to participate in such investigative work may do so in
accordance with the agreed plans and procedures. Such
participation will be encouraged and shall be a joint and
cooperative process between the tribe and state, conducted
2Q EVERGREEN LEGAL SEP. T£s
NATIVE AMeniCAN f'C. v"
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
through mutual consultation and sharing of expertise. Any tribe
who wishes to conduct any water quality studies or shoreline
surveys, other than shoreline survey on private land outside the
tribe's reservation boundaries, may do so in accordance with the
agreed plans and procedures and consistent with the expertise and
training requirements provided in the Appendix, Attachments G and
H. Tribes conducting shoreline surveys on private lands outside
their reservation boundaries will do so only in conjunction with
state or county health officials. Both the state and tribes may
audit the investigative work performed by the tribes for
compliance with the NSSP Manual.
The state or a tribe will notify affected parties to this
Agreement of its intent to conduct investigative work referenced
in this Agreement at least one week prior to conducting such
work. The state or a tribe planning to conduct such work will
notify affected parties to this Agreement of any change in
circumstance requiring deviation from the plan or schedule. A
telephone call shall be sufficient notice for purposes of this
paragraph. Tribes who do not wish to participate in routine
growing area monitoring shall advise the state that notice to
them of routine monitoring is not necessary.
IV. EXCHANGE OF REGULATIONS AND DATA/REPORTING ILLNESSES
Except as to the issuance of regulations for emergency
purposes as described in Part III §B of this Agreement, the state
and tribes shall distribute among themselves for review and
comment any proposed new or amended provisions of their shellfish
sanitation laws or guidance. At least thirty days will be
provided for review and comment of a draft. At least fifteen
21 EVERGREEN LEGAL SERVICE'S
NATIVE AMERICAN PROJECT
101 TESLER WAY SUITE SOI
-------
10
11
12
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
days will be provided for review and comment of a final proposed
shellfish sanitation law or guidance. The state and tribes will
also distribute any shellfish sanitation data among themselves
upon request. FDA will provide the tribes copies of all NSSP
Manual interpretations and Manual updates.
Consistent with applicable confidentiality requirements, the
state and tribes will immediately report to all parties to this
Agreement information, within their possession, regarding any
shellfish-related, human illness.
V. STATE AUDIT OF TRIBAL PROGRAMS
The state may audit the shellfish sanitation activities of
tribes to evaluate compliance with this Agreement. Such audits
shall consist of periodic or occasional inspections of
facilities, places, or records, or interviews with persons
responsible for shellfish sanitation activities.
Where audit activities are conducted in person, the state
auditor shall, prior to or upon arrival, identify himself or
herself to the person in charge of the facility, place, or
records, and notify the tribal shellfish sanitation contact
identified pursuant to Part VII of this Agreement. The tribal
contact or his or her designee shall have the right to accompany
the auditor(s). The audit need not be delayed due to the
unavailability of the tribal contact or designee. Promptly upon
request, the tribe shall be provided a copy of all field notes,
reports, findings, conclusions, and written criteria produced
during an audit or used by the state to audit tribal compliance
with this Agreement.
22 EVERGREEN LEGAL SERVICES
NATIVE AMERICAN I»ROJECT
1OI YCSLER WAT SUITE 3OI
-------
10
11
12
13
VI. ENFORCEMENT
A. Nothing in this Agreement shall be construed to enlarge
the authority of state officers on reservations and any Indian
trust lands. Nothing in this Part VI shall be construed to
pertain to, restrict or alter the enforcement of laws other than
the shellfish sanitation laws of the parties.
B. Each tribe shall bear primary responsibility for
enforcement of shellfish sanitation laws against its members and
shellfishing permittees within its reservation, any tribal trust
lands, or within the tribe's usual and accustomed areas. To the
full extent permitted by applicable law, each tribe shall also
have primary responsibility against norunember Indians within its
reservation or on any lands held in trust for the tribe or its
14 members. Any tribe may, at its discretion, refer to the state
15 for prosecution in state courts any violation of tribal law which
16 is also a violation of state law.
17 c. The state shall bear primary responsibility for the
18 enforcement of state shellfish sanitation laws against; 1) non-
19 Indians; 2) any Indian where the violation occurs outside of any
20 Indian reservation, Indian trust lands, and outside the usual and
21 accustomed fishing places of the tribe of which the violator is a
22 member? and 3) nonmember Indians within a tribe's reservation or
23 on any lands held in trust for the tribe or its members when,
24 under applicable law, such nonmembers are not subject to the
25 jurisdiction of the tribal court and jurisdiction lies with the
26 state.
D. It is the intent of the state and tribes that,
28 notwithstanding the existence of comparable laws of the State of
23 EVERGREEN LEGAL SERVICES
NATIVE AMERICAN PHOvECT
101 VCSLER WAT SUITE J5>
-------
.8
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Washington, and unless provided to the contrary elsewhere in this
Agreement, violations of tribal shellfish sanitation laws by
members of tribes or by tribal licensees shall be prosecuted in
tribal courts.
E. If an enforcement officer of either the state or a tribe
finds a person subject to the primary enforcement responsibility
of the other entity, under Part VI, §B or §C, to be in violation •
of the bag limits, growing area closures, or other shellfish
sanitation laws of the entity having primary responsibility, the
discovering officer shall contact a law enforcement officer of
the 'entity primarily responsible using common means of law
enforcement communication such as radio over common frequency,
telephone, or use of a dispatcher utilized by the party having
primary responsibility. The officer having primary
responsibility shall take such action regarding the offender and
any associated evidence or forfeitable property as he or she
deems appropriate, including arrest, citation, or requesting the
discovering officer if authorized under applicable law, to detain
or continue to detain the violator and to seize or retain
specified evidence or property pending the arrival of the officer
having primary responsibility. A state officer may hold or seize
any shellfish grown, harvested, transported, shipped, processed,
or sold by a treaty tribe member in violation of this Agreement.
F. If an'officer having primary responsibility under this
Part VI cannot be contacted within a reasonable time (not less
than 30 minutes), the discovering officer will take the minimum
action within his or her authority which is needed to protect
officer safety and to prevent the loss or destruction of evidence
24 EVERGREEN LEGAL SERV C££
NAfivC AMERICAN »*C.IC~
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
or of forfeitable property. Notwithstanding the previous
sentence, the discovering officer shall not detain an individual
longer than is allowed under the search and seizure law of the
jurisdiction having primary responsibility. The officer shall,
as soon as practicable, refer the matter to the enforcement
supervisor of the entity having primary responsibility for
prosecution under this section, together with a statement of
probable cause, any physical evidence or property held or seized
and not destroyed, and the custody of any persons held in
connection with the violation.
G. If a tribe does not have a regulatory 'prohibition
against an activity which is in violation of the Agreement and
led to a hold or seizure under §E. of this Part, the state
officer may take appropriate action with regard to the product as
provided by applicable state law.
H. The state and tribes shall maintain a proper chain of
custody of all evidence and proper receipts for any forfeitable
property.
I. The enforcement entity having primary jurisdiction shall
notify the enforcement supervisor of the discovering party, in a
timely manner, of any hearing or trial date which the discovering
officer must attend. The discovering entity shall make its
officers available for hearings and trial, and shall provide
reasonable cooperation in the prosecution.
J. Where any entity has commenced a civil, criminal, or
administrative enforcement action arising from a violation within
the primary jurisdiction of another entity, dismissal shall be
requested upon notice that the entity having primary jurisdiction
25 EVERGREEN LEGAL SERVJCES
NATIVE AMERICA* »«OJCCT
IOI YCSLER WAY SUITE 2C1
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
has commenced an action in its own jurisdiction against the same
offender and for the same incident.
K. Within a reasonable time after referral of a violation,
and at least semiannually, the entity having primary
responsibility shall, consistent with confidentiality
requirements, notify the referring entity of the status or
disposition of all referred cases, including whether and what
charges were filed, the amount of any fines, and the nature of
any other penalties, including permit suspension or revocation,
restrictions, or probation which were imposed.
L. If the entity with primary responsibility does not
initiate a prosecution within a reasonable time, not less than
ninety days, following referral, the referring entity, if
authorized by applicable law and with the agreement of the entiry
having primary responsibility, may take such action under its
laws, consistent with this Agreement, as it deems proper.
M. All net proceeds from the sale of confiscated property
shall be delivered to the entity prosecuting the case, provided
that, if more than one entity initiates the prosecution, such
proceeds shall be delivered to the entity having primary
enforcement responsibility for the offense.
N. The enforcement supervisors of the state and tribes
shall meet as needed (at least annually for the first three years
following the effective date of this Agreement, and thereafter a~
least every two years) to discuss matters related to
implementation of this Agreement, including the exchange of
information regarding violations, the training of officers, and
the planning of joint patrols or other joint operations.
26 EVERGREEN LEGAL SERV ZS.S
NATIVE AMCHICA* »»OJ* J-
131 "ESLERWAY SUITE <:
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
0. In addition to the cooperative procedures set forth in
paragraphs (B) through (N) above, the state and tribes agree that
cross-deputization of their fisheries enforcement personnel is
desirable in order to augment their respective enforcement
capabilities. "Cross-deputization" means the issuance of special
commissions authorizing one entity's law enforcement officers to
issue citations, make custodial arrests, and otherwise act as
enforcement officers of the other entity, as specified in a
cross-deputization agreement. Each tribe agrees to deputize WDFW
enforcement officers to enforce tribal prohibitions on commercial
harvest from closed areas, tribal bag limits, and other tribal
shellfish sanitation laws adopted pursuant to Part II, §C above,
provided the following conditions are met:
1. The WDFW officer satisfies the minimum criteria (other
than tribal membership criteria, if any) required to be
commissioned as a fisheries enforcement officer of that
tribe; and
2. WDFW agrees to deputize fisheries enforcement officers
of that tribe to enforce state shellfish sanitation statutes
and regulations.
WDFW shall not require, as a condition precedent to
deputizing tribal officers, that those officers meet any more
stringent criteria than are required to be a commissioned WDFW
enforcement officer.
The state and tribes agree to use their best efforts to
develop, within eighteen months after the effective date of this
Agreement, a form of cross-deputization agreement that will
specify procedures and requirements for cross-deputization,
consistent with the terms of this Agreement, provided that tribal
officers, under such agreement, are required to meet the minimum
27 EVERGREEN LEGAL SERVICES
NATIVE AMERICAN PROJECT
1QI rESlEa WAT SUITE sa:
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
criteria required of commissioned WDFW officers and further
provided that such agreement addresses the liability concerns of
the state and tribes to their mutual satisfaction.
VII. NOTIFICATION
To comply with the various notice provisions of this
Agreement, each tribe that is a party to this-Agreement shall
designate an individual and an alternate who shall serve as the
state's contact for purposes of notification. The state and FDA
likewise shall each designate an individual and alternate who
shall serve as the tribes' contact for notification purposes.
Written notice to one or the other of the identified individuals
shall be construed as sufficient notice under this Agreement.
Facsimile transmission may be used, so long as it is followed by
delivery or mail of the original.
VIII. DISPUTE RESOLUTION
A. Matters reviewable
Except where an alternative dispute resolution mechanism is
expressly provided for in other sections of this Agreement,
including the Appendix attached hereto, this section shall govern
the resolution of all disputes arising from the implementation of
this Agreement. Any reference to dispute resolution in a
particular section of this Agreement shall not be construed to
limit the availability of dispute resolution as to other matters.
The parties recognize three kinds of disputes potentially
arising from the implementation of this Agreement: first, those
involving legal issues such as determinations of jurisdiction or
interpretation of state or tribal law or of this Agreement;
second, those involving the interpretation of NSSP Manual
28 EVERGREEN LEGAL SERVICES
NATIVE AMERICAN ""OJCCT
101 YES IE B WAY SU:7E ?;i
-------
10
11
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
compliance standards; third, those involving the administration
of shellfish sanitation programs and of this Agreement, both
through the development of policies and through the application
of regulatory standards in case specific situations. The parties
recognize that it may, in some cases, be difficult to
characterize such disputes as arise. The parties therefore
acknowledge and agree that, whenever a party initiates one of the
three dispute resolution mechanisms described hereunder, it shall
be the right of the responding party, at the threshold, to
contest the characterization of a dispute and to seek its
transfer to what the responding party considers the most
appropriate forum.
1. Any party to this Agreement may invoke the jurisdiction
of the federal court to resolve legal issues related to the
implementation of this Agreement, provided that the tribes will
not challenge in court the application of the terms of this
Agreement to them or their members as inconsistent with their
treaty rights.
2. The FDA and the ISSC have established a mechanism for
resolving ambiguities in the compliance standards set out in the
NSSP Manual of Operations, using the Interpretations process.
The state and tribes shall utilize this process to resolve any
disputes involving ambiguities in the compliance standards set
out in the NSSP Manual of Operations and the decision of the FDA
shall be binding on the parties.
3. The parties recognize a difference between preliminary
decisions involving the day-to-day administration of shellfish
sanitation programs by the state or the tribes and which
29 EVERGREEN LEGAL SERViCES
NATIVE AMERICAN »»OJECT
101 -ESI.EP WA- SL°;~E ?oi
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
generally involve data collection and preliminary analysis, and
final decisions such as growing area classifications, which are
based on such data and preliminary analysis. Unless provided
otherwise in this or a subsequent agreement of the state and
tribes, the dispute resolution process described hereunder shall
be available with respect to decisions of the latter sort but not
of the former. The dispute resolution process described
hereunder shall also be available to review the propriety of
generally applicable policies or procedures employed or proposed
to be employed by the state or a tribe in the implementation of
this Agreement; the failure of the state or a tribe to provide
required notice to or to consult with another party; the failure
of the state to follow tribally-determined growing area
classification priority list; any decision of a tribe or the
state, clearly made in violation of a specific prohibition or
requirement of this Agreement; and any decision of a tribe or the
state that would result in irreparable harm to the party seeking
review. The dispute resolution process described hereunder shall
also be available to resolve license actions taken by the state,
as provided in this Agreement, and the decision maker shall have
the authority, in such actions, to deny, suspend, modify, or
revoke a license. A preliminary action not directly subject to
dispute resolution shall be.reviewable as part of a decision,
based on such preliminary action, which is subject to dispute
resolution.
4. The FDA and an independent tribal SSCA having a dispute
involving satisfactory compliance with the NSSP Manual which has
a direct public health significance may submit the dispute for
3Q EVERGREEN LEGAL SERVICES
HATIVE AMERICA* ««IOJ£C"
IOI TESJ.EB WAY S'JlTe JO'
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
resolution through the ISSC Unresolved Issue process, provided
that, after completion of that process or in lieu thereof, a
tribe may, at its option, request an informal hearing, under 21
CFR Part 16, subject to judicial review in accordance with the
federal Administrative Procedures Act.
B. Dispute Resolution Committee
The state and tribes shall each appoint one individual
having experience in public health and shellfish sanitation, to
form the Dispute Resolution Committee. At the time of submission
of a matter to dispute resolution, the state and the tribes shall
each identify a qualified member. Upon agreement of the state
and the tribes, either may appoint additional qualified members
of the Committee to serve in a particular case.
The decisions of the Committee shall be by consensus and
binding upon the state and tribes. The state or affected tribe
may seek federal court review of any legal issues that remain
unresolved.
In the event consensus is not reached, the state and/or
affected tribe(s) may request FDA, within fifteen days after
conclusion of the committee process, to provide technical
assistance to resolve the matter. In disputes regarding
satisfactory compliance with the NSSP Manual which have direct
public health significance, FDA will provide such technical
assistance to the Dispute Resolution Committee. The technical
assistance shall consist of expertise in public health and
shellfish sanitation and the application and implementation of
the requirements of either Part I or Part II of the NSSP Manual,
or both Parts, depending on which Part or Parts is at issue. The
3 }_ EVERGREEN LEGAL SERVICES
NATIVE AMERICAN PROJECT
131 »ESIER WAV SUITE 33:
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
technical assistance will be made available as soon as possible.
If within ten days after FDA receives the request, FDA has not
provided such technical assistance, any party to the dispute
resolution proceeding may invoke the master expert procedure in
§C. below. Any party to the dispute may also invoke the master
expert procedure when consensus has not been reached either prior
to or following the provision of technical assistance by FDA.
C. Appointment of Master Expert
If the members of the Dispute Resolution Committee are
unable to resolve a dispute by consensus, or if the state or any
affected tribe is dissatisfied with the decision of the
Committee, then such entity may, within fifteen days after the
conclusion of the Committee process, give notice to FDA of its
intent to utilize a master expert. FDA shall maintain a list of
persons eligible to serve as a master expert, which persons shall
be considered by FDA to have expertise in public health and
shellfish sanitation and the application and implementation of
the requirements of either Part I or Part II of the NSSP Manual,
or of both Parts, depending on which Part or Parts are at issue
in the dispute. In compiling the list, FDA shall seek
suggestions from the tribes and the state, which may include FDA
employees.
The state and affected tribe(s) shall select by agreement a
person from the list to act as master expert in the dispute. An
FDA employee will not be used as a master expert without
agreement of FDA. FDA will select a person from the list, to act
as a master expert if the parties cannot agree. A non-FDA master
expert shall be reasonably compensated by the non-prevailing
32 EVERGREEN LEGAL SERVICES
MATIVE AMERICAN ">OJCCT
101 YESIEQ WAY SOCT£ 331
-------
party, provided that if the master expert's decision is reversed,
2 the party prevailing on appeal shall be reimbursed by the
•* opposing party for compensation paid the master expert. The
4 master expert shall be authorized to make a decision binding on
5 the state and affected tribes. FDA will receive notice of the
decision. FDA will have thirty days to review the decision
before it becomes final and shall make, in writing within the
g
thirty-day.period, any objection it has to the decision. The
g
master expert will be responsible for keeping minutes of any
dispute resolution proceeding in which he or she is involved.
Any party aggrieved by the master expert's decision or
12
aggrieved by FDA's objection to the master expert's decision,
13
shall have the right to appeal, within thirty days, either
determination to the federal court, or as otherwise provided by
15 law.
16
D. Review Procedure
Disputes shall be submitted for review by a brief, written
i fi
statement setting out the points of disagreement and the
19
submitting party's position and reasons. Within seven week days
of delivering the statement to the decision maker(s)and to other
involved parties, any other involved party may submit a written
22
response, briefly stating its position and the reasons. The
23
parties shall be provided an opportunity for an oral or
24
telephonic presentation and submission of supporting documents.
25
A written decision shall be issued within 30 days after the
26
submission was received, provided that a decision may be
27
postponed for a reasonable period of time to obtain additional
28
information that is likely to aid in resolving the dispute. In
EVERGREEN LEGAL SERVICES
33 NATIVE AMERICAN •BOJECT
! j
i :oi VCSLER WAT SUITE :o>
-------
an emergency, the decision may be delivered orally, with a
written memorandum of decision issued shortly thereafter. In the
event a matter involving an emergency has been submitted, the
matter shall be determined as expeditiously as possible but no
later than 3 business days after receipt by the body issuing the
decision.
The Committee or the master expert may adopt such additional
review procedures as they deem appropriate, so long as adopted in
consultation with the state and tribes and so long as consistent
with the provisions of this Agreement. Within 180 days following
Court approval of this Agreement, the Dispute Resolution
Committee shall prepare and disseminate to the state and tribes
13
for their comment a document setting forth the review procedures
14
contained in this Agreement and any additional, generally
applicable procedures adopted.
"IR
In the alternative to any other means of dispute resolution
authorized by this Agreement, and absent objection by any
18
interested party, a party may invoke the processes of the ISSC to
19
resolve the issue.
20
IX. CONSISTENCY OF AGREEMENT WITH NATIONAL SHELLFISH SANITATION
21 PROGRAM/ANTI-DISCRIMINATION PROVISION
22 In agreeing to this settlement, the United States, through
23 the Federal Food and Drug Administration, confirms that the
24 cooperative, intergovernmental shellfish sanitation programs
25 provided for, and the other divisions of responsibility and
26 authority contained herein, do not conflict with the National
27 Shellfish Sanitation Program or current provisions of federal law
28 applicable to shellfish sanitation. Compliance with this
EVERGREEN LEGAL SERVICES
34 NATIVE AMERICAN POOJICT
IOI fESLEt WAY SUITt 331
«; r«f — r .-..•- ^...---. . . .
-------
Agreement will not jeopardize FDA certification of the state or
tribal programs or be the cause for any federal punitive action.
The FDA specifically agrees not to sanction the state for any
4 difference in the way the state treats tribal and nontribal
shellfish operations, so long as such treatment is consistent
with this Agreement. The FDA further agrees to counsel member
states of the Interstate Shellfish Sanitation Conference (ISSC)
against imposing any barrier to interstate commerce of shellfish
g
harvested in Washington State, whether by tribes or others,
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
because of this Agreement.
X, AMENDMENTS
The parties recognize that individual tribes, groups of
affiliated tribes, the tribes collectively, the state or the FDA
may wish to amend this Agreement or to reach new agreements
governing shellfish sanitation and, to that end, any of these
entities or groups may propose an amendment for consideration by
the parties. Unless the parties agree otherwise, or a compelling
reason exists for more frequent amendment, proposed amendments
shall be considered at an annual meeting to review the parties'
progress in implementation.
Until an amendment or a new agreement is adopted by the
parties, and court approval is obtained where required, this
Agreement shall be binding.
EVERGREEN LEGAL SERVICES
3 D NATIVE AMCR*CA*f PROJECT
10) YCSlE' SulIC 301
-------
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
XI. INTENT TO BIND POLITICAL SUBDIVISIONS, ETC.
It is the desire of the parties to this Agreement that it
shall bind all agencies, officers, boards, commissions, and
political subdivisions of the parties to the greatest extent
allowed by law. It is the position of the state, however, that
it may lack authority to bind all its political subdivisions and,
in particular, local law enforcement and prosecutors. The state
a
shall provide a summary and a copy of this Agreement to county
9
prosecutors, county sheriffs, and local health jurisdictions in
waterfront counties and make every reasonable effort to ensure
that they will conform their actions to the agreed upon scope of
state authority. Nothing in this Agreement shall be deemed to
bar a tribe or its members from challenging local enforcement
based on treaty right violations as well as other grounds, if it
exceeds the state's authority under this Agreement.
XXI. JUDICIAL APPROVAL
This Agreement shall become effective upon signature of the
authorized representatives of the parties and approval of the
Court in United States v. Washington. Subproceeding 89-3. This
Agreement is not intended and shall not be construed as the
admission of any party, as findings of fact, conclusions of law,
or the interpretation or construction of the law applicable to
this case. No party shall be considered to have prevailed with
respect to resolution of this issue or shall be entitled to its
costs or fees.
DATED this day of April, 1994.
EVERGREEN LEGAL SERVICES
36 NATIVE AMERICAN PROJECT
tOI reSLCR WAY SUITE 3Oi
-------
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
I
Harold. P. Dygert
Assistant Attorney General
State of Washington
f>eter C. Monson
''United States Dept. of Just:
United States of America
Phillip E. Katzen, Allen H.
Sanders, Riyaz A. Kanji,
Debora Juarez
Attorneys for Nooksack, Upper
Skagit, Nisqually, Squaxin
Island, Skokomish, Port Gamble
S'Klallam, Jamestown S'Klallam
^Lower Elwha S'Klallam
in Tribes
John C.) Sledd
Mar^_J^±nda Pearson
Attorneys for Suquamish
Indian Tribe
Ricnard M. Berley, Marc D.
Slonim, John B. Arum
Attorneys for Makah Indian
Tribe
Mason D. Monsset
Attorney for/Tulalip
Indian Tribes
Annette M. Klapstein
John Howard Bell
Attorneys for Puyallup
Indian Tribe
Allan E. Olson
Sharon I. Haensly
Attorney for Swinomish
Indian Tribal Community
Daniel A, Raas
Harry L. Johnsen
Attorneys for Lummi
Indian Nation
\
ack W. Fia'hder
Attorney for Yakama
Indian Nation
37
EVERGREEN LEGAL SERViC
NATIVE AMERICAN P»Oj£:~
101 >CSLEB WAV SUITE ji1
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Richard Reich
Eric Nielsen
Attorneys for
Nation
Indian
*—Steven G. Lingenbrink
Attorney for Quileute Tribe
Nettie L.
Richard S. Ralston
Attorneys for Hoh Tribe
Robert L. Otsea, Jr>
Laura Ann Lavi
Attorneys for Muckleshoot
Indian Tribe
Co-counsel for Nooksack
Indian Tribe
Bill Tobin I
Co-counsel for Nisgually
Indian Tribe
KeviivTR. Lypn
Co-ccyunsel for
Indian Tribe
xin Island
Harold Chesnin
Edward G. Maloney
Co-counsel for Upper Skagit
Indian tribe
itmryn Nelsfpn, Amy C. Lewis
Co-counsel for Skokomish,
Port Gamble S'Klallaiu,
Jamestown S'Klallam
and Lower Elwha S'Klallam
Indian Tribes
38
EVERGREEN LEGAL
NATIVE AMCRICAN PROJt
IQI rest-E"! y»r SUITE \;
-------
APPENDIX
Group I
With regard to each of the following activities, the state and
tribes will adhere to the protocols set forth in the designated
attachments to this Appendix, as agreed mechanisms for
implementing the Agreement and the NSSP Manual:
a) Harvest from closed areas for bait or other use
which does not involve human consumption, Attachment B,
(Bait and non-consumptive use Protocol);
b) Short-term relay, that is, relay in which shellfish
are held in approved waters for a period of 60 days or
less, Attachment C, (Short-term Relay Protocol);
c) Location of sanitary lines at the boundaries of
areas having different growing area classifications
pursuant to Part I of the NSSP Manual, Attachment D,
(Sanitary Line Protocol);
d) Establishment of prohibited areas surrounding
marinas and point source discharges of sewage or other
contaminants, Attachment E, (Point Source and Marina
Closure Protocol);
e) Procedures and requirements for approval of state or
tribal agents as "standards" for the implementation of
Part II of the NSSP Manual, Attachment F; and
f) Minimum qualifications for personnel conducting
shoreline surveys and water quality studies, Attachment
G.
Group 2
For the following activities, there is a need to jointly develop
protocols which will insure compliance with the NSSP:
a) Long-term relay, that is, relay in which shellfish
are held in approved waters for a period of more than
60 days (Long-Term Relay Protocol);
b) Harvest from closed areas for seed, (Seed Harvest
Protocol);
c) Depuration; and
d) Data collection and analysis for purposes of growing
area classification.
Attachment A
A-l
-------
The state and tribes, through the Technical Team established
below, will make their best efforts to develop the protocols in
this category within two years following their execution of this
Agreement and its approval by the Court. The Technical Team
shall meet at least once each guarter following approval of this
Agreement, according to a schedule to be developed by the Team.
If the Team fails to agree on a draft protocol within two years,
any party who has participated in the Team may invoke the dispute
resolution procedures of this Agreement.
Group 3
In addition to those matters identified in groups 1 and 2 above,
additional matters may come to the attention of the parties, as
to which there may be a need to develop policies or protocols, in
order to implement and comply with the NSSP Manual, consistent
with the principles of this Agreement. The parties also
recognize that retail food service regulation for public health
protection is another matter which may need to be addressed as to
off reservation treaty shellfish activities. If in the future,
the NSSP Manual is amended to provide for additional standardized
processes other than growing area classification, the parties
will develop protocols to provide the tribes an opportunity to
obtain standardization with respect to those processes. At such
time as the parties may agree, but at least every two years,
policy representatives designated by each party shall meet and
identify any such matters, which shall be referred to the
Technical Team for action. The first such policy meeting shall
occur no later than eighteen months after the effective date of
this Agreement. Additional such matters may be referred to the
Technical Team at any time by agreement of the state and one or
more tribes.
Technical Team
Each tribe or group of tribes will identify a technical
representative, and the state will identify one or more technical
representatives, who shall constitute the Technical team. The
purpose of the team is to cooperatively assemble and evaluate
information regarding shellfish sanitation, and to develop
proposed policies and protocols, based on sound scientific and
statistical methods, to be presented to policy representatives of
the parties for approval.
The Team may in its discretion appoint working groups,
coordinators, or other officers, and may adopt a work plan and
any procedures it deems useful. Decisions of the Team shall,
where possible, be made by consensus and within 30 days after a
matter is presented for consideration. Where consensus cannot be
achieved, the Team shall present majority and minority reports to
the parties' policy representatives for consideration. Issues
A-2
-------
which cannot be resolved by agreement of the parties' policy
representatives shall be referred to dispute resolution under
this Agreement.
Draft protocols and guidance based on scientific method,
developed by the Team, shall become effective as to any tribe
upon approval by such representatives of that tribe and of the
Washington State Department of Health.
A-3
-------
SHELLSTOCK HARVEST FOR BAIT
PROPOSED REQUIREHENTS
Any person desiring to harvest molluscan shellfish for use
as bait must first obtain a permit from the state or tribal
regulatory authority.
Bait harvest shall only be allowed in designated areas at
specif ied t imes.
Bait shellstock shall be dyed with an approved dye, such as
FD&C ^1 Blue, before being transferred from the harvest
area, unless the shellstock remains under direct regulatory
supervision until dyed. Such shellstock shall be labeled
"NOT FOR HUMAN CONSUMPTION-BAIT USE ONLY." Bait shellstock
shall be stored in a location physically separated from
product intended for human consumption.
Bait shellstock must be completely immersed in dye to impart
a visible color to the shellstock.
All bait harvesting activities and dying of shellstock shall
be done under immediate regulatory supervision.
Complete records of all bait harvesting activities shall be
kept, including harvest location, date, quantity, species,
and distribution of product.
Bait shellstock found in violation of these requirements
shall be subject to immediate seizure and destruction.
Attachment B
-------
SHORT-TERM RELAYING PROTOCOL
AND GENERAL REQUIREMENTS
The practice of relaying involves the harvest of shellfish from
polluted waters and, therefore, strict controls over the harvest,
transport, laying down, surveillance, and reharvest are necessary
to prevent contaminated shellfish from entering commercial
channels and posing the threat of shellfish-related disease
outbreaks. In addition, significant resources are required to
adequately monitor relay activities.
Definitions
Approved Area: The classification of a shellfish growing area
which has been approved by the state shellfish control agency
(SSCA) for growing or harvesting shellfish for direct marketing.
The classification of an approved area is determined through a
sanitary survey conducted by the SSCA in accordance with Section
C of Part 1 of the National Shellfish Sanitation Program Manual
of Operations. An approved shellfish growing area may be
temporarily made a closed area when a public health emergency
resulting from, for instance, a hurricane or flooding, is
declared.
Commingling: The act of combining different lots of shellfish.
Container: A container such as a bag, tray or float used to hold
shellfish during the purification process.
Container .Relaying: The transfer of shellfish from restricted
areas to approved or conditionally approved areas for natural
biological cleansing in a container using the ambient environment
as a treatment system.
Department: The Washington Department of Health, Office of
Shellfish Programs.
Harvester: A person who takes shellfish by any means from a
growing area. A harvester may be a person, firm or corporation
ultimately responsible for harvest operations.
Long-term Relay; A relay operation that utilizes purification
times of more than 60 days.
Lot of Shellfish: A collection of bulk shellstock or containers
of shellstock of no more than one day's harvest from a single
defined growing area harvested by one or more harvesters.
Attachment C
C-l
-------
National Shellfish Sanitation Program ftJSSP) : The cooperative
program for the certification of interstate shellfish shippers as
described in the National Shellfish Sanitation Program Manual of
Operations. Parts I and II. Foreign countries may participate by
having an effective agreement with the FDA.
Prohibited Area: State waters that have been classified by the
state shellfish control agency as prohibited for the harvesting
of shellfish for any purpose except depletion. A prohibited
shellfish growing area is a closed area for the harvesting of
shellfish at all times.
Reharvester: A person, firm or corporation who reharvests the
purified shellfish after relaying. The Harvester/Reharvester may
be the same or different entities.
Relaying; The transfer of shellfish from restricted areas to
approved areas for natural biological cleansing using the ambient
environment as a treatment system.
Restricted Area: State waters that have been classified by the
state shellfish control agency as an area from which shellfish
may be harvested only if permitted and subjected to a suitable
and effective purification process.
Short-term Relay: A relay operation that utilizes purification
times of 60 days or less.
State Shellfish Control Agency; The state agency or agencies
having legal authority to classify shellfish growing areas and
issue permits for the interstate shipment of shellfish in
accordance with the provisions of the NSSP Manual of Operations,
Parts I and II.
C-2
-------
Responsibilities of Parties
Dept. of Health *
Classification of
the growing area.
Review and approve
the application by
the harvester.
Review and approve
the application by
the reharvester.
Review and approve
harvest and relay
sites.
Coordinate harvest
surveillance.
Assist in and
approve
verification
studies, including
design.
Collect and analyze
samples.
Interpret data.
Conduct water
quality monitoring.
Review Records.
Facilitate
regulation
enforcement.
Harvester
Complete and submit
application.
Submit Harvest
Schedules.
Identify harvest
sites.
Properly label
harvested
shellfish.
Maintain harvest
records .
Submit samples as
required.
Conduct harvest
surveillance.
Reharvester
Complete and submit
application.
Identify Relay
Site.
Maintain shellfish
identification
during relay.
Maintain records of
placement and
reharvest.
Record
environmental
measurements such
as water
temperature as
required by DOH.
Sample collection
as required by DOH.
Relay site
surveillance and
security.
* A treaty tribe may perform certain or these functions as
provided in this agreement.
C-3
-------
REQUIREMENTS FOR RELAYING SHELLFISH
Administration and Permits
The harvester/reharvester must complete an application for a
Shellfish Operation License and Certificate of Approval.
The harvester/reharvester must complete an Application for
Relaying Shellfish. The application must be approved by the
Department of Health. The relay permit shall run concurrently
with the certification period (certificates expire on September
30). Copies of the relay application will be forwarded to other
state agencies having an interest, such as the Departments of
Fisheries, Natural Resources and Parks.
The Department shall respond to relay applications within 30 days
of receipt.
A harvest schedule, which includes specific dates and times of
harvest, shall be submitted with the application. The Department
must be notified of any changes to the schedule.
The method of deposition of laying down of shellfish at the relay
site must be outlined and approved by the Department.
It should be recognized that conditions in the marine environment
during certain times of the year may render the natural
purification process and subsequent bacterial reductions
ineffective. Low water temperature and salinities are the
primary factors contributing to this effect. Therefore, the
Department reserves the right to approve or deny relay permits on
a seasonal basis.
Approval of the relay operation may be subject to cancellation
due to failure to comply with these requirements or as a result
of adverse conditions at either the initial harvest site or the
relay area.
Monitoring and Standards
The initial harvest site must be classified as Restricted or
Conditionally Restricted. The relay site must be classified as
Approved or Conditionally Approved.
A verification study shall be performed to show that the relay is
effective in reducing bacteriological contamination (see
Verification Study Procedures and Monitoring Requirements for
Commercial Relay Operations).
The relay area must be at least 25 feet from adjacent, approved
shellfish and may require greater separation as determined by the
Department.
Shellfish samples from both the initial harvest site and the
C-4
-------
relay area shall be maintained and furnished to be Department as
required.
Surveillance; Short Term
A detailed surveillance plan must be submitted by the
harvester/reharvester. It must specify surveillance activities
to be performed by the harvester/reharvester to insure the
security of relayed product for the duration of the relay. The
surveillance plan will be evaluated and a determination will be
made as to what Departmental resources will be expended on
surveillance activities. The surveillance plan must be approved
by the Department.
The initial harvest site must be well defined. It shall be the
responsibility of the harvester to identify the site with
appropriate markers as required by the Department.
The relay area must be well defined. It shall be the
responsibility of the reharvester to identify the relay area with
appropriate markers as required by the Department.
Site visits may be made by Department staff to both the initial
harvest site and relay area.
The relay area must lend itself to effective surveillance.
The harvester shall be responsible for effective supervision and
management of the harvest. Supervision shall include methods to
insure:
1. Product is removed only from the designated harvest site.
2. Product is transferred exclusively to the approved relay
site.
3. Records of harvesters and quantities harvested are
maintained.
The reharvester shall be responsible for the effective
supervision and management of the transport, laying down of the
contaminated shellfish, relay site surveillance and security, and
the reharvest of the purified shellfish.
The method and route from the initial harvest site to the relay
site must be outlined and approved by the Department.
For container relay, harvest tags stating "For Relay Only" in
indelible ink must be attached to each container of shellfish to
be relayed.
C-5
-------
Records
All lots of relayed shellfish shall be identified by waterproof
tags or labels throughout the relay process, including a specific
number for each lot. However, bulk or ground relay can be marked
with poles, pipes, or other suitable means.
Accurate, written records shall be maintained and submitted on a
monthly basis or more frequently as determined by the Department.
Such records must be available for inspection by the Department
at any time.
Relaying records shall consist of initial harvest area location,
initial harvest dates and quantities harvested, dates of
placement in the relay area and quantities placed, relay area
location, and dates of removal from the relay area and quantities
removed.
C-6
-------
VERIFICATION STUDY PROCEDURES
AND MONITORING REQUIREMENTS
FOR SHORT TERM COMMERCIAL RELAY OPERATIONS
A verification study is required prior to approval of relay to
determine if the process is effective in reducing bacteriological
contaminants. This document sets forth the procedures to be used
to establish relay effectiveness, as well as the monitoring
requirements necessary for approved relays. Prior to initiating
a verification study, the proponent must submit a completed relay
application for review by the affected tribe and the Department
of Health. Approval by the Department of Health of that
application is required before the study is initiated.
1, Verificationstudy procedures.
To determine relay effectiveness, at least two verification
studies shall be conducted. Verification studies shall not
run concurrently, but may be initiated one week apart. A
decision as to the maximum length of time the study will be
run must be made prior to initiating the test relay.
Shellfish test lots that do not meet the required
bacteriological endpoint will be destroyed or returned to
the original harvest area at the conclusion of the
verification study.
Verification studies shall be conducted as follows:
a. Sufficient shellfish shall be harvested from the
restricted area to approximate commercial relay
conditions. The same relay process fbags, trays,
floats, etc.) shall be used in the study as is intended
for the commercial operation.
b. Department or tribal staff will collect at least five
representative 0-day samples from the restricted area
for bacteriological analysis.
c. Department or tribal staff will collect at least five
samples from the relayed product after seven days and
five samples after fourteen days. An additional five
samples will be collected at the endpoint of the relay
if a prior decision has been made to proceed with a
relay longer than fourteen days. Succeeding samples
may be taken at a frequency determined by the
Department and the tribes.
2. Evaluation of relay effectiveness. The endpoint relay
samples shall be used to establish a geometric mean for each
verification study. The fecal coliform geometric mean of
the endpoint relay samples shall not exceed 75/100 grams and
no values shall be greater than 230 fecal coliforms/100
grams.
C-7
-------
Both verification study lots must meet the required endpoint
criteria for the relay to be approved. A decision as to
whether to proceed with further verification studies in the
event that the initial test relays do not sufficiently
reduce contaminants shall require a comprehensive review of
the proposed relay by the proponent, the Department and the
tribes.All commercial relays will be required to run at
least fourteen days unless sufficient data has been
collected to show that a shorter time period will
consistently reduce bacteriological contaminants to the
required level. In no case will the required time period be
reduced below fourteen days until the relay has successfully
operated for at least six months.
Monitoring of approved commercial relays. In addition to
sampling of relayed shellfish, additional water quality
monitoring must be conducted at the relay site. Monthly
water samples shall be collected in the relay area (at least
three stations) to assure that approved area criteria are
being met.
The first four lots of relayed shellfish shall be sampled at
the relay endpoint (at least five samples per lot). Further
monitoring will be conducted as determined by the Department
and the tribes. If relay times of less than fourteen days
are approved, each lot shall be sampled before relay and at
the endpoint, until sufficient data has been collected to
justify decreasing sampling frequency.
The permit to relay may be subject to cancellation if any
test lot of relayed shellfish fails to meet the established
endpoint criteria. A retest shall be conducted immediately
if product exceeds endpoint standards. If the endpoint is
exceeded in lot follow-up, an investigation will be
conducted, after which a determination will be made if the
relay should continue.
C-8
-------
PROCEDURES FOR ESTABLISHING SANITARY LINES
IN SHELLFISH GROWING AREAS
Sanitary Lines are established in shellfish growing areas to
define the location of the various harvest classifications
recognized under the NSSP Manual. Factors considered in
establishing such lines include the following:
Prohibited areas around point source outfalls are
established in accordance with criteria set forth in
Part I of the NSSP Manual (see Attachment E.l-3 for
details).
- Prohibited areas around marinas are established in
accordance with criteria set forth in Part I of the
NSSP Manual (see Attachment E.4-5 for details).
- All sampling stations within areas classified as
approved must meet the coliform standard based on an
annual review of data. Location of the sanitary line
defining approved areas is also based on sanitary
survey information which describes the location of
actual and potential pollution sources and their impact
on the growing area.
- Sanitary lines are located such that they are easily
identifiable (easily visible land marks, etc.)
- The location of shellfish resources is always taken
into account when establishing sanitary lines and
sampling stations to maximize resource availability.
Sanitary lines defining conditionally approved areas
are based on detailed studies showing the extent of
potential impact of a particular point or nonpoint
source(s) on the growing area. The sanitary line is
placed such that all sampling stations that meet the
coliform standard when the area is open to harvest are
included in the conditionally approved area.
In addition to microbiological data from marine
sampling stations, consideration is given to
hydrographic characteristics of the area in
establishing sanitary lines.
Attachment D
-------
PROCEDURES FOR ESTABLISHING SANITARY
LINES AROUND WASTEWATER OUTFALLS
The Shellfish Program of the Department of Health establishes
Prohibited Areas around wastewater outfalls in accordance with
the policy outlined in the NSSP Manual. The sections of the NSSP
Manual of Operations Part I which describe the factors to be
taken into consideration in the establishment of sanitary lines
which define the appropriate Prohibited Area include Sections:
C.2 (Classification of Growing Areas); C.3 (Approved Areas); C.4
(Conditionally Approved Areas); and C.7 (Prohibited Areas). It
should be emphasized that a Prohibited Area is required adjacent
to any wastewater outfall of public health significance.
As stated in recent revisions of the Manual, the effectiveness of
wastewater treatment processes must be considered in establishing
the appropriate classification of nearby shellfish production
areas. In particular, the wastewater treatment must be evaluated
in terms of the minimum treatment which can be expected with the
possibility of malfunctioning, overloading, or poor operations.
These evaluations are conducted by the DOH Shellfish Program on a
site-specific basis, through technical "reliability" evaluations
of the wastewater treatment facilities.
Several factors are taken into consideration by the DOH Shellfish
Program in establishing the location of the appropriate sanitary
lines for the Prohibited Area (and Conditionally Approved Area if
applicable). The principle factors which involve operations in
the treatment plant include:
- effluent volume at high and/or low hydraulic loading;
- bacteriological and physical quality of the effluent, and
- identification of factors which can cause plant failure.
In addition, the major hydrographic factors in the receiving
waters which need to be taken into consideration include:
- current velocity;
- receiving area geometry;
- direction of travel and stratification;
- location of discharge;
- tidal characteristics;
- orientation and configuration of the outfall pipe and
diffuser, and
- physical characteristics of the receiving water.
These factors which are listed above are usually used as input
parameters in the CORMIX (Cornell Mixing Zone) modelling program,
an Expert System approved by EPA for far-field modelling of
Attachment E
E-l
-------
effluent dispersion from outfalls. More infrequently, field
studies using dye and/or drogues are utilized by DOH in the
establishment of sanitary lines for wastewater treatment plants.
The selection of the most appropriate approach to be used is
often a site-specific consideration, based on Best Professional
Judgment. As stated in the NSSP Manual, the SSCA shall choose
the most appropriate method in which to apply the factors
previously described. These methods can include hydrographic
field and/or computer models pertinent to the discharge and
receiving water application. In addition, a reliability
evaluation of the wastewater treatment plant should be conducted
to ascertain the principle factors which involve operations at
the plant and which affect the quality and quantity of its
effluent.
Generally, the DOH Shellfish Program assumes that the
bacteriological quality of .the effluent is approximated under
theoretical upset conditions at the wastewater treatment plant by
that of the treated-but-not-disinfected effluent. This is a
conservative assumption applicable to most plants evaluated by
DOH, and has been previously suggested by FDA in outfall studies.
It should be emphasized that the DOH Shellfish Program generally
assumes adverse conditions at the plant and in the receiving
waters, rather than worst-case conditions, in assuming a
theoretical condition of malfunction or poor operation at the
treatment plant. This approach is similar to that used by DOE in
establishing dilution zones protective of aquatic life.
Hydrographic and receiving water information is usually obtained
by DOH from a variety of sources. These sources include DOE-
mandated mixing studies; ambient monitoring water quality data;
as-built plans and field studies from the files of DOE,
universities, the permittee, or consultants, and information
collected by DOH and FDA. Adverse receiving water conditions are
assumed in the CORMIX model iterations.
The sanitary line for a wastewater discharge is established at
the location where the water quality is projected to meet the
shellfish water quality standard of 14 fecal coliforms/100 ml.
In certain situations, depending upon the location of the nearest
shellfish resource, no Conditionally Approved Area may be needed
to meet this criteria. In such situations, the-water quality
standard is required to be met at the edge of the Prohibited
Area.
In other situations, a Conditionally Approved Area is requited
adjacent to the Prohibited Area. In these situations, the
Prohibited Area serves to provide a transport or transit time,
for notification of any plant upset to DOH. DOH is then
responsible for notifying any commercial shellfish producers in
E-2
-------
^.d Conditionally Approved Area, and to temporarily
»rvesting of shellfish in the Conditionally Approved
operation of the treatment plant operators and all
rowers in the Conditionally Approved area with DOH is
r this classification.
Lshed in
inual.
jction
;ed upon
; the
itreated
person
ina;
ecal
marina.
ure
rogram.
ions
uses
aodel,
rates
ion
(rather
rate of
50%
its;
.ong-
;r, as
ig Best
'ith
•.ntial
ina.
E-3
-------
For example, the high use season may be during fair-weather
months of the year for recreational boats, or during commercial
seasons for commercial craft. The sanitary line for the
shellfish closure zone is established at the location where the
model indicates that the water quality meets the standard of 14
fecal coliforms/100 ml.
E-5
-------
MINIMUM QUALIFICATIONS
FOR
STANDARDIZED SHELLFISH INSPECTORS
STANDARDIZED INSPECTORS MUST HAVE A BACKGROUND IN PUBLIC HEALTH
THAT INCLUDES EXPERIENCE IN INSPECTION ACTIVITIES AND A GENERAL
KNOWLEDGE OF MICROBIOLOGY AS IT RELATES TO FOOD SERVICE
SANITATION.
GENERAL REQUIREMENTS:
A Bachelor's degree in public health, environmental health or
closely allied field and 2 years experience in a public health or
environmental health position, including at least one year
experience in food service inspection.
Specific training by the Food and Drug Administration and
certification as a Standardized Shellfish Inspector is also
required. This process includes classroom type instruction for a
4 to 5 day period and joint field inspection activities that may
require several months to complete. Field verification
inspections and other FDA required training is periodically
necessary in order to maintain "standard" status.
TYPICAL DUTIES:
Plans, organizes, and directs the shellfish dealer inspection
program. Conducts inspections and determines compliance with
national standards and state or tribal regulations as
appropriate. Initiates enforcement action as needed. Provides
technical review of plans for new construction or remodeling of
facilities. Serves as a consultant to shellfish dealers on
matters relating to plant sanitation and handling of shellfish.
Provides liaison and coordination with FDA, tribal, state and
local agencies.
Attachment F
-------
MINIMUM QUALIFICATIONS FOR CONDUCTING
WATER QUALITY STUDIES
WATER QUALITY STUDIES ARE A KEY COMPONENT OP GROWING AREA
CLASSIFICATION THAT REQUIRE AN UNDERSTANDING OF INDICATOR
ORGANISM BEHAVIOR IN THE MARINE ENVIRONMENT. PERSONS INVOLVED IN
STUDIES MUST HAVE A WORKING KNOWLEDGE OF SAMPLING PROGRAM DESIGN,
HYDROGRAPHICS, MARINE MICROBIOLOGY, AND THE FATE OF POLLUTANTS IN
THE MARINE ENVIRONMENT.
PERSONNEL REQUIREMENTS FOR WATER QUALITY STUDIES:
WATER QUALITY LEAD WORKER; A Bachelor's degree in environmental
or physical science, natural science, environmental planning, or
other closely allied field and 2 year's experience in
environmental monitoring, environmental health or environmental
planning. Specific training in water quality monitoring design,
sampling procedures, and operation of watercraft is also
required.
TYPICAL DUTIES: Plans, organizes and conducts water quality
studies in shellfish growing areas. Establishes sampling
stations, identifies growing area boundaries, and collects water
samples and other environmental data. Organizes data and prepares
reports of findings. Trains lower level staff in proper sampling
technique, equipment operation, and boating safety procedures.
WATER QUALITY ASSISTANT; Previous experience as an environmental
technician or field work related to one of the natural sciences
and specific training in water sampling techniques and watercraft
operation.
TYPICAL DUTIES: Assists the lead worker in conducting water
quality studies in shellfish growing areas. Collects samples and
environmental data and records information. Operates watercraft
and other sampling equipment.
Attachment G
-------
MINIMUM QUALIFICATIONS FOR CONDUCTING
SHORELINE SURVEYS
SHORELINE SURVEYS ARE A KEY COMPONENT OF GROWING AREA
CLASSIFICATION THAT REQUIRE A THOROUGH KNOWLEDGE OF NONPOINT
POLLUTION AND ITS IMPACT ON MARINE WATERS. PERSONS INVOLVED IN
CONDUCTING THESE SURVEYS MUST HAVE A PUBLIC HEALTH BACKGROUND
INCLUDING EXPERIENCE IN ENVIRONMENTAL HEALTH OR ASSESSMENT, AND A
GOOD UNDERSTANDING OF ON-SITE WASTE DISPOSAL, POLLUTION TRANSPORT
MECHANISMS, AND BASIC MICROBIOLOGY.
PERSONNEL REQUIREMENTS FOR SHORELINE SURVEYS;
SHORELINE SURVEY LEAD WORKER; A Bachelor's degree in public
health, environmental health or allied science and 4 years
experience in a public health or environmental health position,
including at least 2 years of field experience evaluating
nonpoint water pollution sources and 1 year evaluating or
designing on-site sewage systems.
TYPICAL DUTIES: Plans, organizes and conducts the shoreline
survey component of sanitary surveys in shellfish growing areas.
Trains and directs lower level staff in conducting surveys.
Evaluates completed survey documents and develops final report
recommendations. Coordinates program activities with state,
federal, tribal and local agencies. Provides technical support
and consultation on nonpoint pollution and shellfish sanitation.
SHORELINE SURVEY ASSISTANT: A Bachelor's degree in
environmental -or physical science, natural science,
environmental planning, or other closely allied field and one
year of experience in environmental analysis, environmental
health, or environmental planning. Specific training or
experience in evaluating nonpoint water pollution sources and
on-site systems is also required.
TYPICAL DUTIES: Assists the lead worker in conducting shoreline
surveys of shellfish growing areas. Assesses sources of point
and nonpoint pollution, prepares reports and maps of findings
and assists in conducting special studies as required. Collects
environmental samples as needed.
Attachment H
-------
EXAMPLES OF EFFECTIVE TRIBAL PROGRAMS TO PREVENT
SALE OF CEREMONIAL AND SUBSISTENCE HARVEST
The following procedures .are agreed to be effective tribal
means of preventing the sale of clams, oysters, mussels and
scallops (hereinafter "shellfish") taken in tribal ceremonial and
subsistence (C&S) fisheries.
I. EXAMPLE ONE
1. All areas fished by the tribe shall be closed to all
harvest of shellfish, unless opened by tribal regulation.
2. Each regulation opening an area of tideland shall state
the dates and times of both opening and closure, and the species
to be available for harvest. Each such regulation shall also
identify the harvest area as precisely as practicable, for
example, by use of a unique six digit Beach Identification Number
(BIDN) assigned by agreement of the tribe and the State of
Washington. The BIDN or other harvest area identification shall
identify a relatively small area sharing a common growing area
classification and common water quality conditions.
3. The tribe shall maintain a toll-free phone number with a
recorded message regarding current and upcoming openings and
closures, or shall maintain another effective-method of providing
up to date opening and closure information to harvesters.
4. One or more tribal personnel ("monitor(s)") shall be
present at the growing area throughout every commercial opening,
but shall not engage in harvesting. No product shall be allowed
to leave the growing area during a commercial opening without
inspection by a tribal harvest monitor, who shall prepare a
contemporaneous record showing the name of the tribe and a unique
identifier of the tribal harvester; the BIDN or other unique
growing area identification; the species and estimated quantity
of harvest; and the date of harvest. The tribe shall maintain
all such records in its custody.
5. To facilitate the detection of sale of shellfish taken
in a C & S fishery, the tribe shall require that, upon sale of
any shellfish, a record of the transaction shall be completed
which includes the shellstock shipper license number of the
tribe, tribal organization, or tribal member engaging in the
harvest; the BIDN or other unique growing area identification
number; the species and quantity sold; and the dates of harvest
and sale. Where harvest is by a person who does not personally
have a shellstock shippers license, the record shall also show
the unique identifier of the harvester. A copy of the
transaction record shall be distributed to the tribe as soon as
possible.
Attachment I
1-1
-------
6. Tribal fisheries enforcement officers patrol growing
areas subject to tribal jurisdiction, conduct routine, scheduled
patrols of areas that are open for any type of shellfish harvest,
and investigate reported or suspected violations.
7. Tribal law specifies that no more than the following
quantities of shellfish may be taken by a tribally-licensed
harvester in one day for ceremonial or subsistence purposes
without a special permit:
a)Native littleneck clams, butter clams, cockles, and
manilla clams in any combination: fifty pounds in
shell;
b)Horse clams: fifty clams;
c)Oysters: twenty count;
d)Geoducks: six geoducks;
e)Mussels: ten pounds in shell.
8. The above bag limits may be exceeded by special
ceremonial or subsistence permit, issued to the harvester by the
tribe prior to harvest, which state the place and time at which
harvest will be permitted, the species and quantity that can be
taken, and the name of the harvester.
1-2
-------
II. EXAMPLE TWO
1. Tribal regulations that: govern tribal ceremonial,
subsistence, and commercial fisheries are enforced by tribal
enforcement staff conducting routine scheduled patrols of growing
areas subject to tribal jurisdiction and investigating reported
or suspected violations.
2. Tribal ceremonial shellfisheries are discrete in time and
place and are opened by tribal regulation as provided for in the
individual tribe's fisheries ordinance. Tribal regulations
opening a ceremonial shellfishery designate the catch area and
specific beach opened for harvest, the species to be harvested,
the gear restrictions, date and times of opening and closure, a
limited number of tribal members authorized to participate in the
ceremonial fishery, the target harvest quantity and the reporting
requirements. The designated tribal members particpating in the
fishery are required by regulation to report the harvest quantity
to the tribal fisheries office within 24 hours of the close of
the fishery. Records of time, place, and quantity of harvest are
maintained by the tribal fisheries office.
3. Tribal subsistence shellfisheries are controlled by
tribal annual and emergency regulations. Any beaches in the
treaty area and subject to tribal harvest may be opened for
tribal subsistence harvest, except those beaches closed for human
health protection or for resource protection needs. Subsistence
fishery daily bag limits per fisher are as follows:
a) Littleneck, manilla, butter, soft-shell:
50 pounds combined, of which there can be no
more than 25 pounds combined total of
littleneck and manilla clams
b) Horse: 50 clams
c) Geoduck: 6 clams
d) Cockle: 50 clams
e) Mussel: 40 pounds
f) Oyster: 100 oysters
4. Management provisions that govern the commercial
fisheries can prevent the sale of non-commercial harvest.
Commercial clam and oyster harvests are managed by specific beach
openings and closures using emergency tribal regulations. Catch
is accounted for primarily by an on-the-beach monitor who records
information contained on the attached harvest monitor form. The
tribe maintains all such records of commercial catch. At the time
of sale, all tribal commercial catches are recorded on fish
receiving tickets which are compiled, summarized and entered into
a data base which is maintained at the tribal fisheries office.
1-3
-------
• ?"'!
1
2
3
4
5
6
7
8
9
10
.12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Hon. William L. Dwye
- 0
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
UNITED STATES OF AMERICA,
et al..
)
Plaintiffs,
THE CITY OF SEATTLE, and
MUNICIPALITY OP METROPOLITAN
SEATTLE,
Defendants.
NO. C90-395WD
CONSENT DECREE
CONSENT DECREE
This Consent Decree is made and entered into by and between
the United States of America, the State of Washington, the
Suquamish Indian Tribe, the Muckleshoot Indian Tribe, the City c
Seattle ("City") and the Municipality of Metropolitan Seattle
("Metro").
INTRODUCTION
The parties to this Consent Decree agree that settlement ol
the claims in this case against defendants the City and Metro i£
CONSENT DECREE - 1
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
fair, adequate, reasonable, equitable and in the public interest
and is made in good faith and after arms-length negotiations,^jk
that entry of this Consent Decree is the most appropriate means
to resolve the matters covered herein.
RECITALS
A. The Department of Commerce acting through the National
Oceanic and Atmospheric Administration ("NOAA"), the United
States Department of the Interior ("Interior"), the Washington
Department of Ecology ("Ecology"), the Muckleshoot Indian Tribe,
and the Suquamish Indian Tribe have been designated pursuant to
Section 107(f) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended ("CERCLA")*
42 U.S.C. Section 9607(f), and 40 C.F.R. Part 300, subpart G, to
act on behalf of the public as trustees for natural resources, £p;
the assessment and recovery of damages for injury to, destrucCIoj
of, or loss of natural resources under their trusteeships.
3. Metro, pursuant to statutory authority, is responsible
for the construction, operation, and maintenance of trunk sewer
lines, pumping facilities, and treatment plants serving over one
million people including many industries and commercial
enterprises in the greater Seattle area. Metro treats
approximately 180 million gallons of wastewater per day at its
five wastewater treatment plants, and discharges the treated
effluent from a system of outfall pipes extending into Puget
Sound. As a part of that system, combined sewer overflows
CONSENT DECREE - 2
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN CIS700
7600 Sand Point Way N.E.
Seattle. Washington 98115-0079
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
("CSOs") are located on and discharge to Elliott Bay and the
Duwamish River to handle extraordinary flows of storm water into
the system.
C. The City, pursuant to statutory authority, owns and
maintains a basic collector sewer system which feeds into the
Metro trunk sewer lines, and also owns and maintains a storm
water system. The City pays Metro for sewage transmission,
treatment, and disposal services. As part of the sewer and storm
water systems, the City owns and maintains certain CSOs and storm
water outfalls that discharge to Elliott Bay and the Duwamish
River.
D. The United States on behalf of NOAA filed a complaint
in this action on March 19, 1990, under Section 107 of CERCLA, 42
U.S.C. § 9607(a), seeking, inter alia, recovery from Metro and
the City for damages for injury to, destruction of, and loss of
natural resources resulting from releases of hazardous
substances, in particular chromium, cadmium, copper, lead, zinc,
pentachlorophenols (PCPs), polychlorinated biphenyls (PCBs),
polycyclic aromatic hydrocarbons (PAHs), and halogenated
hydrocarbons, into the environment in and around the Duwamish
River and Elliott Bay, for the costs of restoring, replacing or
acquiring the equivalent of the affected natural resources, and
for the costs of assessing the damage to the affected natural
resources.
CONSENT DECREE - 3
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C157DO
7600 Sand Point Way N.E.
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11,
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
E. The United States has alleged in its complaint in this
matter, prior to conducting a natural resource damage assessn^K
pursuant to 43 C.F.R. Part 11, that Metro and the City have
released hazardous substances into the environment, with
attendant injury to the United States' trust resources, and that
mitigation and remediation of substances Metro and the City are
alleged to have released would facilitate the recovery of such
resources.
F. Metro and the City maintain that effluent discharged
from their CSOs and storm water outfalls has presented little ii
any potential for injury to the natural resources in Elliott Ba}
and the Duwamish River; that their wastewater collection,
treatment and disposal programs have contributed substantially t
decreasing and/or minimizing injury and damage to natural
resources', that their water quality programs have made
improvements in the water quality of Elliott Bay and the Duwamii
River; that their pretreatment programs, along with on-site
monitoring, keep the contribution of industrial sources within
permitted discharge limits; and that the limited natural resoun
damage from the CSOs and the storm water outfalls appears to ha-
originated equally from industrial, commercial, and residential
customers that discharge into the City and Metro systems.
G. Without admission or adjudication of any fact or issu
of law in this matter, except as between the United states, Met
and the City as to the running of the statutes of limitation an
CONSENT DECREE - 4
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to certain interpretations of Section 13 of the Rivers and
Harbors Act, 33 U.S.C. § 407, in settlement of this action Metro
and the City have agreed to participate in a cooperative program
of restoration and replacement of natural resources in Elliott
Bay and the Duwamish River. In addition to the provision of
expertise through the contribution of in-kind services, Metro ahc
the City have agreed to provide funding for the operation of the
Panel (as defined below), the evaluation of natural resource
damages, the selection, design, and implementation of sediment
remediation and habitat development projects, and the
Codification of planned source control programs.
H. This Decree contains terms embodying a cooperative
partnership among the United States, Metro, the City, the State
of Washington, the Muckleshoot Indian Tribe, and the Suquamish
Indian Tribe that will make improvements in Elliott Bay and the
Duwamish River and will allow these parties to make progress in
restoring and replacing damaged natural resources in the covered
area, as defined below.
I. Scientific research conducted on natural resources in
Elliott Bay and the Duwamish River indicates that the effects of
many urban and industrial activities, including CSOs and storm
water discharges, have contributed to the injury identified in
these studies. Based on this research, the parties have agreed.
that, as to Metro and the city, no further natural resource
CONSENT DECREE - 5
UJS. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C1570D
7600 Sand Point Way N.E.
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
damage assessment is required to effectuate the purposes of this
Decree.
J. The programs and projects conducted pursuant to this
Decree standing alone are not intended, nor could they be
expected, to remedy all of the losses of or injuries to natural
resources in Elliott Bay and the Duwamish River. The parties
recognize the importance of dealing with the programs under this
Decree in a comprehensive manner and of coordinating the
activities undertaken pursuant to this Decree with actions by
these and other parties in the Elliott Bay and Duwamish River
area to maximize the benefits to the natural resources, as well
as the residents, of the area. This includes coordinating
ongoing Metro and City programs with efforts to maintain habitat
development projects established pursuant to this Decree.
K. The parties understand that the source control,
sediment remediation and habitat development efforts undertaken
pursuant to this Decree are not intended to substitute for any
other efforts or obligations of these parties.
L. The parties recognize that the United States and the
State of Washington retain and reserve their authority that does
not relate to recovery of natural resource damages, including the
authority to issue orders requiring remedial action and to
recover costs associated with such orders pursuant to CERCLA and
the Model Toxics Control Act, Chapter 70.105D RCW, Chapter 90.48
CONSENT DECREE - 6
U.S Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN CI5300
7600 Sand Point Way N.E.
Seattle, Washington 98115-0&70
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RCW, and the authority to administer and enforce the State
Sediment Management Standards, Chapter 173-204 WAG.
M. The Trustees have determined that the actions and
expenditures of Metro and the City under this Decree are an
appropriate contribution to efforts to redress the natural
resource damages that are the subject of this proceeding. This
determination is based in major part upon the following
considerations:
1. Metro has made a substantial public investment in
water quality. For example, Metro spent $2,244,000 over th
period 1977 through 1989 on its program of regulating
commercial and industrial discharges into those portions of
its sewerage system related to Elliott Bay and the Duwamish
River area. Metro has spent an additional $38,000,000 sine
1961 on other programs specifically designed to enhance
Elliott Bay and the Duwamish River area. In addition to
funds made available pursuant to this Decree, Metro will
spend $54,500,000 (in 1988 dollars) for CSO control project
through the year 2006.
2. The City has been actively engaged in programs tc
increase protection of waters receiving urban runoff.
During the period 1970 through 1989, the City has expended
more than $150,000,000 in capital projects and other
programs to enhance water quality in the Elliott
Bay/Duwamish River area. (This figure does not include fe«
CONSENT DECREE - 7
US. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle. Washington 981154)070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
23
and charges paid to Metro, although the city has
historically contributed over one-half of Metro's operatfjl
revenue.) The City's capital projects and other programs
have included controlling CSOs, identifying and reducing
sources of contaminants in storm drains, educating
commercial and industrial dischargers on storage and
handling practices of hazardous substances, and cleaning
streets, catch basins, and storm drain lines.
3. on April 17, 1991, the State of Washington adopte*
Sediment Management Standards, Chapter 173-204 WAC, an
innovative program of sediment quality standards, source
control, and cleanup, applicable to sediments in Elliott Ba;
and the Duwamish River.
In particular, the CSO control efforts undertaken by Metro and
the City, combined with the expected sediment quality benefits'
from adherence with the Sediment Management Standards program,
provide a substantial foundation for the efforts contemplated
under this Decree.
NOW, THEREFORE, before the taking of any testimony, before
the adjudication of the merits of this case, and without
admission of any issue of law, fact, liability, or responsibilit
by the City or Metro, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED:
JURISDICTION AND VENUE
CONSENT DECREE - 8
U-S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C157DO
7600 Sand Point Way N.E.
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
l. The Court has jurisdiction over the subject matter of
this action and the parties to this Consent Decree pursuant to 21
U.S.C. §§ 1331 and 1345, and Section 113(b) of CERCLA, 42 U.S.C.
§ 9613. This court also has personal jurisdiction over the city
and Metro which, solely for the purposes of this Consent Decree,
waive all objections and defenses that they may have to
jurisdiction of the Court or to venue in this District and to
service of process.
APPLICABILITY OF CONSENT DECREE
2. The provisions of this Consent Decree shall apply to
and be binding on the parties to this Consent Decree, their
agents, successors and assigns. Changes in the organizational
form or status of a party shall have no effect on its obligations
under this Consent Decree.
DEFINITIONS
3. This Consent Decree incorporates the definitions
set forth in Section 101 of CERCLA, 42 U.S.C. § 9601. In
addition, whenever the following terms are used in this Consent
Decree, they shall have the following meanings:
a. "Covered area" means the embayment on Puget Sound
located between Alki Point and West Point and includes the
shoreline ten (10) meters upland from the mean high water line
("Elliott Bay") and the Duwamish River from the point at which i
discharges into Elliott Bay to the head of navigation
CONSENT DECREE - 9
US. Depam&ent of Justice
Environmental Enforcement Section
c/o QC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(approximately river mile 10) , including Harbor Island and the
East and West Waterways around Harbor Island ("Duwamish River
b. "Covered matters" means any civil or
administrative liability to the United States, the state of
Washington, the Suguamish Indian Tribe and the Muckleshoot India:
Tribe, for any claim under 42 U.S.C. § 9607(a), 33 U.S.C. § 407,
Chapter 70.105D RCW, chapter 90.48 RCW, or any other federal,
state, or common law, except claims relating to treaties between
the United States and the Suquamish and Muckleshoot Indian
Tribes, for (1) natural resource damages within the covered area
including the costs of assessing natural resource damages; and
(2) reimbursement of response costs incurred or to be incurred b;
any Trustee (as defined below) with respect to its claims for
natural resource damages in the covered area, that could have
been adjudicated had United States v. Citv of Seattle and
Municipality of Metropolitan Seattle. Cause No. C9Q-395WD,
W.D. Wash. (Mar. 19, 1990), been prosecuted to final judgment;
"covered matters" shall also include any civil or administrative
liability to the United States, the Suquamish Indian Tribe, the
Muckleshoot Indian Tribe and the State of Washington for any
claims under 33 U.S.C. § 407 for injunctive and other equitable
relief that could have been adjudicated had said case been
prosecuted to final judgment. For the purpose of determining i:
claims could have been adjudicated, reference shall be made to
the facts and allegations disclosed in the documents filed with
CONSENT DECREE - 10
US. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the Court in said case by the date of entry of this Decree.
"Covered matters" shall not be construed to include any authorit
of the United States or the State of Washington that does not
relate to injunctive or equitable relief under 33 U.S.C. § 407 o
to recovery of natural resource damages, including the authority
to issue orders requiring remedial action and to recover costs
associated with such orders pursuant to CERCLA and the Model
Toxics Control Act, Chapter 70.105D RCW, Chapter 90.48 RCW, and
the authority to administer and enforce the State Sediment
Management: Standards, Chapter 173-204 WAC.
c. "Habitat development" includes acquiring living
natural resources for the purpose of habitat restoration and
replacement and any program, technique, method, or other means o
creating or enhancing aquatic or benthic habitat in the Duwamish
River or Elliott Bay.
d. "Natural resource damages" means damages for
injury to, destruction of, or loss of any and all natural
resources caused in whole or in part by releases of hazardous
substances into the environment.
e. "Sediment remediation" includes, but is not
limited to, any program, technique, method, or other means of
dredging, removing, cleansing, isolating, immobilizing,
bioremediating, capping, or containing sediments beneath the
waters of the Duwamish River and Elliott Bay that contain
hazardous substances.
CONSENT DECREE - 11
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
f. "Source control" means any program, technique,
method, or other means of restricting or eliminating the
discharge or other release of hazardous substances into Metro's
and the City's CSO and/or storm water outfall systems.
g. "Trustees" means NOAA, Interior, Ecology, the
Suquamish Indian Tribe and the Muckleshoot Indian Tribe.
DISTRICT COURT REGISTRY ACCOUNT
4. a. Metro and the City shall, pursuant to the
schedules and terms set forth herein, pay all financial
contributions under this Consent Decree by certified or bank
check. Each such check shall include on its face a statement
that it is a payment for natural resource damages in Civil Action
No. C90-395WD (W.D. Wash.), and, with the exception of those
funds identified in paragraph 32 below, shall be sent to:
Office of the United States Attorney
3600 SeaFirst Fifth Avenue Plaza
800 Fifth Avenue
Seattle, Washington 98104
The U.S. Attorney shall immediately deposit such funds with the
Registry of the Court. The party making payment shall cause
copies of each check and of any transmittal letter accompanying
the check to be sent to: Chief, Environmental Enforcement
Section, Department of Justice, P.O. Box 7611, Ben Franklin
Station, Washington, D.C. 20044; NOAA Damage Assessment Center,
WSC1 Room 212, 6001 Executive Boulevard, Rockville, Maryland
20852, Attention: Kathleen Anderson.
CONSENT DECREE - 12
US. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C1S700
7600 Sand Point Way N.E.
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
b. The Registry of the Court shall administer all
amounts paid for natural resource damages under this Decree in ar
interest-bearing account ("Registry Account" or "Account") as
provided in the Order Directing the Deposit of Natural Resource
Damages Into the Registry of the Court ("Deposit Order") issued
by this Court pursuant to Rule 67 of the Federal Rules of Civil
Procedure, 28 U.S.C. § 2041, and Rule GR 6 of the Rules of the
United States District Court for the Western District of
Washington. The Deposit Order shall be attached to this Decree.
c. All funds and all interest accrued thereon in the
Registry Account shall be held in the name of the "Clerk, United
States District Court," for the benefit of the Trustees. Monies
in the Registry Account may be used to fund the planning,
implementing, and overseeing of actions to restore, replace, or
acquire the equivalent of natural resources that have been
injured, destroyed, or lost as a result of the release of
hazardous substances into the environment in the covered area, ii
accordance with 42 U.S.C. § 9607(f)(1). The Panel shall use all
interest earned on funds paid into the Account for sediment
remediation only for expenses of project implementation for
sediment remediation and all interest earned on funds paid into
the Account for habitat development only for expenses of project
implementation for habitat development. All disbursements from
the Registry Account shall be made by order of the Court in
accordance with the provisions of 28 U.S.C. § 2042. Application
CONSENT DECREE - 13
VS. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C1S700
7600 Sand Point Way N.E.
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
for disbursement orders may be made only by the United States on
behalf of, and with the approval of, the Panel.
PROJECT AND ACCOUNT MANAGEMENT
5. A panel of managers ("Panel" or "Managers") shall be
formed to direct the source control, sediment remediation and
habitat development project activities contemplated herein to be
performed utilizing funds deposited in the Registry Account. The
Panel shall consist of the following groups: (a) NOAA and
Interior, for the United States; (b) Ecology, for the State of
Washington; (c) the Suquamish Indian Tribe; (d) the Muckleshoot
.Indian Tribe; (e) Metro; and (f) the City. The Panel shall have
no independent legal status and shall have only that authority
conferred upon it by this Decree.
6. Each member group of the Panel, as identified in th4fe
preceding paragraph, may as necessary select in what ever manner
it deems appropriate one or more representatives from its
respective agencies or subgroups to serve collectively as its
Manager. Irrespective of the number of representatives from any
group, each of the groups identified in the preceding paragraph
shall have only a single vote on the Panel.
7. The terms in this paragraph shall apply only if the
Suquamish Indian Tribe, the Muckleshoot Indian Tribe and the
State of Washington all choose to continue their consent to this
Decree and to participation in this settlement. The Parties to
this Decree expect and intend that most issues for decision by
CONSENT DECREE - 14
U.S. Deportment of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the Panel will be. based upon objective criteria, and that most
decisions will be based on consensus. Where no consensus is
achieved, except as provided in paragraph 30 of this Decree, the
Panel will decide the issue by vote, with each member having one
vote, and the majority prevailing. The position of the majority
of the Trustees will prevail in the event of a tie vote. The
position of the United States will prevail in the event of a tie
vote in which the Trustees are evenly split. Any party may,
within thirty (30) days of notification of the results of voting,
petition the Court for review of any decision. The petitioner
shall bear the burden of proving that the decision is
inconsistent with the terms of this Decree. The Panel may adopt
in the form of bylaws any additional decision making procedures
it deems necessary.
8. The terms in this paragraph shall apply only if one or
more Trustees exercise their right to withdraw pursuant to
paragraph 53 of this Decree. Following entry of this Decree, the
Panel shall establish procedures for making decisions. Such
procedures shall conform to the following requirements:
(a) decisions shall if possible be based on consensus; (b) the
structure for deciding any issue by vote shall allow each group
to have a true voice in the process; (c) deference shall be given
to decisions by a majority of the trustee groups, even if they
are not in the numerical majority of the Panel on a given issue;
(d) any arrangement that would allow a group or groups to
CONSENT DECREE - 15
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
3
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
deadlock voting shall be avoided; and (e) any aggrieved party
shall have the right to petition the Court for review of any
decision by the Panel. The Panel may adopt in the form of bylaws
any additional decision making procedures it deems necessary, ij
the Panel fails to establish decision making procedures, which
conform to the requirements herein, within ninety (90) days of
entry of the Decree, any party to this Decree may immediately
petition the Court to establish such procedures.
9. For the purposes of this Decree, the Panel has the
authority to:
a. Establish such procedures and practices as are
necessary to the operation and deliberations of the Panel,
including, but not limited to, provisions for collecting and
disseminating information, convening and conducting meetings^fei<
resolving disputes;
b. Gather data in Elliott Bay and the Duwamish River
regarding damages to natural resources occasioned by releases of
hazardous substances into the environment that have resulted in
injury to, destruction of, or loss of natural resources;
c. Plan projects for sediment remediation and habita-
development in the covered area;
d. Establish source control goals to protect natural
resources and prevent recontamination of sites selected for
sediment remediation or habitat development in the covered area;
CONSENT DECREE - 16
US. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
e. Review and comment upon actions proposed by Metro
and the City to achieve the Panel's source control goals,
determine if such actions are likely to achieve the Panel's
goals, and direct Metro and the City to take such actions
approved by the Panel;
f. Coordinate and provide for the dissemination of
information to the public on the selection and design of sediment
remediation and habitat development projects;
g. Ensure the collection from, and dissemination to,
each group that is a member of the Panel all information
necessary to an informed discussion and resolution of all issues
related to sediment remediation, habitat development and source
control;
h. Decide all issues related to selecting study
activities and other data gathering efforts, and to selecting,
planning, and managing sediment remediation and habitat
development projects, including establishing performance
standards and contingency plans for habitat development projects
i. Develop guidelines for establishing the reasonabli
and necessary reimbursable costs of salary and travel incurred bi
the Trustees for their participation in the activities of the
Panel and of the technical working groups, formed pursuant to
paragraph 15 of this Decree; and
CONSENT DECREE - 17
U.S, Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
j. Perform any other activity specifically provided
for elsewhere in this Decree or as directed or approved by the
Court.
No action of the Panel may be inconsistent with the Trustees'
duties and responsbilities under 42 U.S.C. § 9607.
10. a. The parties to this Decree agree that the funds
paid by Metro and the City into the Registry Account shall be
used only for sediment remediation and habitat development, as
defined herein, and for expenses of Panel functions support and
planning and design support as specified below. No more than two
million dollars ($2,000,000) shall be spent on expenses of Panel
functions support. The Panel shall apportion such expenses
between the sediment remediation and habitat development
programs. Expenses of Panel functions support include, but ai^B
not limited to, salary and overhead for an administrative
director; costs associated with administering the Registry
Account; costs of public review and participation; costs of
disseminating information; and costs of contracting for any
services necessary to the accomplishment of any of said tasks.
Expenses of Panel functions support also include the reasonable
and necessary costs, as determined on the basis of guidelines
established by the Panel, associated.with participation by
personnel of the Trustees in Panel meetings and deliberations and
technical working groups, including salary and travel, provided
that such costs are not otherwise chargeable to Metro or the City
CONSENT DECREE - 18
U.S. Department of Justice
Environmental Eafotcemeat Section
c/o GC-DOJ DARC BIN C1S7DO
7600 Sand Point Way N.E.
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
in connection with the review of any required permit, application
or other approval.
b. No more than three million dollars
($3,000,000) shall be spent on expenses of planning and design
support. The Panel shall apportion such expenses between the
sediment remediation and habitat development programs. Expenses
of planning and design support include, but are not limited to,
costs of studies needed to set goals and establish priorities for
sediment remediation, habitat development, and source control
projects; costs of analysis as required for comparison of
candidate sites and site selection; costs of site
characterization as required to support detailed technical/-
engineering studies; costs of project design, specifications,
selection of equipment, materials, and procedures; costs
associated with NEPA/SEPA review, analysis, and reporting; costs
associated with permitting; costs of selection of monitoring
parameters and design of monitoring programs; costs of technical
support for the Suquamish and Muckleshoot Indian Tribes; final
report preparation; and costs of contracting for any services
necessary to the accomplishment of any of said tasks.
c. The remaining funds paid by Metro and the City
into the Registry Account, plus any sums not expended pursuant, ti
the preceding two subparagraphs, shall be spent on expenses of
project implementation. Expenses of project implementation
include, but are not limited to, costs of all on-the-ground
CONSENT DECREE - 19
VS. Department of Justice
Environmental Enforcement Section
c/o G&DOJ DARC BIN C15700
7600 Saod Point Way N.E.
Seactte. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
operations, including acquiring, dredging, capping, filling,
contouring, placing, removing, transporting, treating, or
disposing of materials, other construction requirements, and
planting of vegetation; construction management and inspection;
costs of monitoring for the purpose of making project adjustment:
and determining whether project success has been achieved;
acquiring sites for sediment remediation; and contracting for anj
services necessary to the accomplishment of any of said tasks.
11. The Panel shall provide to Metro and the City within
one hundred twenty (120) days of entry of this Decree an annual
.budget for the calendar year 1992. By March 31 of each year
beginning in 1992 and ending in 1996, the Panel shall provide to
Metro and the City an annual budget for the following calendar
year (e.g.. by March 31, 1992, for calendar year 1993, etc.)
The Panel must consider in each year's budget any unspent funds
from previous years and any unspent interest earned on funds in
the Account. The Panel may include in each such budget a figure
for contingency funds in an amount of up to ten percent (10%) of
the total amount budgeted, so long as the sum of the total amour
budgeted and the requested contingency fund does not exceed the
annual maximums set forth in paragraphs 20 and 28 of this Decree
12. The Panel shall implement an accounting mechanism to
track expenditures from the Registry Account. The Panel shall
cause an accounting report of such expenditures to be made at
CONSENT DECREE - 20
US. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
least on an annual basis, which report shall be made available to
all members of the Panel.
13. Except as provided in paragraph 34 regarding source
control efforts, the Panel may allow Metro and the City, if
either of them so chooses, to fulfill their respective financial
obligations by providing in-kind services. By September 30 of
each year beginning in 1992 and ending in 1996, Metro or the City
or both of them shall submit to the Panel a proposal describing
those tasks or portions of tasks, identified in the budgets
prepared pursuant to paragraph 11 of this Decree, that Metro or
the City or both of them propose to perform utilizing in-kind
services. The proposal shall identify by grade, title, salary
and level of benefits the employees who are to perform the
specified services, and shall provide an employee-specific
analysis of the work to be performed and the value of that work,
including allied costs. The Panel may accept any such proposal
in its entirety or, to the extent practicable, may accept a
portion of a proposal and not accept other portions. As a
condition of acceptance of such a proposal, the Panel shall
specify such conditions as are necessary to insure adequate
oversight by the Panel of the services to be provided and
appropriate coordination with the efforts of contractors and
others. The Panel shall notify Metro and the City in writing of
its decision and shall specifically identify the tasks,
identified in the budget the Panel has approved, to be performed
CONSENT DECREE - 21
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle. Washington 981154070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
through in-kind services and those to be performed through
payments, with a specific cost allocation to each. Within ninlCy
(90) days after the close of each calendar year in which such
in-kind services have been provided, Metro and the city shall
cause an accounting of such services to be prepared and made
available to all members of the Panel.
14. The Panel may elect to delegate the day-to-day
administrative affairs of the Panel to an administrative
director. Such an administrative director ("Director") shall be
qualified to perform all the tasks delegated to him/her by the
Panel and shall have only that authority specifically delegated
to the Director by the Panel. The Panel shall not delegate to
the Director the authority to disburse, expend, obligate, or
otherwise use funds from the Registry Account or perform any itffek
of the Panel as set forth in paragraph 9 of this Decree. The
Panel may direct that an account be established into which the
Panel may have funds placed for the day-to-day affairs of the
Panel. The Director may at his/her discretion disburse, expend,
obligate or otherwise use any funds placed into such an account
for the reasonable and necessary expenses incurred in performing
the administrative tasks assigned to the Director by the Panel.
The Director shall provide to the Panel in writing on a quarterly
basis a report of his/her activities and an accounting of all of
his/her expenses for that quarter. The Director shall serve at
the will and discretion of the Panel, and shall not, solely as a
CONSENT DECREE - 22
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
S«anle. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
consequence of his/her service as Director, be considered an
employee or agent of any party to this Decree. Nothing in the
preceding sentence shall preclude a current employee of any part
to this Decree from serving as Director, to the extent consisten
with applicable laws and regulations.
15. The Panel may establish one or more technical working
groups to assist the Panel in planning and designing sediment
remediation and habitat development projects and in establishing
goals regarding Metro's and the City's source control programs.
The Panel shall give each of the following entities the
opportunity to participate in any such working group: NOAA,
Interior, EPA, the U.S. Army Corps of Engineers, the Muckleshoot
Indian Tribe, the Suquamish Indian Tribe, the Washington
Department of Ecology, the Washington Department of Fisheries,
the Washington Department of Wildlife, the Washington Department
of Natural Resources, the Washington Department of Health, the
Port or Seattle, Metro, the City, and the Seattle-King County
Department of Health. The Panel may also allow in any such
working group other qualified individuals. All participants in
any such working group shall be capable of contributing
particular expertise applicable to that working group's tasks.
The Panel shall decide the manner in which any such working groi
will perform its tasks and shall provide sufficient oversight tc
ensure that the terms of this Decree are achieved. The Panel nu
for any such working group disburse, expend, obligate, or
CONSENT DECREE -23
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
otherwise use funds from the Registry Account, but such funds
shall be used only for the reasonable and necessary
administrative and clerical expenses of any such working group.
Except as provided in paragraph 10(a) regarding the participatio
of the Trustees, no member of a working group shall in any way
receive directly or indirectly from the Registry Account any
salary or travel expenses for his/her participation in such a
working group.
16. The Panel shall provide to the Suquamish Indian Tribe
and to the Muckleshoot Indian Tribe sufficient funds to support
for each tribe one full-time equivalent (1.0 FTE) of technical
support annually for 1992 through 1997. The Tribes shall use
such funds only for technical support related to the source
control, sediment remediation and habitat development prograi^B
conducted pursuant to this Decree.
17. The Panel shall cause to be erected or placed in a
prominent location a placard or sign to commemorate each sedimen
remediation or habitat development project performed under this
Decree. Any such placard or sign shall indicate the financial
contributions of Metro and the City and the participation of
these Trustees.
18. The Panel shall provide for public participation in th
process by which the Panel selects and designs sediment
remediation and habitat development projects. Public
participation includes, but is not limited to, public review
CONSENT DECREE - 24
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN CI57DO
7600 Sand Point Way N.E
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
pursuant to any required environmental review, and public reviev
of any—application for a permit, license, or other approval.
REMEDIATION OF SEDIMENTS
19. Metro and the City each agree to pay into the Registry
Account established under paragraph 4 of this Decree:
a. The sum of six million dollars ($6,000,000); or
b. As permitted by the Panel pursuant to
paragraph 13, a sum of funds that in combination with in-kind
services has a total value of six million dollars ($6,000,000),
to be applied to the costs of sediment remediation. The Panel
shall use these funds and services only for sediment remediation
which shall include administering, planning, designing,
implementing, and monitoring the results of sediment remediatior
projects, in Elliott Bay and the Duwamish River, except as
specifically provided in.paragraph 22 of this Decree. The sums
provided for herein shall be paid in accordance with
paragraphs 20 and 21 of this Decree.
20. This Decree obligates Metro and the City each to pay
only up to the following amounts in each of the identified
calendar years for the costs of sediment remediation, except as
otherwise provided for in this paragraph:
1992 - $ 500,000 - Five Hundred Thousand Dollars;
1993 - $1,000,000 - One Million Dollars;
1994 - $1,500,000 - One Million Five Hundred Thousand Dollar:
1995 - $1,500,000 - One Million Five Hundred Thousand Dollar:
1996 - $1,500,000 - One Million Five Hundred Thousand Dollar:
and
1997 - Balance of Six Million Dollar contribution.
CONSENT DECREE - 25
US. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
If Metro's or the City's annual payment in any given year is l^Bk
than that year's annual maximum, its annual maximum in the
successive year may be increased by the difference between the
annual maximum and the annual payment from the preceding year.
Metro and the City may at their discretion waive any one or all
of their respective annual maximums by increasing the amount
paid. Any such payments in excess of the amounts shown above
shall in no way increase the sum total of amounts to be paid by
either Metro or the City beyond its respective six million dollar
($6,000,000) obligation.
21. Metro and the City agree to each pay a minimum sum of
one hundred fifty thousand dollars ($150,000) into the Account on
January 15 and on July 15 in each of the years 1992, 1993, 1994,
1995 and 1996 for funding costs of sediment remediation. Such
payments shall constitute partial payment of the maximum amounts
as set forth in paragraph 19 of this Decree. Metro and the City
shall pay any additional amount for sediment remediation, over
and above the minimum sum referenced herein, only as the Panel
budgets for such expenses. Metro and the City shall pay any such
additional amount into the Account on January 15 of the calendar
year for which the Panel plans to incur such an expense.
22* The Panel may-use funds paid into the Account for
sediment remediation for expenses of habitat development,
including costs of monitoring, if such habitat development is
incidental to sediment remediation projects, or is specifically
CONSENT DECREE - 26
U.S. Department or Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22-
23
24
25
26
27
28
required as conditions of permits for sediment remediation
projects. Such habitat development could include that resulting
from using sediment remediation projects as pilot projects for
techniques or other methodologies of habitat development.
23. The Panel shall, to the greatest extent practicable,
select sites for sediment remediation projects that are
geographically and physically associated with Metro or City GSOs
or storm drain outfalls.
24. The Panel shall use, if available, Ecology's list of
sites requiring sediment cleanup as a basis for selecting sites
for sediment remediation projects under this Decree, but shall
not be bound by any priorities developed by Ecology for
addressing the list of sites. Metro and the City shall provide
to Ecology all information in their possession useful and
relevant to Ecology's hazard assessment of station clusters of
potential concern.
25. For each sediment remediation project, the Panel shall
conduct a site cleanup study, determine the site-specific cleanuj
standard, and select a site cleanup action. In ho event shall
the Panel set a site specific cleanup standard for a project that
is less stringent than the minimum cleanup level as set forth in
the Stateof Washington's Sediment--Management Standards,
Chapter 173-204 WAC, as that standard exists at the time the
Panel selects a project. In establishing site-specific cleanup
standards, the Panel shall, consistent with the purposes of this
CONSENT DECREE - 27
U.S- Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Decree, set a cleanup objective of no adverse effects
WAG 173-204-570(2). If the State of Washington's Sediment
Management Standards, Chapter 173-204 WAC, cease to exist or
otherwise become unenforceable, the Panel may use other
appropriate sediment standards or develop such standards for
sediment remediation as are necessary to carry out the terms of
this Decree.
26. The Panel may grant Metro and the City credit against
their respective financial obligations under paragraph 19 for tl-
Pier 53 sediment remediation project, so long as the site would
otherwise have been on Ecology's list of sites requiring sedimer
cleanup, the site' would otherwise have been selected as a site
for sediment remediation by the Panel, and the level of
remediation meets the cleanup standard selected by the PaneJ^^i
that site. If the Panel decides to grant credit, and after
review of detailed operational and financial information
regarding this project, the Panel shall determine the amount of
credit to be applied.
HABITAT DEVELOPMENT AND' REAL ESTATE ACQUISITION
27. Metro and the City each agree to pay into the Registry
Account, established under paragraph 4 of this Decree:
a. The.sum of two million, five hundred thousand
dollars ($2,500,000); or
b. As permitted by the Panel pursuant to
paragraph 13, a sum of funds that in combination with in-kind
CONSENT DECREE - 28
US. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
services has a total value of two million five hundred thousand
dollars ($2,500,000), to be applied to the costs of habitat
development. The Panel shall use these funds and services only
for habitat development, which includes acquiring living natural
resources for the purpose of habitat restoration and replacement
and administering, planning, designing, constructing, and
monitoring the results of habitat development projects, in
Elliott Bay and the Duwamish River. Solely for the purposes of
habitat development, the Panel may consider the Duwamish River to
include tributaries to the Duwamish River. The sums provided for
herein shall be paid in accordance with paragraphs 28 and 29 of
this Decree.
28. This Decree obligates Metro and the City each to pay
only up to the following amounts in each of the identified
calendar years:
1992 - $200,000 - Two Hundred Thousand Dollars;
1993 - $200,000 - Two Hundred Thousand Dollars;
1994 - $500,000 - Five Hundred Thousand Dollars;
1995 - $800,000 - Eight Hundred Thousand Dollars;
1996 - $800,000 - Eight Hundred Thousand Dollars; and
1997 - Balance of Two Million Five Hundred Thousand
Dollar contribution.
If Metro's or the City's annual payment in any given year is less
than that year's annual maximum, its annual maximum in the
successive year may be increased by the difference between the
annual maximum and the annual payment from the preceding year.
Metro and the City may at their discretion waive any one or all
of their respective annual maximums by increasing the amount
CONSENT DECREE - 29
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
paid. Any such payments in excess of the amounts shown above
shall in no way increase the sum total of amounts to be paid by
either Metro or the City beyond its respective two million five
hundred thousand dollar ($2,500,000) obligation.
29. Metro and the City agree to each pay a minimum sum of
sixty-two thousand five hundred dollars ($62,500) into the
Account on January 15 and on July 15 in each of the years 1992,
1993, 1994, 1995 and 1996 for funding costs of habitat
development. Such payments shall constitute partial payment of
the maximum amounts as set forth in paragraph 27 of this Decree.
Metro and the City shall pay any additional amount for habitat
development, over and above the minimum sum referenced herein,
only as the Panel budgets for such expenses. Metro and the City
shall pay any such additional amount into the Account on
January 15 of the calendar year for which the Panel plans to
incur such an expense.
3XJ. In addition to the contribution specified in
paragraph 27 of this Decree, Metro and the City each shall make
permanently available real property with a value of up to two
million five hundred thousand dollars ($2,500,000) for use as
sites for habitat development projects selected by the Panel.
Metro and-the City-each-shall receive credit toward its
respective maximum obligation under this paragraph for any
donation by Metro or the City of any right of access, lease,
easement, fee title, or any other real property interest,
CONSENT DECREE - 30
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN CLS700
7600 Sand Point Way N.E.
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
sufficient to permanently secure a site for any habitat
development project under this Decree. The Panel shall attempt
to determine by consensus the value of any property interest made
available pursuant to this paragraph. If the Panel cannot so
determine the value of any such property, then the value of the
property shall be determined by the following procedure. The
Trustees and donor of the property shall each retain or select a
qualified real estate appraiser to determine the value of the
property. Within sixty (60) days thereafter, the two appraisers
shall attempt in good faith to reach agreement on the value of
the donated property. If these appraisers cannot agree, then
they shall within thirty (30) days select a third appraiser.
This third appraiser shall determine within thirty (30) days
which of the two appraisals most closely approximates the value
of the selected property and he or she shall select that
appraisal value as the value of the donated property. All
appraisers retained or selected shall be competent, impartial anc
members of the American Institute of Real Property Appraisers (03
successor association or body of comparable standing). The
parties agree that the value established by this procedure shall
be final, and there shall be no further review or appeal. Full
public access to such areas shall-be preserved to the maximum
extent practicable, except as restrictions are necessitated by
construction activities.
CONSENT DECREE - 31
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
31. The Panel shall, to the greatest extent practicable
consistent with the goal of creating or enhancing aquatic or
benthic habitat for natural resources, select sites for habitat
development projects that are geographically and physically
associated with existing public facilities, such as parks and
fishing piers, in Elliott Bay and the Duwamish River.
32. Metro and the city each agree to pay NOAA the sum of
one hundred twenty-five thousand dollars ($125,000) within sixty
(60) days of entry of this Consent Decree to reimburse NOAA for
the. costs of natural resource damage assessment and habitat
restoration planning for Elliott Bay and the Duwamish River
incurred prior to the entry of this Decree. NOAA will provide
Metro and the City with documentation describing the manner in
which the funds are applied.
SOURCE CONTROL
33. The Panel shall establish source control goals to
protect natural resources and prevent recontamination of sites
selected for sediment remediation or habitat development in the
covered area. Metro and the City shall determine for their
respective source control programs what actions or changes, if
any, are needed in addition to, or from, their ongoing source
control-programs to achieve such goals. Metro and the City shal."
propose such additional actions or changes to the Panel for its
review, comment and approval. Metro and the City shall then tak<
such actions approved by the Panel. The Panel shall not require
CONSENT DECREE - 32
U.&. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C157TJO
7600 Sand Point Way N.E
Seattle. Waduapoo 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Metro and the City to use or undertake any type or manner of
source control that is beyond Metro's and the city's authority,
or otherwise inconsistent with law.
34. Metro and the City each shall make available in-kind
services with a value of up to one million dollars
($1,000,000) to cover the costs of the additional actions or
changes needed to achieve the Panel's goals and to monitor the
effectiveness of such source control efforts. Metro and the Cit}
each may fulfill its entire and respective obligation under this
paragraph by providing in-kind services. Within ninety (90) days
after the close of each calendar year in which such in-kind
services have been provided, Metro and the City shall cause an
accounting of such services to be prepared and made available to
all members of the Panel.
INDEPENDENT CONTRACTOR
35. It is understood and agreed that Metro, the City, and
the agents, officers, employees, and contractors of either of
them, in the performance of the work and services provided under
this Decree as in-kind contributions shall act as independent
contractors and not as agents or employees of any other party to
this Decree.
COVENANTS-NOT- -TO SUE
36. Except as specifically provided in paragraphs 39 and
40, the United States, the State of Washington, the Suquamish
Indian Tribe and the Muckleshoot Indian Tribe covenant not to sui
CONSENT DECREE - 33
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN CIS700
7600 Sand Point Way N.E.
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
3
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
or to take any other civil or administrative action against
City or Metro for covered matters.
37. Except as specifically provided in paragraph 41, the
City and Metro hereby covenant not to sue or to take any other
civil or administrative action against the United States, the
State of Washington, the Suquamish Indian Tribe and the
Muckleshoot Indian Tribe for any claims relating to or arising
from the filing of the United States' complaint referenced
herein, the conduct of this litigation, including but not limite
to any claims for contribution or indemnification, and the
negotiation, terms, approval, and implementation of this Consent
Decree.
38. These covenants not to sue and the following
reservation of rights shall take effect upon entry of this
Consent Decree by the Court, subject to the parties' rights to
void the Consent Decree pursuant to paragraph 54 if the Court
declines to approve the Consent Decree as presented. These
covenants not to sue remain in effect so long as the city and
Metro are fulfilling or have fulfilled their obligations under
this Consent Decree.
RESERVATION OF RIGHTS
39. Notwithstanding any other provision of this Consent
Decree, the United States, the State of Washington, the Suguamis
Indian Tribe and Muckleshoot Indian Tribe reserve the right to
institute proceedings against Metro and the City in this action
CONSENT DECREE - 34
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C157DO
7600 Sand Point Way N.E.
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
or a new action for the following claims: (a) claims for
recovery of natural resource damages in the covered area based 01
conditions resulting from a release of hazardous substances from
the CSO and/or stona water outfall systems after the effective
date of this Consent Decree and that are actionable under treaty.
federal, state or tribal law; (b) claims based on a failure by
Metro or the City to satisfy requirements of this Consent Decree;
and (c) claims for criminal liability.
40. Notwithstanding any other provision of this Consent
Decree, the State of Washington reserves its right to institute
proceedings against Metro and the City for claims pursuant to th<
Model Toxics Control Act, Chapter 70.105D RCW, based, in whole 03
in part, on factors not known at the time of entry of this
Consent Decree that indicate a previously unknown threat to huma:
health or the environment.
41. Notwithstanding any other provision of this Consent
Decree, Metro and the City reserve the right to institute
proceedings against the United States, the State of Washington,
the Suquamish Indian Tribe and the Muckleshoot Indian Tribe for
the following claims: (a) claims based on a failure by the
United States, the State of Washington, the Suquamish Indian
Tribe and the Muckleshoot Indian Tribe to fulfill their
obligations under this Decree; and (b) claims based on a
challenge to any decision by the Panel. Metro's and the City's
reservations of rights pursuant to this paragraph do not include
CONSENT DECREE - 35
US. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
claims against the Trustees for monetary relief. Nothing in
paragraph is intended to constitute a waiver of any sovereign
immunity defense that may be available to any of the Trustees.
42. The United States' consent to this Decree and
participation in this settlement is solely on its own behalf and
not as a trustee for any Indian Tribe.
CONTRIBUTION PROTECTION
43. The United States, the State of Washington, the
Suquamish Indian Tribe and the Muckleshoot Indian Tribe
acknowledge and agree that the payments to be made and commitment
pf work by Metro and the City pursuant to this Decree represent a
good faith settlement and compromise of disputed claims and that
the settlement represents a fair, reasonable and equitable
discharge of liability for covered matters. Metro and the CiH^B
shall have the benefits of Section 113 (f) of CERCLA, 42 U.S.C. $
9613(f), and any other applicable statute or other law limiting
or extinguishing their liability to persons not a party to this
Decree or affording them rights of contribution or other rights
to recover from such persons costs or damages.
44. The United States, the State of Washington, the
Suquamish Indian Tribe and the Muckleshoot Indian Tribe certify
that the payments to be made and the work to be undertaken by-
Metro and the City pursuant to this Decree will be appropriate
actions necessary to protect and restore the natural resources
allegedly damaged by the release by Metro and the City of
CONSENT DECREE - 36
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
a
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
23
hazardous substances in the covered area and that the payments
and work satisfy the requirements of Section 122(j)(2) of CERCLA,
42 U.S.C. § 9622(j)(2).
GENERAL
45. If for any reason the Court should decline to approve
this Consent Decree in the form presented, any statements made in
negotiation and the terms herein may not be used as evidence in
any litigation or administrative proceeding.
46. This Consent Decree shall not be construed in any way
to relieve the parties to this Decree or any other person or
entity from the obligation to comply with any federal, state or
local law.
47. This Consent Decree does not relieve or otherwise
satisfy any obligation or liability of any person or entity not
party to this Decree.
48. The Consent Decree may be executed in any number of
counterparts and each executed counterpart shall have the same
force and effect as an original instrument.
49. Each undersigned representative of the parties to the
Consent Decree certifies that he or she is fully authorized to
enter into the terms and conditions of the Consent Decree and to
legally execute,, and bind such party to, this Consent Decree.
MODIFICATION
50. The terms of this Consent Decree may be modified only
by a subsequent written agreement by all of the parties signator
CONSENT DECREE - 37
U.S. Department of Justice
Environmental Enforcement Section
e/o GC-DOJ DARC BIN C15TOO
7600 Sand Point Way N.E.
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
hereto, and approved by the Court as a modification to this
Consent Decree.
51. If a court of competent jurisdiction finds unlawful any
provision of this Consent Decree, including subparagraphs a-c of
paragraph 4, the parties shall return the Decree to the Court for
reformation consistent with the intent of the parties at the time
they lodged the Decree with the Court.
PUBLIC COMMENT
52. This Decree will be subject to a 30-day public comment
period in accordance with Section 122(d)(2) of CERCLA, 42 U.S.C.
S 9622(d)(2), and 28 C.F.R. 50.7. The United States reserves the
right to withdraw its consent to the Decree if comments received
disclose facts or considerations which show that the Decree is
inappropriate, improper or inadequate. Metro and the city
consent to the entry of this Consent Decree without further
notice.
53. The Suquamish Indian Tribe, the Muckleshoot Indian
Tribe and the State of Washington each reserve the right to
withdraw their consent from this Decree and from participation in
this settlement if comments received during the public comment
period disclose facts or considerations which show that the
Decree is inappropriate, improper or inadequate as to the
Suquamish Indian Tribe, the Muckleshoot Indian Tribe and the
State of Washington, respectively. To exercise its right to
withdraw, each of these parties shall file with the Court a
CONSENT DECREE - 38
VS. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
written statement expressly indicating its intent to withdraw.
These parties must exercise their right to withdraw before the
United States Department of Justice files its motion to enter
this Decree with the Court, withdrawal by any one or all of
these parties shall not in any way affect the rights and
obligations of any other party to this Decree. If any one or all
of these parties withdraws, any and all references to such a
party or parties in the Decree, except those in paragraphs L,
M(3), 15, 24, 25 and 26, shall by implication be stricken from
the Decree and shall have no meaning or bearing on the operation
of any term of this Decree. Withdrawal by any of these parties
shall not impose any obligation on any other party to also
withdraw nor shall any inference be made as to the propriety of
any other party's continued consent to this Decree and
participation in this settlement. If either or both the
Suquamish Indian Tribe or the Muckleshoot Indian Tribe withdraws,
the continued participation by the United states in this
settlement is not intended to nor shall it constitute a
settlement or waiver of any rights under statute, treaty or
common law of such Tribe or Tribes.
VOIDABILITY
54. If for any-reason the Court should decline to approve
this Decree in the form presented, this Decree and the settlemenl
embodied herein shall be voidable at the sole discretion of any
CONSENT DECREE - 39
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C13700
7600 Sand Point Way N.E.
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
party and the terms herein may not be used as evidence in any
litigation.
EFFECTIVE DATE
55. This Consent Decree shall be effective upon the date of
its entry by the Court.
DENIAL OF LIABILITY
56. Metro and the City both deny each of the allegations of
the complaint filed by the United States and further deny
responsibility for the natural resources damages and any other
costs or relief sought by the Trustees. The parties agree that
actions undertaken by the City and Metro in accordance with this
Consent Decree do not constitute an admission of any violation of
treaty, federal or state law or an admission of any liability by
the City or Metro to the United States, the State of Washinc
the Suquamish Indian Tribe and Muckleshoot Indian Tribe. Nor
shall this Consent Decree be used as evidence or as collateral
estoppel against any party to this Decree in any action or
proceeding other than an action or proceeding to enforce the
terms of this Consent Decree.
RETENTION OF JURISDICTION
57. The Court shall retain jurisdiction of this matter for
purposes of entering such further orders, direction, or relief as
may be appropriate for the construction, implementation, or
enforcement of this Decree.
CONSENT DECREE - 40
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E.
SeattJe. Washington 98115-0070
-------
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
58. By signature below, all parties consent to this
Decree.
CONSENT DECREE - 41
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Wiy N.E,
Seattle. Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
FOR THE MUNICIPALITY OF METROPOLITAN SEATTLE
,^,~*, ^ —7~^, L&>T ^—:/
Richard" K. 'Sandaas^ ~T,
/'Executive Director £,''
Municipality of Metropolitan Seattle
Exchange Building, M/S 94
821 Second Avenue
Seattle, Washington 98104
Date
CONSENT DECREE - 42
PRESTON THORGRJMSON SHIDLER GATES & ELUJ
S400 COLUMBIA CENTEB
JEATIUtWAJKlNOTON W1CM-TOTI
TELETHOME; C2aS)CJ-75M
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
FOR THE CITY OF SEATTLE
Mark H. Sidran"
City Attorney
City of Seattle
Municipal Building, 10th Floor
600 Fourth Avenue
Seattle, Washington 98104
Daie'
CONSENT DECREE - 43
PRESTON THORGRIMSON SH1DLER GATES & ELL
MOO COLUMBIA CENTER
701RTTHAVENU8
SEATTLE. WASHINGTON
TE1BTHONE. (106)C3-?ia>
-------
1
2
3
4
5
6
7
a
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
FOR THE SUQUAMISK INDIAN TRIBE
&
Emerson George
Vice-chairman
Suquamish Indian Tribe
Post Office Box 498
Suquamish, Washington 98392
if*
Date
CONSENT DECREE - 44
Office of the Tribal Attome
THE SUQUAMISH TRIBE
P.O. Box 498
<:..-..•*-;.:>. WA
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
FOR THE MUCKLESHOOT INDIAN TRIBE
/
Virginia Cross
Chairperson
Muckleshoot Indian Tribe
39015 172nd Avenue S.E.
Auburn, Washington 98002
Date-
CONSENT DECREE - 45
PRESTON THORGRIMSON SHIDLER GATES & EU.I
5400 COLUMBIA CS*TE»
TOl flFTHAVENUE
SEATTLE. WASHINGTON WtW-TOTl
-------
1 FOR THE STATE OF WASHINGTON
2
3
7
8
4 Fred A. Olson Date
Deputy Director
5 Washington Department of Ecology
Mail stop PV-li
6 Olympia, Washington 98503
> M
Q—<
** \—-Aii ii • T>w": ^ ^. J T ~ x, "^
y -sl^ffre^ S. MyJ>rs =^O^ Date
Ass^srant Attorney General
10 State of Washington, Ecology Division
Mail Stop QA-44
11 4407 Woodview Drive S.E.
Olympia, Washington 98504
13
14
15
16
17
18
19
20
21
22
23
24
25
26
PRESTON THORGRIMSON SHIDLER GATES & ELLIS.
CONSENT DECREE - 46 ""^^A^T
-------
Ill FOR THE UNITED STATES OF AMERICA
2
3
15
16
17
18
19
20
21
22
2_3
24
25
26
27
28
4 |[ Barry M.(JHartman
Acting Assistant Attorney General
51 Environment and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
9
10
11
j
121
1
13 1
14
James L. Nicoll
Senior counsel
, Jr. /
Date
Environmental Enforcement Section
Environment and
U.S. Department
c/o NOAA GC/DOJ
BIN C15700
7600 Sand Point
Natural Resources
of Justice
Damage Assessment
Way N.E.
Division
Center
Seattle, Washington 98115
'.t. I
- ?-
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES
Hon. William L.
DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
UNITED STATES OF AMERICA, )
et al. . )
)
Plaintiffs, )
)
v. )
\
/
THE CITY OF SEATTLE, and )
MUNICIPALITY OF METROPOLITAN )
SEATTLE, )
)
Defendants . )
)
Pursuant to Rule 67 of
Procedure, 28 U.S.C. § 2041, and
NO. C90-395WD
ORDER DIRECTING THE DEPOSIT
NATURAL RESOURCE DAMAGES INI
THE REGISTRY OF THE COURT
the Federal Rules of Civil
Local Rule GR 6, and in accordar
with the terms of the Consent Decree in the above captioned matte
between Plaintiff the United States and Defendants City of Seatt!
and Municipality of Metropolitan
hereby
1. ORDERED that Defendants,
Seattle ("Defendants"), it is
following entry of the Consent
Decree and in accordance with the payment schedules established
therein, pay to the Cleric of the
paragraph 19 and paragraph 27 of
ORDER DIRECTING DEPOSIT OF
NATURAL RESOURCE DAMAGES - 1
Court all sums specified in
the Consent Decree, which sums
US. Department of Junks
Environmental Enforcement Section
c/o G&DOJ DARC BIN C1S700
7600 Sand Point Way N.E.
Seattle. Washington 981154070
ATTACHMENT 1
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
constitute recovery for natural resource damages in accordance wit
42 U.S.C. § 9607(f){i); and it is
2. ORDERED that Settling Defendants shall make the
aforementioned payments by checks made payable to the Clerk of the
Court in accordance with the procedures specified in subparagraph
a. of paragraph 4 of the Consent Decree; and it is
3. ORDERED that an account shall be established in the
Registry specifically for, and only for, payments received in the
above captioned matter and shall be titled "U.S. v. Seattle and
Metro Natural Resource Damages Account" ("U.S. v. Seattle and Metr
NRD Account"); and it is
4. ORDERED that the Clerk of the Court, consistent with
subparagraph b. of paragraph 4 of the Consent Decree, shall
administer the funds so received as follows:
a) the first $100,000 received shall be deposited in an
interest-bearing commercial bank account or accounts;
b) the balance of the first payment received shall be
used to purchase 91-day Treasury Securities;
c) any portion of the first payment received above
$100,000 that as a consequence of the denominations of the Treasur
Securities available are not used to purchase Treasury Securities
shall be deposited in the bank account or accounts identified in
subparagraph a); and
d) upon maturity of the Treasury Securities referred to
in subparagraph b), and upon the receipt of subsequent payments in
ORDER DIRECTING DEPOSIT OF
NATURAL RESOURCE DAMAGES -
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way NJE.
Seattle. Washington 98115-0070
-------
ll
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
accordance with the Consent Decree, the clerk shall consult with
counsel for the United States regarding the allocation of thd
proceeds of such Treasury Securities or such received funds betw
the bank account or accounts identified in subparagraph a) and t
purchase of additional short-term Treasury Securities. The Cler
may make any such purchases of additional Treasury Securities as
directed by counsel for the United States without further Order
the Court; and it is
5. ORDERED that all income earned as interest on funds so
invested or deposited shall be credited to the U.S. v. Seattle a
Metro NRD Account; and it is
6. ORDERED that the Clerk shall prepare quarterly reports o
the status and activity of the U.S. v. Seattle and Metro NRD
Account showing payments received, disbursements made, income
earned, maturity dates of securities held, and principal balance
and shall distribute the reports to counsel for the United State
and it is
7. ORDERED that funds in the U.S. v. Seattle and Metro NRD
Account shall remain in the Registry until further order of this
Court; and it is
8. ORDERED that applications for orders for disbursements t
the U.S. v. Seattle and Metro NRD Account may be made only by tt
United States, except that such application shall be refused
notwithstanding any vote of the Panel established by the Consent
Decree if the United States objects to the disbursement as beinc
ORDER DIRECTING DEPOSIT OF
NATURAL RESOURCE DAMAGES - 3
U.S. Department of Justice
Environmental Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Point Way N.E
Seattle, Washington 98115-0070
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
inconsistent with its natural resource trustee responsibilities
pursuant to 42 U.S.C. § 9607. If the United States objects to
disbursement, any party may petition the Court for review of
whether the United States' objection was inconsistent with 42
U.S.C. § 9607; and it is
9. ORDERED that counsel for the United States shall serve as
the point of contact on behalf of the parties to this Decree for
the Clerk, and shall distribute copies of the reports referred to
in paragraph 6 of this Order to the other parties to this Decree;
and it is
10. ORDERED that the Clerk is authorized and directed by this
Order to deduct for maintaining funds in the Registry Account the
fee as authorized in the Federal Register Vol. 55, No. 206 at page
42867 (October 24, 1990); and it is
11. ORDERED that a certified copy of this Order shall be
served upon the Clerk of this Court.
Dated
William L. Dwyer, Judge
United States District court
Western District of Washington
ORDER DIRECTING DEPOSIT OF
NATURAL RESOURCE DAMAGES -
US. Deptrnnent of Juttke
Eaviranmentai Enforcement Section
c/o GC-DOJ DARC BIN C15700
7600 Sand Pout W*y HE.
Sunk. Waitaington 981154070
-------
II
103D CONGRESS
IST SESSION
Calendar No. 332
S.1618
[Report No. 103-205]
To establish Tribal Self-Governance, and for other purposes.
IN THE SENATE OP THE UNITED STATES
NOVEMBER 4 (legislative day, NOVEMBER 2), 1993
Mr. McCAiN (for himself, Mr. INOUYE, Mr. MURKOWSKI., Mr. GORTON. Mr.
SIMON. Mr. WELLSTONE, Mr. DURENBERGER. and Mr. CAMPBELL) in-
troduced the following bill; which was read twice and referred to the Com-
mittee on Indian Affairs
NOVEMBER 22. 1993
Reported by Mr. LNOUYE, with an amendment
(Omit the part struck through)
A BILL
To establish Tribal Self-Governance, and for other purposes.
1 Be it enacted by tiie Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the "Tribal Self-Governance
5 Act of 1993".
-------
1 SEC. 2. FINDINGS.
2 Congress finds that
3 (1) the tribal right of self-governance flows
4 from the inherent sovereignty of Indian tribes and
5 nations;
6 (2) the United States recognizes a special gov-
7 ernment-to-government relationship with Indian
8 tribes, including the right of the tribes to self-gov-
9 ernance, as reflected in the Constitution, treaties,
10 Federal statutes, and the course of dealings of the
11 United States Government with Indian tribes;
12 (3) although progress has been made, the Feci-
13 eral bureaucracy, with its centralized rales and regu-
14 lations, has eroded tribal self-governance and domi-
15 nates tribal affairs;
16 (4) the Tribal Self-Governance Demonstration
17 Project was designed to improve and perpetuate the
18 government-to-government relationship between In-
19 dian tribes and the United States, and to strengthen
20 tribal control over Federal funding and program
21 management; and
22 (5) Congress has reviewed the results of the
23 Tribal Self-Governance Demonstration Project and
24 finds that—
25 (A) transferring control to tribal govern-
-------
3
1 decisionmaking for Federal programs, services,
2 functions, and activities intended to benefit In-
3 dians, is an effective way to implement the Fed-
4 eral policy of government-to-government rela-
5 tions with Indian tribes; and
6 (B) transferring control to tribal govern-
7 ments, upon tribal request, over funding and
8 decisionmaking for Federal programs, services,
9 functions, and activities strengthens the Fed-
10 eral policy of Indian self-determination.
11 SEC. 3. DECLARATION OF POLICY.
12 It is the policy of this Act to permanently establish
13 and implement Self-Governance—
14 (1) to enable the United States to maintain and
15 improve its unique and continuing relationship with.
16 and responsibility to, Indian tribes;
17 (2) to permit each Indian tribe to choose the
18 extent of the participation of such tribe in Self-Gov-
19 ernance;
20 (3) to co-exist with the provisions of the Indian
21 Self-Determination Act relating to provision of In-
22 dian services by designated Federal agencies;
23 (4) to ensure the continuation of the trust re-
24 sponsibility of the United States to Indian tribes and
25 Indian individuals;
•8 1618 RS
-------
4
1 (5) to permit an orderly transition from Federal
2 domination of programs and services to provide In-
3 dian tribes with meaningful authority to plan, con-
4 duct, redesign, and administer programs, services,
5 functions, and activities that meet the needs of the
6 individual tribal communities; and
7 (6) to provide for an orderly transition through
8 a planned and measurable parallel reduction in the
9 Federal bureaucracy.
10 SEC. 4. TRIBAL SELF-GOVERNANCE.
11 The Indian Self-Determination and Education Assist-
12 ance Act (25 U.S.C. 450 et seq.) is amended by adding
13 at the end the following new title:
14 "TITLE IV—TRIBAL SELF-
15 GOVERNANCE
16 "SEC. 401. ESTABLISHMENT.
17 "The Secretary of the Interior (referred to in this
18 title as the 'Secretary') shall establish and carry out a pro-
19 gram within the Department of the Interior to be known
20 as Tribal Self-Governance (referred to in this title as 'Self-
21 Governance') in accordance with this title.
22 "SEC. 402. SELECTION OF TRIBES.
23 "(a) CONTINUING PARTICIPATION.—Each tribe that
24 is participating in the .Tribal Self-Governance Demonstra-
25 tion Project at the Department of the Interior under title
-------
0
1 IE on the date of enactment of this title shall thereafter
2 participate in Self-Governance under this title and cease
3 participation in the Tribal Self-Governance Demonstration
4 Project under title III with respect to the Department of
5 the Interior.
6 u(b) ADDITIONAL TRIBES.—In addition to those
7 tribes participating in Self-Governance under subsection
8 (a), the Secretary, acting through the Director of the Of-
9 fice of Self-Governance, may select up to 20 new tribes
10 per year, from the applicant pool described in subsection
11 (c), to participate in Self-Governance.
12 "(c) APPLICANT POOL.—The qualified applicant pool
13 for Self-Governance shall consist of each tribe that—
14 "(1) successfully completes the planning phase
15 described in subsection (d);
16 "(2) has requested participation in Self-Govern-
17 arice; and
18 "(3) has demonstrated, for the previous 3 fiscal
19 years, financial stability and financial management
20 capability as evidenced by the tribe having no mate-
21 rial audit exceptions in the required annual audit of
22 the self-determination contracts of the tribe.
23 "(d) PLANNING PHASE.—Each tribe seeking to begin
24 participation in Self-Governance shall complete a planning
25 phase in accordance with this subsection. The tribe shall
•S 1618 RS
-------
6
1 be eligible for a grant to plan and negotiate participation
2 in Self-Governance. The planning phase shall include—
3 "(1) legal and budgetary research; and
.4 "(2) internal tribal government planning and
5 organizational preparation.
6 "SEC. 403. FUNDING AGREEMENTS.
7 "(a) AUTHORIZATION.—The Secretary shall nego-
8 tiate and enter into an annual written funding agreement
9 with the governing body of each participating tribal gov-
10 ernment.
11 "(b) CONTENTS.—Each funding agreement shall—
12 "(1) authorize the tribe to plan, conduct, con-
13 solidate, and administer programs, services, func-
14 tions. and activities administered by the Department
15 of the Interior that are otherwise available to Indian
16 tribes or Indians, including—
17 "(A) the Act of April 16, 1934 (popularly
18 known as the 'Johnson-O'Malley Act') (48 Stat.
19 596, chapter 147; 25 U.S.C. 452 et seq.); and
20 "(B) the Act of November 2, 1921 (popu-
21 larly known as the 'Snyder Act') (42 Stat. 208,
22 chapter 115; 25 U.S.C. 13);
23 "(2) subject to the terms of the agreement, au-
24 thorize the tribe to redesign programs, services.
-------
7
1 functions, or activities, and to reallocate funds for
2 such programs, services, functions, or activities;
3 "(3) prohibit the inclusion of funds provided—
4 "(A) pursuant to the Tribally Controlled
5 Community College Assistance Act of 1978 (25
6 U.S.C. 1801 et seq.);
7 "(B) for elementary and secondary schools
8 under the formula developed pursuant to sec-
9 tion 1128 of the Education Amendments of
10 1978 (25 U.S.C. 2008); and
11 "(C) to the Flathead Agency Irrigation Di-
12 vision or the Flathead Agency Power Division,
13 except that nothing in this section shall affect
14 the contract authority of such divisions under
15 section 102;
16 "(4) specify the services to be provided, the
17 functions to be performed, and the responsibilities of
18 the tribe and the Secretary pursuant to the agree-
19 ment;
20 "(5) authorize the tribe and the Secretary to
21 reallocate funds or modify budget allocations within
22 any year, and specify the procedures to be used;
23 "(6) provide for retrocession of programs or
24 portions of programs pursuant to section 105(e);
•S 1618 RS
-------
8
1 "(7) provide that, for the year for which, and
2 to the extent to which, funding is provided to a tribe
3 under this section, the tribe—
4 "(A) shall not be entitled to contract with
5 the Secretary for such funds under section 102,
6 except that such tribe shall be eligible for new
7 programs on the same basis as other tribes; and
8 "(B) shall be responsible for the adminis-
9 tration of programs, services, functions, and ac-
10 tivities pursuant to agreements entered into
11 under this section; and
12 "(8) prohibit the Secretary from waiving, modi-
13 rying, or diminishing in any way the trust respon-
14 sibility of the United States with respect to Indian
15 tribes and individual Indians that exists under trea-
16 ties, Executive orders, and other laws.
17 "(c) SUBMISSION FOR REVIEW.—Not later than 90
18 days before the proposed effective date of an agreement
19 entered into under this section, the Secretary shall submit
20 a copy of such agreement to—
21 "(1) each tribe that is served by the Agency
22 that is serving the tribe that is a party to the ftind-
23 ing agreement;
24 "(2) the Committee on Indian Affairs of the
25 Senate; and
-------
9
1 "(3) the Committee on Natural Resources of
2 the House of Representatives.
3 "(d) PAYMENT.—
4 "(1) IN GENERAL.—At the request of the gov-
5 erning body of the tribe and under the terms of an
6 agreement entered into under this section, the Sec-
7 retary shall provide funding to the tribe to carry out
8 the agreement.
9 "(2) AMOUNT.—Subject to paragraph (3) of
10 this subsection and paragraphs (1) and (3) of sub-
11 section (b), the Secretary shall provide funds to the
12 tribe for one or more programs, services, functions,
13 or activities in an amount equal to the amount that
14 the tribe would have been eligible to receive under
15 contracts and grants under this Act. including direct
16 program costs and indirect costs, and for any funds
17 that are specifically or functionally related to the
18 provision by the Secretary of services and benefits to
19 the tribe and its members.
20 "(3) TRUST SERVICES.—Funds for trust serv-
21 ices to individual Indians shall be available under an
22 agreement entered into under this section only to the
23 extent that the same services that \vould have been
24 provided by the Secretary are provided to individual
25 Indians by the tribe.
•S 1618 RS
-------
10
1 "(e) CIVIL ACTIONS.—
2 "(1) DEFINITION OF 'CONTRACT'.—Except as
3 provided in paragraph (2), for the purposes of see-
4 tion 110, the term 'contract' shall include agree-
5 ments entered into under this title.
6 "(2) PROFESSIONAL CONTRACTS.—For the pe-
7 riod that an agreement entered into under this title
8 is in effect, the provisions of section 2103 of the Re-
9 vised Statutes of the United States (25 U.S.C. 81),
10 and section 16 of the Act of June 18. 1934 (48
11 Stat. 987, chapter 576; 25 U.S.C. 476), shall not
12 apply to attorney and other professional contracts by
13 Indian tribal governments participating in Self-Gov-
14 ernance under this title.
15 il(f) FACILITATION.—
16 "(1) INTERPRETATION.—Except as otherwise
17 provided by law, the Secretary shall interpret each
18 Federal law and regulation in a manner that will
19 facilitate—
20 "(A) the inclusion of programs, services,
21 functions, and activities in the agreements en-
22 tered into under this section; and
23 "(B) the implementation.of agreements en-
24 tered into under this section.
25 "(2) WAIVER.—
-------
11
1 "(A) REQUEST.—A tribe may submit a
2 written request for a waiver to the Secretary
3 identifying the regulation sought to be waived
4 and the basis for the request.
5 "(B) DECISION.—Not later than 60 days
6 after receipt by the Secretary of a written re-
7 quest by a tribe to waive application of a Fed-
8 eral regulation for an agreement entered into
9 under this section, the Secretary shall either ap-
10 "prove or deny the requested waiver in writing to
11 the tribe. A denial may be made only upon a
12 specific finding by the Secretary that identified
13 language in the regulation may not be waived
14 because such waiver is expressly prohibited by
15 Federal law.
16 "(C) APPEAL.—Not later than 60 days
17 after denial of a waiver request, the Secretary
18 shall, at the request of a tribe, provide the tribe
19 with a hearing on the record and opportunity
20 for an appeal.
21 "SEC. 404. BUDGET REQUEST.
22 "The Secretary shall identify, in the annual budget
23 request of the President to the Congress, any funds pro-
24 posed to be included in Self-Governance.
•S 1618 RS
-------
12
1 "SEC. 405. REPORTS.
2 "(a) REQUIREMENT.—Not later than January 1 of
3 each year after the date of enactment of this title, the Sec-
4 retary shall submit to Congress a report regarding the ad-
5 ministration of this title.
6 "(b) CONTENTS.—The report shall—
7 "(1) identify the relative costs and benefits of
8 Self-Governance;
9 "(2) identify, with particularity, all funds that
10 are specifically or functionally related to the provi-
11 sion by the Secretary of services and benefits to
12 Self-Governance tribes and their members, and. the
13 corresponding reductions in the Federal bureauc-
14 racy; and
15 "(3) include the separate views of the tribes.
16 "SEC. 406. EFFECT ON OTHER AGREEMENTS AND LAWS.
17 "Nothing in this title shall be construed to limit or
* 8 reduce in any way the services, contracts, or funds that
19 any other Indian tribe or tribal organization is eligible to
20 receive under section 102 or any other applicable Federal
21 law.
22 "SEC. 407. NEGOTIATED RULEMAKING.
23 "(a) IN GENERAL.—Not later than 90 days after the
24 date of enactment of this title, at the request of a majority
25 of the Indian tribes with agreements under this title, the
26 Secretary shall initiate procedures under subchapter III
-------
13
1 of chapter 5 of title 5, United States Code, to negotiate
2 and promulgate such regulations as are necessary to carry
3 out this title.
4 "(b) COMMITTEE.—A negotiated rulemaking commit-
5 tee established pursuant to section 565 of title 5, United
6 States Code, to carry out this section, shall have as its
7 members only Federal and tribal government representa-
8 tives, a majority of whom shall be representatives of In-
9 dian tribes with agreements under this title.
10 "(c) ADAPTATION OF PROCEDURES.—The Secretary
11 shall adapt the negotiated rulemaking procedures to the
12 unique context of Self-Governance and the government-to-
13 government relationship between the United .States and
14 the Indian tribes.
15 a(d) EFFECT.—The lack of promulgated regulations
16 shall not limit the effect of this title.
17 "SEC. 408. AUTHORIZATION OF APPROPRIATIONS.
18 "There are authorized to be appropriated such sums
19 as are necessarv to earn* out this title.".
•S 1618 RS
-------
Calendar No. 332
l(i:fi)CON(}llKSS
ISTSKSSION
[Report No. 103-205]
A BILL
To establish Tribal iSolf-Uovurnancc, anil lor nt her
purposes.
NDVKMIIKU 'J'J, l!>!i:|
IlcpurU'd with an ainriulmrnt
-------
103D CONGRESS
IST SESSION
H. R. 3508
To provide for tribal self-governance, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 15, 1993
Mr. RICHARDSON introduced the following bill; which was referred to the
Committee on Natural Resources
A BILL
To provide for tribal self-governance, and for other purposes.
1 Be it enacted by ilie, Senate and House of Bepresenta-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the "Tribal Self-Governance
5 Act of 1993".
6 SEC. 2. FINDINGS.
7 Congress finds that—
8 (1) the tribal right of self-government flows
9 from the inherent sovereignty of Indian tribes and
10 nations;
11 (2) the United States recognizes a special gov-
12 ernment-to-government relationship with Indian
-------
2
1 tribes, including the right of the tribes to self-gov-
2 ernance, as reflected in the Constitution, treaties,
3 Federal statutes, and the course of dealings of the
4 United States with Indian tribes;
5 (3) although progress has been made, the Fed-
6 eral bureaucracy, with its centralized rules and regu-
7 lations, has eroded tribal self-governance and domi-
8 nates tribal affairs;
9 (4) the Tribal Self-Governance Demonstration
10 Project was designed to improve and perpetuate the
11 govemment-to-government relationship between In-
12 dian tribes and the United States and to strengthen
13 tribal control over Federal funding and program
14 management; and
15 (5) Congress has reviewed the results of the
16 Tribal Self-Governance Demonstration Project and
17 finds that—
18 (A) transferring control to tribal govern-
19 ments, upon tribal request, over funding and
20 decisionmaking for Federal programs, services,
21 functions, and activities intended to benefit In-
22 dians is an effective way to implement the Fed-
23 eral policy of government-to-government rela-
24 tions with Indian tribes; and
-------
3
1 (B) transferring control to tribal govern-
2 ments, upon tribal request, over funding and
3 decisionmaking for Federal programs, sendees,
4 functions, and activities strengthens the Fed-
5 eral policy of Indian self-determination.
6 SEC. 3. DECLARATION OF POLICY.
7 It is the policy of this Act to permanently establish
8 and implement tribal self-governance—
9 (1) to enable the United States to maintain and
10 improve its unique and continuing relationship with,
11 and responsibility to, Indian tribes;
12 (2) to permit each Indian tribe to choose the
13 extent of the participation of such tribe in self-
14 governance;
15 (3) to coexist with the provisions of the Indian
16 Self-Determination Act relating to the provision of
17 Indian services by designated Federal agencies;
18 (4) to ensure the continuation of the trust re-
19 sponsibility of the United States to Indian tribes and
20 Indian individuals;
21 (5) to permit an orderly transition from Federal
22 domination of programs and services to provide In-
23 dian tribes with meaningful authority to plan, con-
24 duct, redesign, and administer programs, services,
-------
4
1 functions, and activities that meet the needs of the
2 individual tribal communities; and
3 (6) to provide for an orderly transition through
4 a planned and measurable parallel reduction in the
5 Federal bureaucracy.
6 SEC. 4. TRIBAL SELF-GOVERNANCE.
7 The Indian Self-Determination and Education Assist-
8 anee Act is amended by adding at the end the following
9 new title:
10 'TITLE IV—TRIBAL SELF-
11 GOVERNANCE
12 -SEC. 401. ESTABLISHMENT.
13 "The Secretary of the Interior (hereinafter in this
14 title referred to as the 'Secretary') shall establish and
15 carry out a program within the Department of the Interior
16 to be known as Tribal Self-Governance (hereinafter in this
17 title referred to as 'Self-Governance') in accordance with
18 this title.
19 "SEC. 402. SELECTION OF PARTICIPATING INDIAN TRIBES.
20 "(a) CONTINUING PARTICIPATION.—Each Indian
21 tribe that is participating in the Tribal Self-Governance
22 Demonstration Project at the Department of the Interior
23 under title HI on the date of enactment of this title shall
24 thereafter participate in Self-Governance under this title
25 and cease participation in the Tribal Self-Governance
-------
5
1 Demonstration Project under title III with respect to the
2 Department of the Interior.
3 "(b) ADDITIONAL PARTICIPANTS.—In addition to
4 those Indian tribes participating in Self-Governance under
5 subsection (a), the Secretary, acting through the Director
6 of the Office of Self-Governance, may select up to 20 new
7 tribes per year from the applicant pool described in sub-
8 section (c) to participate in Self-Governance.
9 "(c) APPLICANT POOL.—The qualified applicant pool
10 for Self-Governance shall consist of each tribe that—
11 "(1) successfully completes the planning phase
12 described in subsection (d);
13 "(2) has requested participation in Self-Govern-
14 ance; and
15 "(3) has demonstrated, for the previous three
16 fiscal years, financial stability and financial manage-
17 ment capability as evidenced by the tribe having no
18 material audit exceptions in the required annual
19 audit of the self-determination contracts of the tribe.
20 "(d) PLANNING PHASE.—Each Indian tribe seeking
21 to begin participation in Self-Governance shall complete
22 a planning phase in accordance with this subsection. The
23 tribe shall be eligible for a grant to plan and negotiate
24 participation in Self-Governance. The planning phase shall
25 include—
•HR3508 IE
-------
6
1 "(1) legal and budgetary research; and
2 "(2) internal tribal government planning and
3 organizational preparation.
4 "SEC. 403. FUNDING AGREEMENTS.
5 "(a) AUTHORIZATION.—The Secretary shall nego-
6 tiate and enter into an annual written funding agreement
7 with the governing body of each participating tribal
8 government.
9 "(b) CONTENTS.—Each funding agreement shall—
10 "(1) authorize the tribe to plan, conduct, con-
11 solidate, and administer programs, sendees, fune-
12 tions, and activities administered by the Department
13 of the Interior that are otherwise available to Indian
14 tribes or Indians, including (but not limited to)—
15 "(A) the Act of April 16, 1934 (25 U.S.C.
16 452 et seq.); and
17 "(B) the Act of November 2, 1921 (25
18 U.S.C. 13);
19 "(2) subject to the terms of the agreement, au-
20 thorize the tribe to redesign programs, services,
21 functions, or activities and to reallocate funds for
22 such programs, services, functions, or activities;
23 "(3) prohibit the inclusion of funds provided—
-------
7
1 "(A) pursuant to the Tribally Controlled
2 Community College Assistance Act of 1978 (25
3 U.S.C. 1801 et seq.);
4 U(B) for elementary and secondary schools
5 under the formula developed pursuant to sec-
6 tion 1128 of the Education Amendments of
7 1978 (25 U.S.C. 2008); and
8 "(C) the Flathead Agency Irrigation Divi-
9 sion or the Flathead Agency Power Division,
10 except that nothing in this section shall affect
11 the contract authority of such divisions under
12 section 102;
13 "(4) specify the services to be provided, the
14 functions to be performed, and the responsibilities of
15 the tribe and the Secretary pursuant to the agree-
16 ment;
17 "(5) authorize the tribe and the Secretary to
18 reallocate funds or modify budget allocations within
19 any year, and specify the procedures to be used;
20 "(6) allow for retrocession of programs or por-
21 tions of programs pursuant to section 105(e);
22 "(7) provide that, for the year for which, and
23 to the extent to which, funding is provided to a tribe
24 under this section, the tribe—
•HR 3608 IH
-------
8
1 "(A) shall not be entitled to contract with
2 the Secretary for such funds under section 102,
3 except that such tribe shall be eligible for new
4 programs on the same basis as other tribes; and
5 "(B) shall be responsible for the adminis-
6 tration of programs, services, functions, and ac-
7 tivities pursuant to agreements entered into
8 under this section; and
9 "(8) prohibit the Secretary from waiving, modi-
10 fying, or diminishing in any way the trust respon-
11 sibility of the United States with respect to Indian
12 tribes and individual Indians that exists under trea-
13 ties, Executive orders, and other laws.
14 "(c) SUBMISSION FOR REVIEW.—Not later than 90
15 days before the proposed effective date of an agreement
16 entered into under this section, the Secretary shall submit
17 a copy of such agreement to—
18 "(1) each Indian tribe that is served by the
19 Agency that is serving the tribe that is a party to
20 the funding agreement;
21 "(2) the Committee on Indian Affairs of the
22 Senate; and
23 "(3) the Subcommittee on Native American Af-
24 fairs of the Committee on Natural Resources of the
25 House of Representatives.
-------
1 "(d) PAYMENT.—
2 "(1) IN GENERAL.—At the request of the gov-
3 erning body of the tribe and under the terms of an
4 agreement entered into under this section, the See-
5 retary shall provide funding to the tribe to cany out
6 the agreement.
7 "(2) AMOUNT.—Subject to paragraph (3) of
8 this subsection and paragraphs (1) and (3) of sub-
9 section (b), the Secretary shall provide funds to the
10 tribe for one or more programs, services, functions,
11 or activities in an amount equal to the amount that
12 the tribe would have been eligible to receive under
13 contracts and grants under this Act, including direct
14 program costs, and for any funds that are specifi-
15 eally or functionally related to the provision by the
16 Secretary of services and benefits to the tribe and its
17 members.
18 "(3) TRUST SERVICES.—Funds for trust serv-
19 ices to individual Indians shall be available under an
20 agreement entered into under this section only to the
21 extent that the same services that would have been
22 provided by the Secretary are provided to individual
23 Indians by the tribe.
24 "(e) CIVIL ACTIONS.—
•HR 3508 IH
-------
10
1 "(1) DEFINITION OF CONTRACT.—Except as
2 provided in paragraph (2), for the purposes of sec-
3 tion 110, the term 'contract' shall include agree-
4 ments entered into under this title.
5 "(2) PROFESSIONAL CONTRACTS.—For the pe-
6 riod that an agreement entered into under this title
7 is in effect, the provisions of section 2103 of the Re-
8 vised Statutes of the United States (25 U.S.C. 81),
9 and section 16 of the Act of June 18, 1934 (25
10 U.S.C. 476), shall not apply to attorney and other
11 professional contracts by Indian tribal governments
12 participating in Self-Governance under this title.
13 "(f) FACILITATION.—
14 "(1) INTERPRETATION.—Except as otherwise
15 provided by law, the Secretary shall interpret each
16 Federal law and regulation in a manner that will
17 facilitate—
18 "(A) the inclusion of programs, services,
19 functions, and activities in the agreements en-
20 tered into under this section; and
21 "(B) the implementation of agreements en-
22 tered into under this section.
23 "(2) WAIVER.—
24 "(A) REQUEST.—A tribe may submit a
25 written request for a waiver to the Secretary
-------
11
1 identifying the regulation sought to be waived
2 and the basis for the request.
3 "(B) DECISION.—Not later than 60 days
4 after receipt by the Secretary of a written re-
5 quest by a tribe to waive application of a Fed-
6 eral regulation for an agreement entered into
7 under this section, the Secretary shall either ap-
8 prove or deny the requested waiver in writing to
9 the tribe. A denial may be made only upon a
10 specific finding by the Secretary that identified
11 language in the regulation may not be waived
12 because that regulation is expressly required by
13 Federal law.
14 "(C) APPEAL.—Not later than 60 days
15 after denial of a waiver request, the Secretary
16 shall at the request of the tribe, provide the
17 tribe with a hearing on the record and an op-
18 portunity for an appeal.
19 "SEC. 404. BUDGET REQUEST.
20 "The Secretary shall identify, in the annual budget
21 request of the President to the Congress under section
22 1105 of title 31, United States Code, any funds proposed
23 to be included in Self-Governance.
•HRS508 IB
-------
12
1 "SEC. 405. REPORTS.
2 "(a) REQUIREMENT.—The Secretary shall submit to
3 Congress a written report on January 1 of each year fol-
4 lowing the date of enactment of this title regarding the
5 administration of this title.
6 "(b) CONTENTS.—The report shall contain—
7 "(1) the relative costs and benefit of Self-Gov-
8 ernance;
9 "(2) identification of all funds that are specifi-
10 cally and functionally related to the provision of
11 services and benefits to the tribe and its members
12 and the corresponding reduction in the Federal bu-
13 reaucracv; and
*/ i
14 "(3) the separate views of the tribes.
15 "SEC. 406. EFFECT ON OTHER AGREEMENTS AND LAWS.
16 "Nothing in this title shall be construed to limit or
17 reduce in any way the services, contracts, or funds that
18 any other Indian tribe or tribal organization is eligible to
19 receive under section 102 or any other applicable Federal
20 law.
21 "SEC. 407. NEGOTIATED RULEMAKING.
22 "(a) IN GENERAL.—Not later than 90 days after the
23 date of enactment of this title, at the request of a majority
24 of the Indian tribes with agreements under this title, the
25 Secretary shall initiate procedures under subchapter III
26 of chapter 5 of title 5. United Rtatps
-------
13
1 and promulgate such regulations as are necessary to carry
2 out this title.
3 "(b) COMMITTEE.—A negotiated nilemaking commit-
4 tee established pursuant to section 565 of title 5, United
5 States Code, to cany out this section, shall have as a ma-
6 jority of its members representatives of Indian tribes with
7 agreements under this title.
8 "(c) ADAPTATION OP PROCEDURES.—The Secretary
9 shall adapt the negotiated rulemaking procedures to the
10 unique context of Self-Governance and the government-to-
11 government relationship between the United States and
12 the Indian tribes.
13 "(d) EFFECT.—The lack of promulgated regulations
14 shall not limit the effect of this title.
15 "SEC. 408. AUTHORIZATION OF APPROPRIATIONS.
16 "There are authorized to be appropriated such sums
17 as may be necessary to carry out this title.".
o
-------
Calendar No. 332
103o CONGRESS \ f
1st Session J SENATE j ioa_205
ESTABLISHING SELF-GOVERNANCE, AND FOR OTHER
PURPOSES
NOVEMBER 22,1993.—Ordered to be printed
Mr. INOUYE, from the Committee on Indian Affairs,
submitted the following
REPORT
[To accompany S. 1618]
The Committee on Indian Affairs, to which was referred the bill
(S. 1618) to establish Tribal Self-Governance, and for other pur-
poses, having considered the same, reports favorably thereon with
an amendment and recommends that the bill as amended do pass.
PURPOSE
The purpose of S. 1618 is to permanently establish Tribal Self-
Governance at the Department of the Interior.
BACKGROUND
In 1987, during consideration of legislation to amend the Indian
Self-Determination Act, the Interior Department proposed legisla-
tion to authorize a consolidated funding program. This program
would have provided that for three years after enactment, partici-
pating tribal governments would receive federal funds either in a
lump sum or in installments, an amount equal to at least the
amount they would have received if they had entered into an In-
dian self-determination contract (except for Indian school equali-
zation formula funds).
The proposal also provided that the Interior Department would
be relieved of any obligation to provide services or benefits to the
extent that funding was provided for such services or benefits. It
also provided that the tribal governments would not be obligated
to provide the same services or benefits that the Secretary of the
Interior would have provided.
79-010
-------
After reviewing Interior's proposal, a number of tribes developed
a substitute proposal entitled, the "Tribal Self-Governance Re-
search and Demonstration Project Act." The key difference was
that where the Interior proposal essentially proposed block grant
funding for tribes in return for a waiver of the Federal trust re-
sponsibility, the tribal alternative reaffirmed the trust responsibil-
ity and provided that those tribes which did participate in the self-
governance project would also be able to remain eligible for direct
services from other federal programs.
As a result of further discussions between interested tribes and
the Senate Committee on Indian Affairs and the House Interior
and Insular Affairs Committee, the Project was authorized under
Title III of the Indian Self-Determination and Education Assistance
Act Amendments (Public Law 100-472) in 1988.
In order to qualify for the Project, a tribal government must sat-
isfy the eligibility criteria set forth in Title III. The criteria are: (1)
the tribe must successfully complete a Self Governance planning
grant; (2) the tribe's governing body must state its interest in par-
ticipating in the Project; (3) the tribe must have performed two or
more mature contracts prior to participation in the Project; and (4)
the tribe must have demonstrated sound fiscal management capa-
bilities for three years prior to the Project.
Title III authorizes, through a planning and negotiation
process:
(1) The development of a Compact of Self-Governance defin-
ing responsibilities in the new Tribal/Federal relationship; and
(2) An Annual Funding Agreement to govern financial trans-
fers from the federal government to the tribes.
Under a Compact, an Indian tribal government is authorized to
plan, consolidate, and administer programs, services, functions and
activities previously administered by the Bureau of Indian Affairs
and to redesign programs, services, functions, and activities and to
reallocate federal funds.
Funding for the annual agreements are allocated out of agency,
area, and central office accounts of the BIA to a tribe on the basis
of what that tribe would have received in funds and services in the
absence of the agreement. The tribe can choose to negotiate for all
or part of the services and programs provided by the Bureau of In-
dian Affairs. Funds from the Tribally-Controlled Community Col-
lege Assistance Act, Indian School Equalization formula, and the
Flathead Irrigation Project are specifically precluded from being in-
cluded under a Self-Governance Compact.
Under the Self-Governance Demonstration Project, tribes can
only use Federal funds to operate those programs which the Con-
gress has previously authorized, A tribe is not required to operate
an ariating program, if it wishes to reallocate those funds from that
program to another program that is also authorized by the Con-
gress.
In late 1991, President Bush signed into law the Tribal Self Gov-
ernance Project Act (Public Law 102-184) which extended the
Project for three additional years and expanded the maximum
number of participants from twenty to thirty tribes. The new law
also directed the Indian Health Service to undertake a feasibility
study for expanding the Project to the IHS programs and services.
-------
On July 1, 1992, the IHS entered into a Cooperative Agreement
with the Cherokee Nation of Oklahoma which provided that the
Cherokee Nation would coordinate IHS planning activities for the
benefit of all Self Governance tribes, analyze IHS' budget and de-
termine how the Project would apply to IHS programs and services.
Section 314 of the Indian Health Care Improvement Act ex-
pressly authorizes the Secretary of Health and Human Services to
negotiate annual funding agreements under Title in with Indian
tribes which have completed the necessary planning activities.
Since 1988, 28 tribes have entered into compacts with the De-
partment of the Interior. In 1993, 14 tribes have entered into com-
pacts with the Indian Health Service. Participating tribes have
been very positive about the Self Governance Demonstration
Project. The Tribes feel that they are able to more effectively de-
sign programs and services to the needs of tribal members; that the
Project has made Tribal governments more responsive to the con-
cerns of tribal members; and that the Project has allowed the tribes
to be more independent of the BIA.
Because of the Project's success, many of the participating tribes,
including many non-participating tribes who can't enter into com-
pacts because of the current statutory ceiling on tribal participants,
have expressed a desire to establish the Self Governance Project on
a permanent basis.
EXPLANATION OF S. 1618
Findings and declarations of policy {sections 2 & 3]
Section 2 sets forth certain findings of the Congress related to
the unique relationship between the United States Government
and Indian tribal governments, to each tribe's inherent right of
self-governance, and to the success of the Tribal Self-Governance
Demonstration Project in improving and perpetuating that relation-
ship by strengthening tribal control over Federal funding and pro-
gram management intended to benefit Indians.
The Committee strongly supports the concept of Tribal Self-Gov-
ernance. Returning decision-making and resource allocation au-
thority to Indian tribal governments has been a longstanding goal
of the Committee and has culminated in this historic step rep-
resented by the bill that the Committee is now recommending to
the Senate for passage. With the advice of Self-Governance tribes,
the Committee has followed an incremental process of first author-
izing trial or demonstration of Self-Governance, then amending
that initial effort to deal with anticipated as well as unanticipated
problems, and now authorizing Self-Governance permanently with
respect to the Department of the Interior. The Committee intends,
in an orderly, constructive fashion, to consider extending Self-Gov-
ernance authority to other Federal departments and agencies in
the near future.
Conceptually, Self-Governance reflects the unique relationship
between the United States Government and the individual Indian
Tribes. Self-Governance recognizes that Tribes are governments
with the inherent rights to govern themselves. The Tribal Self-Gov-
ernance Project was designed to reduce Federal control over deti-
-------
sion-making, and to enhance fiscal control, resource allocations,
and management at the tribal level.
The Self-Governance Demonstration Project's primary docu-
mented experience to date has been with the Department of the In-
terior, and that experience indicates that it is appropriate at this
time to permanently establish Self-Governance at the Department
of the Interior. The bill permits each Tribe to voluntarily choose
whether and to what degree it wants to participate in Self-Govern-
ance. Under this measure, Self-Governance authority will co-exist
with other Self Determination Act contracting and grants, as well
as with direct federal services.
The Committee intends the trust responsibility of the United
States to Indian Tribes and Indian individual to be preserved. Self-
Governance requires an orderly transition from Federal domination
of programs and services benefiting Indians to tribal authority and
control over those benefits with an accompanying reduction in the
Federal bureaucracy.
A key, albeit misunderstood, feature of this government-to-gov-
ernment relationship under Self-Governance authority is that all
dealings between the Department of the Interior and a Self-Gov-
ernance Tribe are to be bilateral and consensual. The negotiated
agreements struck between Indian Tribes and the federal agencies
are to be solemn agreements—compacts between governments—
that may not be altered unilaterally by the Department of the Inte-
rior.
A new chapter in Federal-Indian relations is being written by
Tribal Self-Governance. Indian Tribes have been and will continue
to be permanent governmental bodies exercising basic powers of
government, as of Federal and State governments, to help meet the
needs of their citizens.
Over the long and tragic course of America's treatment of Indi-
ans, Indian leaders have persistently urged the Federal govern-
ment to work with Indian leaders to arrive at sensible solutions to
their problems. For example, thirty-two years ago, more than 400
Tribal leaders renewed this request during a meeting in Chicago in
which they issued this eloquent appeal:
What we ask of America is not charity, not paternalism,
even when benevolent. We ask only that the nature of our
situation be recognized and made the basis of policy and
action.
The Federal policy of Tribal Self-Governance was conceived and
nurtured by Indian Tribes and their able leaders. It is a policy sea-
soned by experience and matured by time. In the Committee's
view, it is now time to make Tribal Self-Governance a permanent
part of all Department of the Interior policy and action relating to
those Indian Tribes who choose to participate.
Establishment of permanent self-governance authority [sec-
tion 401]
The bill establishes Tribal Self-Governance as a permanent pol-
icy within the Department of the interior to be governed under a
new Title IV added to Public Law 93-638, as amended, the Indian
Self-Determination Act.
-------
Although existing and future Self-Governance agreements with
the Department of the Interior are to be governed by this new Title
IV, the experience under Title III serves as an important backdrop
in the evolution of Self-Governance policy. Under current law, un-
changed by the provisions of this bill, existing Self-Governance
agreements with the Indian Health Service continue to be governed
by Title IE. This means that Title IV governs the Department of
the Interior's implementation of Self-Governance and Tribal Self-
Governance agreements with Interior, while Title ffl governs the
Indian Health Service's implementation of Self-Governance and
Tribal Self-Governance agreements with the Indian Health Service.
The bill establishes permanent authority only in the Department
of the Interior. Since 1988, Interior has conducted Self-Governance
under demonstration authority. The Self-Governance Demonstra-
tion Project has had measurable success. It has achieved the goals
it set out to achieve—p-gamining the benefits of allowing Tribes to
assume more control and responsibility over programs, services,
functions and activities provided to their members previously fur-
nished by the Federal agency administering these programs, serv-
ices, functions and activities. It has also required the Department
of the Interior to enter into bilateral, negotiated agreements gov-
erning the transfer of responsibilities and associated funding levels
to Tribes and providing for streamlined management processes that
remove layer upon layer of bureaucratic regulation and control.
These agreements, known as Self-Governments Compacts, are im-
portant binding agreements that reflect government-to-government
negotiations. Self-Governance encourages Tribal and Federal ex-
perimentation and flexibility.
Although the bill does not affect the Self-Governance Demonstra-
tion Project at the Indian Health Service, the Committee is com-
pelled to state that it is disturbed by reports it has received from
Tribes indicating that IHS officials have refused to change the IKS
organization or administrative structure, or personnel because
these officials perceive the Self-Governance effort as a temporary,
or transitory phenomenon. This perception is wrong. In fact, this
same view is also pervasive within the Department of the Interior,
particularly within the Bureau of Indian Affairs. The IHS dem-
onstration authority was provided in order to give the Congress a
baseline experience from which to judge how to improve SeltGov-
ernanee when it is made permanent. The Committee believes,
based on the evidence collected from the Tribes and the Federal
agencies involved, that Tribal Self-Governance will continue to be
examined as an option that should be offered to all Tribes on a per-
manent basis for all Federal programs, activities, functions and
services that benefit Tribes and their members. The only question
relates to the pace at which this authority is applied to other Fed-
eral agencies Since Self-Governance will be permanent, the Com-
mittee strongly urges the IHS to begin at once to plan for and im-
plement changes that result in reductions of the Federal bureauc-
racy that correspond to the transfer of funds, resources and respon-
sibilities to Self-Governance Tribes. AH Federal budget savings
from these reductions should be transferred to the Self-Governance
Tribes whose agreements induce such reductions.
-------
In addition, one of the matter the Committee intends to examine
in the future is what evidence of tribal government support should
be required of tribal organizations seeking to negotiate Self-Gov-
ernance Agreements with the Indian Health Service. This issue
arises because of some unique circumstances in Alaska which may
require some adaption of the government-to-government nature of
the Self-Governance negotiation process.
Tribal governments participating in the Self-Governance Dem-
onstration Project have expressly requested that the term "pro-
gram" not be utilized in reference to Self-Governance. The fun-
damental nature of Tribal Self-Governance in establishing govern-
ment-to-government relationships with the United States extends
beyond Federal programmatic description and reference. Tribal
governments envision that the Self-Governance concept broadly en-
compasses Department and Agency programs in a general federal
policy framework. Although rules and regulations will be bilat-
erally negotiated as described in the rule-making provision of S.
1618, the Committee expects cognizant Departments to recognize
the broad context of this historic initiative.
Selection of Tribes [section 402]
Continuing participation [section 402(a)]
Some Tribes have raised a concern that this subsection of the bill
might be interpreted to mean that permanent participation under
Title IV is mandatory. The Committee wishes to make it clear that
no such interpretation should be made of this subsection. A critical
characteristic of Tribal Self-Governance is that the nature, extend
and scope of a Tribe's participation in Self-Governance is a Tribal
option. Participation is voluntary. It is also within the authority of
a Tribe participating in a Self-Governance agreement to cease that
participation through retrocession by registering an intent not to
renegotiate or renew an Annual Funding Agreement.
The key distinction between the Title IH demonstration author-
ity and the Title IV permanent authority is that Title IV makes the
United States' offer to Tribes of participation in Tribal Self-Govern-
ance a permanent, standing offer. A Tribe may, in the exercise of
its sovereign authority to determine its relations with the United
States, choose to proceed under Title IV on a temporary or dem-
onstration basis. Thus, a Tribe like the Makah Tribe, which contin-
ues to reevaluate and assess the relative benefits and costs of con-
tinuing its participation in Tribal Self-Governance, may under the
permanent authority of Title IV continue to consider its participa-
tion in Tribal Self-Governance as a demonstration activity which
may or may not be permanently part of its future. This subsection
is intended to make dear to the Department of the Interior that
Self-Governance is a permanent feature of its responsiblities—to
require that all Self-Governance relations between Indian Tribes
and the Department of the Interior be governed by the new Title
IV authorities within this bill.
the Committee also intends this subsection to permit any Tribe
now participating as a signatory <.ribe to a multi-Tribal Self-Gov-
ernance agreement to, at that Tnbe's option, separately negotiate
and participate in a single-Tribe Self-Governance Compact and An-
-------
nual Funding Agreement with the Department of the Interior. Be-
cause such a Trice is already participating as a signatory in a Self-
Governance agreement, its election to go its separate way in a sin-
gle Self-Governance agreement should not be constrained by the
statutory ceiling on the number of new or additional Tribes per-
mitted to begin participation each year. In particular, the Commit-
tee expects the Department of the Interior to follow the Commit-
tee's intention with respect to any request from a signatory Tribe
participating in the Southeast Alaska Tribes' Compact of Self-Gov-
ernance.
Additional Tribes [section 402(b)J
The Committee has been asked by participating and non-partici-
pating Tribes alike, to change existing law to allow for a measured
and responsible increase in the number of Tribes eligible to partici-
pate in Self-Governance with the Department of the Interior. Cur-
rent law provides authority for no more than thirty (30) Self-Gov-
ernance Compacts to be executed by the Department of the Inte-
rior.
The bill changes current law by annually permitting up to twen-
ty (20) additional new Tribes to negotiate Self-Governance Com-
pacts with the Department of the Interior. The Committee intends
that every Tribe seeking to participate in Self-Governance and
meeting the statutory eligibility requirements be given the oppor-
tunity to do so within a reasonable period of time. The Committee
strongly urges the Department of the Interior to provide the nec-
essary personnel and budget authority to organize its Office of Self-
Governance, and aU support offices or functions, in such a manner
that the Department has the capacity to respond to these increased
numbers of Tribal government participants without negatively af-
fecting its ongoing responsibilities to other Tribes already partici-
pating in Self-Governance.
The bill does not require "geographic diversity" in the Depart-
ment's consideration of Tribal government eligibility to enter the
Self-Governance planning and negotiation. Tribal governments are
to be selected based solely on the eligibility requirements. The
Muckleshoot Indian Tribe of the State of Washington should be in-
cluded in the initial pool of applicant Tribes if it so chooses.
Applicant pool (section 402(c)J
The Committee has maintained the relevant eligibility require-
ments in Title III for beginning participation in Tribal Self-Govern-
ance. An applicant Tribe must have successfully completed a plan-
ning activity described in the following subsection (d); formally re-
quested participation in Self-Governance; and demonstrated finan-
cial stability and financial management capability by having for
the previous three fiscal years no material audit exceptions in the
required annual audits of its Self-Determination contracts under
alic Law 93-638.
Planning phase [section 402(d)J
The Committee intends each new Tribe that begins participation
in Tribal Self-Governance to first complete a planning phase of ac-
tivity that is approved by the Office of Self-Governance. A Tribe's
-------
8
planning efforts should include any necessary legal and budgetary
research that will help prepare the Tribe foi negotiating and imple-
menting its Self-Governance agreements, and any necessary plan-
ning and organizational preparation. While this subsection author-
izes the Department of the Interior to support these Tribal plan-
ning efforts with grants to eligible Tribes, the Committee is aware
that some Tribes will be able to demonstrate to the Office of Self-
Governance that they have already completed the necessary plan-
ning activities or have independent sources of funding with which
to carry out the requisite planning effort.
Authorization of the funding agreements [section 403(a)J
The Committee intends for the Secretary of the Interior to enter
into government-to-government negotiations with a participating
tribal government on an annual basis for the purpose of establish-
ing annual written funding agreements, including base budgets as
provided for in Public Law 102-381 and Public Law 103-138, with
that Tribe's governing body. All officials of the Department of the
Interior should consider these to be solemn agreements which, once
executed, may be altered only through the bilateral written agree-
ment of the parties.
The Committee urges the Secretary to place final negotiation au-
thority in the Director of the Office of Self-Governance, which shall
be located in the Office of the Secretary, and to require other Inte-
rior officials to cooperate fully with the Director in providing fair
and complete budget and other negotiation information to each
Tribe well in advance of the negotiations.
The provisions in the Compacts of Self-Governance and Annual
Funding Agreements carefully negotiated between Tribal govern-
ments and the Department of the Interior during the Demonstra-
tion Project include critically important bilateral principles. The
Committee intends that these provisions will be maintained under
permanent Self-Governance authority and that the Department of
the Interior will work diligently to advance and expand the Self-
Governance principles in negotiations with Tribal governments.
Contents of the funding agreements [section 4Q3(b)]
The Committee has retained the requirements and limitations of
Title in, as amended, regarding what terms and conditions must
be included in an Annual Funding Agreement. The Committee in-
tends the Secretary to guarantee and facilitate each participating
Tribe's flexible authority to plan, conduct, consolidate, redesign and
administer Department of the Interior programs, services, func-
tions, and activities available to Indian Tribes and Indians, includ-
ing but not limited to those authorized under the general author-
ization statutes known popularly as the Johnson OTtfalley Act and
the Snyder Act. Each Tribe has authority to redesign programs or
reallocate funds under its funding agreement to purposes or prior-
ities different from those previously employed by the Department
of the Interior. Although the Committee has continued tine exclu-
sion of certain funds, consistent with Title HI, as amended, involv-
ing Tribally Controlled Community Colleges and elementary and
secondary school formula funds and Interior irrigation funds (Flat-
head Agency Irrigation Division or Flathead Agency Power Divi-
-------
sion) from Self-Governance Annual Funding Agreements,- the Com-
mittee expects to explore inclusion of these programs under Self-
Governance in the very near future.
Submission of funding agreements for review [section 403(c)J
The Committee retains the provisions of Title ffl, as amended,
requiring the Department of the Interior to submit a copy of a par-
ticipating Tribe's Self-Governance Compact and Annual Funding
Agreement entered into under this Title to each Tribe directly
served by the Bureau of Indian Affairs Agency Office which serves
the participating Tribe, and to the House Committee on Natural
Resources and the Senate Committee on Indian Affairs ninety (90)
days before the effective date of the agreement. The Committee in-
tends that the Department of the Interior strictly adhere to this
statutory timeframe so that the effective dates of Annual Funding
Agreements or Compacts are not delayed. The Committee does not
intend to have these review and time frame requirements to apply
to modifications made by the parties to Annual Funding Agree-
ments or Compacts after their effective dates.
Payment requirements [section 403(d)]
The Committee intends to have the Department of the Interior
provide funding to a participating Tribe under terms negotiated in
a funding agreement. Most participating Tribes appear to prefer
the current practice of lump sum or quarterly advance payments
and the Committee intends to have the Department of the Interior
maintain this practice as an option under the flexible statutory au-
thorities provided in the bill. These payment provisions of the bill
are comparable to existing authorities under Title III, as amended.
The Committee wishes to make clear to the Department of the
Interior, the Committee's intention with regard to what funds are
to be negotiable. At a minimum, the Secretary must provide the
money that a Tribe would have been eligible to receive under Self-
Determination Act contracts and grants. In addition to this, the
Secretary must provide all funds specifically or functionally related
to the Department of the Interior's provision of services and bene-
fits to the Tribe and its members. This means the Department of
the Interior must include in a Tribe's Annual Funding Agreement
all those funds and resources sought by the Tribe which the Fed-
eral government would have used in any way to carry out its pro-
grams and operations if it had provided services and benefits, ei-
ther directly or through contracts, grants or other agreements, to
the Tribe or its members in lieu of a Self-Governance agreement.
This would include all funds and .resources regardless of the geo-
graphic location or administrative level at which the Department
of the Interior would have expended funds in lieu of a Self-Govern-
ance agreement. The only funds the Department is legally per-
mitted to hold back from negotiation are those which are expressly
excluded by statute or those funds necessary to carry out certain
limited functions which by statute may be performed only by a
Federal official.
The Committee is troubled by the continuing refusal of the De-
partment of the Interior for the past four years to negotiate, on a
L basis with participating Self-Governance Tribes, tribal
-------
10
shares of Bureau of Indian Affairs (BIA) central office funds and
resources despite dear directives to do so in various appropriations
and authorizing Committee Reports. In June 1993, the Committee
facilitated a meeting between senior officials of the Department of
the Interior and the Mille Lacs Band of Qjibwe and Grand Tra-
verse Band of Ottawa and Chippewa Indians, during which these
federal officials promised to form a task force, with tribal participa-
tion, to develop tribal share methodologies applicable to the BIA
central office BO that responsive modifications could be negotiated
into these and other tribes' 1994 Annual Funding Agreements. To
the Committee's knowledge, absolutely no constructive action has
been taken by the Department of the Interior since the June meet-
ing to implement this commitment, although this commitment was
reiterated to tribal leadership and representatives of the Quinault
Indian Nation, Lummi Indian Nation, Jamestown STQallam Tribe,
Hoopa Valley Tribe, Makah Tribe and Siletz Tribe at the first
meeting of this Administration's Self-Governance Policy Council on
September 13,1993.
The bill language makes plain the Committee's intention that all
BIA central office funds are to be negotiable and that tribal shares
should be developed as a percentage of the function transferred. If
the Department of the Interior does not take positive action to fully
implement this commitment to Self-Governance Tribes, the Com-
mittee will be compelled to consider mandating specific tribal share
negotiation requirements for the BIA central office. While the in-
flexibility of a statutory approach may well be leas than desirable,
the Department of the Interior's delay on this issue can no longer
be ignored. The Committee strongly urges the Department of the
Interior to immediately implement the commitment it has made to
these Tribes and to the Committee.
In implementing this new Title IV, the Committee expects the
Secretary of the Department of the Interior to make practical use
of the authority that has long existed in Title m, as amended, for
a Tribe to negotiate a tribal share of funds otherwise administered
by the Interior Department and other agencies within the Depart-
ment other than the Bureau of Indian Affairs. The Committee in-
tends that the Secretary should interpret this subsection of the bill
to mean that all funds specifically or functionally related includes
funds appropriated or administered, not just by the Bureau of In-
dian Affairs, but also by every office or agency or bureau within the
Department of the Interior, including, but not limited to, the Bu-
reau of Reclamation, the U.S. Fish & Wildlife Service, the Office
of Policy Management and Budget, the National Park Service, the
Bureau of Land Management, the Minerals Management Service,
the U.S. Geological Service, the Office of Surface Mining and En-
forcement, and the Bureau of Mines. Neither the source of the ap-
propriated funds, nor the location in which it would have been oth-
erwise spent, may limit the negotiability of these funds. For exam-
ple, the Committee intends that the Department negotiate, at a
Tribe's request, a tribal share of funds appropriated to the Federal
Highway Administration but transferred to the Department of the
Interior to be administered or distributed for the benefit of Indian
Tribes through inter-agency agreements or other authorities. If
these agreements or administrative authorities need to be amend-
-------
11
ed, the Secretary of the Interior should see that this is expedi-
tiously accomplished.
The Committee expects the Secretary to actively and creatively
apply the authorities set forth in the bill to make available for ne-
gotiation those funds and resources which may not appear on the
Secretary's budget as a cost item or activity, but are nonetheless
used by the Secretary or are otherwise specifically or functionally
related to the Secretary's capacity to carry out the Department's re-
sponsibilities to the Tribe or its members. For example, the Sec-
retary should make available for negotiation in Self-Governance
agreements the resources generated by agreements or other ar-
rangements with the General Services Administration concerning
costs savings or agreements relating to transportation or facilities
or equipment, with the Federal Highway Administration concern-
ing road construction or maintenance funds or resources, with the
Department of Education concerning Indian education, and agree-
ments or other arrangements between or among Agencies and of-
fices within the Department of the Interior,
Civil actions [section 403(e)]
The bill provides permanent statutory authority for the legal
rights and privileges granted Tribes under Title III, as amended.
These include the right to pursue the same kind of legal relief ac-
corded other Tribes and Tribal organizations under Section 110 of
the Indian Self-Determination Act (Public Law 93-638, as amend-
ed) and to exempt a participating Tribe's professional contracts
from the usual requirements of review and approval by the Sec-
retary under 25 U.S.C. § 81.
Facilitation of self-governance agreements {section 4Q3(f)]
The Committee has taken note of Executive Order 12875, issued
October 26, 1993, entitled "Enhancing the Intergovernmental Part-
nership," which specifically requires Federal departments and
agencies to consider regulation waiver requests from Tribal govern-
ments. The Committee is concerned, based on Tribal testimony,
that the Department of the Interior has yet to establish credible
and functional regulation waiver procedures under the Self-Govern-
ance Demonstration Project.
In the bill, the Committee has revised and included provisions,
comparable to those in title in, as amended, to clarify its intention
that all officials within the Department of the Interior are to inter-
pret all federal laws and regulations in ways that facilitate includ-
ing Interior programs, services, functions and activities in nego-
tiated Self-Governance agreements and in ways that facilitate flexi-
ble implementation of these agreements by participating Tribes
and the Department of the Interior.
The Committee has also provided specific procedures and stand-
ards to govern the Department of the Interior's response in approv-
ing or disapproving a participating Tribe's request for waiver of the
application of a Federal regulation to an agreement under title IV.
During the demonstration project, the Committee received com-
plaints from participating Tribes that the Department either ig-
nored or was quite slow to respond to regulation waiver requests
and that the consideration given by the Department of the Interior
-------
12
to these waiver requests was highly restrictive. This situation is at
direct odds with the intention of this Committee that regulation
waiver requests made by Tribes participating in Self-Governance
should be liberally granted by the Department on an expedited
basis. For this reason, the Committee has included in this bill a
structure for waiving regulations that is similar to the require-
ments governing the Department of the Interior's approval or dis-
approval of Tribal applications to contract under Section 450fta) of
the Indian Self-Detennination Act (Public Law 93-638).
Federal budget request submissions [section 404]
The Committee intends that the Department of the Interior will
continue its current practice of identifying in its annual budget re-
quest submission to the Congress the funds it proposes to include
in Self-Governance agreements. This mechanism should assist in
the transition to base budgets for participating Tribes and reduce
to a minimum the work and time involved in transferring these
funds to participating Tribes and reduce to a mfattmim the work
and time involved in transferring these funds to participating
Tribes after an appropriation becomes available.
Annual reports [section 405]
The Committee reduced the reporting requirements placed upon
the Department and participating Tribes from twice a year to once
a year. In contrast to the requirements under Title in, however,
Title IV broadens the scope of the report beyond an analysis of the
relative costs and benefits of Self-Governance.
The Committee bill requires the Secretary to identify all funds
that are. specifically or functionally related to the provision by 'the
Secretary of services and benefits to participating Tribes or their
members. This is to assist Tribes in preparing for negotiations and
to encourage the Department of the Interior to prepare for and ap-
proach negotiations in a more systematic manner that can be mon-
itored by the Congress.
The Committee is concerned by evidence that little restructuring
of the Federal bureaucracy has resulted from the negotiation of
Self-Governance agreements over the past four years. On previous
occasions, all of the relevant authorizing and appropriations Com-
mittees of the Congress have made plain the Congressional expec-
tation that the transfer of funds and responsibilities to Self-Gov-
ernance Tribes should generate a corresponding reduction in the
Federal bureaucracy with associated savings transferred to the
Tribes engendered by this Federal administrative down-sizing. The
encourage real and meaningful Department of the Interior action
in this area, the Committee has included bill language requiring
the Secretary to annually report to the Congress on specific reduc-
ions made or planned within the Department of the Interior bu-
reaucracy that correspond to the amounts transferred to Tribes
with Self-Governance agreements. The Secretary is to provide an
opportunity in the annual report for the separate views of the par-
ticipating Tribal governments on all of these matters.
-------
13
No effect on other agreements and laws [section 406}
The Committee has included bill language to provide a general
assurance that nothing in this bill should be interpreted to fimit or
reduce in any way the benefits any Indian Tribe or organization is
eligible to receive under Section 102 of Public Law 93-638 or other
Federal law. Any Tribe or Tribal organization considering itself
harmed by violation of this section is authorized to pursue legal re-
lief under Section 110 of Public Law 93-638.
Negotiated rulemaking procedures [section 407]
The Committee has included provisions in S. 1618 which are an
adaptation of the general requirements of the Negotiated Rule-
making Act of 1990, as amended, Public Law 101-648. The Com-
mittee bill requires the Secretary, if a majority of the Tribes with
agreements under Title IV so request, to use procedures similar to
those under the Negotiated Rulemaking Act to begin the process of
developing proposed regulations to carry out Title IV. Negotiated
rulemaking procedures are generally designed to require a Federal
agency to negotiate with the interests most affected by rulemaking,
in this case the participating Tribes, in the process of developing
proposed regulations that will be subsequently published for public
review and comment. The Committee wishes to make clear that
under this process all other interests are accorded the same oppor-
tunities for review and comment. The difference between this bill
and Public Law 101-648 is that under this bill only Tribal govern-
ments are permitted to work in partnership with the Department
of the Interior in developing proposed regulations. The bill lan-
guage does not alter the existing authority of the Secretary to ac-
cept or revise the draft regulations generated through this process
before publishing them in proposed form. However, the Committee
expects the Secretary to give great deference to the views and con-
cerns of the participating Tribes in the negotiated rulemaking proc-
ess.
Once the negotiated rulemaking process is begun, a negotiated
rulemaking committee is to be established that has a majority of
its members representatives of participating Self-Governance
Tribes.
The bill grants broad authority to the Secretary of the Interior
to adapt negotiated rulemaking procedures used in this legislation
to the unique context of Self-Governance and the government-to-
government relationship the United States has with each partici-
pating Tribe. The Committee also included bill language to empha-
size file fact that the statutory provisions of the bill will be effec-
tive on the date of enactment regardless of when any regulations
are finalized. This provision makes clear that the absence of pro-
mulgated regulations does not limit the effect of the statute. It is
the Committee's expectation that, absent a clear indication to the
contrary by Self-Governance Tribes, the Department of the Interior
should move quickly to that final regulations are adopted no later
than eighteen (18) months after enactment to avoid repeating the
delays associated with promulgating regulations under Public Law
100-472 that have consumed inordinate amounts of the time and
energy of this Committee, the Tribes, and the Department of the
Interior.
-------
14
Authorization of appropriations [section 408]
This section provides a general authorization of the sums nec-
essary to carry out Title IV. All savings that are generated through
restructuring of the Federal administrative bureaucracy caused by
Self-Governance negotiations should flow to the Self-Governance
Tribes generating those changes. The funds transferred to Self-
Governance Tribes should include only those funs that otherwise
would have been spent by the Department of the Interior, either
directly or indirectly, for the benefit of these Tribes. Therefore, this
bill should have no impact on Federal outlays if it is properly ad-
ministered in conformity with the intent of the Congress.
LEGISLATIVE HISTORY
S. 1618 was introduced on November 4, 1993 by Senator McCain,
for himself and Senators Inouye, Murkowski, Gorton, Simon,
Wellstone, Durenberger, and Campbell and was referred to the
Committee on Indian Affairs.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTE
In an open business session on November 18,1993, the Commit-
tee on Indian Affairs, by unanimous vote, recommended that the
Senate pass S. 1618, with an amendment.
COST AND BUDGETARY CONSIDERATION
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, DC, November 22, 1993.
Hon. DANIEL K. INOUYE,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC
DEAR MR. CHAIRMAN: The Congressional Budget Office has pre-
pared the enclosed cost estimate for S. 1618, the Tribal Self-Gov-
ernance Act of 1993.
Enactment of S. 1618 would not affect direct spending or re-
ceipts. Therefore, pay-as-you-go procedures would not apply to the
bill.
If you wish further details on this estimate, we will be pleased
to provide them.
Sincerely,
ROBERT D. REISCHAUER, Director.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
1. Bill number S. 1618.
2. BUI title: Tribal Self-Governance Act of 1993.
3. Bill status: As ordered reported by the Senate Committee on
Indian Affairs on November 18, 1993.
4. Bill purpose: S. 1618 would amend the Indian Self-Determina-
tion and Education Assistance Act to establish a permanent tribal
self-governance program within the Department of the Interior.
Tribes currently participating in the self-governance demonstration
project would automatically participate in the new program. In ad-
dition, the bill would permit up to 20 new tribes annually to nego-
-------
15
tiate self-governance compacts with the Department of the Interior.
The bill also would authorize negotiated rulemaking procedures,
which would allow self-governance tribes to assist the department
in developing proposed regulations.
5. Estimated cost to the Federal Government:
(Bj teal fw.» •*•» «t Mm)
£stiinitbd tuthonation of appfopriitions
Lett: Estimated ctitmit luthoriatm ..
"ft id^ittvul tirtho'fcitM"1 ,,,_.....,,,...,,.,„,...
Erimittd idditaul flufltyi ....
1»4
56
5.6
. . 0
0
1995
1.4
S.8
2.6
J.6
1996
13.6
6.0
7.6
7.6
1997
17.7
0
17.7
17.6
1991
17.9
0
17.9
17.9
The costs of this bill fall within budget functions 300 and 450.
Basis of estimate: CBO assumes that the estimated authorization
level would be appropriated for each fiscal year. Estimated outlays
are based on historical spending patterns for this program.
CBO estimates that costs associated with operating the current
demonstration project will be about $6 million annually through
1996, the last year for which the current program is authorized.
Permanently establishing the self-governance program would result
in continued costs of about $6 million annually for fiscal years 1997
and 1998 for tribes currently in the program. These costs would re-
sult from continued funding for the Office of Self-Governance with-
in the Office of the Secretary of the Interior and continued appro-
priation of about $5 million annually to cover tribal costs for ad-
ministering the self-governance compacts.
Additional costs would stem from expanding the number of tribes
eligible for the program to include up to 20 additional tribes annu-
ally. CBO assumed that tribal interest in self-governance would
continue to be high and that the maximum of 20 new tribes would
seek grants each year starting in 1995. We estimate that planning,
negotiating, and implementation grants for such tribes would total
about $11 million over the 1995-1998 period. Additional adminis-
trative costs to the Interior Department would be about $3 million
over this period.
The self-governance program has also required additional funds,
termed cost shortfall grants. Under the compacts negotiated with
the tribes, the Department of the Interior is required to transfer
control of grant funds, as well as funding for a proportional amount
of overhead costs, to tribal control. Because the department has dif-
ficulty reducing its overhead costs as small portions of its adminis-
trative duties are transferred to tribal control, the funding for trib-
al administration costs has been covered by so-called shortfall
grants. The cost of such grants would likely increase as the number
of tribes having self-governance compacts increases. These costs
eventually should level off, however, as a greater portion of office
duties in a region are transferred to tribal control, allowing Interior
Department office and job duties to be reorganized to achieve cost
savings. CBO therefore estimates that cost shortfall grants for new
self-governance tribes would be about $1 million in 1995, $4 million
in 1996, and $7 million in 1997 and 1998.
6. Pay-as-you-go considerations: Section 252 of the Balanced
Budget and Emergency Deficit Control Act of 1985 sets up pay-as-
-------
16
you-go procedures for legislation affecting direct spending or re-
ceipts through 1998. CBO estimates that enactment of S. 1618
would not affect direct spending or receipts. Therefore', pay-as-you-
go procedures would not apply to the bill.
7. Estimated cost to State and local governments: None.
8. Estimate comparison: None.
9. Previous CBO estimate: None.
10. Estimate prepared by: David Hull and Patricia Conroy.
11. Estimate approved by: C.G. Nuckols, Assistant Director for
Budget Analysis.
REGULATORY IMPACT STATEMENT
Paragraph 1Kb) of rule XXVI, of the Standing Rules of the Sen-
ate requires each report accompanying a bill to evaluate the regu-
latory and paperwork impact that would be incurred in carrying
out the bill. The committee believes that S. 1618 will have minimal
regulatory or paperwork impact.
EXECUTIVE COMMUNICATIONS
No formal statement has been submitted by the Administration
on S. 1618. Mr. William Lavell, Director of the Office of Self Gov-
ernance, Department of the Interior, testified on behalf of the As-
sistant Secretary for Indian Affairs, Ada Deer, at the Committee's
October 20, 1993 hearing on the implementation of the Self-Gov-
ernance Demonstration Project Act. Mr. Lavell stated that the De-
partment supported the Self-Governance Demonstration Project.
Assistant Secretary Deer's statement is included below. Also, Vice
Chairman McCain received the following communication from the
Secretary of the Interior regarding the Tribal Self-Governance
Demonstration Project.
Statement of Ms. Ada E. Deer, Assistant Secretary, Indian. Affairs,
Department of the Interior
Mr. Chairman, I am William Lavell, Director of the Office of Self-
Governance, and I will be delivering the statement of Ms. Ada E.
Deer, Assistant Secretary, Indian Affairs, who is unable to be here
today due to a prior commitment.
Mr. Chairman, since my confirmation hearing, I have taken the
reins of Indian Affairs, and I must say that there are many horses
on this team and not all are pulling in the same direction. I aim
to change that.
Also, since my confirmation hearing, Vice President Gore has is-
sued the National Performance Review report entitled "Creating a
Government that Works Better and Costs Less". The Self-Govern-
ance Demonstration Project fits perfectly into this model.
Things will work better as tribal sovereignty is enhanced with
tribal governments assuming greater control over the use of Fed-
eral resources. Programs can now be designed and delivered by
tribal governments with the ultimate customers dearly in mind—
individual Indians living on various reservations throughout the
country or in Alaska Villages.
Further, as tribal governments assume more responsibility for
managing their share of the Federal budget, there will be a re-
-------
17
duced need for Federal staff. This will assist the BIA in meeting
targeted FTE reductions and administrative cost savings.
As I indicated in my confirmation statement to you in July, Sec-
retary Babbitt and I want to accelerate the trend toward self-gov-
ernance and at the same time respect the rights of those tribes who
choose a different course. Thus, while many tribes are reinventing
their relationship with the Federal government, other tribes have
chosen to maintain their current relationship. It is critical that
support for non-participating tribes be maintained.
I applaud the many tribal leaders and members of Congress who
have worked very hard first to pass the necessary legislation and
since then to implement the Self-Governance objectives. Their hard
work has achieved remarkable results as many different kinds of
tribes have come forth to participate in the demonstration project.
In 1993, 19 tribes and consortium operated programs under Self-
Governance Annual Funding Agreements with total direct program
resources of about $60 million which represents just under 10 per-
cent of all BIA funds contracted or granted to tribes under the pro-
visions of Public Law 93-638. These Annual Funding Agreements
ranged from a low of $530,000 to a high of $10.6 million. In 1994,
we anticipate that 28 tribes and consortiums will have annual
funding agreements totalling approximately $100 million. These
tribes and consortiums represent nine of the 12 BIA areas.
The results of the Project to date have been very positive. Tribal
leaders from Self-Governance tribes indicate greatly increased
flexibility in directing resources toward tribal priorities and needs.
They describe a much greater level of interest in tribal council ses-
sions, particularly budget sessions where tribal priorities are set.
These leaders also report evidence of a new attitude by tribal pro-
gram managers and staff as they take a more active role in the de-
sign and execution of tribal programs rather than simply being
vendors of the BIA.
As Wilma Mankiller, Principal Chief of the Cherokee Nation, has
stated:
The Self-Governance Project * * * has served to
achieve the goal of real self-determination. As the 20th
century closes, the Cherokee Nation has reassumed its
place in the family of American governments.
What excites me about Self-Governance is that the decisions are
being made by those most directly affected by the decisions. This
is the way it was for hundreds of years for the many Indian Na-
tions prior to the arrival of the Europeans.
There are a few remaining issues yet to be settled. Some of these
include:
1. Setting on a process to determine tribal shares of the BIA
budget;
2. Determining if any changes are needed that would allow
the Secretary's trust responsibility to be fulfilled in a more
flexible manner and then determining the support necessary to
perform these retained trust functions;
3. Creating an efficient process to waive BIA rules and regu-
lations to expedite program redesign; and
-------
18
4. Developing regulations that will flesh out other parts of
the project that require attention.
While I do not yet have answers to these and other questions,
I can say it is my full intent to implement the Self-Governance
Project consistent with the laws that authorize it. In essence, these
laws direct me to look for ways to include, not exclude, funds from
all programs, functions or activities that benefit Indian tribes ei-
ther directly or indirectly into the Self-Governance negotiations.
This, however, must be tempered by the fact that as an executive
branch agency, the BIA will always have a responsibility for cer-
tain inherent Federal functions that cannot be contracted or com-
£ acted to tribes. To this end, I will form a study team that will be
eaded by one of my senior staff members to study these issues.
Further, I intend to support tribal governments in their effort to
redesign programs to meet their own unique circumstances by ac-
celerating the regulation waiver review process.
Tribal leaders have just finished a two-day conference in which
they have considered what should be included in legislation to
make Self-Governance a permanent option for those tribes that de-
sire such a government-to-government relationship. I believe that
it is time for the tribes, the Congress and the Administration to
work together on the specifics of such legislation that will provide
self-governance as a permanent option.
One of the strengths of the Self-Governance Demonstration
Project is that it has remained a tribal initiative and I want to con-
tinue to support this undertaking. Where self-governance can be
implemented through administrative procedures, then I favor this.
There is still much to be learned about the possibilities and road
blocks from this demonstration project. These can be addressed
more efficiently by adjusting a procedure or policy rather than leg-
islatively locking in a certain concept or process.
I know the Tribes and the Congress are concerned about BIA re-
structuring in response to resources and responsibilities being
shifted to self-governance tribes. The Senate Appropriations Com-
mittee has directed the BIA to submit a detailed report on the im-
pacts of contracting and compacting for every program at every
agency and area. This will provide a good foundation for further de-
cision-making.
I want to explore ways in which tribal governments, who are the
beneficiaries of tribal trust assets, can play a greater role in the
management of trust programs. With the passage of Public Law
93-^638 and more recently Public Law 100-^472, which includes pro-
visions for the Self-Governance Demonstration Project, Congress
has authorized participation by the tribes in the administration of
the trust programs. It is important to me that while we not lessen
our trust responsibility, we take advantage of this participatory
component. In meeting this trust responsibility, I see us moving in-
creasingly away from actual resource management to trust over-
sight. Conducting annual trust assessments jointly with the tribal
governments and the BIA has been a step in that direction.
In summary, what we are doinr having Self-Governance be the
lead horse that will guide the or. -orses in reinventing that por-
tion of the Federal Government ceding with Indian people.
-------
19
I am sorry that I was unable to attend your hearing, and I look
forward to a continuing partnership with the self-governance tribes
and the Congress as this demonstration project unfolds. To this
end, I support the continuation of the Self-Governance Demonstra-
tion Project Council, and invite tribal leaders to share their input
with me.
This concludes my prepared statement. I will be happy to re-
spond to any questions that the Committee might have.
THE SECRETARY OF THE INTERIOR,
Washington, July 6, 1993.
Hon. JOHN MCCAIN,
Vice Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
DEAR JOHN: Thank you for your letter of April 27, 1993, in which
you expressed support for the Self-Governance Demonstration
Project. I join you in supporting this important tribally-driven ini-
tiative and acknowledge the leadership that you and Senator
Inouye have provided over the past several years within the Con-
gress.
You can be assured that I have, and will continue to forcefully
communicate my support for the self-governance project to the ap-
propriate individuals within the Department. In addition, the Dem-
onstration Project will receive the attention and support it requires
to be successful.
Again, I appreciate your leadership in the continued development
of tribal seli-govemance and in the refinement of the Self-Govern-
ance Demonstration Project.
Sincerely,
BRUCE BABBITT.
CHANGES IN EXISTING LAW
In compliance with subsection 12 of rule XXVI of the Standing
Rules of the Senate, the Committee states that the enactment of
S. 1618 will not result in the repeal or amendment of any existing
law.
O
-------
United States Department of the Interior
OFFICE OF THE SECRETARY
Washington, D.C 20240
NOV291994
Dear Landowner:
A growing problem has faced individual Indians, tribes, and the
Bureau of Indian Affairs (BIA) for many years - the fractionated
ownership of allotted lands. The problem has now reached the point
where the Department of the Interior's ability to administer
allotted lands, probate Indian estates and maintain the IIM system
can no longer keep up with the increasing number of fractional
interests. You may be the owner of such interests.
An attempt to address the problem was made by Congress in 1984 when
it passed the Indian Land Consolidation Act. Part of that Act
requires that when an individual owner dies, an interest amounting
to 2 percent or less in a tract of land' will "escheat" or
automatically transfer to the tribe. In spite of this law, the
number of such small interests owned by individual Indians has
grown from 350,000 in 1984 to over 1.5 million in 1994! Unless
something is done to fix the fractionated heirship problem soon,
the BIA will simply no longer be able to provide realty and IIM
services to the owners. Your advice and assistance are needed.
Any proposal to solve the fractionated heirship problem must have
two parts: (1) the consolidation of ownership, and (2) the
prevention (or substantial reduction) of further fractionation.
These objectives can be met through a land-purchase program, and by
placing limitations on who can inherit interests in allotted land.
The Department has prepared a "consultation package" which outlines
a legislative proposal that meets these two objectives. The basic
elements of this proposal are as follows:
* The proposal creates a land acquisition program and authorizes
the Secretary of the Interior to purchase fractional interests of
any size from owners who are wllling_ to sell. These interests will
ultimately be transferred to the tribes.
* A priority for purchase is given to owners of fractional
interests amounting to 2 percent-or-less and to income producing
land.
* The Secretary will attempt to either purchase all of the
interests in a parcel, or partition out the purchased interests
into a single parcel, for transfer to the tribe on whose
reservation the land is located.
-------
2.
* All income from a parcel transferred to the tribe will be paid
to the Secretary until the purchase price paid by the Secretary has
been recovered,
* Income from the purchased interests and from parcels
transferred to tribes will be put into a revolving fund which will
be used for the purchase of additional fractional interests.
* The proposal changes the test in the present Indian Land
Consolidation Act which is used to determine whether fractional
interest of 2 percent or less will escheat to the tribe when an
owner dies. The new test avoids presumptions and would be based on
actual income produced by a fractional interest or on the appraised
value of the interest.
* To prevent further fractionation, inheritance of interests is
limited to members of the tribe on whose reservation the land is
located. Where an owner dies without a will, inheritance is
further limited to the decedent's immediate family - spouse,
children, grandchildren, parents, grandparents, brothers and
sisters. A non-member spouse can only receive a life estate.
* Tribes are authorized to change the limitations on inheritance
established by the proposal.
* New limitations on who can inherit do not become effective for
two years. The Secretary is required to provide notice of the
limitations and alert owners of estate planning options.
I wish to emphasize that the proposal outlined in the consultation
package is only a draft proposal. It has not been introduced in
the Congress, and no proposal will be introduced until the
landowners and tribes have had an opportunity to comment and/or
suggest alternate solutions. I invite you to comment on the
concepts described above or to suggest' other solutions to the
fractionated ownership problem. Enclosed for your convenience is
a short questionnaire. If you need additional space feel free to
add pages as necessary. These comments should be sent to us in the
enclosed postage-paid envelope no later than February 15, 1995.
It is also our intent to conduct field consultations with
landowners .and tribes. We will attempt to provide notice of these
consultations by mail, newspaper, radio and posted notices at
public locations. Because of the difficulty in locating addresses
and sending thousands of notices by mail, you may not receive this
letter for several weeks after it has been signed. It is our goal
to have this notice in your hands no later than mid-January, 1995,
in order to give you time to consider the proposal and submit
comments by February 15, 1995. If you would like a complete copy
-------
UNITED STATES
DEPARTMENT OF THE INTERIOR
INDIVIDUAL BUREAU OF INDIAN AFFAIRS
INDIAN ACCOUNTS
APPLICATION *?5~S AREA OFFICE
; SUPERINTENDENT:
BUREAU OF INDIAN AFFAIRS - PINE RIDGE AGENCY
PO BOX 1203 - PINE RIDGE. SD 57770
Sffi:
I hereby apply for ?__5ii. of Indian Money credited to my account on the books of your
office, to be expended for the following purposes:
Unrestricted use.
DOB: June 26. 1940
SSt:
Indian Tribe 344 Roll No. _Unl&520
(SIGNATURE)
Permanent address
IF OKAJBLE
TO WRITE
MAKE THUMB-
PRINT HERE
RECOMMENDATION AND APPROVAL
I do recommend approval of the above request. The exact title of account as carried by
your office is:
Account:
Indian ,_Jlobjari&.Ji»_Hilsfin Tribe ._..._ Ji* Roll No. ._Url652C
Mailing address:
(If other than permanent address)
SUBSCRIBED AND SWORN TO before roe this day of / 19
Notary Public in and for the State of
My commission Expires: .
residing at:
Approved for $ Date
(Wtlltrc o(T.c«r) (O«U)
IIM
ACCWNTiW'TECHNICIAN "" trwTCCZZ) " Administrative"Manager "'
-------
3.
of the consultation package, copies are available at BIA Agency and
Area Offices. If you do not live near an Agency or Area Office you
may request a copy of the consultation package by writing to the
Bureau-of Indian Affairs, A-ttention: HEIRSHIP, 1849 C Street, NW,
MS-4522-HIB, Washington, D.C. 20240.
Sincerely,
Ada E. Deer
Assistant Secretary - Indian Affairs
Enclosures
-------
NATIONAL CONGRESS OF AMERICAN INDIANS
NATURAL RESOURCE, LITIGATION
and
TRUST RESPONSIBILITIES
POSITION PAPER
Adopted at the 37th Annual Convention
October 27 - 31, 1980
RESOLUTION ON ASSERTION OF INDIAN RIGHTS AND STANDARDS
FOR NATURAL RESOURCES AND TRUST RESPONSIBILITIES -
PROPOSED BY THE NATIONAL CONGRESS OF AMERICAN INDIANS'
37th ANNUAL CONVENTION COMMITTEE ON NATURAL RESOURCES,
LITIGATION AND TRUST RESPONSIBILITIES
WHEREAS, the National Congress of American Indians at its
Mid-Year Conference .in Reno, Nevada, in June 1980,
developed and adopted, statements or principles
and positions regarding 1) Assertion of Indian
Rights and Natural Resources Standards, and 2)
Assertion of Indian Rights and Trust Responsibili-
ties; and
WHEREAS, these statements have been-rcvie^C'3 by the NCAI
37th Annual Convention Joint Committee on Natural
Resources, Litigation and Trust Responsibilities
and recommended for reaffirmation by the Convention,
together with additional points, as attached.
NOW THEREFORE, BE IT RESOLVED that the NCAI 37th Annual
Convention reaffirms and adopts the above-referred
statements of principles and positions, as amended,
as its guideline and agenda for administrative and
legislative advocacy efforts in the First Session
of the 97th Congress; and
BE IT FURTHER RESOLVED that the NCAI staff is directed to
distribute this resolution and statement of
principles and positions to the appropriate offices
of the federal agencies and the Congress, as well
as to the NCAI membership, and to follow this
guideline and agenda in all legislative and admin-
istrative advocacy efforts.
-------
RESOLUTION OF THE NATIONAL CONGRESS OF AMERICAN INDIANS ON THE
ASSERTION OF INDIAN RIGHTS AND STANDARDS FOR NATURAL RESOURCES
AND TRUST RESPONSIBILITIES
PRINCIPLES - NATURAL RESOURCES
Indian rights to their natural resources are private rights for
the exclusive use and benefits of Indians and are nor public rights to
be controlled by the unilateral action of the United States or any of
its officials. Indian resource rights are inherent sovereign rights
deriving from aboriginal ovnership of the entire North American continent;
these resource rights may extend beyond reservation boundaries to ceded
areas, to traditional sacred sites or to usual and accustomed hunting,
fishing and gathering places. The United States has undertaken by
treaty and law a solemn fiduciary obligation to protect and preserve
Indian resource and cultural rights. Federal trust responsibility
requires that the United States and its officials respond to the vill
of the Indian peoples in the full enjoyment and development of permanent
tribal homelands, and use of their private natural resources.
POSITIONS - NATURAL RESOURCES
I. The Congress shall establish, oversee and support all necessary
affirmative policies and programs within the federal government
consistent with the principles above and for the purposes below.
II. Natural resources owned by Indians shall be 'controlled by Tribes
and protected with the goal of maintenance of permanent Tribal
homelands by fostering development that Indians expressly desire
and by prohibiting development that Indians oppose, including
adequate federal funding for inventories of natural resources
owned by Indians, to the extent that the.inventories are desired
by the Indians involved.
III. The Congress- shall enact necessary legislation, such as an
-192-
-------
amendment tov the McCarran -Amendment, to exempt Indian water
rights for adjudication;or administration through state
courts or agencies. Tribal water codes shall be approved
immediately if federal or. Tribal law required approval,
to provide for tribal regulations of all surface and ground
water arising upon, bordering, flowing through or otherwise
occurring on .or under Indian reservations, or within the
concept of Indian Country, as defined by or recognized under
federal statutes. At a Tribe's request, a moratorium shall
be declared on all major agricultural, industrial or other
projects using waters to which Indians have a claim under
the Winters Doctrine, and existing contracts shall be can-
celled; relating.,to such projects until such time as the
Indianw.waterf>rights have been specifically and accurately
measured by Indians ..and allocated to Indian-uses. Adequately
funded irrigation projects primarily serving Indians shall
be implemented immediately. Because each Indian Nation has
unique water rights, plans, laws and needs, each Indian
Nation must set its own priorities and goals and must establish
its own relationship with federal agencies, programs and
policies. Recognizing that these are sovereign prerogatives
\
and not matters for a single national Indian position, the
NCAI supports the water rights positions of each Tribe,
particularly the individual tribal positions regarding the
national water policy and principles and standards developed
under it, quantification of water usage and negotiations con-
cerning future allocations of water.
-193-
-------
IV. Tribal fisheries enhancement, rehabilitation and mitigation
plans and agreements shall be developed and implemented
without delay, together with adequate funding to increase
ocean and inside stocks and to construct and operate hatch-
ery facilities in areas beneficial to the resource and to
the Indian people. All fisheries policies and programs
shall be consistent with Indian fisheries rights and
affirming court decisions and undertaken with full recog-
nition of tribal rights as governmental fisheries managers,
which shall also be asserted in all international negotia-
tions and federal and state management plans and systems.
V. Indian lands within reservation boundaries shall be pro-
tected, and adequate funding for tribal land acquisition
programs shall.'be made available. Indian lands beyond
tribal jurisdiction shall be protected, which protections
extend to maintenance of and access to sacred sites and
traditional gathering areas. All lands previously taken
by the United States" for various government projects that
are now or will become excess to the needs of those projects
shall be returned to tribal ownership.
VI. Traditional hunting, fishing and gathering areas shall be
protected and necessary law enacted to require that before
any federal agency takes any action that will in any way
affect Indian natural environmental resources the involved
agency shall notify the BIA and the affected Indian Tribes
or Indians and obtain their consent, without which the action
shall not commence.
-------
VII. The federal government shall fully protect and not
disclose information it holds related to Indian resources.
This protection shall include any necessary amendments to
the Freedom of Information Act, the American Indian
Religious Freedom Act and the Archaeological Resources
Protection Act.
VIII. Adequate funds shall be appropriated immediately for highly
intensified management systems for Indian natural resources,
which systems and experts shall be under the sole control
of the Indian Tribes. Adequate financial and full technical
support shall be provided for Tribes to develop and enforce
Tribal laws and regulations governing and raising revenue
from the use and protection of Indian natural resources.
Sufficient resources shall be provided for the immediate
purpose of accelerating jointly-developed Tribal/federal
forestry management plans, which shall be designed to meet
the unique needs of each Tribe, shall be consistent with the
long-term Tribal needs and goals and shall be implemented
only after approval of the affected Tribe.
IX. Congress shall exercise its oversight responsibilities
with regard to the processing and filing of claims arising
under 28 USC 2415, shall monitor the activities and progress
of the relevant federal agencies and shall recognize that
many legitimate Indian claims cannot be asserted successfully
in the absence of accurate boundary surveys, easement account-
ings and other data collection that are the responsibility of
the federal government.
-195-
-------
X. Congress shall enact legislation pursuant to Section
710 of the Surface Mining Control and Reclamation Act of
1977, recognizing that Indian Tribes have full regulatory
control of surface mining reclamation and bonding on
Indian reservations, providing the necessary technical
and 'monetary assistance to implement this objective and
affirming a lead role for Indian Tribes in implementing
future environmental controls.
XI. Congress shall enact legislation that guarantees that any
potentially affected Indian Tribe must participate in
nuclear and other hazardous waste disposal decisions,
affirming the unique status of Indian tribes and their right
to make decisions regarding resource and treaty rights.
XII. Federal lease and sale regulations relating to Indian
individuals shall be reviewed and rewritten without delay,
in order to provide adequate support for informed decision-
making.
XIII. In all legislation affecting the natural resources of Indian
Tribes, Congress shall recognize Indian Tribes as sovereign,
with the right to the lead role in all decisions affecting
them and involving the implementation of legislation by
federal agencies.
XIV. Taxation and the general control of revenue are basic
fundamental rights of self-government, with which tribal
exercise of governmental rights to the federal and state
governments must not interfere. Congress shall 1) affirm
the tribal rights to collect tax on goods sold within
reservation boundaries; 2) enact the Tribal Government Tax
-------
Status Act, providing for IRS treatment of Tribes in the
issuance of bonds on reservations on an equal footing with
states in their jurisdiction; 3) exempt Tribes from the
sex'erance tax provisions of the Windfall Profit Tax Act
in the sane manner as production profits- were expressly
exempted in that same Act, and 4) consider future legis-
lation in a manner consistent wich the basic constitutional
guarantee that Indian Tribes are not subject to taxation
by non-Tribal governments.
PRINCIPLES - TRUST RESPONSIBILITIES
The i~e.^orial rights of Native peoples existed prior to and
independent of formal recognition by the United States or anv other
government. These aboriginal rights were recognized by the fact that
the United States entered into treaties and other binding agreements
with the Indian Nations. The United States has affirmed that the trust
responsibility extends to rights reserved by treaties, executive
orders, agreements, statutes and aboriginal rights for which the United
States is trustee, and that the central purpose of the trust respon-
silibity is the protection and enhancement of tribal resources and tribal
rights of self-government. The National Congress of American Indians
believes that basic concepts relating to the federal Indian trust
relationship have consistently been misunderstood by state officials,
agencies and the courts, resulting in unnecessary litigation, repeated
delays, unreasonable expenses and unjust consequenses for Indian people.
Congressional legislation should expressly state that its purpose is not
to create new law concerning Indian, rights and the trust relationship,
but to clarify certain basic aspects of that relationship. The
trust responsibility is a duty binding on all federal agencies, and- no
-197-
-------
agency may take any action which directly or indirectly interferes
with any trust right, except as clearly authorized in express
language of a statute enacted by Congress and consented to by
affected Tribes.
POSITIONS - TRUST RESPONSIBILITIES
I. Indians and Indian Tribes have the right to enjoin federal
or state action which interferes with trust rights by
seeking equitable remedies in federal courts. Toward this
end, 23 USC Section 1362 shall be amended to provide for
a waiver of sovereign immunity of the United States in any
action commenced under that section.
II. The trust responsibility of the United States is not
limited to the protection of treaty rights, but extends
equally to aboriginal rights and other rights secured by
agreement, executive order or statute enacted by Congress
and to such other lands as the United States may acquire
for the benefit of the Tribes or for themselves, specifically
A. Congress should provide that both- treaty and
non-treaty rights protected by trust respon-
sibility shall not be abrogated or in any
way infringed upon unless there exists both
consent of affected Tribes and express lan-
guage of a statute enacted by Congress.
B. TSjat aspect of the trust responsiblety
extending to the protection and enhancement
of Tribal resources and particularly natural
resources is a paramount responsibility of the
-198-
-------
United States involving a duty of care
and exclusive loyalty consistent with the
highest standards of common law trust.
C. The United States holds bare legal title to
these resources solely as trustee for
Indians, and full equitable title is in the
Indian Tribes and peoples.
D. In the event of conflict between an Indian
trust right or reasonable claim and a con-
flicting federal policy, claims or program,
all federal agencies shall subordinate those
conflicting federal policies, claims or pro-
grams to the protection of Indian trust
rights unless those rights have been abrogated
as provided above.
III. Congress shall amend 25 USC Section 175 to provide:
A, That the Department of Justice has a mandatory
duty to represent Indian Tribes and individual
Indians in all cases where there is a reasonable
claim that is the subject of the trust responsibil-
ity unless the Department has a conflict of
interest, in which case, private counsel
selected by the Tribe or individual Indian to
represent the claims.
B. In any case where the Department of Justice
declines to represent Indians or Indian Tribes
on the ground that there is no reasonable
-------
legal support for the Indian claims, its
decision to decline representation shall be
subject to judicial review. The Department
of Justice shall have the burden of showing
that there is not reasonable legal support
for the Indian claims, and, in the event of
failure to carry its burden, the court shall
allow reasonable attorney's fees to the Indian
litigant.
C- In all cases where Indian tribes commence an
action under this section or 28 USC 1362,
they shall be entitled to all the advantages
that would inure to the United States as if it
were a party to the case.
IV. Congress shall amend the Indian Reorganization Act to
clearly state that the federal government has no right or
authority to limit the manner in which Indian Tribes
organize their governments, affirming that federal trust
responsibility includes primarily an obligation to protect the
right of Indian Tribes to exist as sovereign independent self-
governing bodies with concomitant rights regarding maintenance
of permanent tribal homelands.
V. Congress shall continue to include in the record of appropriate
legislation that the United States and its agencies hav^ the
shared responsibility to carry out the trust obligations in
accordance with the highest standard of fiduciary duty, with
the primary goal being the preservation and enhancement of
-200-
-------
Indian interests, resources/ cultures, and values,
further stating:
A. All treaties, agreements, and representations
shall be expressly honored and implemented,
with ambiguities resolved in favor of the
Indian Tribes and peoples.
3. The trust resources shall be managed in such
a manner as to prevent waste and to avoid
ciminishment of the ability of trust resources
to sustain permanent tribal homelands. Trust
resources shall be managed for maximum en-
hancement of the trust resources to produce
the highest consideration for the Tribe.
C. Congress and the President shall direct that
all federal agencies making administrative
determinations or taking actions that affect
Indian Tribes shall develop and undertake
effective Tribal consultation and exchange in
the earliest stages of any decision-making
process, including the immediate development
of standards and guidelines for the consultative
process.
D. The Department of Interior, in the exercise of
its approval authority over certain Tribal
governmental actions, shall allow for Tribal
consultation and exchange prior, to any dis-
approval of such Tribal governmental action.
-------
Given, Indian concerns that such disapproval may
unduly interfere with internal Tribal governmental
operations, Congress shall authorize federal
court jurisdiction to review any such disapprovals
made by the Department of Interior.
E. Both the trustee and the employees of the trustee
shall be specifically accountable in the exercise
of trust responsibilities and shall be liable for
failures in that excercise in the same manner as
a trustee or employee of a trustee is liable under
modern, private trust law. Wrongful or negligent
acts of the trustee or employees purporting to
convey, sever, or extinguish a trust resource shall
be considered void, at minimum.
VI. Congress shall take immediate action to resolve problems created
for the Native Alaskan poeples as a result of the limitation on
their trust status and relationship with the United States, as
specified in the Alaska Native Claims Settlement Act. The legis-
lation settling Section d (2) of that Act would be an appropriate
mechanism for addressing the trust issues, along with the sub-
sistence provisions already under consideration in pending legis-
lation.
VII. Congress shall enact legislation authorizing Tribal governments
criminal jurisdiction over non-Indians within Indian reservations,
confirming Tribal civil jurisdiction over Indians granted under
P.L, 83-280. "Such legislation shall also provide for sufficient
federal funds to support Tribal governmental functions.
-2U2-
-------
RESOLUTION REGARDING THE MARTINEZ POLICY
WHEREAS, the National Congress of American Indians represents
the concerns of tribal governments whose authority
derives not from the United States, nor from any of
its agents or administrative offices; and
WHEREAS, the relationship between Tribes and the United
States are expressed in part through treaties,
Tribal constitutions and agreements and is general-
ized as the trust relationship; and
WHEREAS, the NCAI acknowledges the duty of both the Tribes
and the United States government to abide by
provisions of said treaties, constitutions and other
agreements as interpreted by established courts
within the judiciary system of the United States; and
WHEREAS, the memorandum of June 12, 1980, from the Acting
Assistant Secretary of Indian Affairs to the
Commissioner of Indian Affairs, the BIA did arrogate
for itself discretionary powers not within their
delegated authority, namely in determining when and
through what actions Tribal governments have failed
to carry out provisions .of "political relationship"
between the United States and Tribes; and
WHEREAS, the said memorandum sets down, in order of increasing
severity, sanctions to be imposed on Tribal govern-
ments once a unilateral decision has been reached
by the DOI/BIA; and
WHEREAS, the Supreme Court in the Santa Clara Pueblo vs.
Martinez case upheld Tribal authority to resolve the
tribal specific problems associated with the devel-
opment of DOI/BIA policy as expressed in the June
12, 1980 memorandum.
NOW THEREFORE, BE IT RESOLVED that the National Congress of
American Indians is opposed to the policy expressed
in the above-referred r;-,emorandum and will support
any and all tribal initiatives to defeat the pro-
mulgation of such poJicy as being a violation of
the trust responsibility and view such actions as
outside the delegated administrative authority of
the DOI/BIA; and
-203-
-------
Resolution Re: Martinez Policy
Page Two
BE IT FURTHER RESOLVED that the National Congress of American Indians
mandates the DOI/3IA to direct human and monetary resources
to Tribal governments, when and where requested by the Tribes,
to encourage the development of tribal mechanisms to effec-
tively address the resolution of internal problems.
-20k-
-------
RESOLUTION ON OVERSIGHT OF STATUTE OF
LIMITATION'S ON 28 USC 2415 CLAIMS
WHEREAS, the Congress of the United States, in 1966, in-
advertently placed a time limitation on the federal
government's ability to file on behal-f of Indian
Tribes and Indian individuals certain damage claims
for trespass, property conversion, resource derro-
gation and other illegal acts accruing prior to July
18, 1966; and
WHEREAS, the Department of the Interior and the Justice
Department have failed in their legal obligation to
identify, process and file or otherwise resolve claims
arising under 28 USC 2415; and
WHEREAS, many of the legitimate Indian claims cannot be asserted
successfully in the absence of accurate boundary
surveys, easement accountings and other data collection
that are the responsibility of the federal government
as trustee and record-keeper; and
WHEREAS, the Congress has thrice recognized, by specific
legislative action in 1972, 1977 and 1980, the federal
failure to adequately investigate and pursue this
category of claims, and most recently has extended the
statute of limitations on these claims until December
21, 1982; and
WHEREAS, the extension approved as P.L. 96-217 (approved March
17, 1980) requires the Secretary of Interior, after
consulting with the Attorney General, to submit to
Congress by June 30, 1981, a report detailing legis-
lative proposals to resolve those 28 USC 2415 claims
that, in their opinion, are inappropriate to resolve
by litigation; and
WHEREAS, the House Judiciary Subcommittee on Administrative
Law and Governmental Relations has already demonstrated
its express commitment to exercise oversight responsi-
bility in this area by calling on the federal agencies
for an accounting of activities and progress, and has
agreed to hold its first oversight hearing in the early
week of the 97th Congress; and
WHEREAS, communications for the record between the Department
of the Interior and the House Judiciary Committee, as
well as communications amongst the appropriate federal
-205-
-------
Oversight of Limitations
on 28 USC 2415 Claims
agencies and the affected Indian tribes, organizations and
individuals, thus far indicate that progress on the processing
of these claims is not proceeding at a pace adequate to
accomplish even the minimum requirements of P.L. 96-217; and
WHEREAS, continued federal failure to meet the mandates of P.L. 96-217
could result in irrepairable damage to the Indian people's
rights, and would entail yet another significant commitment of
tine and expense to the Indian people in order to secure a
fourth extension; and
WHEREAS, the cumbersome and inefficient manner in which the federal
agencies have processed these claims, and the minimal federal
cooperation with Tribes in this effort, point to a more general
conflict of interest within the agencies and their failure to
fulfill even the minimum requirements of the trust obligations,
which have created serious problems for the Indian people and
which should be investigated by the United States Congress in
a broader context of Indian rights protection.
NOW THEREFORE, BE IT RESOLVED that the National Congress of American
Indians demands of the Department of the Interior and the
Justice Department an increased commitment of time, personnel,
resources and cooperative efforts with the affected -Tribes
and Indian individuals that is adequate to meet the requirements
of P.L. 96-217; and
BE IT FURTHER RESOLVED that the National Congress of American Indians
commends the activities of the House Judiciary Committee and
the Senate Select Committee on Indian Affairs in regard to the
claims arising under 28 USC 2415, and urges the expeditious
and diligent exercise of oversight functions on the part of
the House Judiciary Committee, the House Committee on Interior
and Insular Affairs and the Senate Select Committee on Indian
Affairs, in order to assure that federal agency progress in
pursuit of these claims is a matter of complete record and that
these claims are processed in a fair and timely manner; and
BE IT FURTHER RESOLVED that the National Congress of American Indians
will coordinate its administrative and legislative efforts in
this area with the Native American Rights Fund, and will devote
sufficient staff time to 1) inform the member Tribes of progress.
in the overall effort, 2) support and assist Tribes in their
individual and collective efforts to develop and advance legis-
lative solutions to their specific claims, 3) work with the
appropriate agencies and committees to monitor and oppose any
legislative solution that is proposed to resolve any 28 USC
2415 claim that does not meet the agreement of the affected
Tribe or individual and 4) seek adequate appropriations for
the pursuit of 28 USC 2415 claims and related legislative
alternatives.
PROPOSED BY THE JOINT COMMITTEE ON NATURAL RESOURCES, LITIGATION AND
TRUST RESPONSIBILITIES _20b-
-------
16
THE WESTERN HISTORICAL QUARTERLY
Janunry
and politicians have made use of what they call the frontier, the American
West. It has been obvious for a long time that our real or imagined pasl
as a pioneering people has excited great interest and has actually influ-
enced behavior here and abroad. It. may be that Zane Grey will provide
a model to change, perhaps even improve government prose; and it may
be in this day of images and image-making, that a clean cowboy hat and
clean boots helped turn the tide in the last presidential election.
The "Winters" Decision and
Indian Water Rights:
A Mystery Reexamined
MORRIS HUNDLEY, JR.
Water is the natural resource of greatest concern in western Amer-
ica, an area of few rivers, sparse rainfall, and monumental
struggles over the precious commodity. Joining increasingly in
the struggles hjwc been Native Americans, most of whose reservations
(55 percent of them) and reservation population (7f> percent of it) arc
found in the driest portions of the region and whose hopes to lessen their
poverty—the severest in the nation—rest on the ongoing disputes and
negotiations over water. No less concerned arc non-Indians whose cities,
industries, and farms arc already using most of the West's water and
who have asserted rights to nearly all the remainder. At the heart of these
controversies both past and in the making arc differences over a 1908
decision rendered by the United States Supreme Court in Winters v. United
States.1 That decision announced for the first time the existence of an
Indian water right, but the meaning of the court's action has become
clouded in a debate that has exacerbated conflicts between Indians and
non-Indians and created a crisis of national significance.
In its cight-to-onc decision of January 6, 1908, the Winters court
held that the creation of an Indian reservation carried with it the setting
aside of water as well as land.3 This so-called "reserved"' water right
Morris Hundley, jr., is professor of hi.Mory, University of California, Los Angeles,
and editor, Pacific Historical Review. The autlior acknowledges the. support of the
Guggenheim Foundation, the University of California Water Resources Center, and the
Office of Water Research and Technology, U.S. Department of the Interior.
1 For an overview of the development of these controversies and a discussion of
ihcir Jargrer significance sec Norn's Hundley, jr., "Tlie Darlt and Bloody Oround of
Indian Water Rights: Confusion Elevated to Principle," Wtiletn Historical Quarterly,
IX (October 1978), 454-82.
- Winters v. United Stales, 207 U.S. 56-1 (I9DI1). The name of this important
decision contains a clerical error. Henry Winter was only one of many appellants in
the case, but his name seems to have heen tljc only one garMed in ihc official record ••-
Winter was transformed into Winters. See "Twelfth Census of the. United States; Popu-
lation, 1900—Montana," Vol. 3: "Cholcau County, Chinook Township," sheet no. 9,
-------
HISTORICAL QUARTERLY
January
nstitutes a speciafnght that differs significantly from all other kinds
water rights. Unlike a riparian right, which resides only in owners of
nd bordering a stream, it can be invoked to divert a stream onto non-
>arian lands. Unlike the doctrine of prior appropriation, which has
en adopted in some form by all western states, the reserved right
ists whether or not Indians are actually using the water, and it continues
limpaired even if the Indians should subsequently cease their uses.
;xnit these characteristics of the Indian right there is essential agreement,
it because of apparent ambiguities in the Winters decision that agrce-
cnt extends to little else. For more than half a century, attorneys,
^al scholars, and historians have quarreled over the meaning of the
•cision with three questions in particular dominating their differences:
e quantum or volume of the Indian right, the legitimate uses to which
e water guaranteed by the right can be put, and the priority of the right
relation to the rights of non-Indians desirous of the same water sources.3
he vital importance of water has fired the imagination of disputants
id inspired them to fashion a multiplicity of answers to these questions
id to erect on those answers contradictory theories about the fundamcn-
I nature and extent of the Indian right. Additional by-products have
en bitter court battles and others now in the planning stage, an Indian
jht that exists more in theory than in practice, the frustration of at-
mpts to implement public and private water plans, and the inability
both Indians and non-Indians to make informed investment decisions.'
crofilm T623, roll 910, National Archives; "United States v. Mose Anderson ct at.:
sponse of Henry Winter" (U.S. 9th Cir., July 12, 1905), Records of ihe U.S. Ninth
rcuit Court of Appeals, Box 6659, U.S. District Courts Records, RC 21, Federal
chives and Records Center, Seattle.
3 In 1963 in Arizona v. California, the U.S. Supreme Court determined the
iority and established the basis for determining the quantum of the water rights of
e Indian reservations along the lower Colorado River. In 1979 in a supplemental
cree the court held that the five reservations were not restricted in the uses to which
-•y could put their water. Some legal scholars believe the decision may apply only to
: lower Colorado River. In any event, the court gave no reasons for its supplemental
crce in 1979, and it based its 1963 decision about quantum on the reasoning of a
ecial Master. On the priority of the Indian right see the discussion later in this
icle (including footnote 61). See also footnote 73, as well as Arizona v, California
at,, 373 U.S. 600-601 (1963), 439 U.S. 422 (1979); Report of the Special Matter
Arizona v. California (n.p., December 5, 1960), 262-66; Charles J. Meyers, "The
>lorado River," Stanford Law Review, XIX (1967), 71; Susan Millington Campbell,
. Proposal for the Quantification of Reserved Indian Water Rights," Columbia Lau>
•view, 74 (November 1974), 1299-1300; and Rebecca E. Wardlaw, "The Irrigable
res Doctrine," Natural Resources Journal, 15 (April 1975), 375-84.
4 For a sampling of the court decisions and the extensive literature re Reel ing the
nfusion and documenting the larger importance of the Indian water rights question
r the nation sec Conrad v. United Stalet, 161 F.D29 (9lh Cir. 1908); United Stales
Walker Rit-er Irrigation District, 104 K.2d 334 (9th Cir. 1939); United Slates v.
1982
NORRIS HUNDLEY, JR.
19
Encouraging the disagreement over the Winters case has been a
tendency to treat the decision as an isolated incident—to view it out of
context and unrelated to what preceded it and what contemporaries
thought it represented and accomplished. The purpose of this essay is to
correct that one-dimensional approach and, on the basis of heretofore
overlooked manuscript materials and a rcexamination of published docu-
ments, to attempt to clarify the court's intentioas, especially concerning
the quantum, legitimate uses, and priority of the Indian right. These
questions are closely interrelated and take their meaning from an under-
standing of the law as it was applied at the district, appellate, and U.S.
Supreme Court levels as well as from an understanding of the events and
attitudes that precipitated and accompanied the legal action.
The issues that precipitated the Winters decision first emerged in
the late spring of 1905 on the Fort Belknap Reservation in northern
Ahlanum Irrigation District, 236 F.2d 321 (9th Cir. 1956); Arizona v. California,
373 U.S. 340 (1963); Harold A. Ranquist, "The Winters Doctrine and How It Grew:
Federal Reservation of Rights to the Use of Water," Brigham Young University Law
Review, 3 (1975), 639-724; Michael C.'Nelson and Bradley L. Cooke, "The Winters
Doctrine: Seventy Years of Application of 'Reserved1 Water Rights to Indian Reserva-
tions," University of Arizona Arid Lands Resource Information Paper No. 9 (Tucson,
1977); Edward W. Clyde, "Indian Water Rights," Robert Emmet Clark, cd., Waters
and Water Rights: A Treatise on the Law of Waten and Allied Problems (7 vols,,
Indianapolis, 1967-1976), II, 373-99; James L. Merrill, "Aboriginal Water Rights,"
Natural Resources Journal, 20 (January 1980), 45-70; Rupert Costo, "Indian Water
Rights: A Survival Issue," Indian Historian, 5 (Fall 1972), 4-6; William H. Vccder,
"Water Rights: Life or Death for the American Indian," Indian Historian, 5 (Summer
1972), 4-9; RosaKe Marions, "The United States and the Betrayal of Indian Water
Rights," Indian Historian, 7 (Summer 1974), 3-11; William H. Veeder, "Indian Prior
and Paramount Rights to the Use of Water," Rocky Mountain Mineral Law Institute
Proceedings, XVI (1971), 631-68; Paul Bloom, "Indian 'Paramount1 Rights to Water
Use," ibid., 669-93; Monroe E. Price, Law and the American Indian: Readings, Notes
and Cases (Indianapolis, 1973), 310-29; Eva H. Morreale, "Federal-State Rights and
Relations," Clark, ed., Waters and Water Rights, II, 59-61; Wardlaw, "Irrigable Acres
Doctrine," 375-84; Robert D. Dcllwo, "Indian Water Rights—The Winters Doctrine
Updated," Gonzaga Law Review, VI (1971), 215-40; Harry B. Sondheim and John R.
Alexander, "Federal Indian Water Rights: A Retrogression to Quasi-Riparianism?,"
Southern California Law Review, XXXIV (1960), 1-61; Peter C. Maxfield, Mary
Frances Dieterich, and Frank Treleasc, Natural Resources Law on American Indian
Lands (Boulder, Colorado, 1977), 207-38; John Patterson, "Extent of Indian Water
Rights on Reservations in the West," Rocky Mountain Law Review, XVIII (1946),
427-30; John Patterson, "Indian Reserved Water Rights: The Winters of Our Dis-
content," Yale Law Journal, LXXXVIII (1979), 1689-1712; Richard L. Foreman,
Indian Water Rights: A Public Policy and Administrative Mess (Danville, Illinois,
1981).
I count myself among those who have misread the Winters decision. In an earlier
article that dealt only in part with the case itself, I observed that the decision was
"contradictory or, at best, ambiguous"—-a position which, as I suggest in the present
essay, rests on inadequate attention to the circumstances surrounding the decision.
Hundley, "The Dark and Bloody Ground of Indian Water Rights," 470.
-------
t WLbTKRN HISTORICAL QUARTERLY
January
fontana, the home at the time of 1,300 Gros Vcntrc and Assiniboin
ndiaas. "So far this Spring," wrote William R. Lognn, the reservation
ipcrintendent, to the commissioner of Indian AfTairs on June 3, 190!),
we have had no water in our ditch whatever. Our meadows arc now
ipidly parching up. The Indians have planted large crops and a great
caJ of grain. All this will be lost unless some radical action is taken at
ice to make the settlers above the Reservation respect our rights. To
ie Indians it either meaas good crops this fall, or starvation this winter."5
The situation described by Logan had been in the making ever since
ic late 1880s when the vast Indian territory originally set aside in 1855
; the Great Blackfcct Reservation was reduced to three smaller rcscrva-
>ns—Fort Peck, Blackfeet, and Fort Bclknap. In separate agreements
ith several different tribal groups, U.S. commissioners negotiated for
ie surrender of over 17,500,000 acres. They were candid about the
asons that had brought them west. "The time has come when Indians
n not hold vast bodies of land as heretofore," stated Charles F. Larrabce
late 1886 to the natives gathered at Fort Peck Agency in Montana.
vVhite people are coming to America from all parts of the world. Emi-
ants arc flocking over the plains and the prairies; the demand for land
creases from day to day; the cry is, 'More land! more land!' The
overnment must take care of and provide land for her white children,
well as the Indians."6
Negotiations with the Gros Venires and Assinilx>ias took place at
e Folk Belknap Agency in January 1887 during "a period of extremely
Id weather" and lasted for three days.T Despite temperatures so low
at it proved impossible to take minutes of the proceedings, most adult
dian males attended the talks and on January 21 accepted the terms
esentcd to them, "reserving to themselves" some 600,000 acres. This
)resentcd only a small fraction of their original holdings, but the promise
houses, stoves, livestock, clothing, medical care, and farming and
xhanical implements proved compelling to a people on the verge of
rvation.
1 William R. Logan to Francis E. Lrupp, June 3, 1905, Fort Drlknap Indian
i-ncy Papers, Box 20, Records of the Bureau of Indian Affairs, RG 75, Federal
hives and Records Center, Seattle.
8 John V. Wright, Jarcd W. Daniels, Charles F. Larrabee to J. D. C. Atkins,
>niary II, 1887, File 6501-1887, Records of the Office of the Secretary of the In-
or, Indian Division, Letters Received, RG 48, National Archives. This letter was
rinted in "Reduction of Indian Reservations," House Exec. Doc. 63, 50th Cong.,
sess. (1888). The quotation appears on page 26.
'Ibid.; "Note by Indian Office," n.d., Special Case I-M, Records of the Oflirc
ndiart Affairs, Letters Received, RC 75, National Archives.
1982
NORRIS HUNDLEY, JR.
21
Technically the agreement opened to the Fort Belknap Indians an
almost unlimited range of opportunities, for they were assured the means
"to educate their children in the paths of civilization . . . and in any other
respect to promote their civilization, comfort, and improvement." As a
practical matter, though, their future was sharply circumscribed. The
funds promised for supplies were limited—the equivalent of alxmt seventy-
three dollars per person a year for ten years—and the agreement required
that preference in the distribution of goods go "especially to those who in
good faith undertake the cultivation of the soil, or engage in pastoral
pursuits." Other language, in conformity with the practice of the day,
described the Indians as being "desirous" of becoming a "a pastoral and
agricultural people."" Even more explicit about the future of the natives
was the report filed with the commissioner of Indian AfTairs by the U.S.
negotiators several weeks after the talks. The Indians "must be encour-
aged in stock-raising as well as in agricultural pursuits. They can never
become self-supporting in any other way," a conclusion reinforced by
geographic and climatic considcratioas. "The land selected for them arc
as good, if not the best, for agricultural purposes in all that region of
country, being well watered and susceptible of irrigation at a small cost.
They are also admirably adapted to stock-raising ''" The principal
source of water in the area was Milk River, and the center of that stream
was established as the northern boundary of the new reservation.
Once endorsed by the Indiaas, the Fort Bclknap agreement was
incorporated into a bill containing almost identical agreements with the
other northern Montana trilxs and sent to Congress, which approved the
measure with little discussion in March 1888.'° On May 1 President
Grover Cleveland signed the bill into law and prepared the way for an
influx of settlers onto the former Indian lands. That influx intensified
as a result of tracklaying by the Great Northern Railroad, which by 1890
completed its route across Montana. Farmers, ranchers, and merchants
moved first into the better watered areas, including the Milk River valley,
where they platted such towns as Havre, Harlem, and Chinook and di-
verted water to their lands and communities. For a while the water-supply
was adequate, but by 1905 increased diversions combined with a severe
8 The Statutes at Large o\ the United States of America from December 1887,
to March, 1889 .... XXV (Washington, D.C., 1889), 113-15. At this time the popu-
lation of the reservation was about 1700. "Reduction of Indian Reservations," Haute
Exec. Doc. 63, p. 7.
•Wright, Daniels, and Larrabec to Atkins, February II, 1087, File 65IH-I887,
Records of the Office of the Secretary of the Interior, Indian Division, Letters Received,
RG 48.
'"Congressional Retard, XIX (Washington, D.C., 1888), 1812, 2479, 3600.
-------
uibHJN.lL.Al., QUARTERLY
January
rought to dcprivCTrort Bclknap Reservation of water and spark Supcr-
itendent Logan's appeal to Washington for "radical action."
The specific course of action recommended by Logan was not ns
idical as his choice of words indicated. In one sense, of course, it was.
hat he vigorously sought help for his Indian charges at a time when
ost Americans still considered the natives an obstacle to progress was
nusual and testified to his dedication and willingness to follow what he
lew would be an unpopular course. He soon had a reputation in Mon-
na as "the most unpopular 'Indian' in the country," a designation he
>re proudly.11 But the course he urged on his superiors was not novel,
>r he asked them to invoke the doctrine of prior appropriation, a principle
ng sanctioned by Montana Jaw and which vested title in the first person
» use water. Specifically, he recommended action against those settlers
hose water rights dated from 1898, the year when an earlier superin-
ndent at the reservation had filed for a flow rate of 10,000 miner's
ches of Milk River water. "If the water were turned loose above us,
id only the prior locators to the... [1898] appropriation were to take
ater," he told the commissioner of Indian Affairs, "there would be
lenty to reach us to give us at least one good irrigation this summer,
id from that we could at least raise a crop. If not done, our crops will
2 a total loss, unless there is a great deal of rainfall."12
When Logan's plea reached Washington, Commissioner Francis E.
cupp was Jiway on one of his many absences. Acting in his place was
arrabee, a longtime employee of the Office of Indian Affairs and,
; fortune would have it, one of the negotiators of the 1888 agrcc-
ent creating Fort Belknap. He responded quickly and positively to
ogan's appeal, endorsing the superintendent's decision to rely on the 1898
jpropriation and urging Secretary of the Interior Ethan A. Hitchcock
• petition the Justice Department "to protect the rights of the Indians."1'1
.irrabce had no doubt that his recommendation would have the approval
his absent superior, for Leupp had only recently taken office and was
.termined to establish a reputation as an administrator sensitive to
idian needs. Leupp shared the widely held view that assimilation was
the best interests of the Indian, and he advocated educational oppor-
nities, especially for younger and "still measurably plastic" natives who
mid be trained as artisans, ranchers, and farmers. His predecessor had
11 Logan to Lcupp, February 17, 1906, Box 20, Fort Bclknap Indian Agency
.pen, RG 75.
1= Logan to Lcupp, June 3, 1905, ibid.
13Larrabee to Ethan A. Hitchcock, June 9, 1905, File 50730, Records of the
•partmcnt of Justice, RG 60, National Archives.
1982
NORRIS HUNDLEY, JR.
23
nearly doubled appropriations for irrigation projects, m he wished to
extend those advances, not preside over their undoing.14 So, too, did
Secretary of the Interior Hitchcock. Only four days after receiving Larra-
bee's request, he asked Attorney General William Moody "to take im-
mediate steps to establish and protect the water rights of the Indians."'"
Moody needed no persuading. He approved the request on the same day
he received it.
Less than two weeks after Logan had appealed to Washington, the
Justice Department sent a telegram to Carl Rosen, U.S. attorney for the
district of Montana, ordering him to intervene on behalf of the Indians:
"Take promptly such action as may IK necessary to protect interests of
Indians against interference by subsequent appropri;itors of waters of
Milk River.'"" Two weeks later, on June 26, Rasch asked Judge William
H. Hunt of the federal district court in Helena for an injunction against
twenty-one defendants, including two irrigation companies and a cattle
firm.
Rasch's bill of complaint formalized Logan's request that the injunc-
tion be sought against those whose appropriatioas were later than 1898,
though the district attorney also asked that the reservation be protected
in its use of an additional 1,000 inches diverted by pump beginning in
1889. The total rate-of-flow sought was 11,000 miner's inches—10,000
inches diverted by gravity flow beginning in 1898 and 1,000 inches di-
verted by pump since 1889. Use of these waters on the reservation had
been "long prior" to the diversions made by the non-Indians, Rasch told
Judge Hunt, and had been "constantly and uninterruptedly" maintained
until the present crisis."
Though convinced of the correctness of his position, Rasch lacked
solid evidence for his assertioas. Neither he nor Logan had been able to
locate documents demonstrating that the reservation had formally filed
for the water claimed. Logan had uncovered a filing for 10,000 inches in
1898, but that had been made in the name of Luke C. Hays, the reserva-
tion superintendent at the time, and not in the name of the reservation
or by Hays on behalf of the reservation. Because of his uneasiness, Rasch
sought a way to protect himself "in case the necessity therefor should
" Donald I,. Parman, "Francis Ellington Lcupp, 1905-1909," Robert M. Kvas-
nicka and Herman J. Viola, cds., The Commiisionert of Indian Affairs, 1824-1977
(Lincoln, 1979), 224; W. David Baird, "William A. Jones, 1897-1904," ibid., 217-18.
''Hitchcock to U.S. Attorney General, June 13, 1905, File 58730, Records of
the Department of Justice, RG 60.
>° U.S. Attorney General to Carl Rasch, June 13, 1905, ibid.
i- "United States v. Mose Anderson et al.: Bill of Complaint" (U.S. 9th Cir.,
June 2f>, 1905), Box 6659, Records of the U.S. Ninth Circuit Court of Appeals, RG 21.
-------
.irise."18 His solution was to broaden his legal position by alluding some-
what ambiguously to "other rights" possessed by the Indiaas and the
federal government. He singled out riparian law as being especially ap-
plicable since the reservation abutted Milk River; in addition, he believed
.he Indians and government possessed a right to sufficient water to accom-
)lish "the ends . . . for which ... the reservation was created." These
'riparian and other rights," he concluded, entitled the reservation "to
he uninterrupted flow of all of the waters of... Milk River."10
Rasch's invocation of such "riparian and other rights'1 did not har-
nonize with his argument based on prior appropriation or with his request
or an injunction against only twenty-one defendants instead of all non-
Fndians using Milk River water. But the lack of harmony was calculated
ather than inadvertent. To issue an injunction against all the non-Indiaas
—estimated to number between 225 and 250—would, Rasch believed,
aise "complicated questions" about the "riparian rights of the Govern-
ment and the treaty rights of the Indians" and frustrate "the imperative
necessity of securing a sufficient amount of water for the ... reservation
,vith the least-possible delay."20 Such concern was well taken. Every
nformed person knew about the ambiguous corner of the law occupied
>y treaty rights. And as for water law, there were aspects of it that were
;ust as debatable. While many attorneys and legal scholars argued that
rjrior appropriation was the fundamental water law of Montana, others
nsisted that riparian principles applied there as well. They claimed that
he United States, as the owner of federal reservations in Montana (or
iny state), possessed tide as a riparian to the waters required by those
eservations.21 Rasch knew this was an unpopular position in the arid West,
md thus he and Logan understandably chose to emphasize the legally
ess offensive doctrine of appropriation. Still, since Rasch did not want
o exclude any principle that might redound to the benefit of the Indians
,nd the government, he carefully fashioned his complaint to give himself
is much latitude as possible.
J8 Rasch to U.S. Attorney General, Avigust 20, 1905, File 58730, Records of thr
)epartment of Justice, RG 60; memorandum from D.D.C. to U.S. Attorney General,
>cccmber 18, 1905, ibid.; Logan to Leupp, June 3, 1905, Box 20, Fort Bclknap Indian
.gency Papers, RG 75.
19 "United States v. Mose Anderson ct al.: Bill of Complaint" (U.S. 9ih Cir.,
unc 26, 1905), 9, Box 6659, Records of the U.S. Ninth Circuit Court of Appeals,
IG 21. Emphasis added.
20Raich to U.S. Attorney General, August 2(3, 1905, File 5H730, Record* of the
iepartment of Justice, RG 60.
21 The unsettled nature of the law sometimes resulted in the federal government
imultanemisly pursuing conflicting policies. For criticism of the government OH lint
.ore in 1905-1906 see File 58730, ibid.
JK.
25
Judge Hunt said nothing about legal theories, but he hesitated not
at all in issuing a temporary restraining order against the settlers. He
did so on the same day that Rasch filed his complaint. The order he gave
was sweeping. He forbade the non-Indiaas from diverting any water
from Milk River or "from in any manner or by any means interfering
with or obstructing the free and uninterrupted use and enjoyment of the
waters of said Milk River and its tributaries . . . upon the Fort Bclknap
Indian Reservation.""2
Rasch was delighted with the order—but only for twelve days. On
July 8 Hunt modified the injunction and permitted ihc non-Indians to
make diversions so long as they did "not deprive" the reservation of "the
number of inches ... claimed"—the 11,000 miner's inches specified in
the complaint." The settlers ha& sought this modification on the grounds
that a sudden warming trend had melted the snowpack in nearby moun-
tains and increased the flow of the river to a point where the Indians
were unable to use it all. Rasch at first opposed the modification but then
went along with it when Hunt issued oral instructions that appeared to
protect the Indiaas' interest. The judge directed the settlers to confer
with Superintendent Logan and "only ... to divert such waters as ... [the
superintendent] did not need on the reservation." "The effect of the
order," Rasch explained to Logan on the same day it was issued, "is...
that none of the defendants arc entitled to take and divert any water, if
they thereby interfere with the enjoyment of the necessary amount of
water required by you on the reservation."31
Despite the judge's instructions, Rasch remained uneasy. The in-
junction was temporary, the settlers had not yet filed their formal response
to the order, and there was still the need for hard evidence to support
the reservation's claims based on prior appropriation. He urged Logan
to continue the search for documents and to supply him "with the names
of the witnesses who arc familiar with the situation and . . . the use that
has been made of the water on the Fort Bclknap Reservation from the
time the buildings were erected there." His course of action remained
essentially unchanged: "I shall rely upon the appropriatioas made...
and upon the riparian doctrine, but the principal proposition in the case
— "United States v, Mose Anderson ct al.: Temporary Restraining Order" (U.S.
9th Cir., June 26, 1905), Box 6659, Records of llic U.S. Ninth Circuit Court of Appeals,
RG 21; Chinook Bulletin, July 6, 1905.
:3 "United States v. Mose Anderson et al.: Order Modifying Restraining Order"
(U.S. 9th Cir., July 8, 1905), Box 6659, Records of the U.S. Ninth Circuit Court of
Appeals, RG 21; Chinook Bulletin, July 13, 1905.
!4 Rasch to I.ogan, July 8, 1905, Box 52, Fort Bclknap Indian Agency Papers,
RG 75.
-------
January
the use that was^Kle of the waters for beneficial purposes upon the
ervation.""
Rasch's worst fears about his evidence were confirmed about a week
er when the settlers formally responded to the injunction. To his
igrin, if not his complete surprise, many of them proved that they, not
Indians, had been the first to divert the waters of Milk River. He also
rned that Indian water uses were less than half of what he had been
to believe. Studies recently completed by Logan indicated that the
ervation was diverting 5,000 inches, not the 11,000 inches claimed in
complaint. The superintendent estimated the total amount of land
iceptible of irrigation at 30,000 acres, six times the area then being
Itivated, but he calculated "present necessities" at only 5,000 inches."
These revelations, while jarring to Rasch, who now abandoned the
propriation doctrine in favor of riparian law, buoyed the hopes of the
tiers. But this time the settlers' enthusiasm was short-lived. Two weeks
er, on August 7, Judge Hunt dealt them a body blow by issuing a
neral injunction and offering an explanation that took all parties by
rprise. "In my judgment," he stated, "when the Indiaas made the
•aty" granting rights to the United States, they reserved the right to
: use of the waters of Milk River, at least to an extent reasonably nec-
ary to irrigate their lands."28 Rasch had earlier alluded to such a treaty
jht, but he had attached litUe significance to it, far less than to the
propriation doctrine or even to riparian law, which he now considered
; "strongest point."29 For Judge Hunt, however, the treaty rights of
z Indians were paramount, and he was not bothered that the 1888
reement said nothing about water. He based his order primarily on two
ints: "the purposes of the treaty"—as revealed in the provisions pro-
ling the Indians with livestock and agricultural equipment that would
« Ibid.; Rasch to Logan, July 13, 1905, ibid.
=• Rasch to U.S. Attorney General, August 2B, 1905, File 50730, Records of die
partment of Justice, RG 60; memorandum from D.D.C. to U.S. Attorney Goncr.il,
cember 18, 1905, ibid.; "United States v. Mose Anderson el al.r Testimony" (U.S.
i Cir., August 15, 1905), Box 6659, Records of the U.S. Ninth Circuit Court of
peals, RG 21; Havre Herald, February 9, 1906.
21 Technically the 1888 agreement was not a treaty, for it had been negotiated
FT Congress had abandoned (lie treaty system in 1871. Even so, Judge William II.
mt (and later the Ninth Circuit Court of Appeals) referred to it as a treaty. The
preme Court did not employ that term, but it discussed the agreement as if it were
legally binding treaty. The courts have held that similar agreements are "legally
iding in much the same way that earlier treaties arc slill binding." Wilruntl) K.
ishburn, Thalndian in America (New York, 1975), 103.
58 "United States v. Mose Anderson et al.: Memorandum Order" (U.S. 9th Cir.,
gust 7, 1905), Box 6659, Records of the U.S. Ninth Circuit Court of Appeals, RG 21.
29 Rasch to U.S. Attorney General, August 28, 1905, File 58730, Records of (he
parlment of Justice, RG 60.
enable them "to become 'self-supporting, as a pastoraWW agricultural
people, and to educate their children in the paths of civilization' "—and
the climatic conditioas of northern Montana, which "tell us that water
for irrigation is indispensable in successful farming." To Hunt the fact
that the settlers had begun using the water first was immaterial. The
"defendants can acquire no rights to the exclusion of the reasonable needs
of the Indians." Since those needs were currently 5,000 inches, his in-
junction forbade the settlers from interfering with the flow of that much
water to the reservation. When he issued his formal order the following
day, he chose words making clear that his injunction established a mini-
mum volume of water for the reservation and not a ceiling: the reserva-
tion "requires ... not less than five thousand inches."30
News of Hunt's order spread quickly through the communities of
the Milk River valley. Manned settlers hurriedly called public meetings
in which they denounced the injunction and petitioned their congress-
men for help. Some urged an appeal of Hunt's order, others demanded
that Congress open to homestead entry the reservation lands along the
Milk River, and still others petitioned for a reclamation project to bring
additional water into the Milk River Basin.31 The reclamation project
was not a new idea. Settlers had long recognized that the waters of Milk
River, even without diversions to satisfy Indian needs, were inadequate,
and they had pressed the newly created Reclamation Service for help.
As early as 1903 the service had; responded with a plan—the Milk River
Project—to divert the nearby St< Mary River into the headwaters of the
Milk, but little progress had been made because of wrangling over water
rights and complications resulting from the Milk and St. Mary being
Canadian as well as United States streams.32
Hunt's order spurred the settlers to renew their demands for the
reclamation project and to redouble their efforts to resolve legal differ-
ences among themselves. It also prompted Montana's U.S. Senator Thomas
Carter to introduce a bill, which was ultimately unsuccessful, to separate
the Fort Bclknap Indiaas from their water, and it provoked a powerful
demand for an appeal of the injunction to the Ninth Circuit Court of
30 "United Stales v. Mose Anderson ct al.: Memorandum Order" (U.S. 9tli Cir,
August 7, 1905), Box 6659, Records of the U.S. Ninth Circuit Court of Appeals, RG
21; "United States v. Mose Anderson et al.: Order" (August 8, 1905), ibid,
31 ttaore Herald. August 11, 1905, January 19, 1906; Havre Plaindealer, August
19, 1905; Harlem Milk River ValUy Newt, August 30, 1905, January 17, 1906; Con-
gresiionat Record, XL (Washington, D.C., 1906), 943.
"George Wharton James, Reclaiming the Arid West (New York, 1917), 176-
87; U.S. Department of the Interior, Bureau of Reclamation, Reclamation Project Data
(Washington, D.C., 1961), 341-43. Sec also File 548, Milk River Project, Records of
the Bureau of Reclamation, RG 115, National Archives.
-------
jcals." Intensifying the pressure for the appeal was settler fear that
award of 5,000 inches gave the Indiaas all the water available during
irrigation season. No one (including the Reclamation Service) knew
precise volume of the river's flow, but most believed that little, if any,
)lus remained for even temporary use by non-Indians. "[\Y]ith an
wance of 5,000 inches to the Indians of the Bclknap reservation,"
iplained the Havre Plaindealer, "it would seem that other vested rights
7 vastly more wind than water." The Havre Herald agreed: "The
ision of the court grants them the right and title to . . . more than flows
he river all summer."31
This same fear suffused the appeal filed in mid-August by the settlors
li the Ninth Circuit Court in San Francisco. They denied that the
8 agreement had reserved any water "except to the extent perhaps of
ding the agency to the use of waters for domestic purposes at the
ncy buildings." Certainly, they iasisted, there was no intention to rc-
•c the vast amounts of water needed for irrigation. "In fact, it cannot
seriously contended that the Indians at the present time are desirous
rrigating their lands or converting them to the purposes of agriculture,"
the settlers, Hunt's injunction would destroy communities already dc-
>pcd by giving the Indians a right they neither possessed nor wanted.
]ou are asked" by Hunt, they told the court, "to read into the treaty
intention to confer upon the Indians a right which they had never
rcised, did not then claim, and would not nosv exercise but for gov-
incntal compulsion, and which when exercised would destroy the value
very acre of land ceded by them to the United States, and lay waste
isands and thousands of acres made fertile by the labor and cxpendi-
: of settlers, who had gone upon them under express authority from
government."35
The appellate court was unmoved. On February 5, 1906, the panel
hrec judges unanimously upheld the injunction. Their reasons dovc-
:d with those of Hunt and were grounded in what they insisted was
"true interpretation of the treaty of May 1, 188ft." That the agrcc-
it said nothing alxnit water rights was beside the. point.
31 Harlem Milk Riter Valley Newt. August 30, 190"), Jiinnary 17, 1906: C.u»K>t<-
il Record, XL (Washington, D.C., 1906), 943; 11 urn Herald, January 19, I90fi.
31 Havre Plaindealer, August 19, 190S; II at re litiald, August 11, 190j.
53 Winters el al. r. United Stales—Ninth Cireuit Court vj Appeals: Riitj /«r
tllants (n.p., [1905]), 32, -1I-43, copy in Kile 5H730, Records
-------
cserve water, a^^tion that Inter generations of attorneys would
•rously debate. In issuing his injunction, Judge Hunt had observed
it was "the Indians.. . [who] reserved the right to the use of the
crs," but he had said little about the source of that right other than
uggest that it was inherent with Indian nations and dated from the
od before 1888 when "nearly the whole of Northern Montana ... was
•gnized as Indian country."39 The appellate court went significantly
>nd Hunt by holding that the United States as well as the Indians
essed the authority to reserve water and that both had done so in
1888 agreement. All appropriations made by the settlers were "sub-
to... the 'existing rights' of the government and of the Indians on
reservation," stated the court.40 The United States, as absolute terri-
il sovereign, possessed title through conquest and purchase to all the
ntry's possessions and title in fee to the public domain, which included
lands inhabited by the Indians. As sovereign and as the owner of the
lie lands, the U.S. also naturally held rights to the streams on those
Is. In support of its position, the appellate court cited earlier decisions,
uding the 1899 U.S. Supreme Court opinion in United States v. Rio
nde Dam and Irrigation Co., from which it quoted extensively. "[I]n
absence of specific authority from Congress," the court had declared
that occasion, "a state cannot by its legislation destroy the right of
United States, as the owner of lands bordering on a stream, to the
tinued flow of its waters so far at least as may be necessary for the
cficial uses of the government property."41 The appellate court also
id particularly persuasive a 1904 decision of the Montana Supreme
trt: "When the government established the reservation [in this case a
tary reservation], it owned both the land included therein, and all the
er running in the various near-by streams to which it had not yielded
. It was therefore unnecessary for the government to 'appropriate' the
er. It owned it already. All it had to do was to take it and use it.1'"
For the Indians, the authority to reserve the water derived from their
;ht of occupancy." The U.S. possessed title in fee to Indian lands,
:d the court, but it recognized in the Indians a right to occupy their
Is until the U.S. extinguished that right. "It is a right regulated by
ties, not by deeds of conveyance," John Marshall had stated in 1810
30 "United States v. Mose Anderson et al.: Memorandum Order" (U.S. 9lli Cir.,
list 7, 1905), Box 6659, Records of the U.S. Ninth Circuit Court of Appeals
21.
«« Winters el al. v. United Stale:, 143 F. 7-17 (9th Cir. 1906).
41 Ibid., 749; United States, Appt. v. Rio Grande Dam and Irrigation Company
the Rio Grande Irrigation & Land Company Limited, 174 U.S. 703 (11)99).
4- Story v, Woolrerlon, 78 Pac. 590 (Mont. 190-1).
in Fletcher v. Peck. "[T]he Indians ., . have an unquest^^^le, and ..,
unquestioned right to the lands they occupy, until that right shall be ex-
tinguished by a voluntary cession to our government," affirmed Marshall
twenty-one years later in Cherokee Nation v. Georgia" Though the
cession of native lands had often been far from voluntary, the appellate
court believed that Marshall's opinion—and the many subsequent court
decisions affirming it—was controlling. Especially telling for the appellate
court was an 1875 decision of the U.S. Supreme Court in which the
rights of both the government and the Indians had been reaffirmed in a
single opinion. "The treaty reserved them [lands] as much to one as to
the other of the contracting parties," the court had stated in Leavenworth
v. United States. "Both were interested therein, and had title thereto. In
one sense, they were reserved to the Indians; but, in another and broader
sense, to the United States, for the use of the Indians."44 Thus, both the
U.S. and the Indians possessed special rights of their own to reserve land
and, in the opinion of the appellate court, the water necessary to make
the land valuable. '
The appellate court's decision bitterly disappointed the settlers of the
Milk River valley, but as before, they refused to accept defeat. The stakes
were too high. They again pressed their congressmen for legislation
to undo the court action and called mass meetings to express their resent-
.ment and to rally support for their cause. "The contention ... that the
Indians arc, by first right, entitled to all the water flowing through their
reservations is wrong! wrong! wrong!" shouted the president of the Milk
River United Irrigation Association to an angry crowd.15 Such sentiments
had been fanned by the stark headlines of valley newspapers: "A Serious
Situation for Water-Users," "Indians' Rights to Water Upheld," "Indians
Will Have Waters," "Indians Have First Claim."10 Unlike other news-
papers, the Chinook Opinion was less worried about the immediate effect
of the decision than its long-term impact. The paper's editors believed
that in "an ordinary year" the Indians' use of 5,000 inches "would not
" Winters el al. v. United Stales, 143 F. 7-1(1-749 (9th Cir. 1906) ; Fletcher v.
Peck, 10 U.S. 121 (1010); Cherokee Nation v. Georgia, 30 U.S. 16 (1091).
«< Winttti el al. v. United Slates, 143 F. 74(1 (9th Cir. 1906): Learenworth \.
Unitfd States, 92 U.S. 747 (1875).
** Havre Herald, November 23, 1906; Chinook Opinion, February 22, March 1,
December 13, 1906; Havre Plaindeater, March 3, May 19, 26, 1906; Harlem Milk Rii-er
Valley News, November 24, 1906; Logan to Commissioner of Indian Affairs, February
17, 1906, Box 20, Fort Bclknap Indian. Agency Papers, RG 75; Cyrus C. Babb to
Chief Engineer, April 10, 1906, File 541!, Milk River Project, Records of the Bureau
«f Reclamation, RG 115.
<" Chinook Opinion, February fl, 15, 19DG: Hat-re Herald, February 9, 16, 1906;
Hai-rt Plaindealer, February 17, 1906.
-------
riously affect the flow of the stream." On the other hand, cautioned
e Opinion, "there would be nothing to prevent them from increasing
e 5,000 inches to an amount that would irrigate all of the reservation,
id that in preference to and regardless of the fanners who have invested
eir money and time in reclaiming the valley and building a prosperous
•mmunity of homes."41 But whether the threat was perceived as being
imediate or in the more distant future, settlers believed that an appeal
the U.S. Supreme Court was imperative.
The Office of Indian Affairs and the Interior Department also favored
i appeal. "[T]here is a disposition to question the correctness of the
mclusions of the court in this case," observed Acting Commissioner of
idian Affairs Larrabee to Superintendent Logan in March 1906,
>ut if the court of last resort were to pass on the matter, the rights of
ie Indians would be then so clearly defined that like contests would be
/oided in the future."48 Time would prove Larrabee to be overly opti-
listic, but he and the settlers got their wish when the Supreme Court
(reed to hear the case and scheduled arguments for October 1907.
The settlers for the most part took the opportunity merely to reaffirm
icir earlier position. They again emphasized the priority of their right
id their belief that virtually all the usable waters of the river were at
ake. The action of the lower courts, they declared, "deprived [them]
the use of any of the waters of ... [the] stream during the period of
•ar when the said waters are most needed." '* They were willing to con-
•de 250 inches to the Indians, but only because they believed that amount
ad been used in the vicinity of the agency's buildings prior to their own
[versions. They also believed there was an additional 2,900 inches that
>uld be reclaimed for the Indians from undeveloped springs and streams
a the reservation. (In their second appeal to the Ninth Circuit they had
egged that amount at 1,000 inches less/'") Just as before, the issue seemed
ear-cut: "If the claim of the United States and the Indians Ix; main-
ined, the lands of the defendants and the other settlers will be rendered
ilueless, the said communities will be broken up and the purpose and
)ject of the Government in opening said lands for settlement will be
holly defeated.""1
<: Chinook Opinion, February 15, 1906.
'IS Larrabee lo Logan, March 7, 1906, Box II, Fort Belknap Indian Agenry
ipers, RG 75.
<* "Winters el al. v. United States: Petition of Appellants lo U.S. Supreme Court"
January 9, 1907), File 56730, Records of the Department of Justice, RC 60; Winters
United Stales, 207 U.S. 569, 570 (!908).
10 Winters el at. v. United States-Ninth Circuit Court of Appeals: Brief for
I'pellants (n.p. [1906]), 19, File 58730, Records of the Department of Justice, RC fid.
51 Winters v. United Stales, 207 U.S. ,r>70 (1900).
Once again the settlers' pleas proved unpcrsuasivc. On January 6,
1908, the Supreme Court in an eight-to-onc decision rejected their appeal.
Speaking for the majority, Justice Joseph McKcnna acknowledged that
the settlers who had moved onto the lands ceded by the Indians in the
1888 agreement needed water to establish "civilized communities" of their
own, but this admission produced no water for them. "We realize that
there is a conflict of implications," admitted McKcnna, "but that which
makes for the retention of the \vaters is of greater force than that which
makes for their cession."5'
The court's reasoning squared in virtually all essentials with that of
both Judge Hunt and the Ninth Circuit Court of Appeals. Treaty rights
were again held to be paramount: "The case, as we view it, turns on the
agreement of May, 1888, resulting in the creation of Fort Belknap Reser-
vation." That agreement, asserted the court, clearly anticipated that the
Indians would embark on an agricultural and pastoral existence for which
water was absolutely mandatory. "The reservation was a part of a very
much larger tract which the Indians had the right to occupy and use and
which was adequate for the habits and wants of a nomadic and uncivilized
people," declared the justices. "It was the policy of the Government, it
was the desire of the Indiaas, to change those habits and to become a
pastoral and civilized people."53
To later generations of attorneys and legal scholars, the Supreme
Court seemed unclear about who had actually reserved the waters—the
federal government, the Indians, or both—and the constitutional authority
for doing so. Where the appellate court had indicated explicitly that both
the U.S. and the Indians possessed "rights" to set aside water, the Supreme
Court did so only implicitly. In one part of its opinion, the court stated
that "the Government did reserve them [the waters]," while elsewhere it
observed that the Indiaas had done so: "It is contended .. . [by the settlers
that] the Indians . .. made no reservation of the waters. We realize that
there is a conflict of implications, but that which makes for the retention
of the waters is of greater force than that which makes for their cession."'"'4
Because the court did not indicate specifically at any place in its opinion
that both the Indians and the government had reserved the water, later
scholars accused the court of being ambiguous, and most felt free to
locate the authority to reserve water in cither the U.S. or the Indians (but
seldom in both) and then to erect elaborate and contradictor)' legal theories
alxjut the nature of the Indian right.'" Such confusion of voices seems
-- Ibid., 076.
« Ibid., 575, 576.
-' Ibid., 576, 577.
•'•• Sec footnote 4.
-------
iraccauic less to u^ourt than to a desire to read into (he decision what
one wishes to fm^^B-c.
The cvidcnc^ccms clear: the Supreme C:ourt located authority to
reserve water in both the Indians and the U.S. It is possible to argue that
the court might have been clearer but unconvincing to insist that it was
not clear enough. When the decision is viewed within its larger historical
context, its meaning seems unmistakable. The court, after all, had sus-
tained the judgment of the appellate court, which had provided a com-
parative assessment of the rights of the Indians and the federal government.
Equally telling, the principle that both the government and the Indians
possessed the authority to reserve land had not l>een an aberration of the
appellate court but was part of the conventional legad wisdom of the day
and had been affirmed by Congress, prominent legal experts like Clcsson
S. Kinney, and earlier court decisions/''0
McKenna had fashioned the Supreme Court's opinion as he did to
counter particularly troubling arguments of the settlers. When he referred
to the reservation of water by the federal government, he did so to deny
the settlers' claim that any such reservation would have been automatically
repealed with "the admission of Montana into the Union ... 'upon an
equal footing with the original States.' "5T McKenna had refuted a similar
claim three years earlier in U.S. v. Winans when he had unequivocally
upheld "the power of the United States... to create rights which would
be binding on the States."58 That case had dealt with a dispute over Indian
fishing rights, but McKenna felt the principle involved was the same.
As author of the earlier opinion, he had considered the issue settled, and
he now chose language reflecting his belief that the matter was definitely
closed. "The power of the Government to reserve the waters and exempt
them from appropriation under the state laws is not denied, and could
not be.''58 As evidence, he cited his own earlier opinion as well as U.S.
v. Rio Grande Dam and Irrigation Co., the decision that had figured
prominently in the thinking of the appellate court about the government's
authority to reserve water.
Similarly, when McKenna referred elsewhere in his opinion to the
reservation of water by the Indians, he did so to counter still another
'•" Clesson S. Kinney, A Treatise on llie l.mr n\ Irrigation (Washington, D.C.,
1894), 201-3; Learenicoith v. United Slates, 92 U.S. 7-17 (1B75); Worcester v.
Georgia, 31 U.S. 579-81 (1H32); United States v. Cauk. (Hi U.S. 392-9-1 (1874);
Butte v. Northern Pacific Railroad, 119 U.S. 6G-6H (IHRr,); .\/in»uri v. H»ie>t<,
152 U.S. 116-20 (1894).
« Winters v. United Stales, 207 U.S. 577 (1900).
•'•s United Slates v. U'inani, 198 U.S. 383 (190:5).
i!1 Wintett v. United States, 207 U.S. 577 (1908).
vexing charge of the settlers—their contention that the Indiaas had never
intended to set aside water. In rebuttal he declared:
The Indians had command of the hinds and thr waters—command of all their
beneficial use, whether kept for hunting, 'and gr.i7.ing roving herds of slock,'
or turned to agriculture and the arts of civili/ntton. Did they give up all this?
Did they reduce the area of their occupation and give up the waters which
made it valuable or adequate?... If it were possible, to believe affirmative
answers, we might also believe that the Indians \\erc awed by the power of the
Government or deceived by its negotiators. Neither view is possible. The (Jov-
crnmcnt is asserting the rights of the Indians.<:"
Thus the Supreme Court, like the appellate court, upheld the au-
thority of both the U.S. and the: Indians to reserve water. The govern-
ment by virtue of its right as absolute territorial sovereign and the Indians
by virtue of their right of occupancy could reserve land and the water
necessary to make the land habitable. And since the Indians' right ex-
tended back to that unrecorded moment when they first occupied the
area, their right was necessarily prior to the rights of all later settlers, even
those—and in the case of Fork Bclknap there were none—who might
have begun using water before the reservation was established. By em-
phatically denying that the Indians had surrendered their "command of
the lands and the waters," the court was acknowledging that they possessed
the ultimate priority; they were reserving something that was already
theirs.01
on Ibid., 576.
«' In 1963 the U.S. Supreme Court, in Arizona v. California, held thai the In-
dian right extended back only to (he date when a reservation was created, but in that
case the court was dealing with reservations established by executive order or an act of
Congress. None of them had been created as Fort Bclknap had—by agreement with
Indians living on ancestral lands—and thus there was no semblance of a treaty or
agreement whereby the Indians could have retained or "reserved" their rights. This
distinction, while apparently advantageous to treaty reservations, downgrades the rights
of nontreaty peoples who, whether they continue to live on ancestral lands or have been
placed on reservations elsewhere, arc still descendants of the first inhabitants who held
dominion over the continent's land and 'water for hundreds of years prior to European
arrival. It also fails to apply with equity to those Indians, especially in the Southwest,
who were practicing irrigation agriculture long before the Spaniards arrived and who •
live on reservations not set aside by treaty. In fact, some Indians—for example, the
Pueblo tribes of New Mexico—live on lapds not set aside, by treaty, statute, or executive
order. Arizona v. California, 373 U.S. 600 (1963). For a discussion of the distinctions
the law makes in the rights of treaty and nonlrcaty Indians sec Daniel C. Kelly, Jr.,
"Indian Title: The Rights of American Natives in Lands They Have Occupied since
Time Immemorial," Columbia Laic Ret, LXXV (1975), 665-86. See also Maxfield,
Dicterich, and Trelcase, Natural Resources Law on American Indian Lands, 2I3-1H,
220-21; and Merrill, "Aboriginal Water Rights," 45-70.
-------
Just as later generations of attorneys and legal scholars differed over
vho reserved the waters and the larger meaning of such action, so too
lave they quarreled about the volume of the Indian right. The quantum
is determined by the Winters court seems best understood by viewing it
vithin the framework of events of which it was a part. When Judge Hunt
sued hisi injunction in 1905, he based the quantum on two coasiderations:
lie "purposes" of the agreement establishing the reservation and the
'reasonable needs of the Indians." The temporary restraining order of
une 26 held that agriculture was a major purpose and that the irrigation
,eeds of the Indians required all the water in the river. Twelve days
tter Hunt modified his order, permitting the settlers to make diversions
) long as 11,000 inches were allowed to reach the reservation, and even
hen Hunt issued oral instructioas forbidding the settlers from diverting
any water if they thereby interfered] with the enjoyment of the necessary
mount required by the ... reservation." Then, on August 7, Hunt issued
.is general injunction. Relying on the testimony of Superintendent Logan,
ie pegged the current Indian need at "not less than five thousand inches,"
liough he made that figure subject to a higher principle: "Defendants
an acquire no right to the exclusion of the reasonable needs of the
.idians."82
As a westerner familiar with the critical importance of water in the
cgion, Hunt had readily agreed to modify his earlier orders when he
ialized they provided the Indiaas with water in excess of their needs.
'o do otherwise, he knew, would be to waste water, an unconscionable
zt. The principle he evolved seems readily apparent: the Indians had a
ght to all the water they could put to reasonable use, and the non-Indians
"mid use the surplus waters, if any, not required by the reservation. Put
nother way, Hunt's allocation .was open-ended and subject to change
i the needs of the Indians changed. Both the appellate court and the
uprcme Court affirmed this principle by upholding Hunt's order and by
•fusing cither to place a ceiling on the Indian right or to establish a
)ccific and permanent volume for that right."
So far as most of the settlers were concerned, the award of even
loughi water to meet the reservation's current needs had the effect of
ving the Indians all the water available during the irrigation season. The
K- "United States v. Mose Anderson ct al.: Temporary Restraining Order" (U.S.
a Cir., June 26, 1905), Box 6659, Records of the U.S. Ninth Circuit Court of
iipeals, RG 21; "United States v. Mosc Anderson ct al.: Order Modifying Restraiii-
< Order" (U.S. 9th Cir., July 8, 1905), ibid.; "United States v. Mose Anderson
al.: Memorandum Order" (U.S. 9th Cir., August 1905), ibid.
01 Winters el al. v. United States, H3 F. 719 (9tli Cir. 1906) ; ibid., MB F. OfU
thCir. 1906); ibid.,207 U.S. 564 (1908).
settlers' reaction to the Supreme Court decision echoed their responses
to the earlier court actioas. "At least 5,000 inches of water must be allowed
to go down Milk river and this is more water than Milk river carries dur-
ing the irrigation season," announced the Havre Herald four days after
the Supreme Court had acted. Observed the Harlem Milk River Valley
News on January 23, 1908: "As the winter has been very dry and the
Indiaas awarded all the waters of the Milk river the settlers will stand a
very poor show of making a living the coming summer unless something
is done at once."01 The Chinook Opinion held to the view it had ex-
pressed following the decision of the Ninth Circuit Court of Appeals.
Its editors continued to believe that during an ordinary year there would
be enough water for the Indians and settlers—but only if the Indians
did not expand their uses beyond 5,000 inches. "The worst feature of
the decision," reaffirmed the Opinion, is "the possibility that an immense
increase in that amount will be demanded after a while in the name of
the Indians.""
The fear of the Opinion was the delight of Superintendent Logan.
"[T]hc Indians of the Fort Belknap Reservation under my charge have
the prior water right to as much of the waters of Milk River as they can
put to economical use. In other words," he stated in October 1908, "under
the rulings of the Appellate Court of San Francisco and the Supreme
Court of the United States we arc not confined to any particular amount
of water but are confined to its economical use. It is problematical how
much water we will use. Possibly not more than we are using at the present
time but we still maintain the right to use more if it becomes necessary
as our cultivated area along Milk River becomes larger."00
Closely related to the issue of the quantum of the Indian right is
the question of the legitimate uses to which the Indian water can be put.
Some attorneys and legal scholars have invoked the Winters decision to
argue that the volume of the Indian right is determined solely by the
agricultural needs of the reservation. Put another way, they contend that
the Indians arc restricted in the ways in which they can use their water.
Others have challenged such an interpretation, iasisting that the Indians
can use their water for any purpose—fishing, recreation, tourism, manu-
facturing, mining, the operation of a nuclear power plant, or any other
activity, including one requiring more water than irrigation—which pro-
" Hat-re Heralil, January 10, 1900: Marlcm Milk Hirer Valley Nftt-s, January
.23, 1908.
^ Chinook Opinion, January 9, 1908.
^ Logan to C. F. Ellis & Co., October 4, 1908, Box 59, Fort Belknap Indian
Agency Papers, RG 75.
-------
motes their "civfllPltion" and hence conforms to the alleged major reason
for reservations."
It is clear that the negotiators of the 1888 agreement, Judge Hunt,
the Ninth Circuit Court of Appeals, and the Supreme Court believed that
a fundamental purpose of the reservation was to "civilize" the Indians
and that agriculture was to be the principal means to that end. Logan
had sought the water for an irrigation project, and the current needs of
irrigation agriculture at Fort Belknap had been the measure for the specific
volume of water awarded the Indians by Hunt in 1905. Such action
conformed to the conventional wisdom of Americans in the late nineteenth
and early twentieth centuries who believed that the plow offered the major
route to civilization for Native Americans. But there is evidence that fed-
eral officials believed reservation Indians in general and Fort Belknap In-
dians in particular could achieve civilization through means other than
agriculture. "Mechanical arts" and "pastoral" activities received major
attention in the 1888 agreement (and in scores of treaties with other
Indian groups), but no "civilized" pursuit was expressly excluded in that
agreement nor in the decisions of Judge Hunt, the appellate court, or the
Supreme Court. The 1888 agreement acknowledged the desire of the In-
dians not only "to become self-supporting, as a pastoral nnd agricultural
people" but also "in any other respect to promote their civilization, com-
fort, and improvement."** Judge Hunt and the appellate court called
attention to the same language,09 and the Supreme Court pointedly de-
nied that the Indians had surrendered their "command of the lands and
the waters—command of all their beneficial use, whether kept for hunting,
'and grazing roving herds of stock,' or turned to agriculture and the art!
of civilization."'0
CJ Sec footnote 4.
88 U.S. Statutes at Large, XXV, 113, 114. Emphasis added.
*» "United States v. Mose Anderson et al.: Memorandum Order" (U.S. 9ih Cir.,
August 7, 1905), Box 6659, Records of the U.S. Ninth Circuit Court of Appeals, R(!
21; Winters et al. v. United States, 143 F. 744 (9th Cir. 1906).
"" Winters v. United States, 207 U.S. 576 (1908), emphasis added. Those who
insist that the Indians can use (heir water only for irrigation invariably cite the follow-
ing statement in the hcadnotcs of the Supreme Court decision: "This court holds that
there was an implied reservation ... of a sufficient amount of water from the Milk River
for irrigation purposes," ibid., 564. Whatever else might be said about this statement,
the Supreme Court has held that the hcadnotcs to its decisions possess no legal author-
ity. "[T]he headnote is not the work of the court," declared the Supreme Court two
years prior to the Winters case, "nor does it state its decision. ... It is simply the work
of the reporter, gives his understanding of the decision, and is prepared for the con-
venience of the profession in the examination of the reports." United Stales v. Detroit
Timber & Lumber Company et al., 200 U.S. 337 (1906).
More importantly, the U.S. Supreme Court ha^Plcrmincd long
prior to cither the 1888 agreement or the Winters decision that treaties
had to be construed broadly when defining Indian rights under those
treaties. "The language used in treaties with the Indians," Marshall
had stated in 1832 in Worcester v. Georgia, "should never l>c construed
to their prejudice."71 This principle was regularly reaffirmed by subsequent
courts, including the Winters court which invoked it as support for its
contention that there had l>een an implied reservation of water in the
1888 agreement. "By a rule of interpretation of agreements and treaties
with the Indiaas," declared the court, "ambiguities occurring will be
resolved from the standpoint of the Indians.'"*
Thc evidence seems convincing: when Indians entered into an
agreement setting aside lands arid waters, they retained the right to suffi-
cient water for any purpose that would promote their "civilization"—in
other words, for any reasonable purpose."
The Winters case dealt with an issue of unusual significance to
America both at the turn of the century and today. In determining the
existence of an Indian water right, the Supreme Court delivered a land-
mark decision, but the meaning of that decision has become the subject
of sharp debate. Such controversy was probably inevitable as Indians and
non-Indians contended for a limited resource needed desperately by both.
Still, a close examination of the developments surrounding the Winters
decision seems to dispel much of the subsequent confusion concerning the
court's action. The evidence suggests that the Winters court intended for
the Fort Belknap Indians to have all the waters from the Milk River that
they could put to reasonable use. In reaching this judgment, the court
appears to have properly construed the 1888 agreement as reserving water
as well as land. Some might argue that the court erred in rendering a
decision that seemed to award all the available water to the Indians while
•' Worcester v. Georgia, 31 U.S. 501 (1832).
« Winters v. United Stales, 207.U.S. 579 (1908).
'3 In 1963 the Supreme Court,,in Arizona v. California, held that the quantum
of the right of five Indian reservation along the lower Colorado River was to be deter-
mined by the "practicably irrigable acreage on the reservations." The court believed
that such a measure conformed to the government's intention in creating the reserva-
tions, could be applied with a fair degree of accuracy, and represented a way of resolv-
ing the uncertainty of non-Indians about the extent of the Indian right. In a supple-
mental decree sixteen years later, the court stated that the Indian water right was not
restricted "lo irrigation or other agricultural application," but the court offered no
reasons for its holding. The five reservations dealt with in this decision had been
created by statute or executive order; none had been created by treaty. Arizona v.
California, 373 U.S. 600-601 (1963) ;'ibid., 439 U.S. 422 (1979).
-------
denying any to the settlers who had moved onto the newly opened public
lands. A major purpose of the 1888 agreement had been to open former
Indian lands to white settlement, and for that water was an absolute
necessity. But Judge Hunt, the Ninth Circuit Court of Appeals, and the
Supreme Court unhcstitutingly sided with the Indians. The reserved right,
they concluded, was prior to the claims of non-Indian settlers and entitled
the Indians—and the federal government, as sovereign, on behalf of the
Indians—to sufficient water to fulfill the purposes of the reservation. Those
purposes were thought by the courts as well as by the negotiators of the
1888 agreement to be primarily stock raising and agriculture, but other
reasonable uses were not prohibited—and according to the broad con-
struction mandated for Indian agreements since John Marshall's day,
they could not be.
The Winters case represented a major advance for Indians at a time
when reversals for them was the usual order of the day. But the advance
proved to be more symbolic than real. The decision has not assured reser-
vation Indians a clear and unquestioned right to water. Nowhere has
this been more apparent than at Fort Belknap. Indian water use there
has remained at about 5,000 inches, a rate of flow equivalent to diversions
of approximately 25,000 acre-feet during the irrigation season. The total
runoff of Milk River at Fort Belknnp is considerably greater—an average
of nearly 250,000 acre-feet, according to latest estimates—but most of this
arrives at the wrong time of the year for agricultural use. In 1910 the
Reclamation Service believed that it was "not practicable to build flood
water reservoirs," but in 1939 technological, and political, developments
enabled construction of Fresno Dam with a storage capacity of approxi-
mately 100,000 acre-feet.74 But long before construction of Fresno Dam,
officials in the Interior Department were insisting that the minimum flow
decreed to the reservation by Judge Hunt had Ixxomc the maximum that
the Indians could use. "It is our understanding," announced the manager
of the Milk River Project to the reservation superintendent in June 1919,
"that the [Fort Belknap] Agency is entitled to di%'crt the entire natural
flow of the Milk River up to 5,000 inches . . . ."" Any "excess natural
71 "Milk River Project," December I 7, 1910, File 5-18, Milk River Project, Records
of the Bureau of Reclamation, RG 115; interview wiili Thomas Michael Watson, Sep-
tember 22, 1980, a civil engineer with the, firm of Mnrrisnn-Maiarlc, which recently
investigated the water needs and uses at Fort Belknap Reservation; U.S. Department
of the Interior, Bureau of Indian Affairs, Missouri River Investigation Project, "The
Fort Belknap Reservation Area: Its Resources and Development Potential," Refiorl
No, 198 (Billings, Montana, 1972), 97; Department of the Inlrrior, Reclamation
Project Data, 342-43.
" Project Manager to A. H. Symons, June 23, 1919, File 548, Milk River Project,
Records of the Bureau of Reclamation, RG 115. Emphasis added.
flow," later officials affirmed, "belongs first by prior appropriations to
certain lands of the Chinook division, and the remainder, if any, is avail-
able for the lower [Milk River] project."7' The amount available for non-
Indians increased significantly as work on the Milk River Project (espe-
cially Fresno Dam) progressed. Such developments testified convincingly
to the settlers' success in offsetting the Winters decision. As early as 1909,
the year following the Supreme Court's action, the settlers had helped
pressure the federal government into concluding a treaty with Great
Britain over the waters of the Milk and St. Mary rivers, thereby permit-
ting the Reclamation Service to begin major construction on the Milk
River Project.77 Such success then and during subsequent decades reflect-
ed not just effective lobbying by the settlers, but more especially the dra-
matic shift in power within the Interior Department as the ambitious
Reclamation Service (after 1923, the Bureau of Reclamation) gained in
influence and the Bureau of Indian Affairs declined in prestige. At Fort
Belknap, the Indians' attempts to expand their cultivated lands and to
develop their extensive mineral resources have met with frustration. Just
as the level of water use today on the reservation is about the same as it
was in 1908, so too has the quality of life there remained among the most
dismal in the nation—unemployment in excess of 50 percent, incomes
below the poverty level, education seldom beyond the eighth grade."
T"H. H. Johnson to Chief Engineer (Denver), December 7, 1932, File 187A,
Box 466485, Office of Chief Engineer, Records of the Bureau of Reclamation, RG 115,
Federal Archives and Records Service, Denver. Five years earlier, Commissioner of
Reclamation Elwood Mead had stated that "5,000 miner's inches marks the amount
considered and found by the [district] court eo be sufficient, else the injunction would
have called for a larger amount. The principle announced in the [Supreme Court]
decision may entitle the Indians to the use of whatever quantity of water may be
necessary, but I believe it is clear that the decree in this case- would protect them in
the use of only 5,000 miner's inches."' Mead went on to concede that "the Indians arc
entitled to use whatever water they may require limited to the normal flow of Milk
River." Since by "normal flow" he meant the unregulated flow, Mead's concession
produced essentially no additional water for the Indians. By 1932 Reclamation officials
were again insisting that the Indian right was limited to a specific volume—5,000 inches.
This same amount was all that the Justice Department claimed on behalf of the Indians
in a suit filed in 1979. Mead to Charles H. Burke, July 9, 1927, ibid.; interview
with Watson.
T: James, Reclaiming the Arid West, 176-87; Department of the Interior, Recla-
mation Project Data, 343. From the outset of the Milk River Project, the Indians have
been denied rights to any St. Mary River water brought into the basin. According to
an expert who has recently investigated the situation, virtually all the St. Mary water
arrives when the non-Indians can use it. This means that the Fresno reservoir essentially
captures only Milk River water, which—except for one-seventh of the reservoir's capac-
ity that is permitted to go to the Indians—is then improperly made available to non-
Indians. Interview with Watson.
T* Department of the Interior, "The Fort Belknap Reservation Area," 14-16,
22, 37, 97-99; U.S. Department of Commerce, Federal and State Indian Reservations
-------
The curre^^fcuation at Fort Bclknap would not surprise Superin-
tendent Logan. Irre had hoped for the best but feared the worst. "The
Indians feel very much elated over the fact that their rights have been
protected . .. and are looking forward to a period of prosperity," he told
the commissioner of Indian Affairs shortly after the Ninth Circuit Court
of Appeals had upheld Judge Hunt's injunction. "But O Lord, they
don't know the white man with his bulldog tenacity and never give up
spirit."79 If they did not know then, they do now.
This essay by no means resolves the controversies over the Indian
water right, for at the heart of those disputes has been (and is) the lack
of sufficient water to satisfy the needs of both Indiaas and non-Indiaas.
Nor does it explain all the legal uncertainties of that right that have
developed during the last three-quarters of a century. But the evidence
here seems to clarify the Winters court's views concerning the quantum,
legitimate uses, and priority of the Indian water right.
and Indian Trust Areas (Washington, D.C., 1974), 27fl: U.S. Department of the
Interior, Bureau of Indian Affairs, Estimates of Resident Indian Population and Labor
Force Status [mimeograph] (n.p., 1973), 12.
79 Logan to I.eupp, April 29, 1906, Box 20, Fort Belknap Indian Agency Papers,
RG 75.
World War II and a Western Town:
The Internment of the
Japanese Railroad Workers of
Clovis, New Mexico
JOHN J. CUI.I.EY
In late November of 1941 a passenger crossing the cold and barren higl
plains of eastern New Mexico over the Santa Fe Railway's southen
route might have welcomed any relief from the monotonous land
scape. Newspaper reports on the negotiations underway in Washingtoi
with Japanese diplomats offered some diversion but left little doubt tha
a war crisis was at hand. Gazing out of his window as the train nrrivcc
at the small town of Clovis, New Mexico, the bored traveler might hav<
noticed the large roundhouse and the tall coal chute, and perhaps th<
small building with a garden nestled nearby. Nothing could have secme<
more removed from the crisis in the Far East than this remote westen
town. But the men working in the rail yard and the people moving abou
their business on nearby Main Street knew better. Since August 194
many local men had been stationed with the New Mexico National Guan
in the Philippine Islands. And before long two events separated by thou
sands of miles would confront the people of Clovis with the misfortune
of war. In the .spring of 1942 Clovis became one of the first towns ii
the nation to suffer significant casualties in the war when the New Mcxio
National Guard surrendered on Bataan and Corregidor. Even before tha
Clovis had seen its own Japanese community evacuated and interned
thus becoming one of the first American communities to experience th-
war in another sense.
The internment and expulsion of Japanese on the Pacific Coast ii
the early months of World War II is a well-known episode. The angc
and frustration of initial defeat combined with racial prejudice, wih
rumors, and inflammatory statements by military and civil authentic
John J. Culley is associate professor of history, West Texas Slate Universii)
Canyon.
-------
Policy Studl^Bournal, Vol. 16, No. 4, Summer, 1988
MULTICRITERION DECISION MAKING
IN A TRIBAL CONTEXT
Ronald L. Trosper*
Confederated Salish and Kootenal Tribes,
Flathead Indian Reservation, Montana
Because of Indian poverty, the attention of national decision-
makers has focused on economic development. Simultaneously, Indian
tribes are demanding the right to self-determination. These two
policies, promoting economic development and promoting self-
determination, can conflict. Although poor. Indian tribes will not
sacrifice some goals for Increases In money income. The most common
definition of economic development Is an Increase In per capita
Income. Kuznets has labeled this the era of "modern economic growth,"
which Is a sustained Increase in both per capita Income and popula-
tion, accompanied by profound structural change (Kuznets, 1966). But
for Indians, and for others also, maximum modern economic growth
may not be the primary goal. How can one deal with this?
As an economist advising a tribal government, I have been forced
fo consider the Importance of "non-economic" goals. The standard
format for an economist, social benefit cost analysis, requires one to
convert all goals to a common numerical scale In order to produce a
benefit-cost ratio. Another technique, goal programming, uses non-
monetary goals as constraints on income production (Dykstra, 1984:230-
259; Keeney and Raiffa, 1976). When several such constraints are
binding In a solution, interpretation becomes complicated. This paper
examines a technique recently suggested by Arrow and Raynaud which
does not assume the existence of a common measuring unit among
disparate criteria and Is both more flexible and less complicated than
other techniques (Arrow and Raynaud, 1986).
To illustrate Arrow and Raynaud's method. I present an over-
simplified example. I consider a selection among six economic
development projects by a tribe which has eleven general goals, only
two of which relate to maximizing income. The result is that the top
ranked project from the point of view of all goals is not the same as
'Although the views and the example in this paper are my own and
not the Tribes', my job has led me to consider these issues. I thank
Diana Smith for helpful suggestions.
Native Americans and Pi
'ollcy 827
the top-ranked project from the point of view of producing Income.
If one defines "tribal development" as simultaneous advancement of all
or most tribal goals, this approach allows one to place economic
development In its proper context within a broader concept, tribal
development.
Table 1 lists eleven goals and Table 2 lists six economic
development projects. Goals 4 and 5, referring to tribal and to
Individual Income, are capable of analysis with monetary values; the
others are not. Consider the right of a tribe to write and enforce Its
own laws within a reservation. The power and sovereignty of a
community's government can be assessed by examining the ways In
which external governments limit its power. Increases In such powers
cannot be quantified In a manner that is expressed In money terms.
The same is true about maintalhing cultural Identity. A sense of
Identity among a group has personal meaning to individuals and to the
group as a whole. It can be discussed and debated; but It cannot be
valued with money.
Table 1
List of Tribal Goals
G1. Protect and Preserve Tribal Rights.
G2. Protect and Preserve Individual Rights.
G3. Maintain Cultural and Tribal Identity.
G4. Increase the Tribal Government's Income.
G5. Increase the Income of Tribal Members.
G6, Increase Tribal Unity and Harmony.
G7. Develop Expertise within Ihe Membership.
G8. Sustain a High Degree of Personal Health.
G9. Provide Open and Responsive Tribal Government.
G10. Reduce Federal Bureaucratic Control over the Tribe.
G11. Preserve, Protect, and Enhance Environmental Quality.
-------
828 Policy Studies Journal
Even the quantitative goals have considerable uncertainty and
subjectivity In the analysis. All economic feasibility analyses require
predictions about the future. Although costs and sales prices can be
measured today and yesterday, their values tomorrow are not known.
Quantitative data is not necessarily better knowledge when forecasts
are Involved.
The projects listed in Table 2 represent choices which have been
made by some tribes, such as operating lumber mills, and others which
are currently proposed, such as establishing enterprise zones. While
the primary goal of each of these is fo increase income of Indians,
the proposals have different effects when considered from the point of
view of non-monetary goals. An enterprise zone, for Instance, would
strengthen the power of a tribal government through federal
recognition of tribal powers of taxation and regulation In comparison
to establishing a lumber mill: but an enterprise zone would also
Increase the numbers of non-Indians living on a reservation.
Table 2
A List of Projects
PI. Develop a sawmill utilizing tribal timber and employing
tribal members.
P2. Enter Into a joint venture with an American corpo-
ration in order to develop oil and gas resources on the
reservation.
P3. Establish a tribal enterprise to provide the Defense
Department with products under the 8(a) program for
minority enterprises.
P4. Establish an enterprise zone with tax and regulatory
advantages for subsidiaries of major national corpo-
rations.
P5. Develop reservation resources for recreational use by
non-members under a tribal enterprise.
P6. Promote the development of private business run by
tribal members on the reservation.
Native Americans and Public Policy 829
Arrow and Raynaud propose that analysis of choices among alter-
native projects begin by ranking each of them from the point of view
of each of the goals. Having done that, one then summarizes the
rankings by examining the pairwise choices which all of the goals
together would make as each of the projects Is compared to each of
the other projects. The analyst conducts a full round-robin competition
and records all the scores In an outranking matrix. These comparisons
can be made either by giving the goals equal weight, or by giving
some goals heavier weights than others. Analysis of the outranking
matrix gives one or more overall rankings for the alternatives.
The analysis should focus on alternatives which compete with
each other. In the case of economic development. Investment capital Is
usually the prize lor the winning alternatives. For an Indian tribe, a
good even more scarce than capital may be the time and energy avail-
able to a Tribal Council and its staff. Whichever is the scarce good,
the technique Is designed to rank such alternatives In order to assist
decision-making.
I perform the analysis In two ways: the first gives each goal
equal weight, and the second gives some goals a weight of three.
others two, and others zero. In the first analysis, the sawmill, the
recreational enterprise, and development of private business tie for
first place. In the second analysis, the recreational enterprise ranks
first; the sawmill and development of private business rank third and
fourth, respectively. The joint venture moves Into second place In the
weighted example. One of the currently proposed solutions to Indian
economic development, establishment of enterprise zones, ranks low
because of its low ranking for several important non-monetary goals.
The paper proceeds as follows. First, I rank each project by each
goal. Then I construct and use the outranking matrices for each of the
two applications of Arrow and Raynaud's method. The final part of the
paper discusses the strengths and weaknesses of their method In
addressing the problem. I conclude that the method may be helpful in
balancing self-determination with economic development.
THE RANKINGS
The first step is to rank the projects by each of the goals. In
doing so, I try to make assumptions which seem reasonable or seem to
reflect commonly held beliefs about Indian reservations. The following
goals are given zero weight in the second application of the method:
G2, G6, G8. G9, and 610. One reason for giving them no weight Is
that ranking the projects is difficult from the viewpoint of these
goals.
-------
830 J^PK Studies Journal
Goal G1. Protect and Preserve Tribal Rights
P5 > P2 > P4 > P6 > PI > P3
This ranking places the recreation enterprise first. I assume that
exercising the powers of the tribal government protects those powers.
Important among these Is the power to regulate hunting and fishing,
both prime recreational activities In the United States. The Joint
venture Is second; corporate allies also aid in defending rights In
the American political system. The enterprise zone uses tribal Juris-
diction, but carries risk of a backlash. Developing an Indian private
sector uses and strengthens tribal power to a smaller extent. The
lumber mill has a small effect. Last place goes to the firm serving
the defense department because that project has no relation to tribal
rights.
God G2. Protect and Preserve Individual Rights
P6 > P5 > PI > P4 > P2 > P3
Individual rights are best protected by tribal members when they can
afford to do so; development of private business does this best. The
right to hunt and fish off the reservation Is enhanced when on-
reservation hunting and fishing are competently managed, placing the
fifth project next. When the tribe reduces its taxation and regulation
powers to bring In outside corporations, tribal member rights are also
greater. Therefore, the projects which support tribal rights are ranked
above those which have no effect on either individual or tribal rights.
Goal 63. Maintain Cultural and Tribal Identity
P1 > P5 > P6 > P2 > P3 > P4
Working In the woods either for logging or recreation Is consistent
with the Tribe's culture. Individual enterprise has always been done by
kin groups, meaning that bureaucratic structures are not consistent
with the culture. Programs which bring many non-Indians to the
reservation divert some members into the mainstream culture, and non-
Indians on the reservation are hostile to tribal institutions. These
facts cause the last three projects to be ranked in order of their use
of non-members. The enterprise zone brings in the most and therefore
ranks last.
Native Americans ar^^W/c Policy 83 f
Goal G4. Increase Tribal Income
P2 > P5 > Pi > P3 > P6 > P4
Rental income from tribal lands are highest with the oil and gas
development. Recreational use also generates much Income. The value
of trees Is high with the lumber mill, but much of that return goes to
tribal members through generous wages. Defense Department contracts
just break even. The Indian private sector, to be viable, requires tribal
expenditures for technical and judicial services. An enterprise zone
does not generate much tax revenue, but requires provision of govern-
mental services.
Goal G5. Increase the Income of Tribal Members
PI > P6 > P4 > P3 > P5 > P2
The sawmill and developing the private sector provide the best jobs
and wages. The enterprise zone succeeds In bringing In many low-wage
jobs Wages In the defense Industry are also low. Both recreational and
mineral development have few tribal jobs.
Goal G6. Increase Tribal Unity and Harmony
PI > P5 > P3 > P6 > P2 > P4
Tribal unity Is aided by a relatively equal distribution ol Income and
the absence of non-Indians on the reservation. Therefore the projects
which have more equal wages, the mill and the recreational enterprise.
rank above others. With growth of an Indian private sector, a fe*
become quite wealthy. Last place goes to the enterprise zone becausr
it brings in outsiders and also has a few well-paying jobs thai
accompany the many low wage ones.
Goal G7. Develop Expertise within the Membership
P2 > P1 > P6 > P3 > P5 > P4
The joint venture agreement Includes training clauses. The sawmill an<
private sector development both give experience to tribal members
The defense Industry also gives tribal members experience, but In ;
skewed managerial environment. The enterprise zone provides prlmaril
low wage jobs with little chance of advancement.
-------
832 Policy Studies Journal
Goal G8. Sustain a High Degree of Members' Health
P6 > P5 > PI > P3 > P2 > P4
Personal health Is promoted by a sense of self-worth, a clean environ-
ment, and good levels of Income. These are all provided by the private
sector. The recreational enterprise also does this. Frankly, however,
this ranking Is very difficult to justify, since the connection between
the various projects and members health Is tenuous at best.
Goal G9. Provide Open and Responsive Tribal Government
P6 > PI > P5 > P2 > P4 > P3
The tribal government Is most responsive when It provides services
and jobs. When It Is heavily Influenced by outsiders. It Is less
responsive to tribal members. Therefore, the tribal private sector and
enterprises rank above the others. The defense Industry ranks last
because of Its tight connection to a strictly hierarchical culture.
Goal G10. Reduce Federal Bureaucratic Control over the Tribe
P6 > P5 > P2 > P4 > PI > P3
Federal controls are removed when Indians appear to assimilate, as
with private business. With the exception of that effect, this goal has
a ranking like goal Gl, protect tribal rights. As with the health goal.
this goal appears relatively unrelated to the projects.
Goal Gil. Preserve, Protect and Enhance Environmental Quality
P5 > P3 > P2 > PI > P6 > P4
The environment is helped by recreation use, which needs beauty. The
defense firm Is "clean industry." The joint venture leaves only the
wells and that has a limited impact. The sawmill leads to more
intensive use of the forest. Both private business programs, based on
tack of regulation, make environmental regulations difficult.
THE OUTRANKING MATRIX
With the rankings made for each goal, we have the raw material
needed to continue the analysis. The next step is to construct an out-
ranking matrix. The matrix is square, with each of the alternatives
Native Americans and Public Policy 833
defining the columns and the rows. Entries in the matrix give the
number of criteria favoring the row label when compared with the
column label. The first entry. Project 1 contested against itself. Is
empty, as Is the entire diagonal. The second entry In the first row is
the number of criteria favoring the first project against the second.
Six of the criteria rank the sawmill above the joint venture. Con-
versely, five of the criteria rank the joint venture above the lumber
mill; five Is entered in the second box of the first column.
To fill in the remainder of the first row, one considers each of
the possible contests between the first project and Projects 3 through
6, counting the number of goals which rank the first project ahead of
the others. The first column can then be filled in by subtracting the
entries In the first row from 11, the total number of criteria. Figure 1
gives the complete outranking matrix.
Figure 1
Unweighted Outranking Matrix
N = 11
^
s
u.
n
's"
0-
Project Disfavored
P1
P1 **
P2 5
P3 1
P4 2
P5 6
P6 ' 5
P2
6
**
4
2
9
7 .
P3
10
7
**
5
9
8
P4
9
9
6
**
10
10
P5
5
2
2
1
**
6
P6
6
4
3
1
5
**
Our goal now Is to produce an overall ranking, using the Infor-
mation In the matrix. Arrow and Raynaud suggest two ways to do this:
1) choose the best alternative, delete the row and column correspond-
ing to that alternative, and then select the best of the remaining
alternatives, or 2) choose the worst alternative, eliminate Its row and
-------
834 Policy
'S Journal
column, and proceed to choose the second worst alternative. The first
of these methods produces a "decreasing" algorithm; the second, an
"Increasing" algorithm. These two techniques provide different and
Interesting results.
I begin with the Increasing algorithm. Which of the six should be
placed last? Consider the maximum coefficient In each row: It shows
the most support which each alternative receives in its five contests
with the others. The row with the smallest such coefficient can be
Identified as having the least support. In the case of Figure 1, the
fourth project has the smallest maximum, five. When that row and
column are deleted, the third project then has the smallest maximum
coefficient, four. The second project is eliminated next. With the
matrix reduced to three by three, however, a problem arises: the
maximum coefficient in each row is 6. We have a three-way tie among
the sawmill, recreation enterprise, and Indian private sector
development. It makes sense to select each of the three successively
for third place, giving the following overall rankings:
P5 > PI > P6 > P2 > P3 > P4
PI > P6 > P5 > P2 > P3
P4
P6 > P5 > Pi > P2 > P3 > P4
Will a decreasing method select one of these, or create other
rankings? To select a best alternative among the six. examine the
minimum values along each row. The alternative with the largest
minimum value can be considered for first place: in defeat, It has the
most criteria favoring it. The minimum values along each row work out
as follows:
PI
P2
P3
P4
P5
P6
5
2
1
1
5
5
There Is a 3-way tie for first place, just as there was with the
decreasing algorithm. If one works through each of the three possi-
bilities, one finds the same three rankings.
This example contains a cycle; the first three rows of Figure 2
demonstrates ft. As shown by the second row, P1 can defeat P6; the
first row shows that P5 can defeat PI; but the third row shows that
Native Americans and PuoT^Fo/icy 835
answer; the last three places are these.
P2 > P3 > P4.
Figure 2
Matrix with Entries Above 5
N = 11
P1
CD
U.
I
'e
P5
PI
P6
P2
P3
P4
Project Disfavored
P2 P3 P4 P5
6 9 9
6 6 10
«• 7 8
*» 7
P6
10
9
to
9
6
Arrow and Raynaud prove some theorems which provide useful In-
sight Into the resulting rankings. They ask two questions of the
coefficients in an outranking matrix; both are generated by filling In
the matrix with coefficients beginning with the largest ones. First, as
one Inserts coefficients into the matrix, beginning with the largest.
lor what number do we first obtain a cycle? In this example, the
answer Is 6. As long as only coefficients above .6 are entered In the
matrix, there Is a consistent order; but It Is only a partial order.
Figure 2 illustrates this point. Arrow and Raynaud call the number
which first produces a cycle "beta-bar" ((}).
-------
836 Policy Studies Journal
A second question Is this: What Is the largest coefficient for
which there Is a total order, even if that order Is not unique? A total
order Is a ranking for which the entire half of the matrix above the
diagonal Is full when the projects are listed in the selected order, in
this example, the answer is 5: in Figure 2. only when fives are
entered In the matrix Is there an entry in the P5 row and the P6
column. Arrow and Raynaud call this number alpha-bar (oc)
They prove a number of theorems about beta-bar and alpha-bar.
First, the Increasing algorithm finds beta-bar; it Is the maximum value
of the mlnimums which are selected as the row maximums are exam-
ined. The order produced by the algorithm contains the partial order
which exists without a cycle.
Second, the decreasing algorithm selects alpha-bar: it is the min-
imum value of the successive row maxima. The algorithm also selects
an order which Is one of the total orders in which the smallest coeffi-
cient above the diagonal Is alpha-bar. If the matrix is like ours, in
which all the coefficients sum to the same number (N). they prove a
further result: the sum of alpha-bar and beta-bar is N. In this case.
5 + 6=11. This property does not hold if some of the criteria express
no preference between some alternatives, giving ties.
WEIGHTING THE CRITERIA
Given a list of tribal goals, many people would note that some of
the goals are more Important than others. Preserving tribal rights and
maintaining cultural Identity are often ranked above increasing Income.
Both are "survival" questions; In comparison with survival. Income for
the tribe or its members may seem short-sighted. I have reworked this
example to take Into account the fact that some criteria'may be more
Important than others. In addition, some criteria may simply be
Irrelevant to a particular list of projects.
Table 3 gives a rearrangement of the data using these two Ideas.
First, tribal rights, tribal culture, and environmental quality are given
a weight of 3; second, tribal income, member's Income, and developing
expertise are given a weight of two. The remaining goals are given a
weight of zero, and eliminated from the list.
In constructing the outranking matrix, each of the rankings Is
counted according to its weight. In comparison of Project 1 to Project
2, the first goal gives 3 to Project 2; the third goal gives 3 to Project
1: and so on. The final result is 5 votes for PI over P2, and 10 for P2
over P1. These are the entries In the appropriate boxes of the out-
ranking matrix given in Figure 3. Since the sum of the coefficients for
each pair Is 15. one can fill in the part of the matrix above the
diagonal and complete the lower half by subtraction.
Native Americans and Public Policy 837
Tables
Weighting the Criteria
Weight
3
•Goal
G1. Protect and Preserve Tribal Rights
P5 > P2 > P4 > P6 > P1 > p3
G3. Maintain Cultural and Tribal Identity
PI > P5 > P6 > P2 > P3 > P4
04. Increase the Tribal Government's Income
P2 > P5 > PI > P3 > P6 > P4
G5. Increase the Income of Tribal Members
PI > P6 > P4 > P3 > P5 > P2
G7. Develop Expertise Within the Membership
P2 > PI > P6 > P3 > P5 > P4
G11. Preserve. Protect, and Enhance
Environmental Quality
PS > P3 ? P2 > P1 > P6 > P4
goes to Project 2. The complete order is this:
P5 > P2 > P1 > P6 > P3 > P4
Figure 4 arranges the outranking matrix Into this order; all of the
coefficients above the diagonal are majority votes.
-------
838 Policy Studies Journal
Figure 3
Weighted Outranking Matrix
N = 15
Project Disfavored
"8
0
u?
1
£
PI
P2
P3
P4
P5
P6
P1
**
10
3
0
8
3
P2
5
**
5
2
11
5
P3
12
10
**
5
11
10
P4
15
13
10
**
15
12
P5
7
4
4
0
**>
4
P6
12
10
5
3
11
**
Figure 4
Weighted Matrix In Majority Order
N = 15
P5
"8
1 P2
I R
I P6
P3
P4
Pi
**
4
7
4
4
0
Project Disfavored
P2 P3 P4 P5
11 8 11 11
** 10 10 10
12 12
10
5
5
5
2
3
3
0
5
3
P6
15
13
15
12
10
Native Americans and PurjflFPolicy 839
Which goals voted for P5, the recreational enterprise? This ques-
tion has to be taken against each of the other projects. Project 5
was ranked above Project 1. the sawmill, by protecting tribal rights,
Increasing the tribal government's Income, and preserving environ-
mental quality, on a narrow 8 to 7 score. Project 5 was preferred over
Project 2, the joint venture, by tribal rights again, by Increasing the
income of tribal members, and by environmental quality. The total
votes are 11 to 4. Partly because of split votes between the Income
goals, neither of their first-ranked projects is ranked first overall.
The three bottom-ranked projects are the three which represent
current federal proposals, with the enterprise zone. Project 4, listed
last. The reason for this is that It is listed last by four of the six
weighted goals. Is this result sensible? Yes. given my assumptions:
both Projects 3 and 4 do not score highly among the goals, Including
the economic ones. The development of an Indian private sector, since
It does rank highly with some goals, defeats the other two.
EVALUATION
I now want to consider the strengths and weaknesses of this
approach to dealing with multiple goals. I begin with the strengths: 1)
Arrow and Raynaud's axioms have appeal as good characteristics for an
aggregation procedure for multiple criteria; 2) the method forces a
thorough and structured analysis; 3) the method allows separation of
the weighting of goals from analysis of alternatives with regard to
each goal; 4) If performed before serious data collection Is undertaken,
staff researchers will have a better idea about what Information Is
Important; and 5) the method Is not complex or especially arcane.
Arrow and Raynaud developed their methods by considering the
characteristics (or axioms) appropriate for a method of aggregating the
rankings of multiple criteria Three of these are symmetry, diversity,
and positive responsiveness. Symmetry states that the only Information
available from each goal is the rank order provided by it. Diversity
requires that no prior restrictions be applied to the range of the
rankings allowed by each of the criteria or the method. Positive
responsiveness requires the method to make the comparison between
two alternatives be a strictly Increasing function of the number of
criteria ranking one over the other.
The sequential independence axioms, which describe the process
of selecting a ranking either in an increasing or a decreasing manner,
are less obviously sensible. Arrow and Raynaud would prefer a stronger
axiom, requiring the aggregation function to have complete Indepen-
dence of Irrelevant alternatives. In making a choice between two
alternatives, that choice should be independent of the criteria's
-------
840 Policy Studies Journal
rankings of other alternatives. But to Impose this condition In addition
to symmetry, diversity, and positive responsiveness leads to a paradox:
if a method has all of those characteristics. It must be one of the
criteria. A multlcrlterlon method would be a monocrlterion method. To
avoid this. Arrow and Raynaud propose sequential Independence. The
ranking between any two alternatives will depend in part on what
other alternatives remain In the yet-to-be selected set of alternatives.
The row maxima and minima are functions of all the remaining alter-
natives: one may be selected over another because it Is better able to
defeat the others.
A second strength of this approach is that ft encourages a
thorough and structured analysis. First, one has to specify alternatives
which compete with one another in some way. Arrow and Raynaud
assume their audience Is an Industrial decision maker, who would be
determining what his or her company's Investments will be. The
audience in this paper Is a tribal council deciding where to allocate
scarce council and staff attention and work. I would like to assume
further than the rankings are arrived at by group discussion and con-
sensus. This makes the assumptions more realistic.
After identifying the alternatives, the analysis proceeds to rank
the alternatives with respect to each goal. By focusing on one goal at
a time, analysis is simplified and group discussion Is usefully struc-
tured. In ranking the alternatives for a goal, one can start either by
selecting the best or the worst alternative. As discussion proceeds, a
number of relevant facts and theories are identified. If the facts are
unknown or the theories unproved, the discussion can become bogged
down for lack of information. The discussion can restart if the group
makes assumptions about which facts or theories are true.
This process of listing assumptions provides the third advantage
of this approach: identification of the important missing Information.
Because multlcrtterion analysis Is difficult, people easily slip into a
data-collection mode earlier than they should. One senses progress In
data collection as the facts accumulate. Discussion of alternatives Is
often frustrating and Inconclusive. If a group agrees on an assumption
that will be held temporarily in order to rank alternatives, further
discussion Is possible. I use a form for this work, in which the
assumptions are listed next to the ranking. After all the rankings are
complete, and the outranking matrix is analyzed, particularly weak
assumptions, If they are crucial to the result, can become targets for
research.
Disagreements about policy arise for two main reasons: different
weighting of goals and different assumptions about how the wortd
works. Focusing attention on one goal at a time sets aside the issue
of weighting the goals. This technique allows one to determine the
Native Americans and Public Policy 841
weights for each of the goals separate from the discussion of rankings
by each goal. This separation is the fourth advantage.
The fifth advantage is that the method, although complex. Is not
arcane. One does not need to know linear programming, risk analysis,
game theory, or any other of the specialties Identified as "operations
research.* These specialties work best when a single goal Is under
study; staff can apply them. The tribal council, however. Is most
Interested In the selection of an overall ranking, which Is what the
outranking matrix helps do. Operations research, along with many type
of technical analysis, often suffers from oversimplification. This
technique, while not Immune to oversimplification, can postpone the
point at which problems are simplified.
The technique Is not without Its problems, however. The first Is
related to the thoroughness of the ranking analysis: a person or a
group can spend much time on parts of the problem which, In retro-
spect, were unimportant. If a tribal council actually uses only one goal
In evaluating alternatives, much work can be avoided by concentrating
on that goal rather than on the others. If the answer Is obvious, use
of an outranking matrix will provide little net benefit.
A second disadvantage is that some Information Is not used: the
"intensity" of the rankings under each goal. For the economic goals.
for Instance. Projects 1 and 2 might provide twice as much Income as
the next ranked projects; such a fact is not used. Other goals might
also have large gaps between specific alternatives. If these consider-
ations are important, some use of pseudo-quantification might be con-
sidered. The analogy would be to the scoring systems used In diving
and figure skating contests: judges provide numerical scores; the low
and high is discarded, and the remaining are averaged.
Arrow and Raynaud stress development of a total order, rather
than a partial one; this leads to a focus on alpha-bar, which Is the
smallest threshhold at which a total order can be made. In a political
context, beta-bar Is more relevant: it gives the smallest coefficient for
which there Is a non-cyclical consensus.
Some characteristics of the technique are neither disadvantages
nor advantages. There is no guarantee that an single answer will
emerge. The technique can in some cases provide no useful simplifi-
cation of the problem II many ties occur In analysis of the outranking
matrix, the aggregation procedure can create more rankings than the
number of criteria. This is a disadvantage of nature or society-
complexlty-rather than of the technique.
A second neutral characteristic is that more of the problem Is
laid out in front of the decision-makers This appeals to those who
dislike a "mystique" owned by experts, and will not appeal to the
-------
842 Policy~5Iudies Journal
experts. Some people, however, will loose patience with the amount of
detail Involved.
This technique Is subject to manipulation through adjustment of
weights among goals. Manipulation, of course, is possible with any
technique applied to multlcrlterion problems. Arrow and Raynaud even
provide a theorem which can assist a person In determining the small-
est additional weight to give to his favorite criterion In order to
make that criterion's ranking dominate in the overall ranking. Because
the outranking matrix Is simple, its lack of complexity would make
manipulation obvious, and hence less able to be effective.
CONCLUSION
The strengths of this technique far outweigh the disadvantages.
The approach can be used in a variety of situations. Selection of
economic development projects based on a fixed budget or on fixed
hours of work among staff Is just one example. Land use planning Is
another. As tribal governments extend their sovereign powers, the
adoption of laws and regulations Is a case where mutually exclusive
alternatives will occur.
The primary purpose of this essay is to illustrate and advocate a
technique rather than to provide an analysis of current policies.
Readers who think this Is interesting but disagree with the assump-
tions can learn more about this suggestion by using It, I suggest
adding other development projects, changing the rankings given above,
or changing goal weights. These will produce a new outranking matrix
and an analysis which results from the reader's assumptions.
REFERENCES
Arrow, Kenneth J., and Herve Raynaud 1986. Social Choice and Multi-
criterion Decision-Making (Cambridge: The MIT Press), Part III.
Dykstra, Dennis P. 1984. Mathematical Programming (or Natural
Resource Management (New York: McGraw-Hill Book Company).
Keeney, Ralph L, and Howard Raiffa. 1976. Decisions with Multiple
Objectives: Preferences and Value Tradeoffs (New York: John
Wiley and Sons), Chapter 6.
Kuznets, Simon. 1966. Modern Economic Growth (New Haven, CT: Yale
University Press), Chapter 1.
-------
MICHAEL A. DORRIS
The Grass Still Grows, the Rivers Still Flow
Contemporary Native Americans
To. STUDY THE i.KGAL STATUS of American Indians in the United States is to
\vadc into an extraordinarily complicated arena of legislative and judicial
definition. Federal Indian policy, u itliout precedent or parallel anywhere in the
world, is unique and complex for two reasons. First, the United States initially
inherited and then developed over the next t\\o hundred vcars a singular
relationship with American Indians—that of a massi\e immigrant population
with an enormously varied set of indigenous societies. Second, the formulation
of Indian policy derives from disparate and often conflicting sources: ethnocen-
tric preconceptions and expectations; racism: treaties: congression.il acts and
statutes; federal, state, and tribal court judgments: programs evolved within
such federal bureaucracies as the erstwhile Department of War, and the
Departments of the Interior, and of Health. Education and Welfare: the
findings of the Indian Claims Commission; and even the laws and understand-
ings inherent in the American and tribal constitutions. In attempting to grasp
the practical realities of Indian rights, claims, and title, one continually
encounters paradox, confusing historical precedents, and misunderstanding.
There are dozens of seemingly self-contradictory non-Indian theories about,
and strategies for dealing with, Indians; and there are scores of separate Native
American tribes, each defined in its relationship to the federal government by
hundreds of distinct treaties, each with wide variation in terms of goals and
objectives.
Even the most highly educated among, us are befuddled by a lack of factual
information about Native American history. When we become aware of the
contemporary existence of Indians at all. we expect to know easily "what
Indians want," and are inevitably frustrated in the attempt. Io those unfamiliar
with the ethnohistorical context, modern Indian assertions of sovereignty, land
title, and what amounts to privileged status appear presumptuous, capricious,
and annoying. The tendency in contemporary American society is to see the
world through non-Indian eyes—as it has historically been seen—and that
perspective is generally taken for granted. We read a map issued by the
American Automobile Association unaware that, whereas state and often even
countv and city boundaries are delineated, reservation iandi—whose status in a
legal and constitutional sense is quite distinct from, and superior to. any of
these—are omitted altogether. Or ue may visit the Custer National Monument
43
-------
•H MICHAEL A. DORRIS
on the Crow Reservation in Montana, the .sisjht of the most renowned victory in
the long history of the resistance of* Indian tribes to Euro- American incursions,
and not find it amiss that the entire battle is described — unapologctically — from
the standpoint of the losers.
I will attempt in this essay to present some of the ambiguities and questions
raised by the historv of European-Indian contact, paying special attention to
those issues of tribal lands and sovereignty most current and pressing. It will be
necessary, however, to begin with some basic background material and to
develop a sense of the cultural and legal trends that laid the foundation for the
ambiguities of modern Indian policy.
Cultural Backurv
*T>
Whatever explanation of origins one accepts — be it the independent and
intentional creation of most mythic find religious systems or the more quantifi-
able archeolocical record ol ini-jratins populations — it is a fact that the ancestors
of those people who are today known as American Indians have continuously
inhabited North America for upwards of thirty thousand years,1 and possibly
much longer. This aboriginal contieuration of peoples was by any criterion —
genetic, linguistic, social, or political — mightily heterogeneous. It is currently
estimated that in the fifteenth century there were at least four hundred separate
and distinct cultures north of the Rio Grande, and that they included a vast
array of phvsical types and language stocks. Among these cultures were
theocracies and democracies, hereditary chicfdoms and matrilineages; their
peoples lived in large cities supported by agriculture and in small mobile bands
of hunters.2 They thoroughly, if not densely, inhabited this continent, adapting
to temperature extremes from subarctic to desert, and exploiting environmental
possibilities from deep-sea fishing to intensive cultivation of hybridised crops.
Persuasive evidence attests that for tens of cenruries prior to Columbus 's voyage
they were, for all practical purposes, isolated from, and out of touch with,
human communities in Europe, Asia, and Africa; and though each Native
community maintained a far-fiunc. dynamic set of trade and cooperative —
sometimes hostile — relations with other neighboring societies, no single group
dominated more than a small fraction of 'the continent.
The attitudes Native American peoples brought to their contacts with
settlers in the New \Yorld in the fifteenth, sixteenth, and seventeenth centuries
were shaped by their prior experience. Indian tribes had long existed in a plural
world where foreign cultures differed substantively from one's own. Other
groups looked, spoke, dressed, believed, and praved in ways singularly
appropriate to themselves. This is not to imply that all cultures were regarded
as equally good or worthwhile; like people the world over, each Native
American probably felt confident that his or her people were the raisou d'etre of
creation and the most enlightened, interesting, tasteful, and "human" society
imaginable. But no sense of superiority, however secure, could contradict the
inescapable observation that other groups whose \vavs and beliefs seemed
bizarre and inexplicable similarly felt themselves to be the center of the
universe.
Thus it would appear that initial contact with Europeans would be rather
unspectacular for members of a Native American society. In many respects, the
-------
CONTf.MPORARV N
historic.il record indicates that Kuropeansc.atcd as neither more nor
exotic than \vovild be members of another jroup. Native people seem
to have been especially intimidated hv. ored with, most of the novel t
brought as trade goods, and often appear regarded the neu comers wi
a mixture of curiosity and concern: thoucpcans looked like adults, tho
frequently seemed unable to feed tlicmselvo he perpetually on the bri^
of starving to death.5
The history of Europe prior to the Asploration contrasted s\.-.irplv
with that of North America. For all of ition of interethnic stri^ Mid
turmoil. Europe was. relative to the rest world, fairly homogeneous-
With only a handful of exceptions.4 every ;e spoken from IreW to vUe
Dardanelles derived from a sinele family .'tl-Europcnn. Furthermore. the
Europe of 1491 was bonded byn mental culmHennium and a halt old. t v^
Judeo-Christian religious tradition. F.verv woman, and chl ^"J
Continent knew the basic tenets of this maqion. Its 1 en Commani
were the foundation of moral and common s leadership was int
and powerful: and its official language. L formed the lingua o<
learned and lecal communication. Etiropealieved in the sam ^ ..-
and the same "divinity, and shared fundaii assumptions concerning ^
meaning of life itself. For the most party were \vholl> una
alternative systems and world views existed ... ,,.Drcac\
Finally, some important political and ^conventions \\ere \ !
throughout Europe, particularly \\cstcrn Et- Patrilineality. the s>
which men are nominally dominant over wci in evcry arena uom i ^
to property rights to leadership roles in bothular and spiritual sphere .^^
the une.vcepted custom. Certain assumpti about leadership '^rn
commonly held— that one person or a smallmp of persons could go\i.
actions of many, that rulership was hercdic. that allegiance or loya .
owed an individual simply because of hismk or station. In addition,
concept of the "nation-state" was beginning!* emerge m many areas.
For the greater part of European historjvhis rather myopic and m.sie, „
attitude, bred of cultural isolation, persiad. Bevond familiar borders.
world was regarded as either a place infcstd \vith demons, barbarians. .
infidels, or as"not existing at all: in the. popAr flatlanticr vision. th^f*^Uv
everything else simply stopped somewhere west of Portugal. Iruc.oc . ^
invaders demanded attention from the cultures on Europe? penp en .
Moors in Iberia, the Huns and Turks in the East- But these encounters mac
little dent in tht ethnocentrism of most Europe^05- . rcsncet
The lack of any strong traditions of culturally plural coexistence^ < >^\ ^
for cxtracontinental societies -left Europeans poorly equipped to dea \M
"discovery" of a "new" and inhabited world. Initial reactions to the P[escnce
human beinus whose looks, beliefs, or disposition did not ht tl»t tamiliar moic
ransed from awe to outrage. The very humanity of indigenous PenP
seriously questioned by some." and it was universally and instant \ ass
that there was a "natural" hierarchy of "civilisation." with Kur"lK"a"st*t.1jl>.
apex. Notions such as cultural relativity seem to have been '
'
.
absent, and it was nt first expected and 'eventually mandated
]ienples would unreinirtingly and unhesitntinul.v forsake their o«i
mores, and beliefs, and embrace European substitutes.
-------
•46 MICHAEL A. DORK1S
Etbnobistorical Context
From its earliest beginnings, the politics of social interaction between
indigenous and immigrant (noii-lndi.ui) peoples in North America evolved out
of a "rowing sense of confusion. Neither croup really knew what to make of the
other, and each searched their own known and mythic histories for explanations
or analogues for dealing with unknown and unfathomable beings. Various
Native societies came up with a wide assortment of hypotheses to identity and
predict the behavior of Europeans, ranging from the Aztec, "Maybe it's
Quct/.alcoatl." to the idea of the Southern Cheyenne that mountain men—the
early European trappers in the Rockies—represented the return to the world of
a class of long-departed excrement-eating clowns/
Europeans apparctulv had little problem in postulating an equally darling
set of improbable theories to explain the origin and true nature of those whom
they found in possession of America. Puritans blithely concluded that indig-
enous peoples were but manifestations of the Devil, sent to test their will for
The Good." Others felt Indians embodied the familiar Teutonic wildman-of-
the-forest boirey—Ions.' hair, guttural laniauis.'e. sylvan abode—and treated them
accordingly.1" Scholarly types speculated that Indians exhibited a level of
cultural development prior to that of contemporary Kurope.'' Their retardation
was laid to any number of possible causes: a separate and more recent creation
or evolution, or both, or the limitations imposed either by mental capacity or
restrictive environment, to name only two. For Europeans, it was just a matter
of time until Indians "caught up"—as far as they were able. Still others
imagined that the Natives had come from outer space, Phoenicia, or Atlantis.
Cultural interactions have always taken place on at least two levels, the
imaginary and the real. North America, at its most cosmically mythic, was the
setting for the dramatic encounter of The Indian with The White Man. In this
realm of inflated stereotype, only conglomerate Races, complete with their
imagined associated personality characteristics, confront each other—individual
people and unique groups are nowhere to be found. One can only speculate on
the mass of interpretation made by Indian societies to account for the
appearance and behavior of The White Man. but there is certainly no lack of
data traditionally used to.describe his tawny counterpart.
In popular and persistent folk belief. The Indian is. among other things,
male, red-skinned, stoic, taciturn, ecologically aware, and a great user of
metaphor. Or, he is cunning, mercurial, wild, lusty, and a collector of blond
scalps. At nightfall he silhouettes himself in the sunset, or dances, shrieking,
around his camprire. Before vanishing, he was prone to skulking, sneaking, and
sundry other double-dealings. Rather than defend himself, he "uprose"; rather
than resist the occupation of his land, he "outbroke"; rather than defeat a foe, he
"massacred."!: The one major commonality uniting this schizophrenic persona
is a general agreement that, whoever and whatever he was. for better or worse,
he is no more. The Indian, by and large, is a motif embedded in Americana, not
perceived as a part of the American present." The confusion comes when we
realize that Indian people, too often mistaken for The Indian, are still very
much around.
-------
4ji MICHAKI. A. DORRIS
There is a period of mutual testing and appraisal before the situation becomes
stabilized and understandings are established. The two, or more, parries must
exist, or expect to exist, in a relatively equitable power relationship, or a
dominant-subordinate context will result.
By the time a substantial number of British colonists arrived to settle in
North America, several major points had already been settled. After some years
of debate by Spanish intellectuals, the Pope had ruled with finality that Indians
did. in fact, have souls and were therefore human beings.1" It was also evident
that there were sufficient Indians to make any precipitous European conquest
and defense of a land base untenable. Finally, commonly held concepts of
international law (i.e.. rules of conduct shared by European nations) now
included an understanding known as "Right of Discovery."-'" that at its
minimum interpretation suggested that a superior legal jurisdiction fell to the
European nation first landing on. and laying claim to. territory not formerly
held by other Europeans. As it came to be understood. Right of Discovery
awarded to a European nation the sole and exclusive authority ro negotiate for
the transfer of absolute ownership and title to property with the Natives (if any)
of that property. This tvpe of jurisdiction was an extreme form of "spheres of
influence"; it enabled the various "exploring" European nations to divide up
neatly the non-European world, ar least by their own reckoning, over the next
several centuries. If through conquest or negotiation one European nation
succeeded the other in the control of a land area, the Right of Discovery was
inherited along with other prerogatives.
During the sixteenth and seventeenth centuries, there was no clear idea of
the extent of the North American continent, nor were the type and total of the
aboriginal population known: but it was clear that they existed in sufficient
numbers to defend their land. In response to this reality, the English, in
particular, adopted an interesting and innovative policy, the effects of which are
profoundly felt today. In word and practice, the British recognized the prior
sovereignty of the Indian nations they encountered. They conceded rhar the
indigenous populace had a legal right both to self-governance and to claim title
to land on the basis of Ions ("time immemorial") use and occupancy; they
stipulated that such claim, based on aboriginal right, could be extinguished only
by negotiations or warfare carried out at the highest level—as between nations,
The mechanism for negotiation was the treaty, a means of international
agreement lone in use among European states. As the British understood it, an
Indian treaty, among other things, formalized the cession of territory claimed
by the Native group in exchange for the formal English recognition of clear and
abiding title ro the nonccdcd and still-claimed area. The English would then
"own" outright the lands from which aboriginal claim was withdrawn. The
Indian nation would retain ownership on the remainder, with undisputed
tenure.
Legal Precedents
Though most Indian tribes had no prior concept absolutely analogous ro the
European idea of land title, they were quick to learn, and they entered into
-------
CONTEMPORARY NATIVE AMERICANS 49
Treaty negotiations relinquishing once-used hinds for several reasons. First, the
toll taken by European diseases, which often preceded intense European
settlement, had so reduced the Native population, that it was unfeasible to
expect to defend effectively as wide an expanse of territory as had once been
used. Second, the English (and to a lesser degree, the French) offered strong
inducements to tribes that agreed to enter into, and be hound by, treaties; in
exchange for land claims, tribes were promised annuities in money and trade
goods, health and education benefits, and most important, the security of an
uncontested land base where they could live in peace and independence "as long
as the waters flow and as lone as the grasses grow." Thar latter phrase,
commonly known as a perpetuity clause, was routinely inserted in the treaties
Europeans made with Indians, though ordinarily it \vas not a parr of the
compacts they made with each other. Its inclusion may reflect the European
expectation that Indians were indeed "vanishing" and would nor survive to reap
the long-term benefits of an easily made promise.
In certain respects, it ultimately mattered less what those first treaties
actually said—since virtually all were eventually broken by the European
signarores—than that they were made at alJ. The verv act ot treaty-making
imparted a European version of nationhood to the Native party, and as a result.
established at least a legal parity, in terms of co-equal sovereignty, between
aboriginal and European states."' This status, once rccogni/.ed, did not
diminish when rhe relative power balance between the two sides shifted, nor
theoretically, with the passage of time. "Age has not invalidated the treaties any
more than it has invalidated the Constitution which recognizes them as 'the
supreme law of the land.' Nor docs breach of violation of treaties nullify them
any more than docs the act of committing a crime nullify rhe la\v that forbids
that crime.":: Furthermore, it certified beyond question that Indian nations had
existed as self-governing nations prior to their contact with Europeans. This kcv
reality has been—and is still—often misunderstood by the general American
public.
In spite of the inherent sovereignty of the Indian nations, and in spite of its
repeated affirmation in old and recent United States law. many Americans believe
that tribal governments were created by treaties and conferred upon Indians as
benevolent dispensations of federal law.. The reverse is true: the tribal govern-
ments entered into treaties and conferred certain rights to the colonials, and later
to the United States.:)
The recognition of Indian tribes as sovereignties, although somewhat
regulated in their external affairs, continued without interruption after the
American Revolution. In fact, the U.S. Constitution itself takes particular note
of the special relationship that existed between the new nation and the ancient
Native American states. Article 1, Section 8, stipulates that "the Congress shall
have power ... to regulate commerce with foreign nations, among the several
states, and with Indian tribes." Indian tribes arc the only group specifically
identified in the Constitution; "persons unfamiliar with Indian law mistake this
distinction as one of a racial nature. Such is not the case. Indian tribes are
-------
50 MICHAEL A. DOKRIS
distinct political entities—governments with executive, legislative and judicial
powers.' "^
In 1790 the Congress further clarified its understanding of its role vis-a-vis
Indian tribes. The Trade and Intercourse Act of l~ol)::> stated that only the
federal eovcrnmcm—as a sovereign—and nor states—as lesser political enti-
ties—may inherit the "discoverer's" right to treat with Indian nations and
thereby extinguish portions ot aboriginal land claims. In other words, Indian
lands may pass out ot Indian hands only when the federal government, as an
equivalent sovereign, is involved in the transaction.
In the case of Cherokee \ation •;•. Georgia (1851).''1 the Supreme Court added a
definition of its own. Regarding the status of the Cherokee reservation—that is,
the aboriginal core lands remaining to the Cherokee after all external claims had
been legally and appropriately extinguished and relinquished—it was the
opinion of Chief Justice John Marshall that the reservation existed as ;i
"domestic, dependent nation," having a special relationship to the United
States. This was later made even more explicit in \\'om?ffr ;•. Georgia (1 X32)r in
that decision, Marshall termed the Cherokee reservation a "distinct, indepen-
dent, political community." These definitions \verc transferable and applicable
to all other federally recognised reservations, and are among the fundamental
principles of all subsequent Indian law.
During all the years that the U.S. government was testing, refining, and
ultimately reaffirming its understanding of the maintained sovereignty of Indian
nations, the issue was never in question for this country's partners in treaty.
From the point of view of the Indian tribes, their own legal and political
situation was perfectly clear. "Nationhood" may have initially been a somewhat
foreign concept to some or even most of them, but they had understood and
adapted to it long ago. They regarded their treaties both with European powers
and later with the American government with the utmost seriousness, and had
every reason to construe them as binding and in force. After all, the}' had,
without exception, fulfilled to the letter all of their obligations under these
agreements—they had dutifully and without violence ceded all stipulated lands
according to the terms of their respective treaties.
Those compacts had been minutely discussed and examined within their
own governing bodies, and some of the Native leaders at the time of enactment
had committed the agreements in their entirety to memory. This oral record
was as immutable and stable as its written counterpart in Washington, and in
many cases was better understood by the population who most felt its impact.
Indian peoples were well aware, in general, of what they had been forced to give
up. and were equally well acquainted with promised terms of payment.:K The
latter may never have been equal in value to the former, but Native societies
were in no position to strike the most self-advantageous bargain. Recent.
testimony2** shows that the tribes have maintained, through meticulous oral
history, a complete inventory of these agreements, including the most detailed
accounts of all discussion and debates surrounding treaty negotiation. There
can be no question of the tribes' intent when entering into and ratifying these
accords. From their perspective, they paid dearly in lands and opportunities to
reserve for themselves and their descendants the rights of self-government,
freedom of choice and expression within their own territories, and the
-------
CONTKMHORARY NATIVE AMERICANS 51
additional compensation, in most cases, of an ongoing installment plan pay-
ment. They may have, during the difficult days of the past one hundred fifty
years, lacked the military or political clout to protect their rights when violated.
but recent history shows that they never forgot \vhat those rights were nor
conceded their diminution.
Modern
By 1871. when the treaty-making process formally came to an end."1
virtually all tribes in the area that was to become the forty-eight contiguous
states had reached some wtohts :v':vW; with the American tiovernmcnt, and all
were, for better or worse, established on one or another reservation. Their lands
were not new. nor were they gifts: rather, they represented the residue of
Indian land holdings that once encompassed all of North America. In exchange
for ceding most'1 of their territory, tribes were promised that their remaining
la mis xK/uJd be held in rnisr for them and for rhcir proaenv in perpetuity.
Few non-Indians in the Lnited States had read those treaties, and as a
result, even those who had framed and ratified them, even those who called
themselves "friends of the Indian." came to interpret Indian lands in ways quite
at odds with their initial and legal sums. For some, reservations were viewed as
holding grounds where tribes could be controlled by tine government and
subject to the civilixine and Christianizing effects of education and missionary
work.s: Benevolent societies, such as that which became known as the Lake
Mohonk Conference, issued such statements as. "The organization of the Indian
tribes is. and has been, one of the most serious hindrances to the advancement
of the Indian towards civilization, and . . . every effort should be made to
secure the disintegration of all tribal organizations: ... to accomplish this
result the Government should . . . cease to recognize Indians as political bodies
or organized tribes.""
It did not take Jonu for the federal government to respond. Senator Henry
Dawes, a former officer of the Indian Rights Association of Philadelphia,
proposed legislation that would allot the reservations "in severalty." assigning to
each male head of household, unmarried woman, and orphaned child n discrete
plot of land to "prove" for a period of twenty years or more, after which they
mi'jht petition to become U.S. citizens.-Under the provisions of the General
Allotment Act (1887).M the president was empowered to unilaterally abrogate
existing international agreements with Indian tribes. Each Indian allottee was
granted n share or a portion of a share, usually not exceeding 160 acres;
according to this schedule, there was considerably more remaining Indian land
than there were Indians to distribute ir to individually (according to the
prea'-sitrned average schedules). Thus, in one stroke of the pen, almost one
halt"" of all the lands controlled by Indians in lbH5 were declared "surplus" and
passed out of Native control. Over the course of the next forty-five years that
the act was in force, substantially more land was lost from this shrinking base
because of theft, chicancrv. sale, or fraud.
It is undoubtedly true that some people who sponsored and supported the
Dav.es policy sincerely believed that they were actinc in the best interests of
Indian people: however, the results were disastrous for the supposed bencficia-
-------
52 MICHAKI. A. OORRIS
ries. In 1928 the Institute for Government Research (Brookings Institution)
published The Problem of Indian Administration—popularly known as the Meriam
Report, after the project's director. Lewis Mcriam—\vhich derailed the econom-
ic and social conditions of the Indians as they were almost fifty years after the
passage oi' Allotment.w The report found "deplorable" conditions prevalent in
almost cvcrv Indian settlement in the country.' and concluded that the federal
government's "allotment in severally" and "Americanization" programs were
failures. It recommended increased appropriations for Indian health and
education, cessation of allotments, and more effective protection for their
property, among other things. In sum. it discouraged forced assimilation as a
policv. and urged that Indians be fitted to live in contemporary American
society without being bludgeoned into it.
President Franklin Roosevelt's appointment of fohn Collier, a cultural
anthropologist, to the position of Commissioner of Indian Affairs furthered this
line of reasoning in the next decade. 1 lis proposal for a sweeping set of reforms
was embodied in the Indian Reorganization Act of 1934.;" This legislation
recogni/.ed afresh the right of Indian tribes to be and to remain distinct,
functioning political cnritie.s, and reaffirmed the special trust relationship
between the American and Native governments. Funds were allocated to
repurchase some of the lands lost through Allotment policy, and reservations
were strongly urged to design and enact tribal constitutions based on the
American model. Though some religious and assimilationist groups opposed
this "return to tribalism." the vast majority of Indians hailed aspects of the act as
a long overdue rcinstitution of the legal relationship that existed between the
United States and Indian tribes."'1
Collier noted that the Wheeler-Howard, or Indian Reorganization, Act
endeavors to provide the means, statutory and financial, to repair as far as
possible, the incalculable damage done by the allotment policy and its corol-
laries. . . . Congress and the President rccounized that the cumulative loss of land
brought about by the allotment system, a loss reaching 90.000.()(>() acres—two-
thirds of the land hcritace of the Indian race in \W~—had rubbed the Indians in
larcc part of the necessary basis for self-support.
He went on to note that
the first step in this rebuilding process must be the reorganisation of the
tribes. . . . Jn the pasr thev niaiwycd their own affairs eft'cctivefv whenever there
\vas no white interference fnr saltish ends. They can learn to do it again under
present conditions with the aid of modern organization methods, once they realize
that these orcaniurions will be permanent and will not be subject to the whims of
chinking administrations.""
One may hope that few Indians so "realized," for this "New Deal for
Indians" was short-lhed indeed. Within two decades, House Concurrent
Resolution 108 (1953)"1' proclaimed that it was the policy of the United States to
abolish federal supervision over the tribes as soon as possible and to subject the
Indians to the same laws, privileges, and responsibilities as all other citizens of
the United States. With this resolution, the government began the process of
"termination." the unilateral abrogation of treatv responsibility toward the
-------
CONTEMPORARY NATIVE AMERICANS 53
tribes. The language of Resolution 108 was ns euphemistic as had been that of
the Allotment Act some eighty years before. It talked of giving Indians "equal
rights" and of "freeing" them from "federal supervision and control and from all
the disabilities and limitations specifically applicable to Indians"42—as if no one
understood that in equalizing rights. Indians were losing those very advantages
for which their ancestors had exchanged most of North America. Native
Americans would henceforth be "free" to do all that they had fought so hard to
be exempted from; hereafter they would be subject to state taxes and to state
fishing and hunting laws, and would lose federal protection over their lands and
the right to self-governing sovereign status.
V *. •- m
Passage of this resolution was quickly followed by the adoption of Public
Law 280."*' which extended state jurisdiction over criminal offenses committed
by or against Indians and over specified parts of "Indian Country." Obviously
the Congress did not construe reservations to be Justice Marshall's "distinct,
independent, political communities." On the contrary, for almost one hundrcl
years the House hnd seemed determined, with the notable exception of the
hotly debated Indian Reorganization Ace.44 ro undermine the legal basis for
Indian tribal power. It had overwhelmingly voted in favor of every piece of
legislation limiting Indian sovereignty since 18S7. In fact, the General Allot-
ment Act (1SS"). the Indian Citizenship Act (1924). House Concurrent
Resolution IUH (1953). and Public Law 2b(J (1953) all passed without so much as
a roll call.
Recent Developments
r
Perhaps the only good thing that can be said about the termination policy is
that it proved to be socially and economically unfeasible faster than it could be
implemented on a large scale, and thereby did not directly affect the vast
majority of reservation people, Its attack on the precept of tribal sovereignty
and integrity, coming so close on the heels of the resumption of that recognition
in the Indian Reorganization Act. alerted tribes that they must act conscien-
tiously and cautiously if they were to protect their inherited and constitutional
rights.
Felix Cohen articulated the legal and political basis for tribal autonomy
when he wrote:
1. An Indian tribe possesses, in the first instance, all the powers of any
sovereign stare.
2. Conquest renders the tribe subject to the legislative power of the United
State's, and in substance, terminated the external po\vers of sovcreicnty of
the tribe . . . but does not by itself afreet the internal sovereignty of the
tribe. ...
J. These powers are subject to qualification by treaties and by express
legislation of Congress, but. save as thus expressly ijualititcl. full powers of
internal sovereignty arc vested in the Indian tribes and in their dulv
constituted organs of uovernment.""'
Many important aspects of this definition are generally undisputed. Indian
tribes have not carried on "external powers of sovereignty"—that is, conducted
-------
;4 MICH A F.I. A. DORR1S
international relations except with the United States, since the U'ar of 1812.4
Although Conun-ss asserts plenary (i.e.. overriding) authority in dealing with
Indian tribes, the tribes retain their authority unless legislation has expressly
denied it. These as yet unrestrained powers constitute "residual authority."
Another sicniricant acid, lonsr-srandins; concept is the federal trust relation-
ship with Indian tribes—meaning that the United States, by virtue of irs
dominance over the tribes as dependent nations, is obliged to certain responsi-
bilities toward them. These fall into three broad areas: (1) protection of Indian
trust property: (2> protection of the Indian right to self-government: and (5)
provision of social, medical, and educational services for survival and advance-
ment of the Indian tribes.""1 The tribes, in other words, are due certain
privileges, protections, and benefits as a consequence of yielding some of their
sovereignty to the United States.
The Native American Commissioners of the American Indian Policy
Review Commission stated unambiguously at the conclusion of their Fin<>!
Rfport (1977) that "there are two elements essential to the ability of all Indian
tribes to progress towards economic development and eventual self-sufficiency:
self-government, i.e.. sovereignty, and the trust relationship.""1'' Both coals
would appear rc» be logically .iv.iil.iS-le. yet. historically. Congress has shown an
inconsistent comprehension of Indian nationhood. Reflecting the ambiguous
and ill-informed attitude of much of its constituency. Congress often seems to
regard reservations and treaty rights as transitional stages that will cease as soon
as even approximate economic parity of Indians with other groups within the
country is achieved.
Certainly, from the very becinnini; of the formal association between the
United States and Indian tribes, there has been much to suggest that at least
some of the prerogatives available only to nations exist for Indians. The
Cherokee treaty of Hopewel! (1785 >. for instance, was the first to make mention
of certain tribal jurisdictional rights: "If any citizen of the United States, or
other person not being an Indian, shall attempt to settle on any of the land . . .
hereby allotted to the Indians. . . such person shall forfeit the protection of the
United States, and the Indians may punish him or not as they please."'"
However, the treatv limits that verv authority to a ceratin decree: "If anv
Indian ... or person residing among them, or who shall take refuge in their
nation, shall commit a . . . capital crime . . . [the tribe] shall be bound to deliver
him ... up to be punished according to the ordinances of the United States."'1
A variety of Supreme Court decisions, both early': and more recentlyJ' have
upheld the concept that tribal authority naturally prevails over that of surround-
ing or contiguous states.
Though most tribes adopted a written constitutional form of government at-
the time of the Indian Reorganization Act. other tribes such as the Iruquois and
the Pueblo retained their traditional—and ancient—political systems. In either
case.
as governments. Indian trit>c> have general powers to f 1) make laws governing the
conduct of persons, including non-Indians, in Indian country; (2) establish biiJics
such as tribal polict and courts to enforce the l.iw and administer justice;
-------
CONTEMPORARY NATIVE AMERICANS »
(?) exclude or remove non-members from the reservation tor cause; and (4) regulate
hunting and li>ltinc. land: use. and tMivironsnent.il protection/4
When Congress voted in 1924 to make all Indians citizens of the United
States." it specifically noted that "the granting of such citizenship shall not in
any manner impair or otherwise affect the right of any Indian to tribal or other
property." Vet the status of individual Indians was somewhat unclear; on a day-
to-day basis, did they operate under the laws of the United States or of an
Indian nation? Which authority, federal or tribal, prevailed?
Specific leeal Guidelines are sometimes hard to discern, and as always in
Indian law. one must search first for historic decisions as precedents. Talton :-.
,t/i7Viy(lS96)sft held that federal courts hnve no authority to review Indian court
convictions by the writ of habeas corpus: in other words, the tribe's right to
punish offenses is not limited by the Fifth Amendment, because the Bill of
Rights applies only to federal governmental actions, and Indian tribes are not
federal powers. \'a:r.f American Church". Saiajo tribe(1959)" simply ruled that
the First Amendment guarantee of free exercise of religion was not binding over
the Navajo Tribe, nor by analogy could it extend to any other functioning tribal
government. The Fourteenth Amendment due process provision is also non-
applicable, because "Indian tribes are not states. They have a status higher than
that of states.'"* Inherent and residual sovereignty are the foundations of these
findings that affirm the judicial and political separatencss of Indian
governments.
The Indian Civil Rights Act of 1968>9 imposes on tribal governments
specific and slightly modified individual rights derived from the First, Fourth,
Fifth. Sixth. Eighth, and Eleventh Amendments to the U.S. Constitution. It
mentions only one federal remedy available—the writ of habeas corpus—in
conjunction with this act and from the legislative hearing prior to its passage/1*
From the summary remarks of Senator Ervin,61 it appears that this was the only
recourse intended.6: Public Law 280 was amended to allow further assumption
by states of jurisdiction only with the approval of the Indian tribes affected/5
and to provide automatic retrocession to the federal government if desired by
the state.
A recent Supreme Court decision, Santa Clara Pueblo r. Martinez (1978)/4
limits the circumstances in which an individual can bring suit against a tribal
government, and affirms the sovereignty of those governments. In that ruling, it
was stated that "in addition to the [Indian Civil Rights Act's] objective of
strengthening the position of the individual tribal members vis-a-vis the tribe.
Congress also intended to promote the well-established federal policy of
furthering Indian self-government."6'
The Indian Self-Determination Act of 19756'1 recogni/es the right of Indians
to "control their relationships both among themselves and with non-Indian
governments, organizations and persons," and goes on to observe that "the
prolonged Federal domination of Indian service programs has served to retard
rather than enhance the progress of Indian people and their communities."67
In Oliphant r. Suquamish (1978),6b the Supreme Court found that tribal courts
ha\e no criminal jurisdiction over non-Indians when they commit crimes on
-------
56 MICHAEL A. DORRIS
reservation lands, yet in a related decision in the same year, it ruled that "Indian
tribes still possess those aspects of sovereitrnry not \vithdnwn by treaty or
statute, or by implication as a necessary result of their dependent status."A9
Russd Barsh ;ind James J Jendcrson point out that
Oiiphtnr's theory nf poucr reaches much fun her. Aoeordine to one fa.lcr.sl
district court, tribes now lack ci'.il jurisdiction over non-lndinns and non-Indian
firms as well. l' frustrating zoning, environmental regulation, and the enforcement
ol public health and safety standards on reservations. Without the power to
protect reservation residents, tribes cannot maintain political Ictjirim.icy. '
Interpreting Kfcctit Ln~-$ ami Case*
\Vhcre. then, do congressional and judicial decisions of the past twenty
years, not to mention the previous two hundred, ieave Indians- 'I'here are anv
number of ways to interpret the Indian Civil Rights Act -as it is reflected in the
major Supreme Court decisions of Sunn; Clara Pueblo and Qliphant. The
assiniil-.uionist perspective views the net, together with the Major Crimes Act
(18S5). as making "drastic inroads on the judicial sovereignty of the tribes." :
According to this line of thought, tribal courts are too expensive and — despite
the historical rationale for special status — inequitable, in that they separate one
ethnic population from the genera! court system of the United States.
Another view regards it as appropriately limiting, rather than obliterating.
tribal sovereignly. "The answer lies in tying tribal power to its purpose." this
argument goes. "Thus limited, the exercise of tribal power would have no
impact on non-members, yet such exercise would be unfettered by congression-
al supervision within its proper sphere. "'' It is proper, then, that tribes have
jurisdiction over members (Santa Clara Pueblo) but not over nonmembers
Yet another interpretation emphasizes the protectorate relationship, "where-
by tribes retain their political independence except as limited by express
provisions in the federal statutes, treaties or by [inherent] restraint.1;""' between
the federaj government and the tribes. There is some feelinc that the rights
specified in the Indian Civil Rights Act should be applied nnd interpreted in the
same manner as those outlined in the Bill of Rights.' ' Any disputes between the
two should be resolved by Contiress or by flexible standards determined by the
courts.
The Indian Civil Rights Act places limits on the
power of tribal governments by »uarantceins certain individual rictus to all
persons within tribal jurisdiction. Nonetheless, the Supreme Court has asserted
that these limitations were intended to strike a balance with, and not to override,
the well-established federal policy of further Indian self-government. 6
Each case must be resolved on its own merits, and precedents are to be avoided.
It is recognized that federal authority should not ordinarily intrude on the
sovereignty of a tribe.
-------
CONTKMPORARY NATIVE AMKR1CANS 57
Ff the Indian nation is found to possess a decree of sovereignty sufficient to support
the conclusion th.it it expects to conduct its internal atYairs tree from federal
regulation, then no [federal] civil remedy should be implied under the Indian Civil
Rights Act.
"Sufficient" sovereignty derives from several sources: the absence of n congres-
sional act denying ir. treaties specifically asserting it, or rhe persuasive power of
a strong extant tribal government. "Absent Congression.il mandate, the courts
should be reluctant to interfere \vith the evolution of Indian governments that
Congress is presently supervising." *
This leads to another, more positive interpretation of the Indian Civil Rights
Act: in a perverse way. by limiting tribal sovereignty. Congress reaffirmed its
existence. w Though nontribal members arc excluded from jurisdiction by
Olipbanr, the residual authority of Indian courts to try civil actions exclusively
within their domain persists, as upheld in Santa Clara Pueblo. It would seem by
this standard that a continuing refinement of the meaning ot tribal sovereignty,
and not a total usurpation of it. is underway. Akin Ziont/. observes:
The Indian Civil Rights Act remains, of course, an imposition of values of the
dominant American culture which sharply conflicts with the tradition of many
tribes. But Martintz I". Santa Cl^nt Pui/'I'j/ allows the tribes to implement the
Indian Civil Rights Act in n manner which preserves their ability to decide
difficult questions in accordance with tribal values, and more importantly, in a
manner consistent with tribal sovereignty.*"
There are still other, more novel and intriguing ways to interpret the act.
Some, like David Robertson, sec it as illustrating the "intention of Congress to
bring the tribes within the conceptual sctame of federalism while simultaneous-
ly making more secure their right to tribal autonomy. As such it constitutes a
new policy, not directly descended from either the separatist or the assimila-
tionist line.""1 This seems to correspond with rhe import of the Wheeler ruling
(1978),"2 which determined that successive state-federal and tribal-federal
prosecutions do not constitute double jeopardy, since jurisdictional authority
derives separatelv for tribes than for courts using Western modes of justice.
Michael Gross argues that Congress should mandate that tribal actions parallel
American "notions of fairness, including notice, an opportunity for hearing, and
ascertainable standards for decision" to protect individual Indian groups or
communities "in their struggle for local control of important government
services, especiallv education."*' Hut it seems clear that whenever the United
States deals with Indians in their capacity as individual American citizens, their
dual, tribal status is at a disadvantage. No other group in this country exists in -
this dichotomous position, and therefore most non-Indians, including lawmak-
ers, do not understand it: but from a Native American point of view, the
advantages of dual citizenship are theirs by legal contract and congressional
ratification."4
There are some additional significant congressional actions falling somewhat
outside the general focus of this paper that should be noted. In 1975 Congress
fulfilled parr of its obligation to honor promises made forty years earlier, as part
of the Indian Reorganization Act, by passing the Submarginal Lands Act
-------
5S M1CHAFI. A. DORRIS
Amendments (P.L.. 95-114). This act returned 4SO.000 acres of land, almost all
of which existed within rhe boundaries of the rcscrvntions of some eighteen
tribes. Further, it passed in 1974 the Indian Finance Act (P.L. 93-262), thus
creating the largest source of federal loan capital ever made available to Indian
business enterprises. Once again, a pledge made in the 1950s but never
adequately carried forth was recalled and acted upon.
In the field of education. Congress passed in 1972 the Indian Education Act
(Title IV of the Educational Amendments of 1972. P.I... 9.?-.? 181). creating the
Onice of Indian Education and the National Advisory Council on Indian
Education. The goals of this act include bilingual>bicultura! enrichment pro-
grams, teacher training, and adult and early childhood programs: the act also
stipulates a hiring preference for Indians. Three years later, the Indian Sclf-
Detcrmimtion and Educational Assistance Act (P.L. 95-638) further placed in
the hands of local communities responsibility for, and control over, the
education of Indian children.
In 1976 Congress passed rhe Indian Health Care Improvement Act (P.I,. 94-
45"), a far-reaching piece of legislation designed to improve the le\el of health
care delivery on reservations and to train Indian professionals in modern
medical techniques. The Indian Civil \\Vlfare Act (ll>"X IM.. 95-60S) was
aimed at clarifying jurisdiction over dependent Indian children. It acknowl-
edged the authority of tribal courts over child custody and related cases.
Finallv (also in 1978). Congress at long last passed the Native American
• «- ^ i
Religious Freedom Act (P.L. 95-541). which mandated that federal agencies be
restrained in all activities from enacting policies that would interfere with the
practice of traditional Indian forms of religious expression.
Two things should especially become clear from even a brief review of these
bills. First, all stem directly from treaty agreements reached long ago; the rights
to adequate health, education, and protection of lands derive from the trust
relationship between Indians and the United States: nnd it stands to reason that
Indian sovereignties have a clear right to worship as they choose and to control
the welfare of their own children. In other words, there is nothing ne~ in any of
this legislation—it simply fun hers promises made implicitly or explicitly at a
previous time. Second, it is significant to norc that all the bills are written in
such a way as to suggest that Congress believes and attests that Indian tribes
will persist in a special and unique poliric.il status over rhe long-term future.
There is no suggestion that any of the provisions exist only for a transitional
period, to a time w hen the trust relationship will cease to apply. Thev are in this
sense the true federal repudiation of the policy of termination, and should act as
a cornerstone to future developments.
The Courts, Indian;:, and Other ;\ mcricaw
A greater degree of judicial activirv regarding Indians has' taken place within
the past twenty years than in anv previous equivalent period. A good part of the
reason for this explosion in litigation must be that there is a greater awareness
within the Indian community, not only of the rights that proceed from treaties
and legal precedents, but of the means by which to assert claims and to protect
rights in court. There has been a dramatic increase in the number of Native
-------
CONTEMPORARY NATIVE AMERICANS 59
American attorneys and in the number of non-Indian lawyers specializing in
Indian law. And national Indian legal and advocacy organizations, such as the
Native American Rights Fund, the National Indian Youth Council, the
Institute for the Development of Indian Law. and the Association of American
Indian Affairs have pressed cases and research of all types.^
The one million*" American Indians constitute only one half of one percent
of the American population. But when they challenge or are victorious in court
over other, more populous and powerful croups, they soon cense to be regarded
as emblems of nobility and bygone days. Their non-Indian sympathi/ers seem
positively irate when they realize that Indians still expect treaties made long ago
to apply, and are more chagrined still when the courts agree. Barsh and
Henderson, as well as Sam Deloria. director of the American Indian Law
Center at the L'niversiry of New Mexico, have noted that "Indian policy runs in
cycles. After a generation of relative security comes a period of intolerance.
confrontation, and confiscation. In rime, the country confesses error and makes
some small attempts at tribal reconstruction and preservation. Tribes regain a
part of their former intellectual, political, and technological strength. Then the
cycle repeats.""7
During the 1960s. Indians in the abstract were regarded fondly by the
general public. A spate of "plight" books, capped by Dee Brown's Siny My
Heart At \\onndfd Unte** an appealing but somewhat simplistic and one-sided
recounting of Indian history, had the country beating its collective breast for the
demise of the noble Red Man. Thomas Berger's Little Kin Man"'' in both book
and film versions dramatically recreated the good old days gone by. and the
quasi-mystical writings of Carlos Castaneda convinced sundry hippies, roman-
tics, and Californians-of-all-rcgkms that Indians were somehow genetically
endowed with extrasensory po\\ ers. Bloominodalc's department store in New
\ork City stocked and sold hune quantities of beads and feathers, and Native
American chic was in.1*1
The love-in ended abrupt!}', however, when it became clear that contempo-
rary Indians were not content to play the role of cultural symbol or caricature.
A variety of events and court decisions simultaneously shattered the image of
the "groovy Indian." Since World \Var II. an increasingly .sizable Indian
population mieratcd to urban areas in search of employment and other
opportunities.^ encouraged by the somewhat ill-conceived federal Urban
Relocation Prosram initiated in the 1950s. In the past twenty vears alone over
two hundred thousand Indians have left their reservations and moved to such
metropolitan centers as Los Angeles. Minneapolis, the Bay Area, Seattle,
Denver, Chicago. Boston. New York, and Buffalo. Today nearly one half of the
total Native American population in the United States could be classified as
urban, though studies strongly suumcst that the majority of these migrants
maintain significant fies with their home communities.
The major reason for this demographic shift is a search for improved
economic opportunities. Research conducted among Indians in both San
Francisco and in Denver''2 indicates that the vast majority would prefer to
return to their reservations if work were available there. Indeed, there is much
evidence that urban Indians adjust to the city onlv marginally, regardless of the
duration of their stay. If anything, the pressures of city life, coupled with a
-------
60 MICHAEL A. PORRIS
desire to resist "psychological assimilation." may spur and reinforce ;m increase
in Indian self-identity and a rejection of non-Indian values.gj
Such an attitude is clearly nor rewarded by the dominant society. Theodore
Graves found that the arrest record for Indians in Denver \vas some twenty
times the Anglo rate and eight times the Spanish-American rate."4 Manv Native
people born and educated within their tribal communities never experienced the
reality of being a minority before they moved to the city, and it can be a
traumatic event. There is a vivid fictional portrayal of this situation in N. Scott
Momaday's Pulitzer Pri/.e-u inning novel Hoiw .\faJf of l)an-ii.v' and several of
the short stories of Simon Ortiz describe it as well. For urban Indians, there arc
many ambiguities concerning treaty and other legal issues of jurisdiction,
accountability, and right. It is not clear what benefits (e.g.. health and
educarion) ordinarily available on rhe reservation they are entitled to, or for how
long. Cut oft" from the lamer tribal community, they tend to seek out other
Indians, minimizing past cultural differences; but. as J. H. Stauss and Bruce
Chad wick point out in their study of Seattle, "the Indian who has lived his
entire life in [the city], as well as the migrant, does not surrender his Indianess
(sic) and blend into white society. . . . Although economic improvement docs
result, most migrants live a fairly marginal existence in the city \\hile clinging to
most of their traditional values."'"s Urban migration alone is not a route ro
cultural assimilation, but it does have other far-reaching social consequences.
By the late 1960s, a new generation of young people had grown up in cities.
at the same time maintaining their ties to reservation communities. As they
reached adulthood, they organized to form pan-Indian activist organizations
such as the Indians of All Tribes and the American Indian Movement. The
former group occupied and demanded title to Alcatraz Island; the latter rook
possession first of the Bureau of Indian Affairs headquarters in Washington
(which they termed the "Native American Embassy") and then the hamlet of
Wounded Knee. South Dakota. Both actions, though symbolically meaningful
in and of themselves, were grounded in Indian interpretations of the rights and
sovereignty granted to tribes under existing treaties, and were carried out to call
attention to the fact that the government was not living up to its part of these
bargains.
At the same time, those same treaties were being tested and upheld in
important court cases and congressional actions. Tracts of lands of various
magnitudes, ranging from the relatively small Taos Blue Lake"" to the massive
•40 million acres of the Alaska Native Claims Settlement Act,v* were returned to
Native peoples on the basis of their treaty or aboriginal rights. The Menominee
Reservation in Wisconsin, terminated in response to I lo.use Gmcurrcnt Resolu-
tion 108. was restored.w Other significant land claims cases were advanced,
with varying success, in Maine,|l<" Massachusetts, New York."1 Rhode Island,
Connecticut, and South Carolina.
In one of the most famous, controversial, and far-reaching decisions of the
1970s, L'.S. v. Washington (1974), Judge Boldt of the 9th Circuit Federal Court
recognized the inherent superiority of treaty rights over tie privileges of
ordinary citizens, and maintained that the stare could regulatesrcary-prorccted
fishing only if it could be shown that it could not obtain rhe desired ends of
conservation bv anv other means.'"" In this historic case, recendv substantially
-------
CONTEMPORARY NATIVE AMERICANS 61
upheld by the Supreme Court in Washington v. Washington State Fishing Vessel
Association™1 the Court decided that treaties gave the tribes the right to take
between 45 and 50 percent of the total amount of harvestable fish in the state.
In the area of water'rights.104 some fifty Indian suits have recently been filed
in the West and Southwest. These assert, largely on the basis of the Winters v.
L'.S. (1908)'°' decision, that treaties guarantee the tribes as much water as it
takes "to make their reservations nourish." and that they have prior claim on the
use of any waters that lay under or flow by or through their territory. The so-
called Winters Doctrine gives tribes "command of the lands and waters"—
control of all their beneficial use whether kept for hunting, for grazing herds of
stock, or turned to agriculture or other forms of development. In the system of
Western water law. where first users have prior rights, Indian tribes, by virtue
of their ownership of the lands from time immemorial, or because the
establishment of a reservation generally predated any contiguous permanent
settlement, have a first use that makes their water rights paramount over those
of all other users. In areas where tribes, such as the Pueblos, hold unextin-
guished aboriginal land title on lands where waters were used in precontnct
times to support agriculture (through irrigation and so on), there are "concomi-
tant appurtenant unextinguished aboriginal" water rights that supercede all
others.
Needless to say, this list of asserted claims has won Indians few friends
among those most competitive with them on a local or regional level. Backlash
movements have sprung up in a number of states, many of them part of an
organization euphemistically titled the Interstate Congress for Equal Rights and
Responsibilities. As in the past, equalization of Indian rights translates to mean
reduction of Indian rights, that is. concession of those elements of special
privilege that derive from agreements reached in the eighteenth and nineteenth
century treaties between the tribes and the United States. A booklet widely
circulated. Indian Treaties/American Xigbtman, by C. Herb Williams and Walt
Neubrech"*4 regards residual treaty rights as a threat to civilization-as-we-
know-it, and calls for their speedv demise, primarily because they interfere
with current majority "rights" in some areas.
A bill introduced in the 95th Congress by Rep. John Cunningham (D-
Washington) called for the abrogation by the president of all treaties with Indian
tribes entered into by the United States.107 It was predictably titled the Native
American Equal Opportunities Act. and called for the unilateral termination of
the trust relationship between the tribes and the federal government, and the
liquidation of all tribal lands and assets, which would be distributed to
individual tribal members. This act received little support in Concress and was
summarily defeated, but to many Indians it seemed ominously to portend a
rebirth of a terminations philosophy. To demonstrate the depth of their
opposition, Native people from throughout the United States participated in a
1978 cross-country march on Washington to lobby in favor of the maintenance
and further realization of Indian treaty rights.
The insistence on the right to special status distinguishes Indian "activists"
from those of virtually even- other minority group, and is often a bone of
contention between Native Americans and their potential supporters. To some
it appears, in the words of the Supreme Court of the State of Washington, that
-------
62 MICHAEL A. DORRIS
"the law has . . . conferred upon rrihal Indians and their dcsccndcnrs %vh.ir
amounts to titles of nobility, \vith all that entails."""1 From the Indian (and
legal) point of view, however, Indian tribes granted rights to the United States,
and thereby to a degree remain in control of everything not expressly
Granted. !"Q whereas all other croups seek rights from the various branches of the
American government. Moreover. Indians do not want blanket "equality"; they
feel they have paid \vcll—and in advance—for the fe\v special rights and
privileges accorded rhcrn. and are reluctant to wipe the slate clean and join a
common pool of "citizens." The right to self-determination on the part of an
Indian tribe is virtuallv the opposite of equal access.
In terms of their "demands and their rationales for these goals. Indians are
for the most part in sharp contrast with other groups. For one thing, whereas
oppressed groups traditionally seek the overthrow of. radical change in. or
major new concessions from, the government that has discriminated against
them. Indians are notoriously antirevolutionary. They want actualized what
they have been promised on paper for one or two hundred years. Their best
hope lies in the honoring of agreements made by the United States when Indian
power was relatively stroncer. Though there has been some hopeful consider-
ation of the prospects of United Nations intervention in their behalf, or other
such developments, pragmatic Indians led they are unlikely soon to be in a very
advantageous bargaining position, given their numbers in the total American
population. Native American tribes have often fared best in courts where
conservative judccs apply the letter of the law.
Indians feel that obligations arc owed them not merely because a govern-
ment should be fair and humane toward all its citizenry, but more important,
because this government is obliged to keep existing promises and fulfill active
contracts. Even' major tribal or pan-Jndian organization, whatever its self-
presentation or tactics, is committed at base to the same thing: exhorting the
United Stares to abide bv treaties, statutes, and other formal understandings
that have been made. As such, Indians make poor coalition partners with other
ethnic minority groups that seek structural or innovative changes in government
and law.
Finally, Indian tribes are by no means united in their short-term goals or
strategies. Though tribes have cooperated in various constellations on one or
another policy (and are united in opposition to others, such as terminarion),
tribes are individually defined in their relationship with the American govern-
ment by their specific treaties, and as a result, arc occasionally competitive with
other Indian nations. Many theorists have argued that a unified front must be
sought and maintained by all Native groups. Such a plan of action, they say, is
the only route to not only success, but survival; but people have been saying the
same thine to Indians for two hundred years, to no avail, and Indians are still
very much here.
Few non-Indians truly realize what every Native American knows absolute-
ly: that historically, culturally, philosophically, legally, and in many other
respects, tribes really are distinct, and it is in their unique qualities.that their
strengths and traditions reside. Indians are not a single ethnic group, and show
no signs of becoming one. They have been forced to respond to uniform
American policies, but the pattern of their reaction has varied greatly from tribe
-------
CONTEMPORARV NATIVE AMERICANS 63
to tribe. Although such a reality has its obvious liabilities, it may not be
altogether a disadvantage. One million Indians, even //united, are not likely to
aliect profoundly the American nation with its 250 million people. However,
\vhen the federal government is mandated, as is no\v the case, to supervise and
live up to two hundred separate, diverse treaties, the number of people involved
matters less. It is much more unwieldy to control a heterogeneous Indian
population than to deal with one homogeneous group.
If nothing else, it was widely recognized in Indian tribes throughout North
America in the precontact period that tribal members had pervasive and
inherent rights to make individual choices. "United fronts" are difficult to
achieve even within tribes, where competing factions (clan versus clan,
"traditionalists" versus "progressives," and so on), each believing that it
represents the best interests of the group, vie for ascendancy and influence. On
a national scale, this incipient divisiveness is discernible on many levels.
Though increased mobility and the existence of national Indian organizations
facilitate frequent meetings of leaders and others from various tribes, few strong
national or pan-Indian leaders have emerged who have remained in authorita-
tive roles for Ions. Perhaps it is inevitable that no single individual, the product
of a particular tribe and experiential background, can successfully represent
such a diversity of interests, but the short life of national Indian leaders has
become a standing joke—the Indian crab syndrome110—among tribal people.
All this is not to say that Indians cannot and have not worked together for
common goals in particular cases—only that the Great Indian Alliance, long the
bugaboo of paranoid pioneers, is no closer to realization today than it was two
hundred years ago.
Future Prospects
At the conclusion of the 1970s, American Indians seemed to be at a cross-
roads of rather major proportions. Statistically they remain among the poorest
economically, the least employed, the unhealthicst,111 the lowest in education
and income level,": and the worst-housed"5 ethnic group in America—but
there are signs of improvement in each area.
. Vet. somewhat to their own and the federal government's surprise, Indians
find themselves possessed of undreamed of resources. The Great American
Desert, thought to be the ideal out-of-the-way spot to locate Indians in the
nineteenth century, turns out to have more in common with Arabia than
anyone at the time imagined. Of the °0 million acres owned by Indian tribes on
over two hundred reservations in twenty-six states, it is estimated that over 53
million of these acres contain a good deal of the raw materials this nation will
need to'achieve enersy independence.114 Nearly two thirds of all the low-
sulphur coal reserves in the country are contained either on or near Indian land,
and almost all of the potential uranium reserves are found in Indian Country. "s
Other tracts of tribal lands contain, or are adjacent to, large copper reserves,
have significant gcothermal production, or have the potential for lucrative oil
and gas production.
More specifically, the Southern Utes in Colorado, the Uinta-Ouray Utes in
Utah, and the Blackfeet in Montana all have gas arid oil reserves, as do the
-------
64 MICHAEL A. DORRIS
Shoshones and Arapaho in Wyoming. The Bannocks and Shoshones, whose
reservations are located in Idaho, own one of" the richest phosphate deposits in
the \Yest. The Navajo and the Hopi reservations in the Southwest contain vast
oil and gas fields, as well as uranium reserves, and so much coal that the Navajo
tribal chairman. Peter MacDonald. has estimated the quantity to be half of all
strippable coal in the United States."6
In 1975 twenty-five Indian tribes formed the Council of Energy Resource
Tribes (CERT), whose coals are the promotion of the well-being of member
tribes rhrough the protection, conscription, control, and prudent management
of natural resources. CKRT intends to assist its members in developing the
capability to manage their resources for their own benefit and according to their
own values."
Perhaps the major legal questions to be addressed by Indians and their
representatives in the coming years will be those that determine who will
ultimately control these resources-—who will decide if and when and where and
how much to develop, and who will have the final say if a tribe and the federal,
state, or adjacent city government disagree over priorities. Conceivably,
Congress could always attempt to assert plcnarv power, claim eminent domain,
and unil;uerallv breaking its trtatv promises, confiscate "in the national
interest" the exhaustible mineral resources of Indian tribes. Certainly that
would be in one tradition of American Indian policy. Or the courts could
further define the reserved richts of tribal sovereignty, protecting the trust
relationship and underlining the self-determination ability of Indian nations.
Whichever course is followed—grasping self-interest or respect for the
law—Indians will once again play the role of "the miner's canary," testing the
integrity of this nation's promises. There is little doubt that many tribes will
experience a degree of affluence in the coming few years, unparalleled since the
European invasion. There will be changes and developments in tribal communi-
ties—but the tribes have always been dynamic, appearing to be static only in the
nearsighted eye of the culture-bound observer, who believes that the only real
Indians live in museums. As some tribes begin to at least achieve a degree of
economic parity with other segments of the American population, it is likely
that some non-Indians will once again assume that sovereignty and the trust
status should cease to apply. Jt is then that the real mettle of the American
system will be tested: has the bitter experience of the past two hundred years
taught anything, or will the same disfranchisements be attempted once again?
The American Indian Policy Review Commission, founded by Congress in
1975 and instructed to conduct a thorough review of all aspects of federal Indian
policy, concluded in its Final Rfport:
The cornerstone of Federal Indian Policy can be stated simply and clearly. From
the very beginnine of this country, the law has rccocnized that the Native people
in this countrv possess a richt to exist as separate tribal groups with inherent
authority to rule themselves and their territory. Althoutrh the United Stales
necessarilv exercises predominant power, it has time nnd again bound itself to
respect this basic Indian right and has assumed the responsibility to protect the
Indian people in the possession of their lands and in the exercise of their rights.
Consequently, self-aovernment (i.e.. sovereignty) in conjunction with the trust
relationship, is truly the inheritance nf Indian people. Although times ami
-------
CONTEME'ORARV NAT1VK AMERICANS 65
conditions chance, the United States' adherence to a policy of continuing to keep
faith with the Indians on this fundamental level will always remain the foundation
of Federal Indian Policy.11"
Never has there been a greater misnomer than to call Indians the "vanishing
Americans"; against the greatest of odds over the past five centuries they have
proved their staving power. Today, like the colonists who ("ranted the American
Constitution, "tribes hope to secure their political rights on legitimate historical
and legal grounds, out of continuity rather than novelty. The foundation of this
approach is and was an appeal to charters.""* From their first grant of land to
the Virginia Colony to acceptance of the Indian Self-Determination Act. almost
every international agreement the tribes have ever entered into \\ ith Europeans
or their descendants has .in whole or in part affirmed the principle of
sovereignty. Tribal allegiance and identity have weathered disease and removal,
allotment and termination, war and indifference. Of all the myriad rich and
diverse customs that arc identified with one tribe or another, a single tradition —
survival — unites them all.
This paper has liecn prepared with (lie injuries anil aJi ice <>I Ann Catherine Bnvcc. Ada Deer.
Michael Green. Rayna Green. Yvonne Knight. Orcn Lyons. Alan Parker. David Warren, and
Pcrersen Zah. Gratitude is expressed to them for their ideas. suL'Cescions. and criticisms. All
shortcomings or errors arc my own.
'Thom.tsC. Patterson. Amenta's Past: A \e:~ UV/«M»ir6iYjA>jv(Glenvicw. III.: Scott, Forcsman.
(97J). pp. 22-27,
•'See, Tor instance. E. B. Lcacuck and N. O. Lurie (eds.) \orrh American Indians in Historical
Penpicti:e (New York: Random House. 197 1 ): Wendell 1 1. Oswalt, Tkif Land HOT Theirs (.Yew York:
John Wiley. I97{<); or Robert F. Spencer. Jew I). Jennings, et al.. The Satire Americans CXv\v York:
Harper \ Row. 1 978).
See. irir instance. \Yilcomh M. Washhurn. The Indian In Amenta (New Yurk: 1 larpcr S; Row,
1975). pp. 67-11(1.
'Finnish. Magyar. Basque, and Msronian arc the nnn-Indo-t'.uropcan languages spoken by
contemporary Furopcans.
•'For an excellent discussion of this topic, see Ronald Samlers. Lost Tribes and Promised Lands: The
Origins 'if American Ratam (Boston: Little. Broun, I97K).
''.Marcjret Aston, The Fifteenth Cf»ttir\: The Prospect of Europe (New York. H.irconrr. Brace &
World. I9oi<). pp. 9-)b.
"Wilcomb K. Washburn. Red Man's I jind\\'hite Man's IM-". A Si«J\oflhe I'ast and Present Status tif
ibe AmcrKun Indian (Nc« York.- Charles Scriljner's Sons. 1971). pp. 3-23.
"I am indebted to Professor I lenrictta Wliitcman. a Southern Cheyenne and chairperson of the
Department of Native American Studies at the L'nivi-r5Vj. pp. 1-27.
'"Dr David Stinebeck. professor of American Studies at the University of Rhode Island,
discussed this topic at a lecture delivered at Dartmouth College in 1975.
"Thi> attitude pvrnieattA ilie earl\ jntlint|«i|in;icnl thcorx nf Sir F.dmund Tylor in Knuland and
of Lewis Henry Morean in the United Sutev.
'•'Michael Dorris. .S
-------
66 MICHAEL A. DORRIS
include tuberculosis (a rate of 15". 4 cases per t.OOO population tor Indians compared with n rate ot
! 7 cases per l.liiiO population lor the U.S. population a<;i uhole), cirrhosis of the liver, otitis media.
and innucruj. It is also interesting to note ihe e.irly American thenry that Ciixl sent smallpox ami
other diseases to clc.ir out Indians. For a fuller discussion. sec Hoy Harvey 1'e.irce. .^r,vyj,-/« i/«,/
Ct'.-ilizJlion. A .SVii/v w riv Ittilua JnJ fix American M:nJ (Baltimore: The Johns I lopkins University
Press. 1^65). pp. l->~.
''E. VVatrner Steam and Allen K Stc.ir:'. Thi Ere.'t of Sn:j!;f»i\- on the l)cit:i:\ nf ibi Amerindian
(Beistwv Bruce Humphries I945>. pp. 44-4;. ,i!>o. Robert VI. Ullcv niul U'iloonili K. \\.ishliurti.
Tiv InJan iV,:nr(Ncw York: Simon jnd Schuster. W"l.
16F.va A. Spcarc. The Injuns nl' .\r- ll,;n:p;hiic (l.idleton. N.I I.: Chester Printing O>.. I'^Vi).
1 For a thorough Jiseussion of the mcthiKlolncv of Njtue American Jenii>^r.i|>hic estimation.
see Henry Dobyns. "Kstijnatmc Ahoriuip.al Amerie.m Copulation: An . \prais.il of I eebniijuev «ith
3 Nc« Hemispheric Msrinuic." Current ,\Kthr:fnl'^\. vol. " (196iS>: >V^-416; J|MI. Wilbur R. l.u'nbs.
"The Tip of the IccU-rc: Pre-Coluir.tnan Indian Dcmnirraphy Jnj Some Implication^ for
Ren.
•'See. for instance, hnrc Siitton. taJun LunJ 'l\'n::ic: Hwli>,>r,:*hi K<<.i\> int.! a l',ui,le in rh
Lutraiurc (New York: CJearviater Publishim: Co.. WM. pp I?-44.
-'-'Institute fur the Develop, 'em i>f Indian 1 J« . ()'..'. f'r--.!>tc»i!—l'r;*f«i /•e
Act is found in the Act of June 30. Iv>4.c-Vil, #1^. 4 Stat. T?u. One misht speculate that the newly
created federal government used this act as a means of asserting its I.—H smereiant) . paralleling
federal, as opposctl to .state, authoritv \iith the iiireaj\ t-tMisheJ so\ erei'jnt\ of Indian nations.
•^Richard Peters (cd.l, Ttf Ctist tjf tfrt Chtr'ikct \'jnnn Ayainst th- ,Sii.Yc' '-; ' Ci'"''«iiJ. Argued and
Determintd ar ikr Stiftrtmc Court of the L 'niltJ Slates iPhiiadelpiiu: 18M)pp. 15>-56.
•"31 U.S. (6 Pet.) 515 (18121.
"''Russel L. Harsh and James V. Hendcrvm. Ttv RruJ: faJiaii Trihts ami I'oltncal Liberia
(Berkeley: University of California Press, l^'ii. p. 2?i6.
•gFor a detailed case study of oral historical tcstimonv, sec Roxannc Dunhar Ortiz led.). The
Crtdt Si'M .\atiw: Siiniif in jiijymcnt >>n Amn liookx. IT").
)0Congrc:ss, in an obscure rider to the Indian Appropriations Bill (U.S. Statutes at l.;ircc.
16:5W. March 3. IS" I ). outlawed further treaty-making « ith Indian tribes. Thereafter rever\ ations
were created by executive order: see "Tribal Property Interests in F.xixutivc Order Reserv .uions: A
Compensate Indian Hicht." I'tilt /^:;- Rtrir.. 6Vtl°6lH: 6:"-42.
"Approximately 155 million acres remained in tnlx.-s located in uhat are toda\ forty-eight
contiguous states at the time treaty-making ceased.
'"See Robert A. Trenncn. Jr.. AlKnuir.'t t'i F.xtinai'in: I'eJfnil Indian f'iitic\ and the Hiyianiuys '/
/if Rtstr. attan Svutn. 1^-H-fl (Philadelphia: Temple University Press. !';"?»
Annual Address to the fuhhc of f£>i Ijkf .l/wvr-'i CwJeniKt (Philadelphia; Indian Rights
pp. A-".
i4D. S. Otis. The L)a-.e.< Acr and tht Allotment >,f Imiian LinJi. Francis Paul Pruehii. led.)
(Norman: University af Oklahoma Press. IV'J". pp. 5-6.
"Arrcl! Morgan Gibson. Thf American Indian: l'r. C.
F leath and Co. . IVi-dt. pp. 5'K'-5')>.
'^Institute for Government Research. 7'^r i'rnhltn: ;{ Indian AJmiiiMrjtnnl Malt imore: The Johns
Hopkins University Press. |V>|.
1 Gibson. Tin Aaierifun Indian, p. 5.U>.
'"U.S. Statutes at 1-argc, 4>-:ty«4-sx. June \*, |9i4.
'"'For a discussion til some of the prublenis of conception and implementation of the Indian
Reorganization Act. sec Angit- Detxi. A //w-n r>f tht Indians nf tkc L'mteJ StattK Norman: University
of Oklahoma Press. UThi. "pp. 53V-42.
'"Annual Ktfxtn i,f th iVvfirmn nf tbt Inttrmr. I9M. pp. 7K-XJ.
4|U.S. -Starutcs at Urt'c. «:•»!');. Aueust 1. l°53. '
4IU.S. Statutes'at I .a rye. 6~:5Xx-VI>. August 15. I'v53.
"Barsh and 1 lendcrsun in Iht K-aJ: Indian Trihft and P'Jittcal l.thcrtt note that the Indian
-------
CONTEMPORARY NATIVE AMERICANS 67
tinn Act poliov of repurchasing allotted reservation lands was adopted only a year after
the twentieth century low point in the price of U.S. farmland llV.'M (p. 289).
J'Oi the l.trgcr reservations, only the Menuniiuec and ihe Klamath were actually terminated.
For a discussion of the history ol" the policy in the former case, sec Deborah Shames (cd.J. freedom
-:tb Ki'sfr-.-.iriiiu (Madison. Wise.: National Committee to Save the Menominec People and Forests,
19721.
""Felix Cohen. HanJfaok nf f-'eJiral liiJijii IM-~- 1971 (Washington, D.C.: U.S. Government
Printinc Otricc. I°5KI. p. 12'. (First edition. 1940).
4 Some tribvs or confederacies te.s;.. !l»pi ami Iroquoisi have on occasion demonstrated their
conviction tli.ii they retain M>mc of the prerogatives of external .sovereicntv thro>icrh acts such as
separate declaration of war on the Axis powers in 1941 and the issuance of trihal passports for
certain typo »l international travel. The latter have, in recent ve.irs. Keen accepted by at least the
Kiirnpejn n.iiinn>
"Institute for the Development of Indi.tn Law . Olii Pnhxnu, p .'.
*''.\meric.m Indian Polio Review Commission, final Hifuri. vol. I (Washington. D.C.: L'.S.
Government Priming Oniee. 19"). p. 6".
"'Charles Kappler icd I. "Treaty of I lopevvell « ith the Chornkees. 17S5." in Indian ,-\/iiirf: \jt-~s
ami Treaties, xol. 2. pp. 8-11.
]Mbid.
''C.biriihti Sjtivi '.'. Ct'rryiii. \\'«n(Sifr :: (jiorfij. HMfii '. An.
M-;('L'Kjr*Ju :. .\ri;',na Tax (.taninwin. Fmbfr :. l)ifir;;t Court.
.""Institute for the Development of Indian Law. Old Prt,i'U>«/. p. .'.
"U.S. Statutes at Larw. 4?::??. June :. 1V24.
"I6J L'.S }~f> tl«W,i."
'"272 I1. 2nd. 1>I llnth Cir.. I959>.
"Hiid.. |>. 154.
'"L'.S. Statutes at Larire K2:"-M. I'M>'.
"'Hearings on S. 96I-V6N In-fore the Subcommittee on Constitutional Rights of the Senate
Committee «n the judiciary, join ContTes*. 1st Session.
'''Hearings bcfurc the Subcommittee «in Constitutional Kit:hts of the Senate Committee on ihc
Judiciary, V 1st Congress. 1st Session, p. 15.
*'As always, unless expressly speciried, tribal sovereignty prevails.
A'h remains unclear uhcthcr or not this amendment applies retroactively to those states already
operating under 2n-0.
~9$ S. Cl. 16'(MI97l<).
''Ibid., p. (,*>.
"'U.S. Statutes at Large. 88:220?. 1975.
'"Ibid.. Title 25. Section 4?0 U> 1 and 2.
**<)* S Ct. KOI U9-?i.
"''U.S. vs. U'hecler. % S. Ct. lti"9. inv, (I97H).
"Trans-Canada Enterprises Ltd. v. Muckleshoot Indian Trit)e, District Court for the Western
District of Washington. Civ. no. C~~->">2.\l lluly 27. |V7>». as ijuoted in Barsh and Henderson.
'Bar^h and Henderson, p. 291; sec also Russel L. Barsh and James Y. Henderson. "The
Betrayal: (j!i>thjrit :. Suijuamt'h JnJ:un 'fnhcand the HunriiiL' of the Snark." Minntsom I'-a— Kc.ie--. 63
i4i (April IV7yi: 6O9-J7.
'Samuel J. Brakvl. Auitn;an IriJiai Trihal (.'.nuns: The Oats of Separate Janice. American Bar
Koundalitm. l°~*. p. K.
"'Frederick J. Martonc "Of f'ovver and Purpose." S'ttrt Dame /jtn-\tr. 54 (5) (June IV79): KJI.
'Robert Ci. McCoy. "The Doctrine nf Tribal Sovereignty: Accommndatina Tribal. State, and
Federal Interests." Harvard Cr.il Kishti. Cr.il Liberties Lit--- Kc:i£~-. 1J (2) (Spring IV7K): 376.
'Ivan B. Rubin, "Federal Indian La«: Criminal Jurisdiction in Indian Country." Annual
Survey of American Iju. New York University School of Law, Issue J (1977): 5I.7-J3.
'McCoy. "Ihc LVxtnne of Tribal Sovereiunti'," p. >'/4.
' Implications of Civil RemeJies under the Indian Civil Rights \u," Michigan IA\Z RrviKc, 75
Ml(SVemlx.T. IV76): 250.
""Ibid., p. 525.
''Keith M. Werhan, "The SoverciL'nty of Indian Irilx:s: A Rcaftirmation and Strcnuthcning in
the 197(j's." S'ltrt Damt ljr~\er. 54 llHOctnbcr l°"»): 5-26.
" 'AK'in J. Ztonrz. "After .Warime:: Civj) KJL'hts Under Tribal Government." Lnitrrti/v if
California a; lh:isU~ Kc.ic-. 12 l.March \<>~:L'.S. v. Ulu-eler. V* S. Ct. 1079. IIJKrt (IVM.
-------
68 MICHAEL A. DORRIS
"Michael P. Gross. "JnJian Selt-DetcrminJtioii and Tribal Sovereignty: An Analysis of
Recent Federal Indian Policy." TctJf l*i- Kc.-it-. 56 (7) (August 1978): 1225.
^Credit for much of the material on the various legal views nf the Indian Civil Rights Act goes
to the painstaking research of Ann Catherine Boyec. currently a student at Dartmouth College.
s obligations as tru>tcc.
S"/J,"5 Ctnsuf ef PopuiiitH'it Suhitct Reports: Amernan ltijiji:< (Washington. D.C.: U.S. Depart-
ment o!'Commerce. 1973). Manv have susuestcd that this risiurc is an undcrcount. It so. the |9t)0
census should record a considerably larscr accrecate population.
6"Barsh and } k-nderson. Tbf K'.-jJ. p. 2.s9~
"'Dec Brown. liur\ Mi Htan c: \\eurJtii Kn« (New York. 1 lolt. Rinchart Sc Winston. 1971).
"Thomas Bergcr.'/.;f/fr 6V? Man (New York: Dial Press. 1964).
°°Onc might concliule that the trend continues w ith the popularity nf Ruth Bcehe i [ill's Hanta
Yo (Garden City, N.Y.: Doubled*)'. I9~°i; though generally panned by know ledgeable critics Iroin
an anthropological or tribal perspective, or both, the !xx>k has attracted a wide readership among the
um'nlWmcd public.
"For an interesting set of articles on this subject, seej. O W.id«1cll and O. M. Watson, Tin
Amcrxjn Indian n; (,'rhan Sh'iei\ (Boston: Little. Bnrnn. 19"I).
•Joan .\bliin. "Relocated American Indians in the San Francisco Hay Area: Social Interaction
and Jjidun Idcnfitv." Human Orfjmzjutna. -»(1964) 56--~l: and tor Dcnrer. Thefdore (iravcs and
Martin Van Ar>dale. "Values. Lxpcctaiion* and Relocation." Human Organi:aiion. 25 (1966): JlHl,
507; also Robert \Vcppencr. "Urban Kconomic Oppurtunitics: The Kxamplc of Denver," in Tiv
American India-! ir. L'rban .WiV:\. \\.uldell and \VatMin leds.).
*j. 11, Stmiss and Hruce A. Chaduick. "Urban liiJtaii Ad.ju>tincnt." American Itidwn Culture
andRtsiarcbJ'iHnial. 2 (J|(IW"V|: :.'-.'».
"Theodore Graves. "The Personal Adjustment of Na%'ajo Indian Migrants to Denver.
Colorado." Amtncan Ambnpotigiit. 72 il9"d): J5-5-4.
*'X. Scott Mornaday. H''US( Madt tfthirn (New York: 1 iarpcr S; Row. 1976).
"'Stauss and Chaduick, "Urban Indian Adjustment," p. 36.
*"L'.S. Statutes at Large. C-»:Nr-39. 1970.
""U.S. Statutes at Large. S5:C>^!<-72. 1971. For an excellent critique of the Alaska Native Claims
Settlement Act, sec Joint Federal-State l.and Use Manninc Commission for Alaska. Palict
Recommendations {Anchoraac: I9"°i
'"U.S. Statutes at La'rpe. *7:7«l rT.. December 22. 1973.
"y'See Passamaquoddy'Tribe v. Morton. ?2S F. 2d. 370 Jlw Cir.. )975).
""Sec Oncida Indian Nation v. County of Oncida. 4H U.S. 661 (1974); this case established
that federal courts could rule on violations of the 1790 Non-Intercourse Act. and opened the door to
subsequent litigation.
°"Scc American Friends Service Committee. L'tKummon Contmtrn: Fishing Rights of the
Mmklab'-'it. Pn^allup and SivjualH Indians (Seattle: University of Washington Press, 1970).
'"'"Washington v. Washington State Commercial Passenger Fishing Vessel Association," L'.S.
IJK: \\ttk, 47 t"?0) (July I. 1979).
""For an excellent summary article, see M. C. Nelson, The Winters Dixrrint: 70 Yean nf
Application nf "Rt!fr.rtT~ Vtater Rtykt; to InJian K.)>)<; eleven bills «crc intrnduccd in tlic 95th Conyress to
restrict Indian huntinc. fishinu. and land claims rights, includinc I1R 13.'29.
'"'See 73 Wash. 2d 67". 6>-', 440 P.2d. 442, 44* (196K). as quoted in Wilcomb K. Washlmrn,
School of Law. Duke University. 40 (1) (Winter. 1976).
'^"Barsh and 1 k-ndcrson. in Ttt Rt,ad, make an extremely interesting observation pertinent to
this point: "The federal government did not. historically, create the sovereignty of tribes. Acts of
Congress limited, modified, and channelled tribal powers, usually without tribal consent. The
termination of what Concrcss created should therefore result in an increase in tribal self-governing
powers. Instead, Conuress has acted as if the termination of tribal dependency results in the
dissolution rather than the emancipation of the tribes" (p. 2K5|.
"The text coes something like this: Two men were coming down rhe pier after a day of crab
fishing The White man had a lid on his crab bucket, but the Indian didn't. Said the White man to
-------
CONTEMPORARY NATIVE AMERICANS 69
the Indian: "I iow conic all your cr.ibs don't get out?" Replied the Indian, "They're Indian crabs! As
soon as one start* to crawl out. the others pull him hack down."
'"Lawrence Rosen. Foreword to Ttv American Indian and Tbt La~.. p. I. Thirty-eight percent of
Indians idcntilyine themselves in the l^~0 census had incomes below the poverty line; in the poorest
areas of Arizona and Utah this figure reaches upwards of 65 percent. Death from tuberculosis.
dysentery, and accidents occurs four times more frequently among Indians than among the rest of
the population Kmploymcnt tor reservation men. averaging 18 percent nationally, climbed well
above 3U percent in many areas.
"'Office of Special Concerns. Office of the Assistant Secretary for Planning and Evaluation.
Department of Ilc.ihh. F.ciiic.itmn and Welfare. ,\ Stinh nf SeltctcJ Socio-Eionnmic (.'.haracttristia of
Eikni( Mimriiiis Hi ikt l970C.ir,nif. -.'it. .>. Anuricas'luiHam, HEW Pub. No. (OS) 75-122. July
19T4. In educational achievement. 34 percent of Indian males were high-school graduates (compared
to 54 percent of all L'.S. malesl: percentages were I point higher, respectively, for Indian females
and all females. In income lev els. M percent of rural Indian men earned less than i4000 per year: 46
percent of urban Indian men earned less than i 400(1 per year: only 31 percent of all L'.S. men earned
less thin J4uiH) per year.
1' 'Testimony of Margaret S. Treucr l>eforc Subcommittee on Rural I lousing and Development,
Commiru-e on Hanking. Housing and L'rbun Aiiairs. L'.S. Senate, April 1, !WU. p. }. A IV70
Census Bureau report nn housing characte^i^tics indicated thnt ft2.4 percent of the housing units on
Indian reservations were substandard, compared tu 12.9 percent of the total L'.S. population. In
March I9TK the General Accounting Oriice i«sut-d a report on Indian housing that estimated that
fully M percent of alt Indian families were living in substandard housing.
"*Co>if'frtuft on Emrg) HifVtKt J)t:?/of>ir;f>it aad Indian Lands, American Association for the
Advancement of Science. IVS. p. 26.
"•'It.ul, p. 25.
"6U'aIIace Stegner. "Rocky Mountain Country: Arabs of the Plains," Atlantic Mnnihly, April
i°:s. p. 56.
" American Indian Policv Review Commission, final Kefnri. p. 622.
"'Barsh and Henderson." Th* RwJ, p. 2M.
-------
United States Policy. Planning, Region 5
:"-;O ME-19J -:;
, 230-R-92-Q17 ~^^:^^;-~.^^-^± ~i.;^\^'T-']^^~'-';'~~:~ .October 1992
, _
Environmental Protection :r>.-; And Evaluation •-;'- -'••-."--."-ME-19J .:;"-''• •ri'^.-jv.V :
•:v.;i.-: .^.^.o.^/^:.--Agency ,;_..,-,_.^;;:.,.»;-- %-£^J">i—j?-~^ rj- A<
-
-------
. But this does not mean that these problems ~ current and future — are only worthy
of little attention. To the contrary, we believe that at least some of the Tribes' environmental
problems may need much more attention because:
o The treaties with the U.S. under which the Tribes ceded some lands and rights and
maintained others prescribe a significant trust responsibility for the U.S.. The
standard by which the U.S. government judges Indian needs for environmental
protection should not only involve comparison of the conditions facing the Tribes
now with conditions facing other Americans now. It should also involve a
historical comparison between current conditions and those prevailing a century
or more ago, when the Federal commitments to the Tribes were made. It should
also involve a view toward future vulnerabilities. The treaties and trust
responsibility require a high level of environmental protection for the reservations
and the surrounding lands on which Indian subsistence rights are retained.
o The Indians are extremely vulnerable to increasing environmental problems in the
future because they lack the technical, administrative and financial infrastructure
necessary to ward off these problems; and
o The Native American culture is uniquely dependent on maintaining a pristine
environment in their historic reservation lands and fishing and hunting grounds.
For the Indians, moving from their reservation lands is not a legally or culturally
acceptable alternative. Even small damages to the reservation environments that
seem modest to outsiders can have significant religious or economic impacts on
Tribes that rely on the natural environment for subsistence.
In effect, two separate questions were raised about whether the traditional comparative
risk framework was sufficient as an analytical foundation for planning actions for a better
environmental future for the Tribes:
1. Is the focus on risks from the current levels of environmental problems appropriate, or
might it be more useful to focus on comparing the risks from the likely future levels of
the environmental problems?
2. Should we conclude our efforts upon ranking the various risks facing the Tribes, or
should we continue on to provide some ideas about priorities in managing the risks that
have been assessed? Traditional comparative risk projects have separated the process of
risk assessment (what is the relative severity of the various-risks) from risk management
(what should be done about the risks once they have been assessed).
We resolved these questions by deciding: a) To conduct a traditional analysis of current
residual risks, and b) To go further and identify the problems for which investment in enhanced
environmental protection efforts will do the .most to reduce current and future risks. With regard
to the first question, the methodology for comparing projected future risks has not yet been
15
-------
developed for EPA comparative risk projects. The data needs and resources required to develop
such a methodology are beyond the scope of this project. In addition, the traditional comparative
risk analysis held some promise of showing that the pattern of risks facing the Wisconsin Tribes
is rather different than the pattern of risks facing the average American — and thus that Indian
environmental priorities need special attention. This analysis of current risks would serve as the
starting point if a comparative analysis of future risks is ever initiated. On the second question,
we decided to develop preliminary judgements about the best investments for reducing risks
because of the considerable effort we made in evaluating the risks from each environmental
problem and the causes of those risks. This evaluation is a "crucial first step in any deliberation
about risk management. A further discussion of the best opportunities to reduce current and
future risks facing the Tribes is included in the final chapter of this report.
Approach for health risk
We discussed whether modifications were needed to traditional health risk assessment
procedures in order to make them applicable to Native Americans, and if so, what modifications.
Two specific issues were discussed:
1. The demographic and health profile of the Wisconsin Tribes is rather different than
that of the general population. The average age of the Indians on the reservations is
substantially less than that of the general population, cancer incidence is generally higher,
smoking is more common, health care may be less available, and a range of other factors
are different. There may also be important physiological differences between the races
that affect susceptibility to environmentally induced diseases. We considered how these
differences should affect estimation of health risks.
Our consensus was that such differences are important in situations when health
risk estimation depends either on data on incidence of health effects among the Indians
(e.g., data on incidence of gastrointestinal diseases may be used to provide information
about the risks from microbiological contamination of drinking water) or on
epidemiological relationships that can be corrected for cross-cultural differences in risk
factors (e.g., epidemiological relationships between blood lead and learning disabilities
can be adjusted to fit the age distribution of the Indian population). These differences
were judged not to be important, though, when health risk assessment is based upon
traditional calculations where dose is multiplied by potency for environmental pollutants
with health effects information derived from animal studies. Uncertainties already
inherent in the standard health effects data resulting from extrapolation from animals to
humans and from other causes are undoubtedly far more significant than any errors that
might result from not considering racial differences between Indians and the general
population. In general, then, data on potency of environmental pollutants was taken from
standard EPA data bases (e.g., the Integrated Risk Information System) and applied to
Native Americans just as it is applied to the general population.
2. The character of the exposure to environmental pollutants for members of the
16
-------
Wisconsin Tribes may be substantially different than it is for members of the general
population, as a function of culture, lifestyles, and the very rural setting for the
reservations. For example, the Wisconsin Tribes obtain a large portion of their food
through local hunting, fishing and gathering. One estimate is that the Chippewa Tribes
obtain 50-90% of their fruits, vegetables, grains, meat, fish, poultry, and sweets from local
harvesting. For the Indians, health risks from food consumption depend substantially on
the levels of environmental contaminants in the local area that may be bioaccumulated in
fish, game, grain or fruits. For the general population, by contrast, food consumption
risks depend much more on the level of contaminants in nationally marketed, mass-
produced, and often Federally-inspected foodstuffs. It would be a serious mistake to
assume that the Indians' diets, and hence their pattern of exposure to contaminants in
food, are similar to those of the general population.
We agreed that the major challenge in the health risk approach was to estimate
accurately the unique Tribal patterns of exposure to environmental pollutants. In some
cases this was possible. Data was obtained specifically for Native Americans on, for
example, subsistence food consumption and on reliance on private wells for drinking
water. Based on such data, it appears that the average Native American consumes about
five times as much fish as does the average American. In other cases it was not possible
to obtain exposure data particular to the Wisconsin Tribes --' we could find no basis for
improving on the standard assumptions that an adult drinks 2 liters of water and breathes
20 cubic meters of air per day.
In sum, when assessing health risks, we thought it important to improve on standard
comparative risk assumptions in estimating Indian exposure to pollutants, but we were generally
willing to use the traditional assumptions for estimating the potency of these pollutants.
Approach for ecological risk
In evaluating ecological risks, we decided to employ traditional comparative risk
approaches. Ecological risk assessment requires a scientific evaluation of the health of the
subject ecosystem and threats to it We believed this evaluation should focus on the structure
and processes within the ecosystem independent of the uses one wants to make of the ecosystem
or the values one wants to ascribe to it. The results of an ecological risk assessment for a
particular area should be the same whether the study is performed from the perspective of Native
Americans, the mainstream culture, or another group. The ecological rankings thus are not
culturally based. Culturally important aspects of the ecosystems on and around the reservations
are evaluated under other varieties of risk:
o Risks from food consumed from the ecosystems are covered under health risks.
o Religious, cultural, and economic values associated with the ecosystems are
covered under social and economic damages.
17
-------
Approach for social and economic damages
This portion of the study involved adjustments to traditional comparative risk methods.
Social and economic damages encompass damages to all of the values held by the population
being studied. Many Native Americans' values differ significantly from those of the general
population, as a result of culture, religion and the different economic pursuits of the Tribes.
Typical methods for evaluating social and economic damages often involve converting disparate
damages into dollar estimates to provide a common metric for comparison. We felt that this
approach would not capture some social damages that are particularly important for the Tribes
which involve non-marketed and difficult-to-value activities (e.g., damages to subsistence hunting
or fishing, cultural losses due to the reductions in numbers and health of eagles over time and
area of wild rice beds). Many of the methods typically used in valuing economic damages (e.g.,
value of a recreation day, functions relating concentrations of particulate matter to soiling
damages) cannot appropriately be extrapolated to Tribal culture, and few are applicable.
We decided to use a more qualitative approach to assessing social and economic damages.
We developed a list of categories of potential social and economic damages that are important
from a Tribal perspective. These damage categories included:
o Diminution of cultural and religious values
o Damage to subsistence activities (e.g., non-commercial hunting, fishing, gathering)
o Damage to natural resources in commercial use (e.g., timber, fisheries, hunting,
trapping)
o Damage to tourism and commercial recreational services
o Health care costs and lost productivity
o Material damage and soiling
o Reduced recreational opportunities
o Damage to water supplies
o Aesthetic effects
We decided that the first three of these damage categories were more important to the Tribes than
the others. Our ranking procedure involved reviewing the extent to which an environmental
problem caused damages in each of these nine categories, weighting the first three more heavily,
and then summing the results across all the damage categories. This ranking procedure is
described more fully in the next section of this chapter.
18
-------
Environmental Risk
In Indian Country
-------
pfSCLAIMER
rhis report was furnished to the U.S. Environmental Protection
Agency by the stndent identified on the cover page, under a National
Network for Environmental Management Studies fellowship.
The contents are essentially as received from the author. The
opinions, findings, and conclusions expressed are those of the author
and not necessarily those of the U.S. Environmental Protection
Agency. Mention, if any. of company, process, or product names is
not to be considered as an endorsement by the U.S. Environmental
Protection Agency.
Environmental risks for American I"^'»"* are different than lhase experiencedn^^
tfwnajctny of Americans due to tvari«y of factors. Baaai on an examination of
population, health, economic, social and cultural characteristics, the following sources and
impacts of such risks arc described;
• risks to health from poverty and unique exposure pathways, such as
Ct?l 1SIM ^P Fi OP Of ?QP ^
risks to a land based economy, stemming from the economic impacts of
environmental degradation to subsistence and natural resource based economies;
risks from lack of environmental infrastructure due to inadequate tribal
resources, expertise, and planning mechanisms to deal with increasing pressure for
economic development
future risks to reservation environments, based on young and quickly
growing populations on a limited land base; and
risks from nonlndian lands which impact reservations through cross-
boundary air and water pollution, and through direct impacts on off-reservation
sacred sites.
The paper argues that EPA's current methods for assessing risk are inappropriate
for Indian lands because (1) they represent a "snapshot" of a particular point in time and do
not capture cumulative or future risk; (2) they are population-based, and therefore tend to
overlook the distribution of environmental risk, an issue central to environmental equity
concerns; and (3) they focus primarily on health risks, and do not address the cultural and
economic impacts of environmental damage on Indian tribes. The paper concludes mat
EPA should amend its risk analysis process to ">"- these factors into account, and that
tribes should be allocated additional resources to bring their environmental management
capabilities up to the level of the states.
A longer version of this paper, which includes additional details and sources, is available
from the National Indian Coordinator, Office of Federal Activities, Environmental
Protccripn Agency. Washington. D.C 20460. or from the Natural Sciences Library.
University of Michigan. Ann Arbor, ML
-------
"Like the miner's canary, the Indian maiks the shifts from fresh air to
poison gas in our political atmosphere; and our treatment of Indians, even
more than our treatment of other minorities, reflects the rise and fall in
our dcmocractic faith."
-Felix S. Cohen
author, Handbook on Indian Law
CHAPTER 1. INTRODUCTION
Why a cultural approach to risk?
Over the past rlrodc, the U.S. Environmental Protection Agency (EPA) has
begun to adopt environmental risk as a framework for identifying and ranking
problems that pose a danger to human health and the environment While this
scientific framework has proven generally effective in this task, it is incomplete.
In recent years, activists and social scientists have voiced concerns that racial
minorities and poorer members of American society arc shouldering a
disproportionate amount of the environmental pollution generated by industries,
agriculture, and dries (Bryant and Mohai. 1991);—Investigating these concerns
requires a new approach towards risk, one that incorporates a local perspective;
a focus on processes, as well as products; and on the differences between one
group of people and another. The purpose of this paper is to ask how Native
Americans arc different from the population at large, and what these differences
can tell us about environmental risks in Indian country.
Why Native Americans?
While disproportionate environmental impacts should be investigated for all
groups at-risk. Native Americans have a unique cultural and legal claim in
U.S. history, and cannot be treated as simply one among many ethnic or
socioeconomic groups. Native Americans are the continent's original
inhabitants, having a history and a relationship with the land dating back
thousands of years. Despite the massive disruptions and dislocations of the
past five centuries. Indian tribes remain, for the most pan. a people tied to the
land. Relying upon a particular parcel of land for livelihood and community.
tribes have far more to lose from environmental degradation than the typical
-------
less-rooted nrban^Berican. Finally, tribes have a unique legal stams, and are recognized as
sovereign governments by the U5. Congress and federal courts (Eberbard, 1990). This status
fa the foundation for the EPA Indian Policy, which states that the Agency will deal with tribes
on a govenimeiu to government basis, as it does with stales.
Thfc papg highlight important rtmTartrrMre that malce American Indians particularly
vulnerable to «'^'»j"n hcn|yht ecological and econorf"^ risks &orn environmental degradation. It
fa hoped that raising these issues will assist in die development of a model for adapting the
framework of comparative risk analysis to more equitably include racial or low-income groups
dial may experience different risks than the population at large. Par reasons discussed below,
the health and economic impacts of environmental risk are different for American Tnrliam than
for the general population. Moreover, American Indians may perceive risks differently from
other groups, due to their cultural and historical experiences. Ecological risks are not
considered here, because the impacts of a particular hazard on the environment remain the
«"»PI regardless of the population group affected. What may differ are the cultural, health,
and economic impacts of that environmental degradation.
Although ecological risks are not considered here, it should be noted that Native Americans
occupy some of the most ecologically valuable land in the country, much of which is son
largely untouched by environmental degradation. The development of tribal capabilities to
manage these lands is critical for the minimization of ecological risk, and underlies many of the
issues discussed in this paper.
Federal Indian Policy and Environmental Protection
EPA is charged with implementing federal environmental laws by establishing national
standards. The Agency may delegate the responsibility for managing programs to meet those
standards to state, tribal and territorial governments. Before 1984, EPA's regulatory programs
did not take into account the unique constitutional status of Indian lands (Price, 1983). In
addition, most of EPA's authorizing legislation had no language addressing responsibility for
environmental protection on Indian lands. As a result, while EPA fostered its parme^fcpith
the states, environmental protection on Indian lands often lagged behind.
The low priority ofenvuoameniai problems on lodlutn lands ***** be ttaocd in pan to the
confusion over jurisdiction on Indian reservations. In laws daring back to die 18lh century, die
federal government has asserted itself as die primary authority over Indian tribes and tribal
lands. In the "Doctrine of Discovery" cited in 1823, Chief Justice Marshall wrote dial Indian
tribes' "rights to complete sovereignty as independent nations, were necessarily «<''iiini;tv-d* by
the "discovery" of tribes and their lands by European colonists (Johnson v. McIntDsh, 1823).
However, Felix Cohen, the pre-eminent scholar of federal Indian law has noted that Indian
tribes never relinquished their powers of self-government, and that these powers are neither
derived from nor controlled by the U.S. Constitution (cited in Whanon, 1989).
f
The trust relationship existing today between Indian tribes and the federal government has'
its roots in the discovery doctrine and the explicit promises made to tribes in many treaties.
This trust relationship obligates the federal government to act in the tribes' interest when acting
as a trustee for Indians and their lands. However, this responsibility coexists with Congress'
plenary power over Indian tribes which is derived from Article 1 (the commerce clause) of the
Constitution. This authority' was exercised freely during the 19th and early 20th centuries,
enabling Congress to repeatedly abrogate treaty agreements (Whanon. 1989). The tension
between these two principles of die Federal-Indian relationship, representing federal obligation
to and power over tribes, is soli evident in many federal decisions today.
Over ftTT^t administrative and judicial decisions have complicated the tribal-federal
relationship by granting certain rights to stales, such as limited jurisdiction over certain
reservations (Olipham v. Suquamish Indian Tribe, 1978). Moreover, even when states have
not made jurisdictional claims, few tribes possessed die resources and training to fully exercise
authority over die programs and problems on reservations.
Another reason for the low priority of environmental issues on Indian lands has been that
most are located in rural areas, and have experienced relatively minor or l
-------
increasing pressure to exploit energy resources and other natural resources on tribal lands has
increased the potential for serious environmental problems.
Beginning to the late 1960s, the federal government embarked on a policy to encourage and
lupport Native American efforts to become more self-sufficient. While the implementation of
this policy has been slow and irregular, the current EPA Indian policy is an outgrowth of this
trend. EPA is the first federal agency to begin implementing President Reagan's Indian policy,
published in January 1983. This policy states that:
• Federal activities will endeavor to foster self-determination and self-government among
Indian tribes; and
• Indian tribes will be dealt with on a government to government basis.
In order to meet these goalsJEPA has established a network of Indian Coordinators at the
regional and national level These coordinators enable EPA's regiotfS? and media offices to
work directly with Indian tribes to offer the assistance tribes need. Activities of the Indian
Work Group, located in the Office of Federal Activities at EPA, include working to amend
EPA'S environmental legislation to address tribal needs and administering grants to tribes for
pollution assessment, control and prevention. In addition, the work group helps formulate and
implement policies relating to environmental conditions in Indian country, generates pilot
projects, and provides training and technical assistance to tribes.
Environmental Conditions in Indian Country*
There are 281 federal Indian reservations in the United States, covering approximately 54
million acres, equal to die combined area of New England, New Jersey, and Maryland. T Jnfh
on which Native Americans hold treaty rights to hunt, fish, graze livestock or gather
foodstuffs, comprise an additional 100-125 million acres (Bureau of Indian Affairs, 1988).
No comprehensive survey has been conducted of environmental conditions on Indian lands as
a whole. Various more limited surveys, however, suggest that Indian reservations experience
Indim Country a defined by (orfewi scuuiem IS U.S.C. IIS1 &i «U land feiihin tne limit* of in Indian ruenruion.
til dependent Indira communiiia within the burden of the United Slues, utd til (individually held) India lUomcatt.
*, broad range of problems including surface and groundwatcr contamination, immuuci
disposal of solid waste, human health risks stemming from uranium tailings and other
hazardous wastes, and unsafe levels of air pollution (Americans for Indian Opportunity, 1986).
Environmental health problems are a concern on many'reservations. Water quality was
cited by many tribes as the leading concern in a 1986 Americans for Indian Opportunity (AID)
survey of environmental needs in Indian country. Of the 48 tribes responding, 65% depend
solely upon groundwatcr for water supply; and 31% depend upon a combination of surface and
groundwater. Tribes reported violations of EPA drinking water standards on 17 reservations,
and outbreaks of waterbome disease on nine reservations. These problems are probably
underreported because most individual water systems ate not monitored.
Waste disposal information for Indian country is anecdotal, and no comprehensive national
data arc available. However, sewage and waste disposal were rated as major concerns in the
1986 AIO needs assessment. According to tribal reports, for example, 9,300 homes on
Navajo lands and 10 percent of the homes on the Mississippi Chociaw reservation lack
sanitation facilities. In 1990. the Turlian Health Service identified 112,124 homes on Indian
lands and Native Alaskan villages in need of piped indoor drinking water and 64,027 homes in
need of sanitation facilities at a total cost of $495 million (IHS, 1990).
Hazardous waste disposal is a growing concern to tribal governments. Nine of the sites on
or proposed for the Superfund National Priorities List are on or near Indian lands:
Commencement Bay, Washington; United Nuclear, New Mexico; Tar Creek, Oklahoma;
Tucson Airport, Arizona; Celtor Chemical Works, California; Ft. Howard Paper Company,
Wisconsin; General Motors Foundry. New York; Bunker Hill Idaho; and Prewitt Refinery,
New Mexico (EPA, 1987; Topper, p.c. 1991). In addition, a 1985 Council of Energy
Resource Tribes (CERT) survey of active and inactive hazardous waste generator, storage, and
disposal sites, found that t minimum of 65 hazardous waste disposal sites were located on the
25 reservations surveyed (CERT. 1985). In 1987,18 of these sites were listed in CERCUS,
EPA's inventory of potential hazardous waste sites to be assessed under Superfund (Senate
Select Committee on Indian Affairs, 1989). The CERT study combines active and inactive
-------
which arc probably not significant thicati to human health, BIAhas
74 gAjtrinnaj jvymrial fraTantolB wagg ri«g5 pf*y«fig inw*rigarin^oi^.rai .mvc nsK analysis oners me aovaniages at
addressing economic and ecological concerns as well as health risks, areas of a^^^Bmcem
that have often been neglected by EPA in die past. In addition, the comparative risk analysis
process, which involves garnering dan from numerous perspectives and analysing and miring
them by expen consensus, offers the opportunity to build a more integrated and participatory
approach ID environmental management (EPA, 1990).
These charactcnsocs make comparative risk analysis a promising tool for examining
environmental risk in Indian country. However, the process remains limited by several of its
basic assumptions. First, comparative risk analysis assumes risk at a single moment in time,
rather than over a period of time. Given the long latency period of many environmental threats.
and the dynamic nature of environmental processes, mis assumption is an oversimplification of
actual risk. In addition, comparative risk analysis uses the number of people affected as i,
central factor inweighing me imponance of a given risk. This approach stems from the first
recommendation of the Science Advisory Board's Reducing Rislc. which states that "EPA
should target its environmental protection efforts on the basis of opportunities for the greatest
risk reduction (EPA, 1990)." As a result, comparative risk analysis consistently ranks the
problems of low-density, rural areas — such as Indian reservations — as less important than
those of densely populated urban areas, and overlooks the issue central to environmental
equity: me distribution of environmental risk. Finally, because risk assessment focuses on
health-based indicators, it is not a useful tool for examining the ecological impacts of
environmental risk.
-------
addressing economic and ecological concerns as well as health "'I", areas of critical concern
thai have often been neglected by EPA in the past. In addition, the comparative risk analysis
process, which involves gathering data from numerous perspectives and analyzing and ranking
them by expert consensus, offers the opportunity to build a more integrated and participatory
approach to environmental management (EPA, 1990).
These characteristics main; comparative risk analysis a promising tool for examining
environmental risk in Indian country. However, the process remains limited by several of its
baric assumptions. First, comparative risk analysis assumes risk at a single moment in lime.
rather than over a period of m™. Given the long latency period of many environmental threats,
and the dynamic nature of environmental processes, this assumption is an oversimplification of
actual risk. In addition, comparative risk analysis uses the number of people affected as a, .
central factor in weighing the importance of a given risk. This approach stems from the first
recommendation of the Science Advisory Board's Reducing Risk, which states that "EPA
should target its environmental protection efforts on the basis of opportunities for the greatest
risk reduction (EPA, 1990)." As a result, comparative risk analysis consistently ranks the
problems of low-density, rural areas — such as Indian reservations — as less important than
those of densely populated urban areas, and overlooks the issue central to environmental
equity: the distribution of environmental risk. Finally, because risk assessment focuses on
health-based indicators, it is not a useful tool for examining the ecological impacts of
environmental risk.
l, unemployment, and nndcremployment are pervasive in Indian Country, and are
idians living on reservations. In 1986, the Bureau of Indian Affairs Task Force on
Development found that the overall reservation unemployment rate was 58 percent,
a a rate for the entire U.S. population of 18 percent, and for off-reservation Indians
ot Similarly, the percent of reseivariOT Aromcan Indians living below the poverty
xacent - was more than triple that for the general population (12 percent), and
blethatofoff-rcservarion Indians (22 percent) (BIA, 1986). Poverty is. of course,
ed in reservadoa living conditions, such as access to clean water and sanitation
above. In addition, a 1980 survey found that over half of reservation Indian families
itandard housing, the majority of which was beyond repair (Taylor, cited in Snipp.
Development
me development in Indian country usually revolves around land-based resources.
:y be commodities, fish and wildlife, or tourism. Agriculture - either through direct
or leases to nonlndians — is also a major source of income, particularly in the Plains
d wildlife resources are major sources of revenue, particularly for tribes with
1 fishing treaty rights. Tribes along the Great t JIM, the Colombia River, and Pugct
5 rights to commercial fisheries worth millions of dollars. Throughout the U.S..
established recreational and hunting enterprises, selling hunting, fishing, and
amirs to nonlndian visitors. In 1986,72 tribes had established public fishing
61 tribes offered hunting programs, and 88 offered camping opportunities (BIA,
Hit an eighth of all tribes, particularly those in the Western U.S., resource extraction
aich as mining, oil and gas development, and timber arc major sources of income.
dian tribes earned S161 million in mineral revenues, and S73 million in timber
-------
revenues. Earning^^^gricultural leases came to only one thiid the revenues from mineral
development (BIA, 1986). Like other rural populations wiA natural resource based
rrnimnita. Indian niba me vulnerable to economic hardships due to fluctuating prices in
recent yean for agricultural produce, ofl, gas, minerals and timber. BIA studies have found
that 85 percent of reservation Indians live in areas where natural resource development is not
likely to become the mainstay of future economic development.
Commercial waste disposal is one alternative means of economic development being
considered by many tribes - morethan 40 have been approached by developers. The
envirnnmrmal impacts of this alternative are potentially very significant, and underscore, the
need for establishing environmennl regulatory structures within tribal governments.
Subsistence Economies
Many Indian tribes depend directly upon natural resources for food and other subsistence
products. For tribes, environmental degradation can cause significant economic and cultural
damage, as well as having health and ecological impacts. Most American Indians depend on
varying combinations of subsistence resources, wages, and public assistance for their income.
Tribes in the Northwest and Great Lakes region continue to utilize subsistence resources, while
tribes in the Great Plains and Southwest are less dependent. For nearly all tribes, subsistence
activities have changed with the introduction of new technologies, such as bighpowered rifles.
fiberglass boats, and snowmachines.
Despite the vast social and technological changes of the past four centuries, and the
diminished economic role of subsistence activities for many tribes, subsistence retains
extremely important symbolic, social, and cultural, as well as economic value. Observers and
participants have noted that subsistence activities foster a sense of closeness to nature, self-
reliance, and independence, as well as cementing social and cultural ties through harvesting and
sharing of resources (Msith and Glass. 1988).
Social Characteristics
When discussing American Indians and the environment, it is important to nc^^B there
ire two distinctly different populations: the 45% of Indians who live on reservations and in
other rural semngs.and the 55% who live in more urban environments. Indians living in
urban areas tend to have higher educational levels, and lower fertility than those living in rural
areas. Urban Indians are exposed to many of the same environmental pollutants as other
urban minorities. Reservation Indians practice more traditional ways of Indian life and while
they may not be exposed to pollution in the same way or degree as their urban counterparts,
they are it risk of severe cultural and social disruption if pollution makes culturally significant
portions of ihetr tribal hotnehnds uninhabitable.
Due to historical disadvantages, poverty, and isolation. American Indians lag behind the
r
rational average in educational attainment. While 66.5 percent of Americans have graduated
from high school, only 55.4 percent of Indians have done so. At higher educational levels, the
disparity is acre striking: 7.4 percent of American Indians have graduated from college, only
half the national average (THS. 1990). While American Indian Bites have made great strides in
higher and professional education, many remain unable to fill tiieir professional management
needs with tribal members (Thornton, 1987).
Risk Perception and World View
In their classic theory of risk perception, Douglas and WUdavsky argue that while risks arc
real, no perception of risk is completely objective, and all perception of risk is culturally
influenced (Douglas and WUdavsky, 1982). Many empirical studies have supported the
hypothesis that major differences in risk perception exist among individuals and groups. While
the differences between experts and nonexperts have been most extensively documented,
differences between racial and ethnic groups have also been noted (Vaughn and Nordenstan.
1991). Risk perception has been shown to be influenced by prior experiences and world
views, suggesting that individuals who share similar life experiences, attitudes and values are
more likely to share similar evaluations of risk.
-------
The cultural theory described by Douglas and WUdavsky suggests that Native American
rmniA-» toward risk would be strongly influenced by their experience. For all tribes, this
experience has been one of loss of sovereignty and cultural autonomy. Traditionally, Native
AnvTirant viewed themselves as pan of the natural world, 'living in harmony with their
surroundings. As Ward Churchill (1986), a Creek/Cherokee leader, puts it:
Unlike Europeans, Native Americans long ago achieved a profound intellectual
sppxehension that human progress must be measured as an integral aspect of the natural
Older, rather than as something apart from and superior to it. Within this structure,
elaborated and perfected through oral tradition and codified as "law" in ceremonial and
ritual farms, the indigenous peoples of this hemisphere lived comfortably and in
harmony with the environment, the health of which-they recognized as an absolute
requirement for their continuing existence.
This emphasis on harmony and stability gave rise to many religious practices and social
conventions governing an individual's relationship to nature. Despite the enormous physical
**
and social dislocations bf the past two centuries, many tribes still adhere to their traditional
beliefs and practices concerning the environment.
American Indian tribes are extraordinarily diverse, and no single statement could sum up
the differing attitudes toward environmental risk. However, many anthropologists have noted
the differences between Indian and European attitudes toward nature. Stated broadly, Indians
traditionally view nature as an integrated, animatr whole, while the European tradition (and the
mainstream American society which stems from it) views nature as an inanimate source of
resources for human use (Vccsey and Venables, 1980).
Wfldavsky and Dakc (1990) note that while scientists and experts weigh risk quantitatively,
die qualitative aspects of risk carry more weight with laypeople. This observation is clearly
borne out by die experiences of Indian tribes with energy development. A 1979 Study of
Navajo Perceptions of the impact of Environmental Changes Relating to Energy Resource
Development found mac
Shiprock residents: feared loss of economic and emotional support of their extended
family and kinship groups; loss of livestock and land; loss of self-sufficiency and
security made possible by keeping livestock; and loss of activities that support the
inculcation of values such as sharing and mutual support in the extended family
(Robbins, 1984).
Despite these strong feelings, such considerations are rarely captured in the cultural and social
impact assessments that accompany development.
The experience of the three bands of Utes, who are currendy developing their oil and gas
resources reveal something of Indian attitudes toward risk. The Utes are reluctantly permitting
the development of their oil and gas resources out of a need for income, and a conviction that
these resources will be appropriated by outsiders if they are not used. This laser assumption is
based on over a century of losing battles with the federal, state and local governments over land
ownership and water rights. As a result, although the Utes tend to be risk averse, they feel
they have no choice but to permit development. However, because the tribe lacks members
with sufficient technical expanse to evaluate development proposals, its power is currendy
limited to saying "yes" or "no" (Romeo, 198S). As many risk perception studies have noted,
"control over risks fs~an important component of their acceptability to a community (see
Appendix).
According to traditional Ute belief, nature is a source of power that can be acquired by
shamans to benefit the community. Yet because secrecy is required in many sacred matters, the
importance of the natural world to die Utes is poorly understood by nonlndians. Utes not
only value sacred sites and burial grounds, but ate deeply disturbed by threats to local plant and
animal species, erosion, water pollution, and other forms of environmental degradation. One
member of the Ute Business Committee (in charge of overseeing oil and gas development)
commented that "taking oil out of the ground is like taking blood from the veins of a persons
body." Another tribal member expressed more general concerns: "You must maintain the
place — your place, where you live, and where the family has always been. The land, the
water, die game are sacred. You must always have it, forever. Not tear it up." Given these
beliefs, many Utes are deeply divided about oil development, and express strong concerns
about environmental and cultural impacts on future generations (Romeo, I98S)
Similar divisions have been expressed by tribes considering waste disposal facilities, and
other income generating activities with potentially serious environmental impacts. These mixed
feelings have often led to splits within tribes on controversial development projects (SCLDF.
-------
1954), These |^^BS vividly illustrate that struggles for control over which risks ID lake may
divide tribes tsvEFts individuals.
The case of development of Ute lands reveals me commonly expressed fear of loss of
control and sovereignty over the land and its resources. This fear of loss-grounded in
centuries of experience — may V^f many forms. In Arizona, tbe Paiute tribal government,
deeply in debt to the Internal Revenue Service, supponcd the development of a hazardous
wane facility on tros lands partly out the the (eat that the Bureau of Indian Afrairs would take
control of tribal government if it was unable to discharge its debts. In this case, the
environmental risks stemming from the incineration of hazardous wastes woe judged to be less
of a ducat than tbe perceived threat of federal action (Austin, p.c. 1991).
CHAPTER 3: IMPLICATIONS FOR RISK
JVW th/^n tr> ^fflfrrrm typ^ fff
environmental risks dan those fiTigm*** by urban Americans whose risk. t"**iw of their
large and rtinrmn-,^ pnpnlMfom ftnmfrMI.- imirtnal tnA mgirmal p«lf mmpfriyyu flew
methodologies must be developed to identify yij quantify, where appropriate, the risks
experienced by smaller, rural populations- In many ways, the risks experienced by Indians are
shared by mral dwellers throughout the country: groundwater contamination, pesticide
exposure, and nonpoint source pollution, to name a few:1 In other case*. American Indians are
additionally affected because of cultural or social characteristics, such as diet, subsistence
lifestyle, or poverty. In particular, American Indians face heaUh risks from cultural practices
or lack of infrastructure; economic risks to their land-based economies; risks stemming from
.tbe lack of environmental infrastructure; and future risks based on high population growth rates
on a UmifMi land base.
Health Risks
There are many problems in assessing environmental health risks for American Indians:
small sample street unknown genetic factors, and numerous confounding effects that m?lf* it
difficult to show cause-effect relationships. These problems impede risk assessment under the
best of circumstances, but are often compounded when looking at American Indian tribes.
Among many American Indians, high rates of alcohol abuse, diabetes, obesity and odier health
problems must be distinguished from sources of morbidity and mortality caused by
environmental conditions or contamination. Medical researchers have noted that Native
Americans, as compared to whites, have significantly lower rates for cancer of the lung, breast
and colon, and higher rates for the gallhladdcr. kidney, and cervix, but that the relative
contributions of heredity and environmental factors are difficult to assess (Sicvcrs and Hsher.
1983). In addition, the cultural and genetic heterogeneity of Indian tribes usually malms
extrapolations to Indians in general inappropriate.
-------
One environmental pathway that particularly affects many Native Anvrirain j$ die
ulanon of pesticides and other chemicals in animal (particularly fish) tissue. Native
Anr-nyr" arc vulnerable for two reasons. First, some Indian tribes — paniculariy those in the
Pacific Northwest and Great Lakr< states - eat much more fish than the average American,
thereby consuming more contaminants. la addition, because of cultural practices, many Indian
tribes traditionally consume the entire fish, including laity tissues when; chemicals are most
tvnfvppnn-rl These differences have important policy implications. While EPA bases its
estimates of exposure to diorin-contaminatcd fish on average consumption rates of 6.5
grams/day, Native Americans who rely on fish for subsistence may consume more than five to
ten rimes that amount (West, ct al, 1990; EPA, Aug 1990).
These differences could have significant health implications. A 1986 study on pregnant
women in Western Michigan showed that women caring approximately Byelve fish locals
during their entire pregnancy had babies with significantly lower birth weights than non fish-
earing mothers. More importantly, a follow-up study in 1990 found that these «"n* children at
age three had significantly reduced attention spans, an indicator of probable future learning
disabilities (Jacobson, ct al. 1990). These data highlight the importance of integrating health
research with sociological and anthropological approaches to ensure that differences between
groups exposed to environmental contaminants are understood, and that fish advisories and
contaminant standards are set at appropriate levels.
In addition 03 cultural differences, poverty itself is a factor in diminished health status.
While there are no data showing mortality rates by race and socioeconomic class, the few
studies available suggest a link between health and poverty. For example, in a 1986 survey,
individuals making 510,000 or less a year reported significant health problems 4 to 6 rimes
more often than those making over $35,000 (HHS, 1988). While most such studies have
focused on the health differences between blades and whites, those con Drolled for race indicate
that poverty is an important and often overlooked factor in the ethnology of increased morbidity
and mortality.
Risks to a Land-Based Economy
ROOK in thejjnd
American Indians living on reservations are land-based people, and the reservation remains
the focal point of cultural life for many urban Indians. These strong n'cs to their homelands
distinguish American Indians from the mobile, less-rooted majority of Americans. As a result,
the assumptions on which EPA bases its assessment of economic risks, based on the "typical"
(and therefore urban) American, may not be valid for American Indians, flmain types of
environmental damage, such as wildlife habitat loss or degradation, are likely to have a much
greater economic, psychological, and cultural impact on the welfare of Native Americans than
on the general population.
In addition to being a land-based people, Indians ait linked to a pari^ularjarceljjf land
through the historical evolution of the reservation system. While most Americans have become
increasingly mobile over the past few rirrarf«, (he Indians who live on reservations have either
chosen to remain within their community, or arc too poor or culturally isolated to move
elsewhere.
The impacts of forced relocations of American Indians in the 19th and 20th centuries
illustrate the cultural and economic impacts of being uprooted from their way of life. This
uprooting took place both directly, through warfare and forced resettlement, and indirectly,
through the loss of natural resources needed for subsistence, such as the buffalo. While the
former threat has largely subsided, the litter remains a serious concern. Bound to the land by
history and culture, reservation Indians have been forced to either move away from the
reservation or change from their traditional methods of subsistence natural resource utilization
due to ecological degradation resulting from development and population growth. As such
they risk losing both culture and community.
The tragic story of Grassy Narrows, Ontario is an example of the impacts of dislocation
and environmental degradation on Native Americans. In 1963. the Department of Indian
Affairs decided to relocate the people of Grassy Narrows to a new village five miles from the
old settlement in order to improve accessibility to social services. Seven years later, while the
-------
-r._ ..„ ..-.A u6ftiui£ 10 readjust ana to put down new roots, ihe government discovered that
tbe river wi^^^B fanned the focal point of village life was poisoned by methyl mercury
released by a nearby parxa-company. This connnnmtkn cximpoundcd the social impacts of
the village relocation by removing the river and its resources fiom tribal use.
{\vr-f rfiff mift tfr?yfr',' in th« ""**!$ qf a" nhnrwr wht> lj«-ri in rtu- village, ffir mm- ram
yean, tbe village become "a case study in the causes -and symptoms of social disintegration."
Alcohol and substance abuse rose dramatically, and child abuse and other symptoms of family
stress became! increasingly common. To list one statistic among many, "between 1959-63,91
percent of all deaths in tbe community were due to natural causes. By the mid 1970s, only 23
percent of deaths could be traced to old age, illness, or accident" (Shkilnyk, 1985).
Today, with the economic importance of traditional subsistence practices declining among
most AmrT1'r"i Indian tribes, tbe cultural importance of the reservariqn^ as centers of tribal
identity has become primary. If reservations become unliveable, many Indians feel they will
literally have no place to go. As one Navajo woman put ic
Some of tbe white people came to my house and they aslfcrf me how I felt about selling
out and moving away... I told them I wasn't interested in selling. I told them that it is
the same with us as it is when you have an old tree, and it is in your way. If there is a
beautiful old tree, and you dig it up and move it, do you think it will continue to live?
Even if you do everything you can to prepare new ground for it, do you think that nee
will live? No, it won't live (NeUtin. 1981).
Similarly, during tbe recent debate over tribal management of a hazardous waste landfill,
Mississippi Choctaw Odie Jim commented:
What if something happens to tbe landfill, like a leak and damage and the tribe is sued
and we lose the land? We, the old ones and the elderlies have to do the right thing for
the young ones. If they sue us and we have no money, they will talre the whole
reservation and the young ones will have nothing (Smothers. 1991).
In Oklahoma, where activists argue that livestock deaths, birth defects, and mutated animals
can be traced to the Sequoya Fuels nuclear reprocessing plant, Indians suffering radiation
frMlth effects from the have refused to move out of the contaminated area which is their home.
The plant was finally shut down in 1991 (CCHW, 1991; Austin, p.c. ,1991).
If wcH managed, the rural landscape of Indian Country has enormous value
Rrst. much of Indian Country is still shielded from the some-of the
f urbanixation and industrialization and provides valuable wildlife habitat anf*
recreational opportunities. Over 80 Indian reservations siippon threatened or endangered
species, including the bald eagle, peregrine falcon, and Florida panther (BIA, 1988). As
urbanization and its impacts spread, Indian reservations have become important reservoirs of
biological diversity. With proper environmental management, these lands could play an
increasingly important role in wildland protection; In the Pacific Northwest, 20 member tribes
of the Northwest Indian Fisheries Commission are involved in a project to reduce nonpoint
source pollution in order to protect p"1""* life. In addition, the S winonrish tribe is taking steps
to protect salmon and steelhead habitat from degradation (Topper, p.c., 1991).
Similarly, Indian lands, with the exception of die Navajo reservation, are not significant
producers of air pollution. These oonindustrialized areas "produce" health and environmental
benefits in the form of dean air. In addition, the large tracts of forested areas remaining on
many Indian lands in the Western U.S., though small in comparison with other federal lands,
act as a carbon sink to help ameliorate the impacts of global warming.
Risks from Lack of Environmental Infrastructure
As noted earlier, environmental protection in Indian country lags behind that in other
areas. During most of die 20th century, tribes were powerless at the national level, belong the
resources and training to develop governmental entities capable of making technical decisions.
While environmental issues gained national importance in the 1960s, and led to the creation of
the EPA in 1971, tribes were largely forgotten in the first decade of environmental law and
regulation, EPA began establishing partnerships with the states to ensure environmental
protection in the early 1970s, but did not adopt its first Indian policy until ten years later.
Major environmental laws, such as CERCLA, the Safe Drinking Water Act, and the dean
Water Act were amended to address tribal needs only in the mid-1980s. As a result, tribes
-------
tu ». ai/i icciivcu LUC attention aiiu tiiuuicul assistance that have enabled sales to establish and
opens environmental protection programs. At the same tin*:, pressure for economic
development on Indian land; is growing as developers seek out the undeveloped, often
resource rich lands, and tribes seek ways of increasing employment and tribal income to
support rapidly growing populations.
At the community level, most Indian tribes have high unemployment rates and little or no
tax base due to the lack of economic opportunities on reservations. Consequently, tribes aie
unable to fund extensive health and environmental services to their members. Tribal services
such as waste pickup or water quality monitoring maybe unaffordable, and tribal members
must rely on limitrd services provided by the Indian Health Service. In 1986. solid waste
disposal was cited as a problem by 75% of the tribes responding to a survey by Americans for
Indian OppuumiUy. "On many Indian lands, landfills arc located many miles fain most'
»$
residents, and collacrion services are limited by severe financial constraints. As in many rural
areas, user fees do not cover the costs of waste collection, which must be financed by local
authorities. As a result of problems Kir* these, illegal dumping is common in Indian country
(AIO, 1986). In addition, tribes firfd illegal dumping by outside residents and corporations
difficult to control
In addition to lack of funds, tribal governments often lack staff trained in the environmental
sciences and capable of making trrhnicul judgements. This lack of expertise increases tribal
risk from often unscrupulous outsiders seeking to take advantage of the reservations'
remoteness, exemption from state laws, high unemployment and need for economic
development. Within the past few years, over forty tribes have been approached by solid and
hazardous waste companies seeking to site disposal facilities on tribal lands, which are not
covered by state regulations (Topper, p.c. 1991). In South Dakota, for example, the Rosebud
Sioux were approached with a proposal - ultimately rejected — to develop a 5760 acre solid
waste landfill on the reservation capable of serving an area from the Colorado Rockies to the
Mississippi River (Miniclier, 1991). The project was initially approved by the tribal
government, which argued that the jobs and 32 million annual revenues were badly needed on
20
the reservation, where unemployment rates exceed 65 percent After much debate and
grassroots opposition, however, several members of the tribal council reversed their stands and
the project was rejected (Schneider, 1991). In October 1991. the Mescalero Apache tribe in
New Mexico applied for a Department of Energy study grant to conduct a feasibility study for
storing nuclear waste on the rcservBtion (Lippman, 10/21/91).
While only a few solid or hazardous waste disposal projects are going forward, tribal
governments are often forced to make decisions about environmentally risky projects without
adequate information or expert advice. Tribes desperate to provide employment opportunities
may also consider projects that would b= rejected out-of-hand by wealthier communities.
Tribes also face environmental risks from local, Indian-owned enterprises, which are often
/
• ignorant of the environmental hazards they aie •crearlngr-OrrirwNsvaJo' reservation", for
example, a private company making electrical components for automobiles, owned by tribal
and nontribal members, dumped hazardous wastes in a local solid waste landfill near Leupp,
Arizona, unaware that it required special treatment. In another case on the Soboba Reservation
in California, a tribal member set up a business to reclaim contaminated soil from leaking
underground storage tanks by a land application process. Rains then washed the oil-
contaminated soil into nearby streams and creeks (Topper, p.c., 1991).
Finally, tribes without environmental expertise may lack the information to make sound
environmental choices about acquiring and managing lands. In Bad River, Wisconsin, the
tribal government accepted the gift of a privately owned site on the reservation that had been
used by a paper and pulp company as a landfill. The site, which was covered and seeded, is
now seeping methane, and is unusable for building. Moreover, the tribe is now responsible
for taking steps to vent the site, and to ensure that it poses no serious hazards. In New
Mexico, the Navajo tribe bought lands owned by a local oil refinery in order to acquire the
rights to use the aquifer underneath, and acquired a Superfund site as well (Topper, p.c.,
1991).
Despite recognition of the importance of environmental management, tribes face serious
dilemmas in deciding whether to apply for treatment as a stale under the various federal laws.
-------
from other ess^^^kograms. Economics of scale argue against extensive environmental
piugiaua for smafltribcs. Yet without such programs, tribes face continuing dependence on
federal agencies, increased risk of environmental degradation, and an uncertain regulatory
environment which may discourage outside investment (Govin. 1987).
Future Risks
As noted earlier. the concept of environmental risk usually assesses risk for a particular
moment in time. This "snapshot" approach allows comparisons of a particular risk to different
individuals or groups, but does not express cumulative risk. While this weakness of the
methodology applies 10 all population groups, it is particularly problematic for American
Indians. First, as noted above, American Indians have strong cultural and historical ties ;o
their lands. Nearly pne half of the American Indian population live en of near reservations, and
many urban Indians eventually return to settle in Lidhn country. For many, being Indian
mezns living, or having the option of living, on the reservation. Secondly, American Indian
religions see life as a circle encompassing all living things: past, present and future. Th:
Iroquois statement that leaders should consider the impact of any action of the seventh
generation illustrates the importance of future generations, not as an abstract principle, but as a
pride to everyday action.
Popularipn Trends
The history of the American Indian population trends illustrates the devastating impact of
European settlement on native peoples. While die population of North America before
Columbus is much disputed, many historians estimate that there were between two and five
million inhabitants of the continent (not including Mexico) in 1492, and some suggest the
figure could be as high as 18 million (Snipp, 1989). During the first century of contact with
Europeans, tribal populations were decimatrd by exposure to Old World diseases ID which they
bad no resistance. These highly infectious disease includctLsmallpox, diphtheria, cholera,
22
typhoid, mradn. and scarlet fever. Populations continued to decline due I
displacement, and warfare for the next 300 years.
The American Indian population reached is nadir between 1890 and 1900, wheo there
were an estimated 250,000 Indians (Tnomion, 1977). Since then, it has climbed steadily,
reaching nearly two million by 1990. Today. American Indians have among the highest
population growth rates in the U.S. In 1980. IDC American Indian birthrate for reservation
states was 26.7 per 1.000, nearly double that of the general population (Thornton. 1987).
Moreover, American Indian women living on or near reservations bad more children on
average (32) than (heir urban counterparts (2J59) (US Census, cited in Snipp, 1989). While
the reasons for these high binh rates are debated, their impact has been unmistakable.
American Indian populations more than doubled between 1970 and 1990, and grew by 43.4
percent between 1980 and 1990, compared to a growth of 9.8 percent for the total U.S.
population (US Census Bureau, 1991).*
Population Projections
The American Indian population is young, with a median age of 23.4, compared to 31.3
for the total U.S. population (Snipps, 1989). For Indians, 32 percent of the population is
younger than IS, and only 3 percent is older than 65. By contrast, the corresponding figures
for the total U.S. population are 23 percent and 11 percent (IHS. 1990). This difference in age
structure means that more Indian women are in or entering their childbearing years than the
general population, and that American Indian fertility will remain higher as a result.
Differing estimates of future fertility have created a wide range of population projections.
Yet all are based on two factors suggesting rapid growth: current high fertility rates and a
young age structure. Based on current population trends, the U.S. Office of Technology
Aaiacenuapropaniaa<>fllib(n>wihUdu
-------
increase to 2^1 miflion by the year 2000. and to 3.7 million by 2020 (OTA. 1986). These
figures — like VS. Census data — include all people who self-identify themselves as American
How will this enormous growth in American Indian populations affect the reservations and
oust lands? Some growth win be absorbed by migration to urban areas. Between 1940 and
1980, the American Indian population shifted from one that was 92.8 percent rural, to one that
was 49 percent rural. (Over the same period, the overall rural U.S. population shrank from
43-5 to 26,3 percent [U.S. Census, 1991]). As a result of this trend, the proportion of Native
Americans living on reservations and mist lands has slowly declined, from 25.2 parent in
1980. to 22.3 patent in 1990.
_ AldiQughjhcjrclaayc proportion of Indiana living on reservations and trust lands has ____ .
shrank, in absolute terms, reservation populations continue to grow, ihe total number of
Indians living on reservations and trust lands grew by 18 percent between 1980 and 1990,
from 370,101 to 436.909 (U.S. Census, 1990). The rapid population growth of the Navajo
tribe — the largest in the U.S. - oyef the past forty years provides one model of the impacts of
npid population growth. The Navajo population grew from approximately 65,000 in 1950 to
over 175,000 in 1985, an increase of 170 percent (Thornton. 1987). One of the impacts of this
rapid growth has been a corresponding growth in die number of grazing animals, resulting in
widespread rangeland degradation (Stofile, 1987).
Future reservation populations can be estimated from the Office of Technology Assessment
predictions. If 221 million Indians will reside in reservation states in 2000, based on current
population distribution patterns, about half- 1.1 million people -wOl reside on or near
reservations. By the year 2020, if the same assumptions bold, 1.75 million Tndian< will live
on or near reservations. In addition to the pressure these numbers will place on the resource
base, the age structure of Indian tribes will create a high dependency ratio, with more very-
young and old depending upon each tribal member of working age. This dependency will
create additional pressure for economic development on reservations.
24
Risks from Nonlndiaa Lands
Boundary effects between Tnrfian and nonlndian lands — such as air pollution, downstream
ericas, and groundwater contamination — require coordination between tribal and state or local
officials that is often lacking. Such problems usually stem from economic activities such as
mining and logging, and illustrate the component of environmental risk analysis that must be
prospective in order to assess the impacts of development. Tribes in the Northwest, for
example, have expressed concerns about stale and federal activities affecting fish populations
and water quality in the region. This year, the Shoshone-Bannock tribe set the endangered
species review process in motion by petitioning the US Fish and Wildlife Service to consider
listing the Pacific salmon. In one generation, the fish have dwindled from the thousands to
numbers too small for the tribes annual religious ceremony (Egan, 1991).
The Shoshone-Bannock were also involved in a more dramatic confrontation over
environmental risk when tribal police refused to allow a truck carrying spent nuclear fuel to
drive across the reservation to the Idaho National Engineering Laboratory. Although a Federal
District judge ordered the tribe to let the suck through, the incident illustrates the ways in
which tribes are seeking to establish control over the risk permitted within their boundaries
(Schneider, 10/17/91). In turn, nonlndiaos located near reservations considering the
establishment of commercial waste disposal facilities on tribal lands have expressed strong
opposition, based on the potential environmental impact.
The protection of sacred rites located off of tribal lands is a unique problem within the
context of risk analysis. In such cases, tribes face major threats to spiritually and culturally
important sites that they are often powerless to control Many tribes have lost important
spiritual and cultural sites to development projects, including me Cherokee, who fought the
flooding of burial sites by die Tellico Dam, and the Yorok, Karok and Tolo wa Indians of
California, who opposed the construction of a U.S. Forest Service Road through religious
sites (Lyng v. NW Cemetery Protective Association, 1988). In 1990, several shrines sacred to
the Hopi were destroyed when a privately owned butte 50 miles from the reservation was
-------
Icmgd for graudflfetoing. The mining incident, which
iced before a state-required
^ was completed, suggests the inad^rfltafc implementation of
t cultural preservation policies, as well as the relatively trivial ends for which acred sites
IK often lost (NYT 1/3/91). Current disputes include die Havasupai effort to prevent the
iiniiiinii mining of ftn-rr sacred mountain. Red Buns, and the Southcm Paiute and Western
Shothntiff opposition to the piuposed use of Yucca Mountain, Nevada as a high level nuclear
storage facility .
la 1968, then-Seacniy of the Interior Stuart Udall testified in favor of the Taos Pueblo
Indians who were seeking the return of holy land including Blue Talm. an area sought by the
stare for tourism development and timber. Udall noted the cultural gulf between Tnrtiang and
oonlndtans on the subject of religion.
Because of the essential secrecy of its religion, it has been difficult fortne Pueblo to
explain in terms satisfactory to Che American mind why it must own and control the
entire watershed of the Rio Pueblo_. [but] to insist that die Indians disclose mote is to
ask them to defame their holy mysteries .- It would be a tragic misunderstanding of the
Indian's religious use of the area as involving only occasional use of a few sacred
precincts (quoted in r*hn. 1969).
Similar misunderstandings continue to present a challenge to addressing Indian religious
concerns through the EIS process.
Prospective environmental risk — risk that is being considered, but has not yet been
assumed — can be managed through the environmental impact assessment process mandated by
the National Environmental Policy Act (NEPA) and NEPA-likc state laws. Yet this process
has often proven subject to political constraints in the past, with the result that Narive American
concerns are often dismissed (Geisler, et al, 1982). In 1978, for example, the EIS prepared by
the Nuclear Regulatory Commission for the uranium mining of White Mesa.in Southeast Utah
failed in 170 pages to mention the Ute reservation three miles away, nonetheless it was
approved (Jorgensen, 1984). Since then, the EIS process has become more inclusive, and
tribes have become mote sophisticated in making their concerns heard. If tribes are given the
opportunity to participate meaningfully, the EIS process can be an appropriate means to
minimi 7i- prospective cultural, economic, and environmental risks in Indian country.
CHAPTER 4. CONCLUSION
Diverse as the hundreds of American Indian tribes are, they share characteristics that
distinguish them from die US. population at large. These characteristics — based on unique
cultural and historical experiences - give American Indians a distinctly different panera of
First, American Indians tribes are tied to a particular parcel of land, both culturally and
economically. This land is the center of tribal identity, and is critical for political, cultural and
economic survival. As a result, the potential impacts of environmental degradation or disaster
arc enormous.
Second, most Indian tribes lack an adequate environmental infrastructure on which to base
sound environmental management decisions. Over die past twenty years, while the EPA
established partnerships with the states, tribes were underserVed due to legal uncertainties and
political po werlessness. While EPA's Indian Policy has established the necessary framework
for creating a strong tribal-EPA partnerships, tribes still often lack the infrastructure, resources
and expertise to sustainably manage their lands.
This vulnerability is all the more critical when the risk profile for American Indians is
extended out into the future. Tribes are among the fastest growing populations groups in the
U.S., a trend that will place additional pressures on limited reservation resources. Already,
tribes face endemic poverty and severe unemployment, and are investigating a variety of
Options to increase employment and income on reservations. All of these options — from oil
and gas development, to tourism, to waste disposal - will have environmental impacts that will
require planning and management. As the pressure to pursue these development paths
increases, will tribes have the resources to address the problems they bring? Unless EPA
makes significant changes, the answer to tfais question will be "no."
-------
la its Indian Policy Statement, EPA identified the strategy for meeting these challenges:
building tribal capacity for environmental management. How can this goal be met? Significant
steps toward it are already being taken. Since 1984, nearly all the major environmental laws
have been amended to allow tribes to apply for treatment as a state, and to assume
responsibility forme implementation of environmental regulatory programs. The agency has
provided media specific grants, technical assistance, and training. Yet more progress is
needed. The two recomrocndarions described below point to actions that can be taken at the
Tinrinnal level to support the efforts of tribal governments to reduce environmental risk.
Provide additional resniirm. As noted earlier, federal environmental partnerships with the
states woe established with the birth of EPA in 1971, while EPA's Indian Policy, laying the
foundation for a sjmilar partnership with tribes, was not articulated until 1984. As a result,
tribes have not received the resources thai have enabled states to establish environmental
in&astructures. Between fiscal years 1985 and 1990, EPA granted a total of S25.9 million in
direct assistance to all Indian tribes. By contrast, three states comparable in geographic area
and population to the total of all Indian reservations - Idaho, North Dakota, and South Dakota
— received three to four rimes that amount. Most of this disparity can be accounted for by
construction grants for wastewatcr treatment (approximately three-fourths of the funding
received by the three states), which are granted on a population weighted basis that favor cities
over rural areas. However, when these grants are subtracted, the three states still received an
average of 50 percent more than die tribes over this five year period. For earlier periods, of
course, tribes received far less federal environmental funding.
Recently, in response to the historical inequity of funding for Indian programs and the
increasing evidence of environmental problems in Indian country, EPA began a mold-media
grant program to enable tribes to complete environmental assessments of their reservation
environments, to target critical environmental problems, and to enhance their environmental
management programs. Support for this program, which is intended to run for several years,
28
is '•"""I for helping to raise tribal environmental infrastructure toward the level attained by the
States.
Modify the rislc analysis process. Many of the conceptual issues raised here are not addressed
in EPA's comparative risk process for three major reasons. First, comparative risk aims to
evaluate a "snapshot" of environmental risks at a particular time, nuher than examining risk
over a period of time, or the historical reasons for such conditions. A broader perspective on
the factors that put an individual or group at risk is needed.
Sccondly, EPA's risk assessment process relies upon population exposure as a major
factor in ranking risks, resulting in a bias against rural areas with low population density, such
as Indian reservations. While die size of the affected population is undeniably important, it is
a crude tool best supplemented by more detailed analysis. Uranium mining, for example, is a
tiny threat to the well being of most Americans, but a significant environmental problem in
Indian country. If environmental equity concerns are to be met, the breadth of environmental
impacts must be weighed against their severity so mat the variable distribution of environmental
impacts can be assessed.
Finally, in its current form, comparative risk is heavily dependent upon health and
economic assumptions, and does not address cultural considerations such as diet, subsistence
lifestyle, or the religious view many tribes have of me natural environment Methodologies
must be developed to account for the differences between culturally unique groups and the
population at large.
A final obstacle to die application of comparative risk analysis on Indian lands may be tribal
resistance to die Western approach of prioritizing problems. Stofflc and Evans (1990) have
documented the tension between a holistic approach to conservation with what they term
"cultural triage" in preserving sacred off-reservation lands. Indians, seeing their environments
as an integrated whole, are often reluctant to argue that one pan is less essential than another.
As die Owens Valley Paiute Tribal Chair commented during a meeting on the proposed high-
level radioactive waste facility at Yucca Mountain, NV:
-------
ore important tbe earth that we sand on. the air that we
rwedrinkr They an have then-reason to be here and that is
-^P over to the United States Supreme Court. We are nothing, bat to
pot it aH together it forms* arete. And we all h«ve to live together no manrxwhai,
because Us our earth- These things are here, we didn't put them here, so who are we
to move than. We didn't create them, but we are here to protect them (Stoffle and
Evans, 1990).
If comparative risk is to be promoted as a planning tool in Indian country, tribes may need to
adapt both tbe framework and tbe process to reflect their perspective on environmental
protection.
Despite these problems, Ac participatory nature of comparative risk analysis offers a
promising new approach toward environmental management. By explicitly involving tribal
iiv nil^i * in discussions about risk, comparative risk analysis may ofTer a means to intestate
traditional, consensus-based decision making with urgently needed decisions regarding tribal
environmental principles, practices and procedures. Such consensus i^farical if disputes over
ftirure development projects are to be effectively resolved.
EPA's Role in Building Tribal Environmental Management Capacity
The recommendations described above meet a variety of Agency interests and obligations.
First, like every federal agency, tbe EPA has an obligation to act as a trustee in its relationship
with Indian tribes. This legal and mc^ obUgariotu conferred upon the goverarnent through %
series of treaties and agreements, requires the agency to act in tbe tribes' best interest in
sustaiiiably managing, their lands for future generations* Although the concept of trusteeship
has been attacked as paternalistic by many, including Native American activists, its intent can
be read as ultimately achieving the opposite. If the "best interest" of each tribe can be
determined only by that tribe, then capacity building is the truest fulfillment of the federal trust
responsibility.
Of course, EPA's self interest would also be served by strong environmental management
at the tribal level Just as strong enforcement and environmental planning at the state level
have enabled the Agency to address an increasing range of environmental issues, strong tribal
30
are unable to develop their envi
al inf
On tbe
to manage development in
country, furore enforcement problems will multiply. Moreover, enforcement actions in Indian
coratry are particularly problematic. Ironically, fines simply divot finds tiom tribal coffas-
where they we desperately needed — to federal ones, where they can no longer be used for
0*1031 CQVDDO*''QCQQu BTOBCCflCTti AJC £ ICSUlt* tRDCS 2IC ptlDlSOCd iQT tPH"^nB^tt? fyflffnni^y ft d 1
protection by reducing their abffity to protect their environments.
Finally, enhancing environmental protection in Indian country serves to correct a historic
imhalanr* Tribes, like states, are sovereign entities, responsible for the health and well being
of their members. Yet through the past two decades of environmental protection, tribes have
f
been denied a fair share of the available resources, and have been unable to adequately protect
their environments as a result. EPA*s commitment to building tribal capacity for
environmental management is a major step toward a "inn* equitable 9nt^ sustainable
environmental future.
-------
Americans for Indian Opportunity (AIO). 1986. Survey of American Indian
FnvimmnMiBil Vmtrr^nn Miwfe rm Rgjignmrinn Lanrfy 1986. Environmental Protection
Agency, Washington, D.C
Austin, Diane. School of Natural Resources, University of Michigan: Personal
communication, November 10,1991.
Bryant, B. and Paul Mohai, eds. 1991. Proceedings of the Michigan Conference on Race
and the Inririrncr, of Environmrrual HaranJs. University of Michigan, Ann Arbor.
Bureau of Indian Attain (BIA). Fish Wildlife, and Recreation Program. 1988. Tribal
Fish, Wildlife, and Outdoor Recreation Resource Programs, 1986. BIA, Washington,
D.C.
Bureau of Indian Affairs (BIA). 1986. Report of the Task Force on Indian Economic
Development. BIA, Washington, D.C
Cahn, Edward S. 1969. Our Brother's Keeper The Indian in White America. New
Community Press, Washington, D.C.
Churchill, Ward. 1986. "American Indian Lands: The Narive*&hk Amid Resource
Development." Environment, v. 28, no. 6.
«
Citizens Clearinghouse on Hazardous Wastes. 1991. Everyone's Backyard, v. 9, no. 6
Council of Energy Resource Tribes (CERT). March 1989. Review of Indian Tribal
Environmental Projects Undpr the Category C Program: 1985-89. Report to U.S.
Environmental Protection Agency, Washington, D.C
Council of Energy Resource Tribes (CERT). 1985. Inventory of Hazardous Waste
Generators and Sites on Selected Indian Reservations. Report to U.S. Environmental
Protection Agency, Washington. D.C
Department of Health and Human Services (HHS). 1984. Report of the Secretary's Task
Force of Black and Minority Health. Washington, D.C
Department of Health and Human Services (HHS). 1988. Health, United States. 1987.
Washington, D.C died in V. Havana Race or class versus Race and Class: Morality
differentials in the United States. The Lancet v. 336, pp. 1238-40.
Douglas, Mary and A. Wildavsky. 198Z Risk and Culture. An Essay on the Selection of
Technical and Environmental Dangers. University of California Press, Berkeley, CA.
Ebcrhard, Eric D. 1990. "A Review of the EPA Indian Lands Policy and Recent
Legislative Developments,' in Pamerships for the Protection of Tribal Environments.
Americans for Indian Opportunity/EPA Tribal Leaders Workshop, Washington, D.C,
April 1990.
Environmental Protection Agency. Science Advisory Board, 1990. Reducing Risk:
Setting Priorities and Strategics for Environmental Protection- EPA, Washington, D.C
Environmental Protection Agency. Offiice of Water Regulations and Standards. August
1990. Risk Assessment for 2378-TCDD and 2378-TCDF Contaminated Receiving Waters
from U.S. Chlorine Bleaching Pulp and Paper Mills. Unpublished paper. EPA.
Washington, D.C
Environmental Protection Agency, Office of Emergency and Remedial Response.
September 1987. Hazardous Waste Sites on Indian Lands. Unpublished paper, EPA,
Washington, D.C
Geisler, Charles C et al, eds. 1982. Indian SLA: The'Social Impact Assessment of Rapid
Resource Development on Native Peoples. University of Michigan, Natural Resources
Sociology Lab, Monograph #3, Ann Arbor, ML
Govin, B. Kevin. 1987. Indian Tribal Governments Look to Take Control of Reservation
Environments. The Workbook, v. 12, no. 3. Southwest Research and Information
Center, Albuquerque, NM.
Indian Health Service (ffltS). 1990. Ticnds in Indian Health. IHS, Rockville, MD.
Jacobson Joseph L, Jacobson. Sandra W., and Harold Humphrey, January 1990.
"Effects of In Utero Exposure to Polychlorinatcd Biphcnyls and Related Contaminants on
Cognitive Functioning in Young Children," Journal of Pediatrics.
Johnson v. Mclntosb (1823) cited in Robert A. Williams, Jr. 1989. "Emergence of a
National Indian Policy: Parens Patriae and Indian Tribal Soveignty," in Mineral
Development on Indian Lands, Proceedings of a Conference sponsored by me Rocky
Mountain Mineral Law Foundation, Paper No. 1.
Lyng v. Northwest Indian Cemetery Protective Association. 108 S. Ct. 1319, (1988)
Mimclier, KiL 7/28/91. "Dances with Garbage: Rosebud Sioux Bank Dump on Native
Soil." Denver Post.
Mum, Robert, and Ronald J. Glass. 1988. Wilderness and Subsistence Use
Opportunities: Benefits and Limitations. U.S. Forest Service National Wilderness
Colloquium, Wilderness Benchmark 1988. Tampa, Florida, January 13-14,1988, p. 142.
New York Times, 1/3/91. "After Mining, A Furor Over A Shrine."
Office of Technology Assessment (OTA). 1986. Indian Health Care. Washington, D.C
Price, Leigh. July 1983. Administration of Environmental Prpbelms on Indian Lands.
Indian Work Group Discussion Paper, Office of Federal Activities, unpublished.
Reffly, Wffliam K. 1991. "Why I Propose a National Debate on Risk," EPA Journal, v.
17, no. 2.
Romeo, Stephanie. 1985. Concepts of Nannt and Power Environmental Ethics of the
Northern Ute. Environmental Review, v. 9, no. 2.
Sandman. Peter M. 1987. "Communicating Risk: Some Basics." Health and
Environmental Digest, v.l, no. 11.
Schneider, Keith, 10/17/91. "Idaho Tribe Stops Nuclear Waste Truck," New York Times.
Schneider, Paul July/August 1991. "Other People's Trash," Audubon.
-------
Legal Defense Fond (SCLDF). November 1984. American Indians and
~ K An Uncertain, Complex Alliance. In Brief: A Quarterly Newsletter on
law. Washington, D.C.
Sicvns. Manricc mdJeffiry Fiiber. 1983. Cancer in North American Indians:
Environment vs. Herediry. American Journal of Public Health, v. 73. no. 5.
Smothers, Ronald. Tutare in Mind, Cbooaw's Reject Plan for I -andfjn," New York
Times. 4/21/91.
Snipp, C. Matthew. 1989. American Indians: The First of this Land. Russell Sage
Foundation, New York.
Stoffle, Richard W. and MJ. Evans. 1990. "Holistic Conservarion and CulninU Triage:
American Indian Perspectives on Cultural Resources," Human Organization, v. 49, no. 2-
S raffle, Richard W. 1987. Review of Navajo Resources and Economic Development by
Philip Reno. In American Indian Quarterly, Winter 1987.
Thornton, Russell. 1987. American Indian Holocaust and Survival. University of
Oklahoma Press, Norman, OK-
Topper, Martin, National Indian Coordinator. EPA/OFA. Personal communication.
10/8/91.
U.S. Bureau of the Census. 1990. Statistical Abstract of the United Sates, 1990. US.
Government Printing Office, Washington, D.C.
Vaughan. Elaine and Brcnds Nordenstam. March 1991. The Perception of Environmental
Risks Among Ethnically Diverse Groups in the U.S.. Journal of Cross-Culniral
Psychology.
VecseyCandR-W. Vcnables, eds. 1980. American Indian Environments: Ecological
Issues in Native American History. Syracuse University Press, Syracuse, NY.
West, Patrick C, et aL 1990. Minority Anglers and Toxic Fish Consumption: Evidence
from a State-Wide Survey of Michigan. In the Proceedings of the Michigan Conference on
Race and the Incidence of Environmental Hagirtt Banyan Bryant and Paul Mohai. eds.
"Wharton, Donald R. 1987. 'Organization and Structure of Tribal Governments." in
Mineral Development on Indian Lands. Rocky Mountain Mineral Law Foundation.
Denver.
-------
The Spirits Will Leave: Preventing the
Desecration and Destruction of
Native American Sacred Sites on
Federal Land*
Robert Charles Ward*
CONTENTS
Introduction 796
I. The Problem: Land Sacred to Native Americans Is
Threatened with Desecration 798
A. The Land Itself Is Sacred and Indispensable to the
Practice of Religion 798
B. Sacred Sites Are Imperiled by Federal Land
Management 803
1. Federal Law Has No Provisions for Religious Use of
Public Lands 804
2. Federal Land Management Authorizes and Encour-
ages Uses Which Destroy Sacred Lands 805
a. Mining 805
• b. Reclamation 806
c. Recreation 806
II. Constitutional Protections for Sacred Sites: Can the Spirits
be Saved? 807
A. An Early Failure — Sequoyah v, TVA 809
B. The End of the Road — Lyng 310
C. Can Sacred Sites Find Protection Under the Religion
Clauses of the First Amendment? 311
1. How Do the Characteristics of Native American
Religions Affect the First Amendment Analysis? — 811
2. Does the Establishment Clause Foreclose Accommo-
dation of Site-Specific Religions? 813
II. Other Possible Avenues For Protection of Sacred Places — 815
Copyright © 1992 ECOLOGY LAW QUARTERLY
* An earlier version of this Comment won the Ellis J. Harmon Environmental Law
V riting Competition.
•" Associate, Sharais. Friese & Ginsburg; I.D. 1992, School of Law (Boalt Hall), Uni-
ersiry of California at Berkeley; B.A. 1985, University of California at Berkeley.
795
-------
796 ECOLOGY LAW QUARTERLY [Vol. 19:795
A. The American Indian Religious Freedom Act of 1978 .. 816
B. Cultural Preservation Statutes 817
1. Antiquities Act 817
2. National Historic Preservation Act 818
3. Archaeological Resources Protection Act 818
4. Summary of Impact of Cultural Resources Protec-
tion Statutes 820
C. Environmental Protection Statutes 820
D. The Trust Doctrine -. : 821
E. Claims Based on Treaties or Native Sovereignty 822
F. Summary: Does the United States Legal System Offer
Any Potential Solutions to the Problem of Sacred Site
Desecration? 823
IV. Indian Religion and Sacred Sites: Invaluable Assets to
American Society 824
A.- Ethical Convergence of Site-Specific Religion and
Environmentalism 825
1. Traditional Indian Religious Ethics Compared with
Anthropocentric and Utilitarian Environmental
Ethics 825
2. Spiritual Motivations Within the Environmental
Movement 829
B. Every Traditional Indian Religion Is a Critical Compo-
nent of Our Cultural Diversity 831
C. Linking the Spiritual and the Temporal: Questing for
the Contemplative Experience 832
V. Sacred Site Protection in a Secular Society 834
A. Designation of Sacred Sites 835
1. Substantive Basis for Designation 835
a. Definition of Sacred Land 835
b. Drawing the Physical Boundaries of Sacred Sites
838
2. Designation Procedures 838
B. Management and Permissible Uses of Sacred Sites 839
1. Sacred Site Management 840
2. Permissible Uses of Sacred Ground 841
Conclusion 842
Appendix 843
INTRODUCTION
The United States is a society which cherishes secularism and iso-
lates religion from politics.
-------
1992] SACRED SITE PROTECTION 797
One unfortunate consequence of this separation is that, for the most
part, the government and the general public remain ignorant of the fact
that religions are being annihilated. The dark side of secularism is the
destruction of the traditional religions of the indigenous peoples of North
America. This destruction is occurring on several fronts, one of which is
the desecration of the lands upon which Indian1 religions have been
based from time immemorial.2
Sacred sites, which play an integral role in Native American reli-
gions, are under assault. Many sacred sites are situated on federal land,
such as national forests and lands under the control of the Bureau of
Land Management (BLM). Federal managers of sacred lands have
proven ignorant of the Indian religious relationship with the sacred
places and at times have been antagonistic to Native American religious
interests. Sacred places — which cannot be disturbed or the spirits will
leave3 — are being ravaged with shovel and ax. Our nation's current
legal apparatus affords little hope for preventing the desecration.
The crippling or elimination of any Indian religion is of profound
concern. Our society ostensibly is committed to religious freedom and
toleration for all; we should act accordingly. Additionally, Indian peo-
ples have a unique ethical claim for preservation of their culture due to
the history of aggression against them.
People and religions are national resources as much as petroleum
and timber. Indian religions are a well-established pan of American cul-
ture. A kind of poverty results from the decimation of cultural resources
and the reduction of cultural diversity. The death of the religion of any
indigenous American people shames and impoverishes our society.
Indian religions hi particular are valuable cultural resources. They
evince a special relationship with the land, a relationship which is com-
patible with evolving notions of how people should use and regard the
environment^ Allowing these Native American religions to survive will
email some changes in our legal system. This Comment proposes a stat-
utory protection scheme for designating sacred sites and ensuring that
:hey are managed for the benefit of Indian religious uses.
Part I of this Comment examines the nature of the threat to sacred
utes. Many locations are integral to Indian religions; the religions them-
.elves would be destroyed by the desecration of those places. Frequently
uch sites are located on public land, and are managed by those who
1. The terms Indian, Native American, and indigenous American are used interchange-
bly in this paper.
2. This Comment will focus on the threat to Indian religions posed by desecration of
icred ground on public lands. Other forms of interference with Indian free exercise of reli-
on. such as restrictions on peyote use and the refusal to repatriate cultural artifacts and
aman remains, are not within the scope of this paper.
3. See infra notes 39 to 42. and accompanying text.
-------
798 ECOLOGY LAW QUARTERLY [Vol. 19:795
misunderstand the impact of routine land uses such as mining. Part II
discusses the possible constitutional protections for Native American" sa-
cred places. Part III explores the options available for protection of sa-
cred places under existing statutes. Part IV examines the desirability of
preserving Indian religions and discusses the ethical congruence between
Indian traditionalism and American environmentalism. Part V offers
and explains potential statutory solutions to the problem of desecration
of Native American sacred places located within the United States.
I
THE PROBLEM: LAND SACRED TO NATIVE AMERICANS IS
THREATENED WITH DESECRATION
In many places across the United States, land held sacred by practi-
tioners of traditional Native American religions is threatened with dese-
cration. This problem has two basic components. First, for most Indian
peoples, specific geographical locations are sacred and indispensable to
the practice of their religions.* Second, many of these sacred places are
on federal, not Indian, land. Federal land management policies and ac-
tions routinely destroy, or threaten to destroy, the sacred character of
these places.
A. The Land Itself Is Sacred and Indispensable to the Practice of
Religion
Native American religions3 are difficult to understand within the
doctrinal confines of the major religions of the Western World. In con-
4. This Comment is primarily concerned with those who believe in the traditional Na-
tive American religions. It is critical here to distinguish between Native American traditional-
ists who adhere to the letter and spirit of their traditional religions and tribal governments
which may not.
5. North Amercian Indian religions exist throughout the continent. JOSEPH E. BROWN,
SPIRITUAL LEGACY OF THE AMERICAN INDIAN 5-27 (1982). Deward E. Walker, Jr., field
verified 300 sacred sites in the Northwestern United States alone. Deward E. Walker, Jr.,
Protection of American Indian Sacred Geography, in HANDBOOK OF AMERICAN INDIAN RELI-
GIOUS FREEDOM 100, 108 (Christopher Vecsey ed.. 1991).
There are perhaps as many Native American religions as there are surviving tribal peo-
ples, because Native American culture and religion are intertwined. See Christopher Vecsey,
Prologue to HANDBOOK OF AMERICAN INDIAN RELIGIOUS FREEDOM, supra, at 12 (discussing
the existence of hundreds of different Native American languages and religious practices);
Walker, supra, at 111 (discussing essential link between sacred sites, religion, and culture;
adding that sacred sites are fundamental symbols and patterns of Native American culture).
Generalizations regarding "Native American religion" are potentially misleading or danger-
ous, perhaps offensive, and largely simplistic, given the variation in beliefs and practices from
one people to another. But there are common threads. One such thread is the sacredness of
specific places in the religions of almost all Indian peoples. See AK£ HULTKRANTZ, THE
REUGIONS OF THE AMERICAN INDIANS 44-65 (1979); Walker, supra, at 100,102-03. Thus, to
the extent of this commonality, the issue of sacred site desecration is amenable to broad cross-
cultural treatment.
-------
1992] SACRED SITE PROTECTION 799
trast to Western religions, Indian religions6 do not have a body of sacred
literature comparable to the Bible, the Koran, or the Torah.7 Nor do
many Indian religions center around belief in a single, omnipotent De-
ity.8 Indian religions often have no charismatic founders9 or chronolo-
gies of significant religious events.10 Nor do adherents of traditional
Indian religions seem to have any compelling desire to convert others or
to spread their faith beyond their respective tribes." Indeed, "religion"
is an English word without equivalent in many Indian languages,12 where
"religion" is not distinct from "culture."13 Most Native Americans
would probably find it undesirable and inconceivable to spread their be-
liefs beyond the limits of their people and territory.
To early Europeans in America, however, Indian religions seemed
primitive, static, and pagan. The Europeans viewed Indian religion as
6. This discussion of Indian religion primarily encompasses those traditional religions
originating before contact with Europeans. While the Native American Church and other
syncretic sects may struggle for free exercise of their faith as well, those religions are generally
not encompassed by this Comment.
7. See Vecsey, supra note 5, at 12.
8. Sarah B. Gordon, Comment, Indian Religious Freedom and Governmental Develop-
ment of Public Lands, 94 YALE LJ. 1447, 1448-49 (1985) ("The Judeo-Christian concept of a
supreme and immortal deity, belief in whom may be divorced in many respects from any
specific situs or mode of worship, is not applicable to many Indian religions. Native American
religions view gods, people, and nature as an integral whole.").
9. Suagee contrasts traditional Native American religions with other world religions as
follows:
The major religions of the world have been described as "commemorative" religions,
because adherents trace the origin of their faith back to specific persons or events
(Jesus, Mohammed, Buddha, The Exodus, etc.) and the religious practices center on
rituals commemorating these people and events (Holy Communion, Passover, etc.).
In contrast, tribal religions are described as "continuing" religions because these reli-
gions have been practiced continuously since their origins, which are inseparable
from the origins of tribal cultures.
Dean B, Suagee, American Indian Religious Freedom and Cultural Resources Management:
Protecting Mother Earth's Caretakers, 10 AM. INDIAN L. REV. 1, 9 (1982).
10. See Scott Hardt, The Sacred Public Lands: Improper Line Drawing in the Supreme
Court's fret Exercise Analysis, 60 U. COLO. L. REV. 601, 603 (1989) (suggesting that Indian
religions are spatially oriented, while Western religions are temporally oriented).
11. Among Native Americans, the boundaries of ethnicity and religion are coterminous.
Russel L. Barsh, The Illusion of Religious Freedom For Indigenous Americans, 65 OR. L. REV.
363, 367 (1986). A significant distinction among religions is whether they can spread beyond
the sacred geography in which they were bom. The assumption for Christianity has always
been that it could and should, while that has not generally been the assumption for Indian
rekgions. See VINE DELORIA, JR., Goo Is RED 83 (1973) (describing Native American reli-
gions as an "examination of community needs and values, not a progression of conceptual
advances"). This discussion of Native American religions does not apply to Pan-Indian reli-
gions which are not site-specific and have spread over different geographic areas. See CHRIS-
TOPHER VECSEY, IMAGINE OURSELVES RICHLY 130-31 (1988) (describing the spread of the
peyote religion, also known as the Native American Church, throughout North America).
12. Robert S. Michaelsen, American Indian Religious Freedom Litigation: Promise and
Perils, 3 J.L. & RELIGION 47, 49 (1983).
13. "tT]he modem western tendency to break up human life into such categories as reli-
gion, politics, economics, etc., is not very useful in describing or understanding traditional
Indian life." Id.; see also Suagee, supra note 9, at 7.
-------
800 ECOLOGY LAW QUARTERLY [Vol. 19:795
mere superstition, Indian religious leaders as fakirs, and the adherents as
savages.14 From this ethnocentric perspective, conversion-of-the native
peoples to Christianity was seen as not only desirable but inevitable.15
One aspect of traditional Indian religions which has proven particu-
larly difficult for non-Indians to grasp is the connection between worship
and place.16 Native American religions are inextricably tied to the
land.'7 They "exist in relation to, and dictate conduct within, a geo-
graphic place."18 The overwhelming majority of indigenous American
religions "cannot be practiced on certain days, inside designated build-
ings, or through purely intellectual exertions."19 Rather, the religion —
and culture — of most indigenous Americans cannot be divorced from
well-defined relationships with specific lands.20 Under Native American
teleology, peoples are placed on the Earth in precisely the proper places;
each tribe must live symbiotically with the other creatures, the plants,
the rocks and soil, the air and water, and the spirits or gods that share
those places.21 The Native American relationship with the land goes be-
yond reverence to symbiotic equality: "Just as each place on Earth has its
own unique mix of humans and other living beings, each has its own
unique operating instructions and rituals."22
Native American religions revere the natural world in its entirety.23
Every part of nature contains sacred knowledge, and the relationship of
14. See, e.g.. Vecsey, supra note 5, at 15-16; Suagee, supra note 9, at 7-9 ("Since the
Judeo-Christian mainstream of the dominant culture tends-to view itself as the only true reli-
gious tradition, the tendency persists to regard tribal religions as primitive superstitions the
Indians must reject if they hope to achieve the Christian afterlife.").
15. See Barsh, supra note 11. at 370-71. Many Christians wrote that the deaths of Indi-
ans, whether by disease or violence from colonists, were manifestations of God's will. Suagee,
supra note 9, at 8.
16. Michaelsen. supra note 12. at 59-62.
17. See generally BROWN, supra note 5, at 50-52.
18. Barsh. supra note 11, at 364.
19. Id.
20. Michaeisen. supra note 12. it 60 ("American Indian traditions . . . have long been
associated with particular areas.... [A] 11 Indians [of the Southwest) held in some form a belief
in a sacred and indissoluble bond between themselves and the land in which their settlements
were located."); DELORIA, '.upra note 11. at 81 ("The vast majority of Indian tribal religions
have a center at a particular place, be it river, .Tiouetain, plateau, valley, or other natural
feature.").
21. See Barsh, supra note 11, at 366 ("Like animals, human beings are not uniformly
distributed. The Creator gave each creature its own pi ice to live, and its own instructions.").
From a Western standpoint, indigenous American tribes shifted geographic locations in fairly
recent times. For example, the Blackfeet peoples completed their migration from the eastern
woodlands to the Great Plains in the lee of the Northern Rockies in the 17th or 18th centuries
A.D. JOHN C. EWERS, THE BLACKFEET: RAIDERS ON THE NORTHWESTERN PLAINS 6-7
(1958). Nonetheless, Indians hold a very static view of tribal territory. Native American peo-
ples generally feel each tribe has its own place on the Earth, unchanging, the people indistin
guishable from the place. Barsh. supra note 11. at 367.
22. Barsh, supra note 11, at 367.
23. See DELORIA. supra note 11, at 176 ("Every pan of this soil is sacred in the estima-
tion of my people. Every hillside, every valley; every plain and grove, has been hallowed by
-------
1992] SACRED SITE PROTECTION 801
man to every creature and place is one of kinship.24 The entire earth is
sacred; it is the source of life.25
Some parts of the natural world, however, are accorded special rev-
erence. While all the animals are brothers and sisters, many indigenous
Americans hold some animals in particular esteem.26 And, while all of a
tribe's territory is sacred, there are special places which are more sacred
than others. These special places may be where the gods originated or
where they live; where the people or animals were born; where individu-
als communicate with spiritual forces or are cleansed; or where leaders
communicate with spiritual forces seeking safety, bounty, or renewal on
behalf of their people or, in some instances, of the entire world.27
Thus the relationship between North American native people and
their lands is central and indispensable to their religion, culture, and way
of life.28 For example, Hopi mythic narratives establish that the Hopi
emerged from the underworld and travelled far to their chosen land. The
land around Oraibi and Moenkopi in Arizona, where the Hopi remain
today, was always their destination. They bypassed other good lands to
settle there. Their coalescence into a people is not severable from their
settlement of these specific lands.29
There are numerous sites in North America which are of special
religious significance to Indian peoples. The four sacred ranges of the
Navajo mark the boundaries of Dinetah, which is the Navajo homeland
and sacred cosmos.50 The majestic San Francisco Peaks, which mark
the southwestern boundary, are not only the dwelling place of Navajo
spirits; they are said to form the body of a god. The trees, plants, rocks,
and earth are the skin of the deity. From the skin of this god, the Navajo
collect the herbs which they believe are essential for healing.31
some sad or happy event in days long vanished." (Statement of Chief Seattle)).
24. Barsh. supra note 11, at 365-66. This view is demonstrated by the customary Lakota
Sioux benediction-. "[We] are all related." At at 366, n.18.
25. Id. at 367.
26. See. e.g., EWERS, supra note 21. at 17, 32, 85 (describing Blackfeet regard for beaver
and grizzly bear).
27. Barsh. supra note 11, at 367; Gordon, supra note 8, at 1449; HUUTKRANTZ, supra
note 5, at 60, 63.
23. See BROWN, supra note 5, at 37 ("fWJhat is almost unique in the Indians' attitude is
that their reverence for nature and for life is central to their religion: each form in the world
around them bean such a host of precise values and meanings that taken all together they
constitute what one would call their 'doctrine.'"); Gordon, supra note 8, a: 1449 ("[LJocation
is essential to many aspects of Indian ritual and belief. In Indian belief, the place where an
event occurred, rather than the event itself, assumes special significance.").
29. See VECSEY. supra note 11, at 34-53 (1988).
30. Wilson v. Block, 708 F.2d 735, 738 (D.C Cir. 1983), cert denied, 464 U.S. 956 and
464 U.S. 1056 (1984) (holding that Navajo and Hopi tribes could not prevail on theories that
expansion of a government-owned ski resort violated the First Amendment, the American
Indian Religious Freedom Act, or the National Historic Preservation Act).
31. 708 F.2d at 738.
-------
802 ECOLOGY LAW QUARTERLY [Vol. 19:795
The Hopi also revere the San Francisco Peaks. They believe that
emissaries from the gods — kachinas — reside there for half of every
year. While dwelling on the San Francisco Peaks, the kachinas create
the rain and snow32 without which the Hopi cannot live.
For the Yurok, Karok, and Tolowa of Northern California, Chim-
ney Rock and Doctor Rock are part of the sacred High Country.33
There are specific sites within the twenty-five square mile High Country
of the Siskiyou Mountains where leaders go to communicate with spirits.
From the spirits who dwell at these sites, the religious leaders acquire the
medicine necessary for their world renewal rituals.34
Bear Butte, in the Black Hills of South Dakota, is where the Tsistsis-
tas and Lakota believe humans were created and given their first instruc-
tions.33 It remains the geographic focus of these tribes' religions to this
day.36
Thus, the sacred places of many different Indian tribes are located in
North America.37 The sites mentioned above have already been the
source of legal conflict. Many others exist. Some sites, however, have
already been desecrated.38
For most Indian peoples, the sacred place must remain in its natural
state39 or lose its sacred character. Altering the landscape or the use of
the location could destroy the site by disrupting the sense of isolation
necessary for ceremonies40 or by driving the spirits away.4' "If an area is
32. u.
33. Lyng v. Northwest Indian Cemetery Protective Ass'n. 485 U.S. 439, 442, 461 (1988)
(Brennan, 1, dissenting).
34. Id. See also D. Theodoratus, et al., Cultural Resources of the Chimney Rock Section,
Gasquet-Orleans Road, Si* Rivers National Forest (1979), excerpted in. Petition for a Writ of
Ceniorari, Joint Appendix, Lyng (No. 86-1013).
35. Barsh, supra note 11, ai 367.
36. See, e.g.. Crow v. Gullet, 541 F. Supp. 785, 788 (D.S.D. 1982), aff'd, 706 F.2d 856
. :th Cir.), cert denied. *64 U.S. 977 (1983).
37. See FEDERAL AGENCIES TASK FORCE, AMERICAN INDIAN RELIGIOUS FREEDOM
ACT RETORT app. C (1979) [hereinafter AlRFA REPORT] (listing a number of sacred sites).
38. One example of site desecration is the Navajo sacred land which was flooded when
Lake Powell was created behind the Glen Canyon Dam. See Barsh, supra note 11, at 398.
39. By "natural" sta.e, I do not mean to imply that the sacred site is untouched by man.
The North American landscape before the arrival of Europeans was significantly altered by
Native Americans. See WILLIAM CRONON, CHANGES IN THE LAND 13, 43. 48-49 (1983).
40. See Lyng, 485 U.S. at 462-65 (Brennan, L, dissenting) (endorsing lower court's fac-
tual finding that construction of a road through the High Country, and the resulting increase
in traffic, would make the place unfit for world renewal rituals).
41. For example, in bringing suit to enjoin uranium mining in Kaibab National Forest.
Arizona, the Havasupai alleged chat "if the uranium mine was sunk, the sacred resting and
meeting place of the Life Spirit ('Grandson') and the Spiritual Grandmother will be destroyed.
the annual renewal of the Earth will not occur, and the Sacred Mother will die." Celia Byler,
Comment, Free Access or Free Exercise?: A Choice Between Mineral Development and Ameri-
can Indian Sacred Site Preservation on Public Lands, 22 CONN. L. REV. 397, 397 n.3 (1990)-
See also Barsh, supra note II, at 368 ("[E]xtractive land development such as mining and
hydroelectric projects not only threaten Indians' sacred places but their entire conception of
-------
1992] SACRED SITE PROTECTION 803
destroyed, marred, or polluted, my people say, the spirits will leave the
area. If pollution continues, not only will animals, birds, and plant life
disappear, but the spirits will also leave."42
Given the site-specific nature of most Indian religions,43 destruction
of the sacred ground destroys the religion.*4 Further, given the complete
interconnection of religion and traditional Native American culture and
identity,45 destruction of the religion destroys the culture.
B. Sacred Sites Are Imperiled by Federal Land Management
Many sacred sites are on land no longer "owned"46 by Indian tribes:
"Most of [the sacred] sites not in Indian possession are owned by the
Federal Government."47 Destruction of the federally-owned sites fre-
quently causes bitter and antagonistic disputes.48 In fact, policies and
actions of the federal government threaten many sacred places and have
already led to the destruction of others.49
Although most of the Indian peoples in this country no longer own
their sacred ground,50 what is now the United States was once the do-
main of Indian peoples.31 The indigenous peoples of this continent were
divested of their land through duress and treachery.31 That history
should be considered in any analysis of the conflicts between Native
American interests and government action and should be reflected in
the natural order."); THE GHOST-DANCE RELIGION AND THE Sioux OUTBREAK OF 1890,
UTH ANNUAL REPORT OF THE BUREAU OF AMERICAN ETHNOLOGY 1892-93, H.R. Doc
No. 230, 54th Cong.. 2d Sess. 721 (1892-93) ("You ask me to plow the ground! Shall I take a
knife and tear my mother's bosom?") (quoting Sahaptin Chief Srnohalla).
42. CHIEF JOHN SNOW, THESE MOUNTAINS ARE OUR SACRED PLACES 147 (1977).
43, Set VECSEY, supra note 11 at 34-53.
44. Gordon, supra note 8, at 1449. The spirits arc inseparable from the land. Destroying
the latter drives away or kills the former. 5ee«tg., Badom v. Higginson. 638 F.2d 172. 176
(10th Cir. 1980). cert denied. 452 U.S. 954 (1981) (impounding water in reservoir would
drown gods who lived beneath Rainbow Bridge).
45. Michaeisen, supra note 12, at 62-63.
46. This :erm is used here in accordance with Western notions of property. As Justice
Brennan noted, there :s a conflict between "the dominant Western culture, -vn.ich views land in
terms of ownership and use, ana 'hat of Native Americans, in which concepts of private ~rop-
erry are not only aiien, but contrary to a belief system that holds land sacred." Lyng, 485 U.S.
at 473 (Brennan. J., dissenting).
47. 123 CONG. REC. 39,300 (1977) (statement of Sen. Abourezk (SD)).
48. See. e.g., infra pan II.A-B; Gordon, supra note 8, at 1448 n.6. The existence and
location of sacred sites may not be revealed outside the tribe until that place is threatened by
an outsider. This is problematic because the federal government claims that it is impossible to
protect sites without knowledge of their location.
49. See infra part I.B.2.
50. See generally DAVID H. GETCHES & CHARLES F. WILKINSON. CASES AND MATERI-
ALS ON FEDERAL INDIAN LAW 161-62 (19S6) (discussing Native American property rights in
the United States generally, and noting that Native Americans often do not own fee tide to
their former lands).
51. Id.
-52. Suagee, supra note 9, at 12.
-------
804 ECOLOGY LAW QUARTERLY {Vol. 19:795
proposed resolutions of the conflicts. Unfortunately, past injustices are
rarely considered in the resolution of present legal disputes. _
One legal theory that does recognize past injustice is the trust doc-
trine.53 The trust doctrine is an outgrowth of the fiduciary relationship
that many have suggested should exist between the conqueror and the
conquered.54 The doctrine is of limited usefulness, however, because of
its inconsistent application and its paternalistic implications.33
1. Federal Law Has No Provisions for Religious Use of Public Lands
Federal ownership of sacred grounds poses a serious threat to Na-
tive American peoples because Indian religious practices are rarely con-
sidered in federal land management decisions. Federal land managers
have never unqualifiedly recognized the sacred character of these lands
nor have they committed to protecting them from desecration. Gener-
ally, when federal land managers evaluate appropriate uses for a tract of
land, that tract's religious significance is a peripheral, non-determinative
consideration.56
The law governing federal land management does not provide a can
egory for sacred places.37 Although designations such as national park,
national forest, and wildlife refuge might be used to protect sacred sites,
no currently existing legal regime offers explicit protection against dese-
cration of sacred ground.58 National parks, moreover, are created for the
53. See infra part III.D.
54. Gordon, supra note 8, at 1452.
55. See infra notes 183-85 and accompanying tut.
56. See infra part III.C.
57. Although such a designation for a reservation would face an Establishment Clause
challenge in the United States, see infra part II.C.2, explicit legal protection of sacred places
for religious purposes is not unknown. Israel's Protection of Holy Places Law, 5727-1966/67,
21 L.S.I. 76 (1967) safeguards sites significant to Jews, Christians, and Muslims. Gordon.
supra note 8, at 1450-51, nn.16 & 17.
58. The American Indian Religious Freedom Act of 1978 (AIRFA) nominally should
influence the management of all federal lands. 42 U.S.C. 1996 (1988). The statute's oracrical
effect, however, has been completely vitiated by the courts. See infra pan III.A.
Most federally owned land is administered by the Bureau of Land Management whose
organic act. the Federal Land Policy Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701-
84 (1988), specifically discusses uses such A mining, grazing, habitation, cultivation, and man-'
ufacturing. See. e.g., 43 U.S.C. §§ 1719, ;732, 1751. Nowhere in FLPMA are religious uses
mentioned.
The Multiple-Use Sustained-Yield Act of 1960 (MUSYA), 16 U.S.C. §§ 528-31 (1988),
which governs the administration of public lands, states: "It is the policy of the Congress that
the national forests are established and shall be administered for outdoor recreation, range,
timber, watershed, and wildlife and fish purposes." 16 U.S.C. § 528. Again, religious use is
not mentioned.
National parks are created individually by act of Congress. National monuments ar^
created by the President of the United States through executive order, the authority for such"
orders comes from the Antiquities Act. 16 U.S.C. §§ 431-33 (1988). Not one national park or
national monument has been established for the purpose of Indian religious use.
-------
1992] SACRED SITE PROTECTION 805
use of the American people59 and cannot accommodate the needs for
privacy and exclusivity of many Indian religions.60
Wilderness designation' would provide adequate protection for sa-
cred sites. Wilderness areas are protected from development and should
offer solicitude and privacy.61 However, the decision to designate an area
as wilderness is within the discretion of Congress and, in such inquiries,
the presence of sacred ground in the area is at best a remote factor.62
2. Federal Land Management Authorizes and Encourages Uses Which
Destroy Sacred Lands
The greatest threat to Native Ajnerican religion is the use of federal
lands for such purposes as mining, reclamation, and intensive recreation.
While some sacred sites may be on tracts that the federal government
uses more or less compatibly with Native American interests,63 many
sacred places have already been desecrated as the result of federal land
management decisions.64 Additional sites are currently threatened be-
cause they are on tracts of federal land that remain available for extrac-
tive, ecologically destructive uses.65
a. Mining
Mining represents one of the greatest threats to Native American
sacred sites located on federal land.66 Under federal law, mining is a
favored use for public land. Mining can be very profitable,67 and the
right to exploit mineral wealth on federal land is relatively easy to ac-
quire.68 Moreover, mining is probably the use of federal land least com-
patible with Native American religious beliefs and practices.69 Few
59. See JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS 60-61 (19&0).
60. See Walker. ;upra note 5, at 107 ^describing rituals requiring isolation for prayer);
Vecsey, supra note 5, ax 21-22 ("Our religion requires that we have privacy.").
61. "A. wilderness . . . has outstanding opportunities for solitude or a primitive ind un-
confined type of recreation." The Wilderness Act of 1964. 16 U.S.C. § 1131(c) (1988).
62. The ?oal of the Wilderness Act is to "leave [lands) unimpaired for future use." !6
U.S.C. § r.jila'l. not to preserve lands in their natural state w that Indians may practice :heir
religions. Wilderness management of land may be consistent with Indian religious practice.
but ihe decision to designate in the first place is not affected by the sacred character of the
land. See 16 U.S.C. | 1132 (describing considerations in wilderness designation).
63. See supra notes 61-62 and accompanying text.
64. Barsh, supra note 11, at 398-406.
65. See generally Steven C Moore, Sacred Sites and Public Lands, in HANDBOOK OF
AMERICAN INDIAN RELIGIOUS FREEDOM, supra note 5, at 81.
66. See, e.g.. Gary Tuchman, Native Americans Struggle so Keep Sacred Land. Cable
News Network. Nov. 29,1992, available in LEXIS, Nexis library, CNN file (describing mining
threat to sacred land in Arizona).
67. See Byler, supra note 41, at 398-409.
68. See id.
69. "Although some mining techniques may not physically destroy the site, and, there-
fore, may not prevent Native Americans from physical access, all mining techniques destroy
the site's spirituality and forever deny Native Americans access to the spirit of the site." Id. at
-------
806 ECOLOGY LAW QUARTERLY [Vol. 19:795
forms of mining leave an area undisturbed to the extent necessary to pre-
serve its sacred character.70 Mining involves the building of roads which
entails the uprooting of trees and the removal of soil. The heavy equip-
ment involved intrudes upon the quiet and solitude of an area. Hence,
mineral extraction destroys the serenity necessary for rituals. Mining
that makes even slight changes in the landscape disturbs the earth. If the
earth is disturbed, many Native Americans believe the gods will depart.71
b. Reclamation
Some of the most contentious disputes over federal lands resulted
from federal reclamation projects. Few activities alter the landscape as
irreparably as these water projects. Valleys become lakes, riparian zones
are inundated, and rivers are shifted from their natural courses.
In addition to the ecological impact, the spiritual impact on sacred
ground can be devastating. The original sacred site litigation premised
on the First Amendment involved the flooding of Cherokee sacred lands
by the Tennessee Valley Authority.72 Plaintiffs, two bands of the Chero-
kee Indian Nation and three individual Cherokee Indians, brought
class action on behalf of all present and future Cherokee Indians who
practice traditional Cherokee religion and adhere to Cherokee culture.
They unsuccessfully sought to enjoin the completion and flooding of the
Tellico Dam which would cause the flooding of "sacred sites, medicine
gathering sites, holy places and cemeteries . . . ."73
A second dispute centered on Rainbow Bridge National Monument,
in southern Utah.74 The Glen Canyon Dam, which created Lake Powell,
Hooded land beneath Rainbow Bridge, a huge and beautiful sandstone
arch that is considered by the Navajo to be the home of some of their
gods.73 According to the Navajo, filling Lake Powell to the capacity de-
sired by the Bureau of Reclamation drowned :he Navajo gods.76
c. Recreation
As stated above, while some recreational uses of federal land are
compatible with sacred site preservation, many are not.77 While wilder-
426.
70. See id. at 397, n.3; see also Banh, supra note '. 1. at 368.
71. See Gordon, supra note 8, at 1449 n.12.
72. Sequoyah v. TVA, 620 F.2d 1159 (6th Cir.), cere, denied, 449 U.S. 953 (1980).
73. 620 F.2d at 1160.
74. Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980), cert, denied, 452 U.S. 954
(1981).
75. 638 F.2d at 175-77. ,
76. The Navajo lost their First Amendment legal challenge to the decision to drown thq
gods. Id. at 176-77.
77. For an examination of the underlying connections between Native American religious
practice and American environmentalism, see infra part rV.A.
-------
1992] SACRED SITE PROTECTION 807
ness activities such as backpacking, which leave the landscape largely
unchanged, are generally compatible with Indian religious practices, in-
trusive activities such as boating and water skiing will disturb a sacred
site. The traffic and noise of power boats destroys the quietude of a
place, rendering that place inadequate for religious practices.
The construction of reservoirs thus can not only denude a sacred
place but also lead to increased litter and noise pollution. Ironically,
these destructive uses are frequently cited as justification for federal rec-
lamation projects.78
Downhill skiing, another popular type of recreation often found on
federal land, exacts a large toll from the host mountain. Trees and brush
are cleared from the mountain, and buildings and chair lifts intrude upon
the vistas. A sacred mountain's holiness is further spoiled by the influx
of fast-moving, noisy skiers.
Land management also restricts a tribe's access to holy places. In
Crow v. Gullet,'79 leaders of the Lakota (Sioux) and Tsistsistas (Cheyenne)
peoples sought to enjoin the South Dakota Department of Game, Fish
and Parks from making proposed changes to the land at Bear Butte.
Bear Butte is where the Lakota originally met with the Great Spirit and
is a place where Lakota and Tsistsistas go for instruction and power.80
Bear Butte was owned by the State and managed by the Department of
Game, Fish and Parks. The Department embarked on a program of con-
struction to improve access and develop facilities for increased visitation.
The Lakota and Tsistsistas alleged that the Department also attempted
to limit the availability of the site for ceremonial purposes.81 However,
the court found only one instance of restricted access and held that the
restrictions left the Native Americans' religious rights unharmed.*2
Hence, land management for recreational purposes can limit Native
American access to holy places while encouraging non-believers to crowd
into such places.
II
CONSTITUTIONAL PROTECTIONS FOR SACRED SITES: CAN
THE SPIRITS 3E SAVED?
Throughout most of the history of United States-Indian relations,
the problem of sacred site desecration was subsumed into the larger dis-
pute over foreign occupation of Native American lands. Nonetheless,
78. See MARC REISNER, CADILLAC DESERT 140 (1986) (describing accounting practices
for justifying reclamation practices).
79. 541 F. Supp. 785 (D.S.D. 1982). aff'd. 706 F.2d 856 (8th Cir.), cert, denied. 464 U.S.
977 (1983).
80. 541 F. Supp. at 788.
81. Id. at 788-90.
VI. Id. at 789-90.
-------
808 ECOLOGY LAW QUARTERLY [Vol. 19:795
the desecration and destruction of Native American sacred places begun
by the westward expansion of the United States continues through Con-
gressional and federal agency action.83
Native Americans initially sought legislation to protect their sacred
places from desecration, but Congress was not receptive.84 In the 1970's,
responding to the lack of legislative protection, some Native Americans
attempted to protect their sacred ground in the courts by resorting to the
First Amendment.83
Initially, the courts were unsympathetic to Native American claims.
Between 1880 and 1940, the United States government openly sought the
extermination of traditional Indian religions.86 Not until popular atti-
tudes changed and the United States government began to recognize the
right of Native Americans to preserve their traditional beliefs did sacred
site protection become a legally cognizable issue.87
This section discusses the courts' application of the First Amend-
ment in sacred site cases. More specifically, the section will explore the
applicability of the Free Exercise Clause and the Establishment Clause to
these cases.88
83. See supra part 13.1. Furthermore, the federal regulatory apparatus has authority
over Indian land to the same extent as it has over federal land. Federal Power Comm'n v.
Tuscarora Indian Nation. 362 U.S. 99 (1960) (holding that the Power Authority of the State of
New York could condemn Tuscarora lands upon payment of just compensation, pursuant to a
Federal Power Commission license, as directed by Congress). See generally GETCHES & WIL-
KINSON, supra note 50, at 195-217.
84. Although on one occasion Congress did respond favorably to a Native American
effort to protect sacred ground — when it mandated a special arrangement for Blue Lake, near
Taos, New Mexico — it did so reluctantly. Blue Lake is sacred to Pueblo people and was
being degraded by federally authorized activities in the area. See Barsh. supra note H, at 408-
09-. Michaelsen, supra note 12, at 54 n.31.
S5. The failures of free ejcercise claim* in the courts are well documented. See, e.g., Mi-
cnaelsen. :itpra note 12; Gordon, supra note 8-. Suagee, supra note 9; Byler, supra note 4t.
Unsuccessful efforts include Sequoyah v. TVA. ^.20 F.ld 1159 (6th Cir.J (Cherokee plaintiffs
could not halt the Tennessee Valley Authority irom flooding Chota. on zr.r.tm Cherokee com-
•nuniry thought to be an ancestral homeland), :irt. denied, 449 U.S. .'53 (5980); Badoni v.
Higginson, 638 F.2d 172 (10th Cir. 1980) (Navajo gods at Rainbow Badge allowed to be
irowned to fill Lake Powell), cert denied -151 U.S. 954 (1981); Wilson v. Block. 708 F.2d 735
(D.C. Cir.) (Navajo and Hopi could not prevent the expansion of a ski resort at the San Fran-
cisco Peaks, home to gods), cm. denied. 464 U.S. 956 and 464 U.S. 1056 (1983); Crow v.
Gullet, 706 F.2d 856 (8th Cir.) (per cunam) (court allowed construction of tourism-related
projects at Bear Butte, sacred to Lakota and Tsistsistas peoples), zert denied. 464 U.S. 977
(1983).
86. Vecsey, supra note 5, at 16.
87. Although the issue has become cognizable, the following discussion suggests that sa-
cred site preservation remains an issue not fully recognized by our legal system.
88. "Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof " U.S. CONST, amend. I. While the Free Exercise Clause
tees the free practice of religion, the Establishment Cause prohibits state-sponsored
See generally LAURENCE H. TRIBE, AMERICAN CoNsrrnrnoNAL LAW 1155-57 (2nd
1988).
-------
1992] SACRED SITE PROTECTION 809
A. An Early Failure — Sequoyah v. TVA
. Despite the long history of sacred site desecration, consideration of
constitutional claims for protection of Native American sacred lands is a
recent phenomenon. The issue of sacred site desecration framed as a
First Amendment claim first reached the courts in Sequoyah v. TVA, a
case concerning the Tellico Dam in the Tennessee Valley.89 The plain-
tiffs in Sequoyah premised their claim on the Free Exercise Clause, stat-
ing that they would "suffer injury by the infringement of their right to
worship the religion of their choice in the manner of their choosing by
the destruction of sites which they hold in reverence and in denial of
access to such sites by the defendant."90
As the first sacred site case, Sequoyah illustrates some common fea-
tures of sacred site litigation. First, and most important, the Indians
. lost.91 Those litigating on behalf of Native Americans have lost every
sacred site case.92 Second, in Sequoyah, the court misunderstood the
critical importance of sacred places to the practice of Indian religions. In
... rejecting the Cherokee Nation's claim the court stated,
the claim of centrality of the Valley to the practice of the traditional
Cherokee religion ... is missing from this case. The overwhelming con-
cern of the affiants appears to be related to the historral beginnings of
the Cherokee and their cultural development.. . though cultural history
and tradition are vitally important to any group of people, these are not
interests protected by the Free Exercise Clause of the First
Amendment.93
Following from this misapprehension, the Sequoyah court found that the
federal activities did not meaningfully infringe on religion9* and that the
governmental Interests were compelling. The court may have viewed
plaintiff Sequoyah as a front for the environmentalists who had ex-
hausted other avenues in attempting to stop the Tellico Dam. In TVA v.
Hill, environmentalists successfully enjoined construction of the Tellico
Dam on Endangered Species Act grounds.95 But advocates of the project
successfully overturned the decision in Congress.96 Sequoyah constituted
a last-ditch effort to halt the project.
89. 620 F.2d 1159 (6ch Cir.), cert denied, 449 U.S. 953 (1980). See also supra notes 72-73
and accompanying text.
90. 620 F.2d at 1160.
- 91. Id.
92. In the G-O Road litigation, compare the favorable constitutional holdings of the
lower courts Northwest Indian Cemetery Protective Ass'n v. Peterson, 565 F. Supp. 586 (N.D.
CaL 1983), aff'd, 795 F.2d 688 (9th Cir. 1986), with the reversal by the Supreme Court, Lyng
v. Northwest Indian Cemetery Protective Ass'n, 483 U.S. 439 (1988).
93. 620 F.2d«t 1164-65.
94. Id. at 1161.
95. 437 U.S. 153 (1978).
96. See Stijuoyah. 620 F.2d at 1161 (describing the TVA appropriation after Hill).
-------
810 ECOLOGY LAW QUARTERLY [Vol. 19:795
B. The End of the Road — Lyng
Native American sacred site litigation reached its nadir in Lyng v.
Northwest Indian Cemetery Protective Ass'n.97 Lyng, the only sacred site
case to reach the Supreme Court, is the final case in an active decade of
sacred site litigation. Unless the composition of the Court should change
radically, the case marks the ultimate failure of sacred site claims pre-
mised on the First Amendment.
In Lyng, members of the Yurok, Karok, and Tolowa tribes sought
to prevent the construction of a logging road through the High Country
in Six Rivers National Forest.98 The High Country is where important
tribal rituals must be performed, including power quests and a world
renewal ceremony."
Although the majority opinion acknowledged the site-specific nature
of the Indian religions,100 the Court determined that
[t]he Constitution does not permit government to discriminate against
religions that treat particular physical sites as sacred, and a law forbid-
ding the Indian respondents from visiting the Chimney Rock area would'
raise a different set of constitutional questions. Whatever rights the Indi-
ans may have to the use of the area, however, those rights do not divest
the Government of its right to use what is, after all, its land.101
Under this finding, the mdst that Native Americans can claim under the
First Amendment is access to their sacred ground located on federal
land. Nothing limits the uses to which the government can put the land.
Lyng has been roundly criticized102 as sounding the death knell for
traditional Native American religions which are dependent upon sacred
sites.103 The case has been characterized as a departure from the previ-
ous constitutional requirement that there be a compelling government
interest before allowing infringement on religious practices.10* From the
standpoint of traditional Native Americans attempting to preserve their
sacred places, however, it is difficult to view Lyng as a departure. Lyng is
97. 435 U.S. 439 (1988).
98. See Donald Falk, Note. Lyng v. .V. W. Indian Cemetery Protective Association: Bull-
dozing First Amendment Protection of Indian Sacred Lands, 16 ECOLOGY L.Q. 515. .517-2.3
(1989).
99. See supra note 34 and accompanying text.
100. Lyng, 485 U.S. at 451.
101. Id. at 423 (citation omitted).
102. The notes and comments are overwhelmingly critical. For thorough criticisms of
Lyng, see, e;g., Falk. supra note 98; Hardt, supra note 10; Patrick T. Xoonaa, Mote. Mining
Desecration and the Protection of Indian Sacred Sites A. Lesson in First Amendment Hurdling-
50 U. Prrr. L. REV. 1131 (1989); Keith Haroldson. Note, Federal Land Use Decision not If
Not an Outright Prohibition, Coercion, or Penalty on the Practice of a Religion Does Not Burden
the Faith in a Manner That Violates the Free Exercise Clause — Lyng v. Northwest Indian
Cemetery Protective Association, 39 DRAKE L. REV. 563 (1990).
103. Such is the practical effect of Lyng in the eyes of many coounentacors. Set,
Haroldson, supra note 102, at 572; Falk, supra note 98, at 515.
104. Hardt, supra note 10, at 651.
-------
1992] SA CRED SITE PR OTECTION g 11
merely a culmination of the failure of the judiciary to understand Native
American religion and to protect Native American religious rights under
the First Amendment.
C. Can Sacred Sites Find Protection Under the Religion Clauses of the
First Amendment?
1. How Do the Characteristics of Native American Religions Affect the
First Amendment Analysis?
Lyng leaves no opportunity for defenders of sacred ground to bring
a First Amendment claim. Although the Supreme Court majority paid
lip service to Indian religious rights by acknowledging that the Constitu-
tion should protect all religions, including those "that treat particular
sites as sacred,"103 the Court refused to protect religious practices.
Even if we assume that we should accept the Ninth Circuit's prediction,
according to which the G-O road will "virtually destroy the Indians' abil-
ity to practice their religion," the Constitution, simply does not provide a
principle that could justify upholding respondents' legal claims.1OS
In the context of most traditional Native American religions, elimi-
nation of the practices eliminates the religion. Hence the Supreme
Court's distinction between religious practices and religious beliefs is
meaningless.
Most religions have beliefs dictating that certain practices must be
upheld. For instance, Roman Catholics believe, among other things, that
members of the Church must be baptized. A law forbidding baptisms
would forbid an essential practice. Similarly, destroying the isolation
and sacredness of Chimney Rock prevents the world renewal ceremony
of the Yurok from taking place. In the Lyng framework, the federal ac-
tion prevents only a practice and not a religious belief. However, because
some practices are so vital to the continued existence of a religion that
:heir prevention destroys the religion, attempting to draw a line between
practice and belief is antagonistic to Native American interests.
The belief/practice distinction also reflects a bias in favor of reli-
gions that are portable. The major world religions have been able to de-
racinate from specific places and move elsewhere. Although Christians
and Muslims have their holy places, and encourage pilgrimages to those
holy places, one can be a Christian or Muslim and never see Jerusalem or
Mecca. Such is not the case for a traditional Yurok: elimination of the
site eliminates the associated practices that are central to the continua-
tion of the religion. Under current law, no constitutional prohibition
protects the sites or the practices. Thus, under Lyng, if the federal gov-
105. Lyng. 485 VS. at 453.
106. Id. K. 451-52 (citation omitted).
-------
812 ECOLOGY LAW QUARTERLY [Vol. 19:795
eminent wishes to implement land use policies which lead to the com-
plete destruction of a Native American religion, it may do so.
The First Amendment forbids Congress from-making a law "re-
specting an establishment of religion or prohibiting the free exercise
thereof."107 On its face, the First Amendment applies to all religions. In
Lyng, the Supreme Court declared: "The Constitution does not permit
government to discriminate against religions that treat particular physi-
cal sites as sacred . . . ." Nonetheless, it approved the desecration of
lands central to the religious practices of the Yurok, Karok, and
Tolowa.108 The Court's action, alongside its declaration that the Consti-
tution "simply does not provide a principle" to preserve sacred sites
against development of public lands, indicates that, in actuality, the reli-
gion clauses of the Constitution do not protect site-specific religions.109
Perhaps the First Amendment only provides a sensible framework
for the portable, proselytizing faiths that the founders of the United
States inherited from Europe. These were, after all, the religions which
the drafters of the Constitution understood and acknowledged. The Es-
tablishment and Free Exercise Clauses were designed to liberate the
United States from the historical tendency toward strife among Chris-
tians. The method of doing so was to remove religion from the political
arena and put it in the private sphere.110 A "thick wall" between church
and state was necessary to prevent bitter strife among religious factions
competing for power.U1
Traditional, site-specific Indian religions, however, are not competi-
tive or disputatious,112 and are unlikely to spread beyond their original
adherents. Hence, allowing Indians free exercise of their religion would
not substantially disadvantage any other religions."3 Further, the fram-
ers of the First Amendment probably considered religion to be a discrete
107. U.S. CONST, amend. I.
108. 485 U.S. at 453.
109. Id. at 452.
110. Michael Aliens, On the Road of Good Intentions: Justice Brennan and she Religion
Clauses. 27 CAL. W.L. REV. 311, 312 (1991).
111. Jeffrey M. Shaman, Observations in the Theory of Govern meat Accommodation of
Religion, 37 DEPMJL L. REV. 347, 348 (1538).
'.12. See Vecsey, supra note 5, at 12.
113. Ultimately, sacred site claimants seek to preserve the physical status quo. They beg ,
that a place not be drilled, paved, plowed, or otherwise disturbed or marred. They do not ask
that anything be built, torn down, or moved. Religions not holding a particular place sacred
have no direct, compelling interest in that place one way or the other. Generally, the only
interests harmed directly are those of resource extraction concerns, who have no interests in
the site other than the profits gained from resource extraction. For an examination of bow
belief in profit can rise to the level of, or take the place of, religion, see SINCLAIR LEWIS,
(1922).
-------
1992] SACRED SITE PROTECTION 813
element of human life.11* This is particularly untrue in the lives of In-
dian traditionalists.113
While it may not have been obligated to do so, Congress has elected
to extend the protections of the Free Exercise Clause to Indians in the
American Indian Religious Freedom Act (AIRFA).116 Perhaps implicit
in this Congressional act is an acknowledgement of doubt as to the appli-
cability or appropriateness of the First Amendment in the context of In-
dian religion. Interpretation of the First Amendment must prove more
malleable if it is to give any force to the guarantees of religious freedom
for Indians.
2. Does the Es:ablishment Clause Foreclose Accommodation of Site-
specific Religions?
In light of the questionable applicability of the First Amendment to
Indian religions, it is not surprising that Indian sacred site claims based
on the Free Exercise Clause have failed. In addition, at least one court
has held that accommodating the Indian claims would violate the Estab-
lishment'Clause of the First Amendment.1" Hence, in formulating any
solution to the problem of preserving sacred sites, the constitutional limi-
tations imposed by the Establishment Clause must be taken into account.
There is friction between the two religion clauses of the First
Amendment.118 Forbidding establishment of religion while mandating
its free exercise results in conflict. This tension suggests that a unified
approach to religious constitutional questions is appropriate. The
Supreme Court has thus far chosen to continue to treat separately ques-
tions based on free exercise and on establishment.119 Thus it is necessary
to analyze whether claims based on the Free Exercise Clause would vio-
late the Establishment Clause.120
114. See Shaman, supra note 111, at 349 ("Religion and government will both «ist in
greater purity the less they are mixed together." (quoting James Madison)).
115. Barsh, supra note 51, at 365.
116. Pub. L. No. 95-341. 92 Scat. -*69 (1978) (codified in pan at i2 U.S.C j 1996 (1988)).
AIRFA is silent, however, as to whether the strictures of the Esuoiishmcnt Clause were also
txtended to U.S.-Indian relations.
117. Badoni v. Higginson, 638 F.:d 172, 179 (10th Cir. 1980) 'excluding tourists from a
Navajo sacred site "would seem a clear violation of the Establishment Clause"), cert, denied,
452 U.S. 954 (1981).
118. See JOHN E. NOWAK & RONALD P. ROTUNDA, CONSTITUTION AL LAW § 17.1 «t
1157 (4th ed. 1991).
119. Id.
120. The Supreme Court uses a three-pan test in determining whether a government ac-
tion violates the Establishment Clause. Id § 17.1 at 1162. First, the government action must
have a secular purpose. Second, it must have a primarily secular effect. Third, it must not
involve the government in an excessive entanglement with religion. Excessive entanglement is
analyzed by evaluating three factors: (1) the character and purpose of the religious institution
to be benefitted, (2) the nature of the aid, and (3) the resulting relationship between the govern-
ment and the religious institution. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
-------
814 ECOLOGY LAW QUARTERLY [Vol. 19:795
Many commentators agree that the preservation of Native Ameri-
can sacred sites may be fashioned so as to stand up to challenges under
the Establishment Clause.121 A simple analysis of a claim for the preser-
vation of a sacred site under the three-part Establishment Clause test
could proceed as follows. First, it would be argued that the protection of
the sacred site has a secular purpose such as the preservation of our na-
tion's cultural diversity.122 Second, it would be argued that the primary
effect of such protection would be secular. The destruction of part of our
cultural diversity would be avoided, and amicable relations between In-
dian traditionalists and our dominant society would be promoted. Third,
it would be claimed that preservation of the site would avoid excessive
involvement of the government in. Indian religion.
Granting complete control over land use decision making for a sa-
cred place to Indian traditionalists, however, would run against the en-
tanglement doctrine as expressed in Larkin v. Grendel's Den, Inc.I23 In
Larkin, the Court invalidated a zoning law which granted to all churches
a veto power over the issuance of liquor licenses for premises within a
five-hundred-foot radius of the church. The Court stated that the statute
substituted "the unilateral and absolute power of a church for the rea-
soned decision making of a public legislative body acting on evidence and
guided by standards ...." and that the statute thus "enmeshes churches
in the process of government and creates the danger of '[political frag-
mentation and divisiveness on religious lines.' "I24
Rather than delegating decision making power to Indian traditional-
ists, Congress and the federal agencies should give proper regard to the
sacred character of the place in making land use decisions.123 Although
there are excellent cultural and environmental reasons for protecting sa-
cred sites, under such a scheme the sites would be protected, at least in
part, because they are considered sacred. Opponents to sacred sites
could argue that such protection is, in effect, a denominational preference
for Indian religion.126 A denominational preference is forbidden unless
521. For a step-by-step analysis of how statutory protection of sacred sites for Indian reli-
gious purposes can satisfy the Supreme Court's test for Establishment Clause challenges, see
Falk, .uora note 98, at 559-60. Robert Michaelsen has argued :hat application of the Estab-
lishmeru Clause is inappropriate given the special status of Indians vis-a-vis the United States.
See Rooert S. Michaelsen, Law and the Limits of Liberty, in HANDBOOK OF AMERICAN IN-
DIAN RELIGIOUS FREEDOM, supra note 5, at 116,119. The status of the Establishment Clause
may not be affected by United States government entanglement in Indian religion. The only
question is whether the pervasive involvement of the United States government will work to
destroy Indian religions or to preserve them. Id.
122. See infra pan IV.B.
123. 459U.S. 116(1982).
124. Id. at 127 (citing Lemon v. Kurtzman 403 U.S. 602, 623 (1971)).
125. See infra pan V.A.2.
126. This argument is dubious. While protective government action on behalf of sacre
sites may indicate preference for Indian religion at that site, such government action does not
promote the religion beyond the sacred site. Such action merely ensures survival and at best
-------
1992] SACRED SITE PROTECTION- 815
the distinction made by the government is necessary to promote a com-
pelling interest.127 Hence, while the Establishment Clause would not
necessarily preclude the protection of Indian sacred sites through a statu-
tory mechanism, advocates of sacred site preservation would have the
burden of proving that the preservation of a Native American people's
religion is a compelling interest.
Although the issues on appeal in Lyng were premised solely on the
Free Exercise Clause, other legal arguments were made for the protec-
tion of the High Country. First Amendment sacred site cases generally
also involve federal statutory claims based on statutes such as the Na-
tional Environmental Policy Act (NEPA). In addition, arguments are
occasionally made based on Indian sovereignty, human rights, or the
trust relationship between the United States and Indian tribes. The im-
pact on sacred sites of these statutes and doctrines was not decided in
Lyng. The next part of this Comment explores legal avenues for prevent-
ing the desecration of Native American sacred places beyond the afore-
mentioned constitutional provisions.
in
OTHER POSSIBLE AVENUES FOR PROTECTION OF SACRED
PLACES
After Lyng, what is left for defenders of sacred ground? Free exer-
cise claims for religious sites will most likely fail. Currently, resort to the
courts is perilous for Native Americans, for such action risks erosion of
what they seek to preserve by establishing case law hostile to Native
American religions.
As the following discussion explains, better protection might be
found in AIRFA or in statutes concerned with cultural preservation,
such as the National Historic Preservation Act or Archaeological Re-
sources Protection Act. Perhaps the best available legal defenses against
desecration of sacred places can be found in environmental statutes, such
as the Endangered Species Act. Arguments can also be made under the
trust doctrine. Finally, claims can be premised on Native American sov-
ereignty and international human rights.
parity for the Indian religions that revere a protected site. Tax immunities perform a similar
function for Christian churches. Furthermore protective action would appear even iess pref-
erential since the government would only exclude certain uses, and not certain people, from, a
sacred place. Many, if not most, sacred places are sacred to more than one Indian people.
Other religions would be entitled also to revere such places. Non-Indians simply would be
forbidden from desecrating the sacred places.
127. NOWAK & ROTUNDA, supra note 118, at 1162-33.
-------
816 ECOLOGY LAW QUARTERLY [Vol. 19:795
A. The American Indian Religious Freedom Act of 1978
AIRFA128 was primarily a response to three Congressional con-
cerns. First, federal agency decision making accorded 4ittle-o«H3-w«ight
to Indian religious concerns. Second, in the courts Indian religions re-
ceived less protection than most major religions. Lastly, guilt over centu-
ries of injustice motivated the passage of AIRFA.129 AJRFA announces
"the policy of the United States to protect and preserve for the American
Indians their inherent right of freedom to believe, express, and exercise
the traditional religions . . . including but not limited to access to sites
. . . ."13° The Act has no teeth.131 Its only mandate directed the Presi-
dent and the federal agencies to "evaluate their policies and procedures
in consultation with native traditional religious leaders in order to deter-
mine appropriate changes necessary to protect and preserve Native
American religious cultural rights and practices."132 Congress mandated
nothing substantial, required no specific agency procedures, and created
no remedies for wronged Indian believers. The legislative history in-
cludes recommendations for an executive order establishing administra-
tive procedures for implementing the policies expressed.133 Several
agencies resisted these recommendations. Congress has not followed
AIRFA with a more specific legislative mandate.134
The federal judiciary ultimately declined to construe any enforce-
ment power into the statute.135 Given the statute's legislative history and
remedy-less character, the finding by the Court that AIRFA created no
enforceable obligations is not surprising. AIRFA requires only that fed-
eral agencies "consider" Indian religious values,136 and the statute's lan-
guage is only hortatory. AIRFA could have required a detailed study
such as that mandated by the National Environmental Policy Act.137
Read this way, the Act would require that agency decisions be accompa-
nied by a showing that they are based on adequate information and con-
sideration of religious issues. Instead, AIRFA provides practitioners of
128. .American Indian Religious Freedom Act of 1978, Pub. L. No. 95-341. 92 Stat, 469
(codified in pan at 42 U.S.C. § 19% (1988)).
129. AIRFA REPORT, tupra note 37, at i-ii.
!30. 42 'J.S.C. § 1996 (1988).
131. Sharon O'Brien, A Legal Analysis of the American Indian Religious Freedom Act, in
HANDBOOK OF AMERICAN INDIAN RELIGIOUS FREEDOM, supra note 5, at 27, 29-43.
132. Pub. L No. 95-341, § 2, 92 Stat. 469 (1978) (not codified).
133. Letter from Senator James Abourezk to President Jimmy Carter (November 16,
1977), reprinted in AIRFA REPORT, supra note 37, app. A.
134. See Barsh. supra note 11, at 374. Establishment Clause concerns may have crippled
Congress's efforts. Id. at 3~3-74.
135. Lyng. 485 U.S. at 455. For a summary of judicial interpretations of AIRFA, see
O'Brien, supra note 131, at 31-43.
136. Wilson v. Block, 708 F.2d 735 (D.C Cir.), ten. denied, 464 U.S. 956 and 464 U.S.
1056 (1983).
137. 42 U.S.C. § 4332(2XQ (1988) (requiring environmental impact statements for federal
actions).
-------
1992) SACRED SITE PROTECTION 817
Native American religions with no remedies and fails to make any spe-
cific procedural demands on governmental decision makers.138
B. Cultural Preservation Statutes
The United States has a number of statutory schemes designed to
safeguard the nation's cultural resources.l39 This Comment argues that
the religions of this country's first inhabitants are among these cultural
resources. Thus, statutes such as the Antiquities Act of 1906, the Na-
tional Historic Preservation Act of 1966 (NHPA), and the Archeological
Resources Protection Act of 1979 (ARPA) could be used to protect sa-
cred places. These statutes, however, do not create a logical, comprehen-
sive scheme for the management of cultural resources. Rather, they
merely provide for consultation and information gathering. They invest
discretion in a non-Indian instrumentality to make the protection deci-
sions and confer no substantive rights on Native Americans to have their
sacred sites preserved.140
1. Antiquities Act
The Antiquities Act of 1906141 was the first cultural preservation
statute. The Act invests the President with authority to protect
landmarks and structures located on federal land.142 By executive order,
138. For further discussion of AIRFA, see Michaelsen, supra note 12, at 52-54 and Barsh,
supra note 11, at 372-74.
139. "Cultural resources" is an inexact phrase; it has been denned as "the remains of
human activity, both historic and prehistoric. Included with the term are: buildings and other
structures, ruins, artifacts and other objects made by people, works of art, human remains, and
sites and natural features that have been of importance in human events." Suagee. supra note
9. at 16 (describing a definition from a Bureau of Indian Affairs manual)- This definition is too
limited. Suages states that "cultural resources" could also describe more intangible elements
if heritage such as language, myth, arts, skills, songs, and dance. Id. it 16 n.6_v Since "cul-
•are" encompasses religion, "cultural resources" should include religious "resources." A "re-
lource" is "something that lies ready for use or can be drawn upon for aid; a supply of
something to take care 01" a need." WEBSTER'S NEW UNIVERSAL DICTIONARY OF THE ENG-
LISH LANGUAGE 1542 (1977). Resources need not be things past or bun:d. Under this defini-
tion, religion, beliefs, and riruais are resources. Furthermore, people may be resources. The
limits of what constitutes a cultural resource are far-reacnwg, and may include human beings
or intangible things such as myths. There would seem to be no difficulty in considering as
cultural resources specific places which are sacred to a certain people.
. 140. For a thorough analysis of the significance of the cultural resource preservation stat-
utes and regulations in the context of sacred site preservation, see Suagee, supra note 9, at 17-
47.
141. Ch. 3060. 34 SUL 225 (codified at 16 U.S.C §§ 431-33 (1988)).
142. The President of the United States is authorized, in his discretion, to declare by
public proclamation historic landmarks, historic and prehistoric structures, and
other objects of historic and scientific interest that are situated upon the lauds owned
or controlled by the Government of the United States to be national monuments....
16U.S.C. §431.
-------
818 ECOLOGY LAW QUARTERLY [Vol. 19:795
the President may proclaim sites to be national monuments.143 Such
sites are generally managed as part of the national park system.l4*
Native American traditionalists can also seek to have a sacred place
declared a national monument. As a practical matter, the National Park
Service is desperately overburdened;143 unless a particular site has a de-
termined, national constituency with power and influence in Washing-
ton, designation of a site as a national monument is difficult to achieve.146
Furthermore, the designation of a sacred site as a national monument
may result in a new danger, tourism.147
2. National Historic Preservation Act
The National Historic Preservation Act of 1966 (NHPA)148 details
a system for listing historic landmarks149 and for providing grants to be
used for preservation efforts.130 Through the NHPA, Indian tribes may
seek funding for preservation of their "cultural heritage."151 Unfortu-
nately, the program's administration has proven largely ineffectual.132
The main provisions of the NHPA require consultation and review when
a proposed federal action may effect a historic site.133 As such, they pro-
vide procedural but not substantive protection for historic places.
3. Archaeological Resources Protection Act
The Archaeological Resources Protection Act of 1979134 (ARPA)
was enacted mainly because the Antiquities Act had proven ineffective in
143. Id.
144. See 16 U.S.C.S. § 431 ancillary laws & directives (Law. Co-op. 1978 & Supp. 1991)
(listing national monuments and the date of their incorporation into the national park system).
145. Tom Kenworthy, Weakened Park Service at Crossroads. Panel Says: Internal
Problems and Outside Pressures seen Compromising Agency's Ability to Function, WASH. POST,
Apr. 5, 1992. at A4.
!46. Nor would designation as a national monument guarantee success. The criminal pro-
visions in the Antiquities Act have proven inadequate to prevent desecration. Suagee, supra
note 9. at 17 n.66. The Act has mostly been superseded by «her statutes, in particular the
Archaeological Resources Protection Act and the National Historic Preservation Act. Id. at
17-18.
147. Jee COGGINS AND WILKINS, FEDERAL PI:BUC LAND AND RESOURCES LAW (2D
ED.) C.*6-57 (describing threats to national parks, including over use); Joseph L. Sax, Helpless
Giants: The National Parks and the Regulation of Private Lands, 75 Mich. L. Rev. 239 (1976)
(describing relationship of national parks to surrounding private land).
148. Pub. L. 89-665. 80 Stat. 915, codified as amended at 16 U.S.C. §§ 470-470w-6 (1988
& Supp. Ill 1991). The NHPA was substantially amended in 1980. Pub. L. No. 96-515,
§ 101(a), 94 Stat. 2987. For a more thorough discussion of the NHPA's significance in sacred
site preservation, see Suagee, supra note 9, at 19-24.
149. 16 U.S.C. § 47
-------
1992] SACRED SITE PROTECTION 819
preventing the illegal excavation and removal of archaeological arti-
facts.15* Under ARPA, onJy persons with permits from the appropriate
federal land manager can excavate on public lands.li6 If the federal land
manager receives an application to excavate at a sacred place, that land
manager is directed to notify the appropriate tribal government.157
The most troubling aspect of ARPA is its lack of provisions insuring
confidentiality. The necessity of preserving the secrecy of some sites is
one of the most contentious problems in sacred site preservation.ISS A
religion may require that a certain place be kept secret for any number of
reasons. Only certain elders may be permitted to visit the site. Keeping
the place secret may protect it from desecration.l59 Strict taboos prevent
many peoples from revealing the locations of their burial places to those
outside the tribe or even the family.160 The United States legal system
does not contain a mechanism to protect unidentified areas. Many of the
federal protective schemes require actual inspection and evaluation of the
site by people who in no way hold the place sacred.161 For some Native
American traditionalists, this action is unthinkable. Therefore, they will
probably not avail themselves of the possible protections because, from
the traditionalist perspective, they provide no protection at all. Because
judges "are likely to give greater weight to the sbcth amendment require-
ments of confrontation and public trial" than they give to the privacy
interests of Native Americans, those tribes who cooperate with the court
or agency must be prepared to have their secrets revealed to the general
public.162
No provision in ARPA addresses this conflict. To protect the site,
the federal land manager herself must know about its existence. Many
traditionalist beliefs prohibit even such a circumscribed revelation.
ARPA then allows the federal land manager to reveal the location of the
155. Suagee. supra note 9. at 24.
156. 16 U.S.C. § 470ee(a).
157. If a permit issued under this section may result in harm to, or destruction of,
any religious or cultural site, as determined by tbe Federal land manager, before
issuing sucb permit, the Federal land manager shall notify any Indian eribe which
may consider tbe site as having religious or cultural importance.
Id. § 470cc(c); see also -*3 C.F.R. § 7.7 (1991).
Under this provision, the determination of whether a site will be harmed, or whether it is
sacred or important, is left to the responsible government official. 16 U.S.C. § 470cc(b) (1988).
Even without actual bad faith on the part of the federal land manager, this vitiates the appar-
ent protection provided by this notice provision,
158. See Michaelsen, supra note 12. at 70-72.
159. Id. at 70.
160. Set generally Suagee, supra note 9, at 52-54.
161. See, e.g., 43 C.F.R. § 7.33 (1991) (describing circumstances under which a federal
land manager may determine that certain material remains are no longer of arcbeologicai-in-
terest); see also Secretary of the Interior's Standards and Guidelines for Archeology and His-
toric Preservation, 48 Fed. Reg. 36,612 (1983) (providing advice on cultural resource
management for state and federal agency personnel pursuant to the NHPA).,
162. Barsh, supra note 11, at 392-94.
-------
820 ECOLOGY LAW QUARTERLY [Vol. 19:795
site to others if she determines that disclosure will cause no additional
harm.'*3 But, where the Native American religion requires that the loca-
tion remain secret, any further disclosure of the locationJsJiarmful.16*
Hence it appears that ARPA's provisions are ineffective hi the preserva-
tion of sacred places. In fact, it can be argued that the Act merely pre-
serves these sites for orderly desecration by archaeologists.
4. Summary of Impact of Cultural Resources Protection Statutes
The pervasive flaw in each of these statutory schemes is their objec-
tification of the things to be protected. The statutes do not protect places
for their present, immediate value to devotees of a particular Indian reli-
gion but for their value as sources of cultural artifacts. If a site does rise
to the level of a cultural resource under the statutory mechanism, it is
protected solely for its abstract importance to the larger society. The
protections, if instituted, are administered by those without a religious
interest hi the places.
C Environmental Protection Statutes
Most sacred site litigation has also involved claims under environ-
mental statutes163 such as the National Environmental Policy Act16*5 and
the Endangered Species Act (ESA).167 While these acts in no way pur-
port to protect land for religious purposes, the goals of traditional Native
Americans may nonetheless be advanced by the protections these statutes
offer.168
NEPA is a procedural statute, which requires federal agencies to
collect information and to consider the environmental impact of any pro-
posed major federal action.169. Interested parties are allowed to comment
on these findings, and the responsible agency is required to acknowledge
and respond to any comments adverse to the proposed project.170 The
approach of NEPA has been employed hi other contexts, particularly the
NHPA.m Also, the NEPA standards for a significant impact include
163. 16 U.S.C. § 470hh.
164. Even worse, the statute requires disclosure of the site location upon request by the
state governor. Id.
165. See. e.g.. Northwest Indian Cemetery Protective Ass'n v. Peterson. 795 F.2d 688 (9th
Cir. 1986). rtv'd sub nom., Lyng v. Northwest Indian Cemetery Protective Association, 485 •
U.S. 439 (1988); Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1982), cert, denied, 46-. U.S. 956
and 464 U.S. 1056 (1983).
166. 42 U.S.C. §§ 4321-4370C (1988).
167. 16 U.S.C. §§ IS3J-1544 (1988).
168. For a discussion of the ethical congruence between traditional Native American reli-
gious values and modem environmental values, see infra part IV.A.
169. 42 U.S.C § 4332(2XQ.
170. Id. § 4332(2)(e)(v); 40 CF.R. § 1503.1-4. (1991).
171. 16 U.S.C § 470f (requiring federal agencies, before funding or licensing an "unae*
taking," to consider the effect of that undertaking on property listed in the National Register
-------
1992] SACRED SITE PROTECTION 821
consideration of the impact on property that may be listed in the Na-
tional Register of Historic Places.172 While consideration of the impact
does not require deference to the environmental interests in preserving
the sacred site, the process draws attention to the desecration of sacred
lands and may help mobilize political opposition.
Another statute, the Endangered Species Act, is unique among envi-
ronmental and preservation statutes in providing a nearly absolute veto
on behalf of the protected interest.173 Its usefulness on behalf of Indian
religion, however, is a matter of serendipity. Sacred lands are occasion-
ally the critical habitats of endangered species. Should a sacred lake or
mountain be the only remaining habitat for a species, and should that
lake or mountain have been designated as critical habitat under the ESA,
then any development which will threaten the species cannot take place.
The practical effect is to prevent the most common forms of sacred land
desecration — mining, timber harvesting, and other major alterations to
the landscape.174
As with the cultural preservation statutes, the environmental protec-
tion statutes will not protect places based on their religious value to Na-
tive American worshippers. Rather, the protections available are
justified by the broader environmental values of the citizenry of the
United States. Nonetheless, although the religious importance of a place
is not a criterion for protection, the environmental statutes can protect a
sacred place.
D. The Trust Doctrine
Native Americans could seek protection for sacred ground by invok-
ing the trust obligation of the United States government.17S The trust
doctrine maintains that there is a fiduciary relationship between the
United States and Indian tribes. The fiduciary duties of the United States
arguably extend to the protection of Native American religious freedom
and sacred grounds.176
>f Historic Places); see also 16 U.S.C. § 470-1 (N'HPA policy statement specifically mentioning
Indian sues).
'.72. 40 C.F.R. § 1508.27(b){8) (1992).
'."3. "Each Federal agency shall. .. insure that any action authorized, funded, or carried
ouc by such agency [agency action] . . . is not likely to jeopardize the continued existence of
any endangered species or threatened species or result in the destruction or adverse modifica-
tion of habitat of such species " 16 U.S.C. § !536{aX2) (1988).
Only the "God Committee" can grant an exemption. 16 U.S.C § I536(e).
174. See. e.g.. supra part I.E.
17S. For a short history of the trust doctrine, and an argument for its applicability in the
sacred site context, s«e Jen B«th K. Ezra, Comment, The Trust Doctrine: A Source of Protec-
tion far Native American Sacred Sites, 38 CATH. U. L. REV. 705 (1989).
176. Id. at 707. .
-------
822 ECOLOGY LAW QUARTERLY [Vol. 19:795
The trust doctrine originated in Chief Justice Marshall's opinion in
Cherokee Nation v. Georgia,177 Marshall characterized the Cherokee as a
"domestic dependent nation ... in a state of pupilage ... ."ns He stated -
that the relationship between the Indian tribes and the United States "re-
sembles that of a ward to his guardian."179
More recent cases have perpetuated this fiduciary relationship. The
courts have held that the federal government is responsible for the pro-
tection of Native American interests.180 The trust doctrine has provided
the legal basis for the construction of United States-Indian treaty rights
in favor of the signatory tribes.181 The doctrine has been used by the
courts as a basis to rule in favor of Indian claims to land, water, hunting,
and fishing rights.182
Yet the courts are frequently inconsistent in their application of the
trust doctrine.183 As a result of this inconsistency, the doctrine is of
questionable practical value in a live dispute.184 Moreover, the paternal-
ism from which the protections of the trust doctrine are derived can be
viewed as disempowering and at odds with the notion of Native Ameri-
can sovereignty.183 Although any currently available solution to the sa-
cred site desecration problem is likely to suggest some sense of noblesse
oblige, the trust doctrine can be particularly offensive to Native Ameri-
can interests.
E. Claims Based on Treaties or Native Sovereignty
Claims based on tribal sovereignty can take two forms. Indian peo-
ples who have treaties with the United States can rely on treaty provi-
sions to support arguments in favor of sacred site protection.
Alternatively, tribes without, treaties or with treaties that cannot be con-
strued to protect sacred places can rely on international principles of
human rights in seeking religious protejtion.
Formal treaties that cede tribal lands to the United States govern-
ment may serve as springboards for claims to protect Indian sacred
lands. The t'jderal government has acquired ownership of many sacred
177. 30 U.S. (5 Pe:.) 1 (1831) (arguing that the "peculiar and cardinal" distinctions of the
relationship between the Indians and the Unite.: States imposed special fiduciary obligations
upon the federal government).
178. Id. ai 17.
179. Id.
180. See. e.g.. Pyramid Lake Paiute Tribe v. Morton, 354 F. Supp. 252 (D.D.C. 1972).
181. See Em. supra note 175, at 72S.
182. Id. at 724-29.
183. See id. aim.
184. The trust doctrine was argued unsuccessfully in Inupiat Community of Arctic Slope
v. United States. 548 F. Supp. 182 (D. Alaska 1982), aff'd, 746 F.2d 570 (9th Cir. 1984}j
185. Note. Rethinking she Trust Doctrine in Federal Indian Law, 98 HARV. L. RJEV. -if
423 n.5, 426-27 (1984). But see id. at 429-40 (arguing that the trust doctrine should be under-
stood as an approach to protecting Native American autonomy).
-------
1992] SACRED SITE PROTECTION 823
sites through such formal treaties with Indian tribes. Many treaties re-
serve some rights in the ceded property for Native Americans.186
Although these rights usually involve subsistence, some treaties can be
interpreted to reserve the right to worship on the ceded lands.187 Hence,
a tribe whose treaty with the United States reserved some rights in the
ceded lands could attempt to protect the sacred site through enforcement
of the terms of the treaty.
These United States-Indian treaties generally do not define the
rights retained by the tribe with any degree of specificity. To address the
inherent inequity of the parties' bargaining power, the courts have devel-
oped certain canons of treaty construction.'88 For example, when treaty
language is susceptible to alternate meanings, the canons of construction
require the treaty to be read as the Indian signatory would read it.18'
The canons do not, however, protect the Indians when the federal gov-
ernment is determined to eliminate treaty rights.190
These inconsistent results suggest that the United States legal sys-
tem is not an appropriate forum for resolution of Indian religious claims.
The United States government and the courts seem inherently biased
against Native American religion. Appeals to international principles of
human rights may offer a more optimal solution.191 Providing for Indian
religious freedom could be seen as a means of furthering Indian sover-
eignty.192 Since the United States government often does not seem to
accord much authority to the pronouncements of international tribunals
on what it perceives to be domestic issues193 — United States-Indian re-
lations — appeals based on international principles of human rights may
be logically compelling but practically ineffectual.
F. Summary: Does the United States Legal System Offer Any
Potential Solutions to the Problem of Sacred Site Desecration?
The United States courts, administrative agencies, and Congress
have all proven unable or unwilling to prevent the desecration of Indian
1S6. See. if., Treaty 'vijfa the Blacxfeet. Oct. 17. '.35J, 1! Stai. 637, reprinted :n 2 INDIAN
AFFAIRS. LAWS AND TREATIES 736 iCharles J. ICappler ed., 1904).
187. See id. art 3.
188. ROBERT N. CLINTON ET AL.. AMERICAN INDIAN LAW .29 (3d. ed. 1988).
189. Id. (quoting United States v. Winans. 198 U.S. 371, 380-*! (1905)).
190. See Charles F. Wilkinson & John N. Volkman, Judicial H-new of Indian Treaty Ab-
. rogation: "As Lang as Wattr Flows or Cross Grows upon the Eartr," — How Long a Time is
Thai?, 63 CAI_ L. REV. 601 (1975) (advocating an express legislative action test for treaty
abrogation).
191. See, e.g., Christopher P. dine. Note, Pursuing Native American Rights in Interna-
tional Law Venues: A Jus Cogens Strategy After Lyng v. Northwest Indian Cemetery Protective
Association. 42 HASTINGS LJ. 291 (1991).
192. See Barsh, supra note 11, at 411.
193. See Cline, supra note 191, at 629,632 (describing techniques employed by the United
States to avoid enforcement of international human rights law).
-------
824 ECOLOGY LAW QUARTERLY [Vol. 19:795
sacred sites. To some degree, this failure is the result of ignorance and
insensitivity. Perhaps greater knowledge of Indian religion and its value
to our society as a whole will, in time, reverse this trend of disrespect and
failure.
It may, however, "be more accurate to view infringements of Indian
religious freedom as a function of an ongoing conflict between Indian
cultures and the dominant culture."194 If this is the case, prevention of
the desecration of sacred ground will require affirmative steps to settle
this conflict. Congress can assume an active role in settling the dispute
by offering a comprehensive statute which explicitly protects sacred
places. Congress is unlikely to act, however, unless it can be proven that
such action would benefit not only Native Americans, but the nation as a
whole. An analysis of the foreseeable benefits of statutory protection
serves as a basis for constructing an appropriate statutory scheme. Part
IV discusses the benefits to both Indian and non-Indian communities de-
rived from integrating the beliefs associated with site-specific religions
into the values of American society as a whole.
IV
INDIAN RELIGION AND SACRED SITES: INVALUABLE ASSETS TO
AMERICAN SOCIETY
The issue of sacred site desecration extends beyond the special inter-
ests of Native Americans. Federal treatment of sacred grounds carries
implications for the environment, species preservation, cultural diversity,
and policies involving real property. The history of disregard for the
protection of sacred lands suggests that the constituency for sacred sites
must be expanded to include members of related constituencies.193 Ex-
amining the potential constituency reveals the political limits of a scheme
for statutory protection. The following analysis of possible consensus-
building tactics helps to define these limits.
Indian defenders of sacred ground can count many environmental
groups among their allies.196 Section A of this pan addresses the congru-
ent ethical underpinnings supporting the Native American-environ-
mentalist alliance. Native Americans seeking to expand support for
sacred sites should follow the example of groups who muster support
from the broader-community of environmentalists for causes such as en-
194. Suagee, supra note 9, at 5.
195. Suagee calls for an "alternative formulation of the public interest" to improve Indian
support vis-a-vis earth-disturbing uses of the public lands. Id. at 54-55, "(T]he key will likely
be found in linkages with other interest groups, such as environmentalists, historic preserva-
tionists, and cultural resource professionals whose interests are compatible with those of tradi-
tional Indians." Id. at 55.
196. Trebbe Johnson. Native Intelligence: Environmentalists and Native Americans Team
up to Protect the Earth, AMICUS. Winter 1993, at 11.
-------
1992] SACRED SITE PROTECTION 825
dangered species protection. Religious uses of Native American sacred
lands .similarly converge with the uses advocated by many environmental
interests.
Section B discusses the part Indian religions play in the preservation
of our cultural diversity. Section C addresses the overlap between Indian
religious interests and the evolving patterns of land use in the United
States.
A. Ethical Convergence of Site-Specific Religion and
Environmentalism
Champions of site-specific Native American religions and champi-
ons of the environment197 generally seek the same protections for sacred
places — exclusion of resource extraction that alters the ecosystem and
explicit legal protection of values such as isolation and aesthetic appeal.
However, despite the similarities in the goals of the two groups, they
have on occasion been in direct conflict regarding issues such as econom-
ics and species preservation.198 Since environmentalists can be strong
political allies and because environmental statutes can be helpful to Na-
tive Americans seeking to protect their sacred lands, an exploration of
the similarities and differences in the motivations of Indian traditionalists
and environmentalists is appropriate.
/. Traditional Indian Religious Ethics Compared with Anthropocentric
and Utilitarian Environmental Ethics
While both Native Americans and environmentalists advocate the
maintenance of certain places in a pristine state, their motivations differ
considerably. The differences in the ethical underpinnings of the Native
American and environmentalist philosophies are important. Similar
goals alone are not sunicient to prevent the conflict that results from
vastly different ethical motivations.
The rationale for environmental statutes frequently disregards the
spiritual values of the environment to Native Americans. Instead, envi-
ronmental statutes invariably find justification in the protection of
197. This paper docs not adopt a view of monolithic environmentalism. Obviously, differ-
ent environmental groups differ in their motivations and goals. For purposes of this note, an
"environmentalist" is someone who wishes to preserve a place in a condition similar to chat
which existed prior to European settlement. This term also denotes organizations such as the
Sierra dub, the Wilderness Society, the World Wildlife Fund, and the National Audobon
Society.
198. Indians and environmentalists often disagree in situations where the tribe engages in
economic activity that disturbs the land. See. e.g.. Dirk Johnson, The New Foe of the Indians,
S.F. CHRON., Jan. 12, 1992, Sunday Punch at 6; Monique C Shay, Comment, Promises, of a
Viable Homeland, Reality of Selective Reclamation: A Study of the Relationship between the
Winters Doctrine and Federal Water Development in the Western United States, 19 ECOLOGY
L.Q. 547, 588-89 (1992) (describing conflict between environmentalists and a tribe over a
water-diversion project).
-------
826 ECOLOGY LAW QUARTERLY [Vol. 19:795
human interests in the environment.199 Under the Endangered Species
Act, species are preserved for their "esthetic, ecological, educational, his-
torical, recreational, and scientific value to the Nation and its people."200
In addition, the statute's legislative history emphasizes the human inter-
ests in species diversity.201 For example, species are preserved that may
be valuable in the future for cancer research or other forms of animal
testing.202 The Congressional rationale for the ESA is both anthropocen-
tric and utilitarian. It rejects any rights resident in species or any intan-
gible, spiritual benefits from species preservation.
In contrast, Native American religious ethics can be seen as de-em-
phasizing the importance of humans. Self-interest is involved: sacred
sites are preserved because Native Americans believe that the lands instill
power in their people and allow individuals to be cleansed. The primary
reason that sacred sites must be preserved, however, is that the gods have
instructed the people to preserve them.
A powerful example of conflict between practitioners of Indian reli-
gions and mainstream environmentalists surfaced in the context of en-
dangered 'species protection. The Indian religious relationship with
nonhuman animals can differ dramatically in motivation and action from
that of the environmentalist. Some Indian religions dictate that humans
must act as caretakers of the Earth. This responsibility includes the pro-
tection of all animals.203 Although this philosophy may not be antago-
nistic to the objectives of the ESA, the goal of the ESA — preservation of
species diversity204 — is not found in traditional Indian belief systems.
While non-human animals may be sisters and brothers, or respected el-
ders and teachers,203 some animals are killed for religious purposes.206
Native Americans may, for example, express the special relationship with
animals in ceremonial feasts and by using eagle feathers as "symbols of
199. See. e.g.. National Environmental Policy Act. 42 U.S.C. § 4331(a) (1988) ("The Con-
gress ... recognizing further the critical importance of restoring and maintaining environmen-
tal quality to the overall welfare and development of man . . . .")•
200. 16 U.S.C. § 1531(a)(3) (1988).
201. Historically humans have demonstrated interest in preserving species which may be-
come valuable or vial resources. Set Hearings on Endangered Species Before Subcomm. on
Fur.eries and Wildlife Conservation and the Environment of the House Comm. -m Merchant
Marine and Fisheries, 93d Cong., 1st iess. 309 (1973) vdiscussing potential and past value of
wild plants).
202. Id.
Environmental statutes generally are justified for their protection of human interests, not
the interests of the environment as a whole. See. e.g., NEPA, 42 U.S.C. § 4331(a) (1988).
203. See Suagee, supra note 9. at 10-11.
204. See 16 U.S.C § 1531(aX3) (1988) ("The Congress finds and declares that... these
{endangered or threatened] species of fish, wildlife, and plants are of... value to the Nation
and its people , .. i").
205. See Barsh, supra note 11, at 366.
206. Id. at 385 ("fflhe kinship among humans, animals and plants is often expressed in'
ceremonial feasts of deer, moose, or salmon.")-
-------
1992] SACRED SITE PROTECTION 827
power and authority."207 Thus, some Indian religions require that ani-
mals be killed for the benefit of the people and of the animals them-
selves.208 Where the animals required by Indians for their rituals are
protected under the ESA, the conflict is clear.
This conflict was adjudicated by the Supreme Court in United States
v. Dion.209 In that case, Indians unsuccessfully argued that they should
be allowed to kill eagles for ceremonial purposes. A. number of environ-
mental organizations filed amicus briefs against the claims of the Native
Americans arguing that the Court should not allow religious exemptions
to the ESA and the Bald Eagle Protection Act.210 The Court held that,
by enacting the Eagle Protection Act, Congress overrode any rights to
kill bald eagles that the Indians may have been granted under an 1858
treaty.2"
Conflicts over the killing of protected species illustrate the potential
for divergence between Native American traditionalists and environmen-
talists. In the context of sacred site preservation, however, the potential
for conflict is considerably diminished since both Indian traditionalists
and environmentalists generally strive to keep the land undeveloped.
Even so, the seemingly natural alliance between site-specific religion and
environmental protection could be sundered by a difference of opinion
over the form which protection should take or over the appropriate uses
for such places.212
The most fundamental difference of opinion would probably be over
control. Most major environmental groups would be uncomfortable al-
lowing Native American traditionalists to determine unilaterally how a
site may be used, even where the basis for preservation of the site is the
preservation of religious uses. Similarly, Indian traditionalists would be
dissatisfied having little or no input into the uses approved for the land
should environmentalists be the decision makers.
Moreover, even if these potential conflicts could be resolved, it is not
certain that an alliance 'vith environmentalists would serve Native Amer-
icans seeking to protect their sacred lands. Native American free exer-
cise claimants have arguably suffered in the past when they have been
viewed by the courts as a front for environmentalists. In Seguoyah, the
."Vee exercise claim was mace only after environmentalists failed to pre-
vent construction of the Tellico Dam under the ESA.213 The court's
:o7. id.
208. S«« Hm-TKRANTZ, supra note 5, at 59, 63.
209. 476 U.S. 734 (1986).
210. Id.
211. Id. at 746.
212. For example, an Indian people may believe that the site should be forbidden to others
during ceremonies, while environmentalists may maintain that the area should be open at all
times to wilderness users.
213. See supra pan ILA.
-------
828 ECOLOGY LAW QUARTERLY [VoL 19:795
holding that the flooding of Chota would not infringe upon beliefs and
practices central to the Cherokee religion21* may have been influenced by
a perception of collusion between the Indian claimants and environmen-
talists. If the court perceived the issue to be one of ecology rather than
religion, it may have believed that the environmental interest groups had
no business manipulating the First Amendment to suit their purposes.
Similarly, in Lyng, Justice O'Connor expressed suspicion toward the In-
dians' claim that practice of their religion required privacy and isolation
at Chimney Rock while, at the same time, they offered no objection to
the use of the land for recreation.213
Hence, the potential for perceived collusion indicates that the use of
environmental legal mechanisms for Native American religious purposes
may undermine the legal cogency of the religious claims. As a matter of
ethics, moreover, in the view of those who prize the purity of their meth-
ods and motivations, employing irreligious means to accomplish spiritual
ends is a pretense that subverts the religion or that unacceptably breaches
integrity.216 Nevertheless, this potential for ethical conflict may be alle-
viated by two considerations. First, Native American religion is largely
compatible with environmentalism. In many ways, traditional Native^
Americans are environmentalists.217
214. Sequoyah v. TVA, 620 F.2d 1159, 1164-65 (6th Cir.), cert, dented, 449 U.S. 953
(1980).
215. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 452 (1988).
216. There is no question of political legitimacy. As a matter of politics, "the art of the
possible," Indian traditionalists would be unwise not to ally themselves with the environmental
movement and employ environmental legal mechanisms whenever possible.
217. This viewpoint is not without ardent detractors. The most interesting attack on the
notion that Native Americans are environmentalists by nature was levied by Professor Calvin
Martin. CALVIN MARTIN, KEEPER OF THE GAME 157-88 (1978). Studying the Indian partic-
ipation in the slaughter of animals for the fur trade, Martin argues that Indians engaged in
retribution against animals, in pan because they blamed the animals for diseases brought to
America by the Europeans. Id. at 107-09, 129-30. Martin observes that "uie Eastern Cana-
dian hunters were not conservationist-minded during the heyday of the fur trade, that indeed
they were baldly exploitative, because their traditional incentives to conserve wildlife were
rendered inoperative." Id. at 185. Martin distinguishes between the Ir.iian ideology of land
use unc the practical results of that ideology. Contrasting the Indian " «ar" against fur-bear-
ing r...immals with other practices that oenefitted '-t ecosystem, Manin concludes chat the
land jse ideology must not be inherently conservationist if it could have such different practi-
cal outcomes. Id. .c 186.
Martin's conclusions are confusing and flawed. Indians became ecologically destructive
only after Europeans had irreversibly altered their ecosystem, primarily by subjecting i.idians
to fatal diseases. Manin himself suggests that prior to the arrival of Europeans, Indians lived
in a benevolent stasis with the environment. Id. at 18, 35-36. Martin states:
Land-use was ... not so much a moral issue for the Indian as it was technique
animated by spiritual-social obligations and understandings. Ethics were invoked
only when either pan broke regulations ....
There is nothing here to suggest morality, certainly there is nothing to suggest
the presumptuous, condescending extension of ethics from man-to-man to man-to-
land, as the Leopoldian land ethic implies. Nature, for virtually all North American
Indians, was sensate, animate, and capable of aggressive behavior toward mankind.
Id. at 187. Martin draws another conclusion from the same point, that Indians view nature as
-------
1992] SACRED SITE PROTECTION 829
We believe that the Creator made everything beautiful in his time. We
believe that we must be good stewards of the Creator and not destroy nor
mar His works of creation ... so that the voices of all living things can be
heard and continue to live and dwell among us.218
To the extent that environmental legal tools exist to preserve ecological
balance, they facilitate Indian religious purposes. Second, the environ-
mental movement, while routinely relying on scientific and economic ar-
guments in propounding legal and social reforms, is not without its
spiritual component. The next pan clarifies that, in addition to sharing
similar goals, Indian religions and environmental protection do share
some underlying motivations.
2. Spiritual Motivations Within the Environmental Movement
Much of the writing in the environmental canon is infused with
seemingly religious intensity. While environmental protection is sought
for the benefit of secular humankind, the defenders of the environment
themselves are often as motivated by the spiritual as by the temporal.
Two icons of American environmentalism, Henry David Thoreau
and John Muir, approached nature through their o\vn thoughtful spiritu-
ality and passionate religion. Thoreau, criticizing the American objectifi-
cation of nature in the last century, wrote, "The earth I tread on is not a
dead, men mass; it is a body, has a spirit, is organic and fluid to the
influence of its spirit."219 Thoreau viewed the world holistically and, like
many Native Americans, he viewed animals as kinfolk.720
John Muir viewed the world similarly nature was connected with
and animated by God.221
When we try to pick out anything by itself, we find that it is bound fast
by a thousand invisible cords that cannot be broken to everything in the
universe. I fancy I hear a heart beating in every crystal, in every grain of
iiving and man as inextricably interrelated to nature. However, this is a basis tor regarding che
Indian way as a source of environmental ethics. Indians view all aspects of nature as related io
'hero. We are always more inclined to love and protect OUT iunioilt, despite Martin's interest-
ing observation that European microbes once provoked Indians to mistakenly kill their animal
Brothers and sisters.
218. Barsb. supra note 11, at 364 (quoting CHIEF JOHN SNOW, THESE MOUNTAINS ARE
OUR SACRED PLACES 145 (19?7)).
219. RODERICK F. NASH. THE RIGHTS OF NATURE 36-37 (1989) (quoting 14 THE WRIT-
INGS OF HENRY THOREAU 306-07 (Bradford Torrey ed., 1906)).
220. NASH, supra note 219, at 37. "fT]he woods (are] not teaantless, but choke-full of
honest spirits as good as myself any day." HENRY DAVID THOREAU, THE MAINE WOODS
181 (Joseph J. Moldenhaucr ed, 1972).
In the midst of a gentle rain while these thoughts prevailed, I was suddenly sensible
of such sweet and beneficent society in Nature, in the very pattering of the drops, and
in every sound and sight around my house, an infinite and unaccountable friendliness
all at once like an atmosphere sustaining me... .
HENRY DAVID THOREAU, WALDEN, in WALDEN AND OTHER WRITINGS 202-03 (Joseph W.
Krutch ed, 1962).
221. Ste NASH, supra note 219. at 39-40.
-------
830 ECOLOGY LAW QUARTERLY [Vol. 19:795
sand and see a wise plan in the making and shaping and placing of every
one of them. All seems to be dancing in time to divine music.222
Furthermore, Muir worshipped nature as a manifestation of God.223 Na-
ture was as inviolate for John Muir as it is for Indian traditionalists.
Both Native American religion and the environmentalism of
Thoreau and Muir are permeated with the notion that humans must be
the caretakers of the Earth.224 Today, the ethics of environmental pro-
tection include Christian stewardship which charges humans to protect
the world which God has placed in the care of humans.223 A similar
sense of responsibility may be observed in the relationship of some Na-
tive Americans to nature.226 Leaders of the Hopi believed that "Hopis
are the caretakers for all the world . . . ."227 The Hopi believe that by
following instructions from the Great Spirit in caring for sacred lands,
they keep the entire world in balance.228
The convergence of the goals of Native Americans and environmen-
talists suggests the possibility of building a legitimate consensus among
the two groups. While there would remain areas of potential conflict, the
need for a powerful constituency to influence federal action indicates that
222. The statement of John Muir is quoted in STEPHEN Fox, AMERICAN CONSERVATION
MOVEMENT 291 (1981).
223. NASH, supra note 219, at 41 ("Nature was his church, the place where be perceived
and worshipped God, and from that standpoint protection of nature became a holy war.").
224. See STANDING BEAR, MY INDIAN BOYHOOD 13 (1931) for an Indian perspective:
Life for the Indian is one of harmony with Nature and the things which surround
him. The Indian tried to fit in with Nature and to understand, not to conquer and to
rule. We were rewarded by learning much that the white man will never know. Life
was a glorious thing, for great contentment comes with the feeling of friendship and
kinship with the living things about you.
quoted in Barsh. supra note 11, at 366. .
AJlan R. Brockway provides an environmentalist perspective:
A theology of the natural world . . . asserts the intrinsic worth of the non-human
world. Such a theology declares that the non-human world has just as much right to
its internal integrity as does the human world, that human beings transgress their
divine authority when :hey destroy or fundamentally alter the rocks, the tress, the
air, the water, the soil. :he animals, just as *ney do when they murder human oeings.
quoted in NASH, supra note 219. at 87.
223. See generally NASH, supra note i!9, at 87-120.
226. [The Indian] concern for the natural world can be seen as one of the most signif-
icant common attributes of 'he different tribal religions — they share the realization
'.hat .luman existence is not possible without the natural environment, that -he sur-
vival of human beings depends upon the survival of other living things. In the belief
systems of the tribal religions, the earth is commonly conceived of as a living be-
ing Many rituals and ceremonies are concerned with giving thanks for the food
and other subsistence needs that Mother Earth provides to those who hunt, fish,
gather, and/or raise crops. There is an element of stewardship in the performance of
such rituals because they are seen as necessary to ensure that the plants, animals,
birds, and fish will continue to flourish and make themselves available for human
needs.
Suagee, supra note 9, at 10. See also BROWN, supra note 5, at 40.
227. Suagee, supra note 9, at 11 n.43 (citing statement of Hopi religious leaders. Petition
for a Writ of Certiorari at app. 27a-28a, Susenkewa v. Kleppe, 425 U.S. 903 (1976) (75-844)).
228. Id. '
-------
1992] SACRED SITE PROTECTION 831
an alliance would benefit both groups and most particularly Native
Americans.
B. Every Traditional Indian Religion Is a Critical Component of Our
Cultural Diversity
The myriad of traditional Indian religions offer different ways to un-
derstand and relate to the land. Scientists consider species diversity nec-
essary for a healthy ecosystem. Similarly, cultural diversity is salubrious
for our society.229 An Indian religion could benefit an individual of any
background in a search for spiritual renewal.230 It would be not only
impious but unwise to allow the disappearance of these religions, any one
of which might teach us a better way to live with nature, comfort us in
times of trouble, help us to make sense of our increasingly confusing and
alienating society, or give us a way to meld ourselves into a society with-
out losing our individual identity. Hence, preserving diversity presents a
compelling argument for sacred site protection. The elimination of sa-
cred sites is a step away from diversity and toward a homogeneous
society.
The foregoing argument is not unassailable. Just as one can argue
that not every species merits preservation, perhaps not every religion
should be preserved. The constituency of a particular religion may be
too small or the costs to the larger society may be too great to warrant
preservation. A sacred site, like an endangered species, would benefit
from a vocal or powerful constituency willing to advocate its protection.
Many Native American religious beliefs, in addition to maintaining their
place as part of a diverse American, culture, must capture the attention
and imagination of a.larger non-Indian constituency. Diversity is, in the
end, an abstract idea. Premising the protection of sacred sites on argu-
ments in favor of diversity will prove more compelling if supported by
non-Indians as well as Indians.
229. There are counterarguments to a plea for cultural diversity. It could ~e said that a
society needs cohesion and common goals more than it -etds accommodation of contrary or
e-.otic crtsds. Our constitutional system of government is premised on a society that >.as some
:.:mmon joals, but these goals are determined through the dynamic tension of :he Divergent
.-.lerests *'hich comprise our nation. For those people, such as Indian traditionalists. *'ho are
outside [he dominant American culture. :herc are rwo possible paths toward reconciliation
with the Jorauiant culture —assimilation with the mainstream or self-identification with a
distinct group separate from the dominant culture. Under our constitutional scheme, both
paths should be considered valid. Kenneth L. Karst, Paths to Belonging: The Constitution and
Cultural Identity, 64 N.C L. R£V. 303 (1986).
230. BROWN, supra note 5, at 47-49.
-------
832 ECOLOGY LAW QUARTERLY [Vol. 19:795
C Linking the Spiritual and the Temporal: Questing for the
Contemplative Experience
If Indian religions can help us establish a better relationship with
the land, they may also help us find better ways to use the land. While
the extraction of natural resources from public lands will continue, our
society has already recognized that at least some public lands should be
preserved in their natural states. To this end, national parks have been
created in some areas considered particularly valuable for their unique
natural conditions.231 Traditional Indian religions not only require that
land be saved from the depredations of the bulldozer and drill,232 but
also illustrate ways in which to cherish the lands we have set aside.
These requirements are concentric with the ethical underpinnings of the
environmental movement and may be drawn upon to build a consensus
among Indian and non-Indian communities. They also suggest the con-
tours of a broader statutory scheme for sacred site protection which
could gain support from both of these groups.
Even after the decision to preserve land has been made, conflicting
motivations for preservation can result in further dissatisfaction. If the
environmental impetus for preservation of a sacred site is itself partly
spiritual, as was the impetus which drove John Muir, then an environ-
mental-Native American alliance is likely to protect land in ways that
safeguard Native American religions. Conversely, if environmental pro-
tection is not driven by a spiritual concern for nature, preservation of
sacred sites could be a temporary victory. Sacred sites might share the
problems faced by national parks where the land is preserved, but used in
ways antithetical to the reasons for its preservation.233
The difficulty of preserving places for religious purposes is exacer-
bated by the aforementioned secular stance of United States policy. High
country may be protected, but only with reference to a secular pur-
pose.234 For example, a sacred site might be removed from the immedi-
ate threat of mineral development through designation as a national
monument. The site would then be managed by the National Park Ser-
vice. Park Service management, impressed by the site's aesthetic appeal
and popularity with sightseers, might develop an access and service infra-
structure, encouraging "rather than limiting visitation. Realistically, for a
231. See SAX, supra note 59, at 5-6.
232. Infusing spiritual protection for land into the law may catalyze the evolution of the
dominant society's notions of land. Americans are coining to realize that land is a scarce
resource. Similarly, American courts and legislatures are increasingly recognizing the public
interest in water resources. See JOSEPH L. SAX, ET AI_, LEGAL CONTROL OF WATER RE-.
SOURCES 513-94 (1991).
233. See SAX, supra note 59, at 13.
234. The clearest iegal articulation of the U.S. passion for secularism is, of course, the
•Establishment Clause. See U.S. CONST, amend. I ("Congress shall make no law respecting an
establishment of religion ...."),
-------
1992] SACRED SITE PROTECTION 833
sacred site to be protected in a spiritually satisfactory way, some middle
ground must be found.
Professor Joseph Sax has .described an ethic grounded in temporal
concerns which supports Native American uses of sacred places. Sax
invokes Frederick Law Olmstead's argument that parks should be man-
aged to exercise the "contemplative faculty" of citizens.235 Providing for
the contemplative experience liberates and elevates the ordinary citizen
in a just and democratic society. The liberation and rejuvenation of the
ordinary person is accomplished by providing sites that engage the visitor
with an "intensity of experience which includes full involvement of the
senses and mind."236 Some sites, through their awe-inspiring beauty or
isolation, provide this desired intensity of experience better than
others.237 Man-made alterations to the landscape, disturbance of the
earth, or crowding of the site may detract from the experience that peo-
ple may be seeking.238
The uses proposed by Professor Sax resemble the uses advocated by
traditional Native Americans. For example, a vision quest by a Native
American is a "meditative" experience which requires isolation in a
physically engaging and challenging setting.239 As with the contempla-
tive experience described by Sax, the proper setting is crucial to the suc-
cess of the quest. Ultimately, both types of experience are recreation, in
the fullest sense of the word. They both refresh and restore the individ-
ual and benefit the community at large.
To the extent that Indian religions and the values and concerns that
drive the protection of the environment converge, the arguments for pro-
tecting sacred sites are strengthened. Protection of the environment en-
joys broad-based support in our society. Yet, while founded on a deeper
spiritual appreciation for the biosphere, the basis for environmental ac-
tivism frequently lies with secular concerns. Hence, the potential sup-
port of environmentalists for the protection or" sacred lands is not
limitless.
Part V proposes a statutory -cheme for protection .)t' sacred lands
which attempts to accommodate the differing interests or" Native Ameri-
cans and environmentalists.
235. SAX. supra note 59, at 20-21.
236. See id. at 29.
137. "[A]n undeveloped forest is more likely to engage our concentration than the com-
'field we see everyday." Id. Nature has "a peculiar power to stimulate us to reflectiveness by
its atvesomeness and grandeur . . . ." Id. at 46.
238. Wat 31.
239. BROWN, supra note 5, at 78-79.
-------
834 ECOLOGY LAW QUARTERLY [Vol. 19:795
V
SACRED SITE PROTECTION IN A SECULAR SOCIETY
Native Americans have been deprived of most of their land and sov-
ereignty. The economic basis for their way of life has been destroyed.
Their religion and culture have been actively attacked. While the United
States has discarded its explicit policy of destroying and assimilating the
Native American peoples, actions speak louder than words: genocide and
assimilation have not ended. As indicated in part I, Indian sacred lands
are still being desecrated and their spiritual value destroyed. As de-
scribed in parts II and III, current constitutional and statutory protec-
tions have proven inadequate. Part IV determined the potential for a
broader constituency to advocate the preservation of sacred sites. This
part advocates change. It includes a proposal2"0 and an argument for
how the legal system can be changed so that it protects sacred places.241
We have seen that in its present composition, the Supreme Court
offers little hope for sacred site litigants, that no existing regulatory
scheme vests any religious rights in Indian traditionalists, and that fed-
eral agencies are at best indifferent and at worst hostile to Indian con-
cerns about public lands.242 Most commentators recommer™
Congressional action as the solution.243 Hence, the issue presented i?
what form a statutory solution should take. Given the need for broad
political support, the form of the solution must take into account the
interests of all members of a potential constituency.
A statute dedicated to protecting sacred places for religious pur-
poses must address two primary questions. First, what places are sacred?
To answer this question one must decide what is meant by sacred. To
the traditional Native American, all land is sacred to some degree. It
must be decided where the line should be drawn between sacred and pro-
240. See infra Appendix for :he proposed statute.
.41. Advocating a statutory solution is partly a rejection of a solution based on U.S. recog-
nition of Indian sovereignty. ~ee supra part III.E. From the Indian standpoint, complete
sovereignty over sacred erouno may be the most -Jesirable outcome.
-------
1992] SACRED SITE PROTECTION 835
fane ground. Second, how should a place be managed once it is declared
sacred? Permissible uses of the site must be determined. An agency
must be chosen to receive guidance from Native Americans traditional-
ists, among others, and to decide appropriate uses for protected sites and
to arbitrate between competing uses.
A. Designation of Sacred Sites
A scheme for designation of sacred sites requires a substantive basis
for making the designation determinations and a procedural mechanism
for designation.
1. Substantive Basis for Designation
Sacred sites should be protected only if they are, in fact, held sacred.
A statutory solution to the problem of sacred site protection, must estab-
lish a definition of sacred land.
a. Definition of Sacred Land
Sacred or holy can be defined as that which is dedicated to religious
purposes, is entitled to veneration, and should be secure against violation
or infringement.244 Under this definition, land clearly is sacred to indige-
nous Americans.245 Considering the interconnectedness of the spiritual
with the material for Indian cultures, one could say that all land is sa-
cred.246 Practically speaking, all land, or even all remaining relatively
unspoiled land, cannot be set aside for Indian religious purposes. Even
244. A related question with which the courts and legal scholars have wrestled repeatedly
is how one defines rsligion. See NOWAK & ROTUNDA, supra note 118. at 1212-14. Most legal
formulations are narrower than those of scholars of religion. Paul Tillich considered religion
to focus on "ultimate concerns." PAUL TtuucH, THE DYNAMICS OF FAITH 1-4 (1957).
Entile Durlcheim defined religion as "a unified system of beliefs and practices relative to sacred
things, that is to say, things set apart and forbidden — beliefs and practices which unite into
one single moral community called a Church, all those who adhere to (hem." EMILE DURK-
HEIM, ELEMENTARY FORMS OF THE RELIGIOUS LIFE 47 (1915). Tillich's definition comes
•oo much from a Christian, transcendental standpoint 10 work adequately for Indian religions.
Indian religions are characterized by immanence, ice susra note 11. and would find "ultimate
Mncerns" all iround them in everyday life. Durxheim -i formulation also might functionally
exclude Indians, depending on how the qualifier " unified" is interpreted. A more satisfactory
iefinition is offered by Christopher Vecsey. Religion is "beliefs in, attitudes toward, and rela-
tions with the ultimate sources of existence." VECSEY, supra note 11, at 27. Vecsey's defini-
tion is better for two reasons. First, it does not distinguish between transcendent or immanent
faiths. It does not focus undue attention on otherworldly or supernatural concerns. Second,
Indian religion would fall squarely within the definition. This functional justification for se-
lecting Vecsey's formulation suggests another way 10 define religion. Despite generations of
antagonism towards Indians, the dominant American society does recognize that Indians do
have religions (rather than mere superstition or folklore). Religion, of some kind pervades
erery society. Every Indian people have, or at least had, a religion. Given the nature of most
Indian religions, every Indian people probably have, or at least had, sacred places.
24S. See supra notes 16-38 and accompanying text.
246. See supra notes 16-25 and accompanying text.
-------
836 ECOLOGY LAW QUARTERLY [Vol. 19:795
so, a solution is possible because, while the entire earth is sacred, some
places are more sacred than others.247 Thus, the question is narrowed:
how does one decide which sacred places warrant absolute protection
against desecration?
Narrowing the scope of the term "sacred land" requires summariz-
ing the purposes of protection. Protection maintains cultural diversity by
preserving free exercise of traditional Indian religions. At a minimum,
sacred sites essential to the continued viability of religions must be desig-
nated. The goal of cultural diversity, however, suggests more than mere
survival of religions. Rather it stresses the importance of robust, vital
traditionalism. The process by which sacred sites are selected should
avoid sorting through Indian "liturgy" or making determinations of
"centrality," as both exercises are relatively meaningless in the context of
Indian religion.248
One approach suggests that the designated sites should be those
which are integral to the recurring, sincere practices and beliefs of Indian
traditionalists. The "integrity" standard was conceived by Deward E.
Walker, Jr.249 In contrast to the centrality standard, the integrity stan-
dard strives to protect sacred places before a religion is close to extinc-
tion. Integrity is "consistent with scholarly standards concerning what is
essential for the practice of American Indian religions."230
Requiring integrity, rather than necessity, for site protection is more
sensible because neither devotees nor scholars analyze particular rituals
in terms of their relative necessity to religious practices. From the stand-
point of one adherent to the religion, all rituals are necessary. Unneces-
sary rituals would not be performed.251 Instead, one should ask whether
meaningful alternatives exist.232 This factual inquiry would avoid the in-
effectual, pseudo-theological wrangling over "centrality" and "indispens-
ability" that has characterized the judicial battle.233 Politicians,
regulatory agencies, and judges are generally inept anthropologists and
theologians.
247. "The whole earth is sacred because it is the source of life. There are aiso designated
points on the landscape where renewal am communication with .spiritual forces con be
achieved." Barsh. supra note 11. at 367.
248. See supra cext accompanying note 7.
249. See Waiker, supra note 5, at 112-14.
250. Id. at 112.
251. Id. at 113.
;52. Other factors include whether "the affected practice [is] held by members ... to be an
essential pan of their religion" and whether "removal or alteration of the affected practice
would impair or prevent other essential practices . . .." Id.
253. Id. This type of analysis would avoid Justice O'Connor's concerns, in Lyng, that
courts are not equipped to evaluate the sincerity of beliefs or to weigh adverse effects against
the indispensability of religious practices. Lyng v. Northwest Indian Cemetery Protective
Ass'n, 485 U.S. 439, 449-50 (1988). Rather than evaluating the sincerity of believers or debat-
ing theology, the courts would evaluate expert testimony and determine whether alternatives
to rituals at specific sites are presently available.
-------
1992] SACRED SITE PROTECTION 837
If an integrity standard is applied, the regulatory or judicial evalua-
tion of whether a site should be designated sacred might proceed as fol-
lows: Suppose Indian traditionalists petition to designate a particular
densely forested mountain, isolated deep inside a National Forest. The
claimants state that the area is a vision quest site and a place where sa-
cred plants are gathered. The agency or reviewing court determines
whether alternative sites exist, relying on information submitted by peti-
tioners and by appointed scholars. For the purposes of this example, the
scholars agree that this site is used for its isolation and the availability of
certain species of plants. The agency or court then determines whether
there is another similarly isolated place, used by these practitioners,
which offers these plants. If alternative locations do not exist — perhaps
all other nearby high ground has been logged or is in close proximity to
roadways — then this site should be designated. If many similarly un-
spoiled places exist — perhaps several others nearby are designated as
wilderness and would be equally desirable as sites for vision quests —
then designation should not occur.254
As another example, suppose the nominated site is again an isolated,
sacred mountain. This mountain contains a cave from which the people
are said to have issued from the underworld. Leaders of the people must
approach this cave to speak with the spirits and to acquire wisdom and
power, without which the people will perish. In this case, the scholars
concur that this mountain, considered the people's place of origin and
the home of their gods, cannot be replaced. No alternative location ex-
ists for these rituals. The site must be designated.
This methodology is simple: traditionalists nominate their sacred
sites, scholars are consulted to concur or differ, and agencies and courts
decide. The reliance on anthropologists, however, raises potential
problems. Anthropologists are usually nonbelievers. This detachment
troubles Native American traditionalists who question the right of a
stranger to determine whether a particular mountain is sacred enough to
be preserved. However, while the consultants would be instrumentalities
"or" :he dominant society, academic "experts" in Indian religion have not
always proven unsympathetic or hostile to Indian claims.-3 The The-
odoratus Report,216 a study commissioned by the Forest Service prior to
deciding to build the G-O Road (which culminated in Lyng), provides a
good example: the agency's own expert strongly recommended that cer-
tain sites be protected.227
254. The reverse cumulative impacts of nondesignation should be considered. A site may
be one of several available, but each individual petition should not be denied because there are
other possible sites. Some must be protected.
235. Of course, this may change. Once a sacred site protection scheme is in place, and
money is at stake, scholarly disagreement may increase,
236. Theodoratus, supra note 34.
237. Lyng. 483 U.S. at 462-63 (Brennan, J., dissenting).
-------
838 ECOLOGY LAW QUARTERLY [Vol. 19:795
b. Drawing the Physical Boundaries of Sacred Sites
Congress can list a site as sacred or an agency can grant a petition to
that effect. Specification of the metes and bounds of a sacred site, how-
ever, should be delegated to the federal land manager. The goal of ad-
ministrative regulation must be setting the boundaries of a designated site
in a way which does not vitiate its protection.
Regulation is much more difficult than designation. Scholars may
agree on what sites are sacred, but scholars are not surveyors. The no-
tion of physical boundaries for the sacred area overwhelms the believer
and challenges the protector.258
At a minimum, the boundaries must encompass the sacred site. In
delegating responsibility to establish boundaries, Congress should require
that designated sites include sufficient land to accomplish the purposes of
the designation. For example, an isolated mountain where Native Amer-
icans bury their ancestors must include all existing burial land and
plenty of surrounding space to prevent the intrusion of noise and to allow
for future burial.
2. Designation Procedures
Identification of the sites, by a committed United State Government,
would seem to be an easy task. There are a limited number of Indian
tribes. The United States recognizes less than 300 of approximately 400
tribes which are said to exist,239 each of which could be asked to list its
sacred sites. Leaders, elders, and scholars, Indian and non-Indian, could
sort the sites and exclude those not meriting special protection under the
substantive law. The remaining sites would then be declared
"protected."
In contrast, creating and passing legislation will not be easy. The
greatest resistance to a sacred site protection statute -vill most likely
come from parties with strong economic interests in the public lands:
companies that extract natural resources from the land as well as state
and local governments that rely on income derived from public ' inds.
These interests most likely would fight hard against a sacred site protec-
tion statute. Funher, the interests would display particular hostility if
such a statute provided for designation of sacred sites by Indians and
confirmation by anthropologists. Congress can be proprietary about fed-
eral lands and could easily be persuaded to reject the statute.
258. See Michaelsen, supra note 121, at 116-17, 132-33 (suggesting that the indomitable
Roman god of boundaries. Terming*, is a proper symbol for United States law and that West-
em law is about bulwarks and staking claims, while Indians see things in terms of gift and
exchange).
259. STEPHEN L. PEVAR. THE RIGHTS OF INDIANS AND TRIBES, 14 (2d ed. 1992) (citing
AMERICAN INDIAN POLICY REVIEW COMM'N., FINAL REFT. 461 (1977)).
-------
1992] SACRED SITE PROTECTION 839
Sacred site identification by Native Americans also raises the prob-
lem of selecting legitimate designators. The traditional spiritual leaders
of an Indian people are often not the leaders of the tribal government.260
Designation by tribal governments could produce selections which have
little to do with Indian religion. Simply ignoring the tribal governments
and turning to Indian traditionalists leads to similar problems: there
must be an appropriate mechanism for selecting the traditionalists who
would nominate the sites.
Ultimately, the federal government must employ some mechanism
to consider the various interests of tribal governments, Indian tradition-
alists, non-Indians, and secular actors such as local governments. Con-
gressional specification of the sacred sites designated for protection
would resolve existing disputes and would provide a legislative history to
guide future designation of sites. A fairly comprehensive initial list in the
statute itself could avoid lengthy, costly administrative and judicial bat-
tles. Chimney Rock and Bear Butte, for example, could be protected by
Congressional designation, thus avoiding protracted wrangling and
greatly limiting the role of the Supreme Court in sacred site preservation
decisions.
However, for all the advantages of legislative designation, it is un-
likely that Congress would be able to designate all sacred sites. Some
mechanism must be included for adding to the list. Three such mecha-
nisms are possible: First, akin to the establishment of national parks,
Congress could subsequently designate other sites legislatively. Second,
similar to the designation of national monuments under the Antiquities
Act, the President could add sacred sites to the list by executive order.
Finally, Congress could delegate its authority to expand the list to an
administrative agency. Some combination of all three may be desirable,
and that is the approach advocated in this Comment.261
B. Management and Permissible Uses of Sacred Sites
Protection of sacred sites also requires "a scheme for determining the
appropriate uses of the designated lands. First, Congress must vest re-
sponsibility for managing sacred sites in some agency or agencies. Sec-
ond, those agencies must establish permissible use standards thai will
preserve the sacred nature of the land.
260. This is not surprising. The present tribal governments were forced on Indian peoples
and rarely reflect the traditional patterns of tribal leadership and decision making. Tom Hobs,
The Crisis in Tribal Government, in AMERICAN INDIAN POLICY IN THE TWENTIETH CEN-
TURY 135. 136 (1985).
261. See infra Appendix.
-------
840 ECOLOGY LAW QUARTERLY [Vol. 19:795
1. Sacred Site Management
Since sacred sites are likely to lie entirely within the boundaries of
national parks or national forests, there are many advantages to vesting
authority for managing sacred sites in the federal land manager already
responsible for the larger division of public land. Like wilderness
designation, sacred site protection could be an overlay on the public
lands. For example, if the sacred site is located within a national forest,
ultimate management responsibility could remain with the forest's super-
intendent. Vesting such authority in BLM, the Forest Service, the Park
Service, and other agencies would be expedient. In such a scheme, sa-
cred site protection would take advantage of the existing land manage-
ment infrastructure and Congress could avoid creating a new agency.
Interagency behavior suggests a second reason to vest designation
authority in existing managers. The federal government and the agencies
managing the public lands can be somewhat proprietary over their lands.
A national forest superintendent may not welcome enclaves within her
forest which must be managed pursuant to specific guidelines; she is even
less likely to welcome such enclaves if they are managed by another
agency with whom she must coordinate and compete. Inevitably, the
interests of the superintendent will occasionally conflict with those of the
outside agency.
Vesting ultimate authority for sacred sites in a federal land manager
would also avoid the entanglement problem raised by Larkin v. Grendel's
Den, Inc.262 While one would hope that the federal government would
manage its lands in a way that accommodates Native American religions,
such management would require the surrender of some control over the
sacred lands to the government agency. Vesting complete management
authority or veto power in an Indian religious organization, however,
would most likely be an unconstitutional delegation of authority under
the Establishment Clause doctrine.263 Structuring sacred .site manage-
ment as an overlay on existing land management programs, similar to
wilderness designation, would avoid this problem.
A sacred sice management system similar to that used for wilderness
protection is consistent with the notion that public lands should have
multiple uses. A statute should jtate that preserving sacreu places fur-
thers the goal of keeping public land available for a multiplicity of federal
uses. If sacred sites are desecrated, then one potential use of the sacred
lands, the Indian traditionalist religious use, becomes forever impossible.
Reliance on existing agencies is not without its potential problems. Fed-
eral land managers have proven relatively unsympathetic to Indian reli-
262. 459 U.S. 116 (1982); see supra notes 123-24 and accompanying text.
263. 459 U.S. at 126.
-------
1992] SACRED SITE PROTECTION 841
gious concerns.26* Perhaps the various agencies simply feel that AIRFA
and the federal land management statutes do not authorize generous,
substantive agency consideration of Indian religious claims. If this is the
case, an explicit statute such as the one envisioned here could dramati-
cally change agency behavior. Agency resistance to Indian claims, how-
ever, may not be overcome by a new statute. Unlike mining companies
or large environmental organizations, Indian traditionalists do not repre-
sent a powerful constituency in the eyes of the federal land management
agencies.263 Presumably, explicit statutory protection will give Indian
traditionalists the power to overcome recalcitrant agencies, particularly if
vigorous judicial review is available.
2. Permissible Uses of Sacred Ground
Unless Indian religious uses are given some primacy in prioritizing
uses, a sacred site protective scheme would prove ineffective. Problems
of access and evaluating potentially compatible uses would interfere with
the Indian traditionalist use. Furthermore, uses of the land outside the
boundaries of the sacred site could result in. desecration of the site
itself.2"
Access is potentially the most difficult problem in determining what
uses are permissible. Certainly, those who hold the site sacred should use
it. But how is a federal land manager to distinguish believers from non-
believers? Controlling access can put the managing agency in an awk-
ward position. Sacred site access management could result in BLM or
Forest Service superintendents evaluating, whether a certain group of In-
dians are in fact "traditionalists." Federal land managers might find
themselves arbitrating disputes over conflicting uses between Indian reli-
gious groups. Furthermore, since the rationale for protecting the sites
includes exposing the dominant society to Indian religion, sacred site
managers cannot completely ciose the .site to non-believers.:67 Secular
iccess, albeit respectful of Indian religious use, must be permuted.
264. See Suagee, supra note 9. jc 29
265.. A rotnplementary m«thoa et recognizing Indian traditionalist interests is to require
formation o;' :oniniinees for each sacred site composed of :he federal land manager, i repre-
sentative of the traditionalist community (perhaps appointed by rhe S«:retary of the Intsnor),
a member appointed by the appropriate tribal government, representatives of '.ocal govern-
ments', and representatives of the primary users of the surrounding area (such as recreational
organizations). The committee would be responsible for developing site-specific use
regulations.
266. This is the problem described by Professor Sax with regard to the national parks..
°W&jle intrusive private activities have increased ail around them, park managers have stood
>y nervously, sensing they were caring for helpless giants." Sax, supra note 147, at 241. The
xjlicy solution for sacred sites should be similar to that for parks. Sax advocates giving signifi-
ant regulatory authority to the Park Service over private land within a given park's bounda-
ies and even over private land outside the park's boundaries to the extent necessary to restrain
«nvities which create a nuisance in the park. Id. at 258-73.
267. S
-------
842 ECOLOGY LAW QUARTERLY [Vol. 19:795
Finding a proper balance in managing access while restricting traffic
to avoid desecration produces the "irony of victory" described by Profes-
sor Roderick Nash.268 To protect a sacred site, the tribe must reveal its
location. The desire to experience the place may attract so many visitors
that the place is no longer peaceful. It simply becomes too crowded.
Non-Indian backpackers should be welcomed into the High Country so
that they may know its quiet splendor; however, too many backpackers,
or even one at the wrong time, could be a religious disaster.
Limiting access is just one component of the permissible use issue.
The manner of use or visitation should be restricted as well. Obviously,
mining, timber harvesting, and flooding would be utterly inappropriate
for most sacred sites. Loud activities such as dirt biking and snowmobil-
ing would also desecrate a sacred place.where isolation and meditation
are demanded by Indian religion. If the site is in demand among non-
believers, then quiet, non-disruptive wilderness uses should be the pre-
ferred secular, uses. If religious taboos forbid photography, then no pho-
tography should be permitted. Federal land managers must permit only
those secular activities which do not desecrate sacred ground.
Low-impact secular uses are desirable not only because they are
compatible with Native American religions. They also provide an oppor-
tunity for the liberating "contemplative experience"269 that "reflects the
aspirations of a free and independent people."270
CONCLUSION
The foregoing discussion has demonstrated the necessity for action
to prevent the destruction of traditional Indian religions through the des-
ecration of sacred sites. Protection of sacred sites is desirable, from both
Indian religious and mainstream environmental standpoints. Preserving
sacred places promotes our nation's spiritual and secular wealth and di-
versity. This Comment has discussed the feasibility of statutory protec-
tion. The ultimate question remains: Will the political apparatus of the
dominant society :aka action to preserve sacred ground? As a matter of
edbics, we should take action. As a matter of cultural well-being, we
must take action.
268. RODERICK NASH. WILDERNESS AND THE AMERICAN MIND 316-.7 (3d ed. 1982).
269. See supra notes 235-39 and accompanying text.
270. SAX, supra note 59, at Hi.
-------
1992] SACRED-SITE PROTECTION 843
APPENDIX
PROPOSAL FOR INDIAN SACRED SITE PROTECTION ACT
§.1. Congressional findings and declaration of purposes and policy
(a) The Congress finds and declares that —
(1) federal actions and management of the public lands have in-
fringed upon the free exercise of traditional Indian religions, and the
American Indian Religious Freedom Act has proven ineffective in
preventing this infringement;
(2) the free exercise of many traditional Indian religions is depen-
dent upon:
(A) the worship at and veneration of specific sacred sites; and
(B) the preservation of these sacred sites in a state as pristine and
unspoiled as possible;
(3) traditional Indian religions are integral parts of the cultures of
the Indian peoples, without which the latter should not be expected
to survive;
(4) every traditional Indian religion is critical to our Nation's cul-
tural diversity and wealth as a people; and
(5) requiring management of the public lands to preserve the sacred
character of Indian sacred sites on the public lands is essential to
safeguarding the free exercise of Indian religion and to preserving,
for the benefit of all citizens, the Nation's cultural diversity and
heritage.
(b) The purpose of this Act is to provide a means whereby the sites that
traditional Indian religions hold sacred and depend upon for the contin-
ued vitality of their beliefs may be preserved in the state required by these
Indian religions.
Cc) It is further declared to be the policy of Congress that all federal
departments and agencies shall seek to protect sacred sites from desecra-
tion ana shall use their authorities in furtherance of the purposes of this
Act.
2. Definitions
For :he purposes of this Act—
(1) The term "traditional Indian religion" shall mean an intercon-
nected grouping of beliefs, attitudes, standards for conduct, and
rituals as held, believed, or practiced by an indigenous people or
Indian tribe since before the formation of the United States, or as a
matter of long-standing tradition pro-dating extensive contact with
European influences.
(2) The term "sacred site" shall mean a specific geographical loca-
tion that is:
-------
844 ECOLOGY LAW QUARTERLY [Vol. 19:795
(A) revered or worshipped by adherents of a traditional Indian
religion;
(B) used for recurring rituals integral to a traditional, Indian
religion;
(C) considered to be especially important, because Indian tradition-
alists believe it to be their place of origin, the home of spirits or
gods, or a place where unique spiritual refreshment, renewal, or
power can be achieved; or
(D) held to be of special religious importance or particularly invio-
lable from earth-disturbing action, in the opinion of both adherents
to traditional Indian religions and experts in the field of Indian reli-
gion or culture.
(3) The term "desecration" shall mean actions that have the effect of
altering a sacred site so as to divest that site of its hallowed nature from
the perspective of the traditional Indian religion(s) that consider the site
to be sacred.
(4) The term "Secretary" shall mean the Secretary of the Interior or the
Secretary of Agriculture, whichever has been delegated responsibility for
management of the public lands on which the sacred site or nominated
site in question lies.
(5) The terms "public lands" or "federally owned lands" shall mean
lands in which the "United States Government holds fee title, regardless
of whether those lands have been withdrawn, reserved, or are properties
in which private parties hold a property interest less than fee title.
§ 3. List of sacred sites
(a) The United States Congress finds and declares that the following
places are sacred sites for purposes of this Act:
(1) [The sacred sites initially to receive protection would be listed
here.]
(b) The Secretary shall promulgate regulations establishing the bounda-
ries of che sites listed above and sites that are listed through the petition-
;ng process in paragraphs (c)(2)-{4) of this section. The boundaries must
all lie within federally owned lands, but may cross boundaries between
lands managed by different departments or agencies. The boundaries
shall encompass the entirety of the sacred site, and shall be established so
as not to undermine the purposes of this Act.
(c)(l) It is not the intent of Congress that the list hi subsection (a) shall
be exhaustive.
(2) Any holder of traditional Indian religious beliefs or any represen-
tative of a tribal government may petition the Secretary to list a place
on the public lands as a sacred site.
-------
1992] SACRED SITE PROTECTION 845
(3) The Secretary shall respond to a petition by deciding whether the
nominated place should be listed as a sacred site. The Secretary's de-
cision shall be made:
(A) after public notice of the petition in the Federal Register and
in appropriate newspaper(s) in the vicinity of the nominated site;
(B) in a timely manner; and
(C) affording participation in the consideration of the petition to
all interested parties, including appropriate tribal, state and local
governments, Indian traditionalists, and the general public.
(4) The decision to list a sacred site is a major federal action for pur-
poses of the National Environmental Policy Act.
The Secretary shall decide whether the nominated site is a sacred site by
determining whether the nominated site possesses the characteristics of a
sacred site as denned in section 2(2) of this Act. The Secretary may rely
on information included with the petition, submitted by those participat-
ing in the consideration of the petition under subsection 3(c)(3)(C), and
requested by the Secretary from petitioners, participants, and academic
experts in the field of Indian religion. The Secretary shall respond in
writing to written materials submitted by those participating in the con-
sideration of the petition before or at the time of deciding whether to list
the nominated site.
§ 4. Management of sacred sites
(a) Responsibility for sacred site management shall remain with the de-
partment or agency which has been delegated the general responsibility
for management of the division of the public lands on which the sacred
site is situated.
(b) The Secretary who is responsible for a sacred site shall, for each site,
appoint a committee composed of the appropriate federal land manager,
at least one representative of the Indian traditionalist community which
reveres *r.is particular site, and such representatives of nearby tribal peo-
ples, local communities, and experts in the f.dd of Indian religion, as the
Secretary determines are appropriate. These committees shall be respon-
sible for:
(1) determining permissible and forbidden uses of the iacred site
and assisting the Secretary in promulgating appropriate regulations
and in managing the site;
(2) advising the Secretary when disputes concerning the sacred site
arise;
(3) becoming and remaining fully informed as to the characteristics
of the site considered to be sacred, the uses of the site which are
required by the appropriate traditional Indian religion, the uses
which are incompatible with the site's sacred characteristics and
uses, and the actual management and use of the site; and
-------
846 ECOLOGY LAW QUARTERLY [Vol. 19:795
(4) submitting an annual report to the Secretary describing the con-
dition of the sacred site and how its management relates to the fur-
therance of the goals of this Act.
(c) The department or agency responsible for management of the sacred
site shall ensure that it is managed in a manner which:
(1) ensures access to the site for adherents to the traditional Indian
religions that consider the site to be sacred;
(2) preserves the characteristics of the site which are believed to
make the site sacred;
(3) forbids earth-disturbing activities that Indian traditionalists be-
lieve will desecrate the site, including but not limited to mining, in-
tensive recreation, and reclamation.
§ 5. Judicial review
Any person may file a petition in the District Court within whose juris-
diction the sacred site or nominated site lies, or in the District Court of
the District of Columbia for review of the Secretary's decision (1) to list
or not to list a nominated site, (2) promulgating any regulations to estab-
lish sacred site boundaries or to govern the permissible and restricted
uses of sacred sites, or (3) authorizing or failing to take action against
any activities that are likely to desecrate a sacred site.
-------
THE STATUS OF INDIAN TRIBES IN AMERICAN
LAW TODAY*
Honorable William C. Canby, Jr.**
In describing the subject of my lecture to Dean Fletcher of this law
school, I said that it would deal with two questions: Are the fundamental
assumptions underlying the special status of Indian tribes changing? If so,
what will be the effect of those changes?
I considered simply saying that the answer to (he first question is "no"
and that the answer to the second question is therefore "none." It would
make a mercifully short lecture. Unfortunately, however, my review of
legal developments over the past several years, particularly the decisions of
the United States Supreme Court, convinces me that at least some of th,e
fundamental assumptions underlying federal Indian law are changing, and
that those changes are having and will continue to have substantial effects.
At the outset, I think it best to state the perspective from which my
remarks are made. This perspective accepts ihc validity of our national
Indian policy as established by Congrev.1 ami recently endorsed by Presi-
dent Reagan.2 That policy assumes ihc permanence of the Indian tribes as
self-governing entities, and encourages tribul autonomy and development.
Indeed, if one does not accept the continuing viability of the tribes, much of
what we call federal Indian law will not make sense.
Haifa dozen years ago, at the risk of considerable oversimplification. I
suggested four persistent themes that formed the doctrinal bases of federal
Indian law.1 First, the tribes are sovereign entities with inherent powers of
self-government. Second, the sovereignty of the tribes is subject to excep-
tionally great powers of Congress to regulate and modify the status of the
tribes. Third, the power to deal with and regulate the tribes is wholly
federal; the states are excluded unless Congress delegates power to (hem.
* This kclure was presented as the I9K6 Jurisprudenlial Lecture, sponsored by ihc University at
Washington School of Law and the Washington Law Review and made possible by a gr»ni mini Ihc
Evans Bunker Memorial Fund.
" Circuit Judge. United Slates Court of Appeals for the Ninth Circuit The opinions expressed
herein ate individual ones of the author as a student and former teacher of Indian Law. They represent no
official position, cither of the author or of the Court of Appeals for (he Ninth Circuit.
* I. Sre. e.f., Indian Sclf-Dclerminaiion and Education Assisunce Act. 25 U.S.C. i 450 (1985).
Indian Financing Act of 1974. 25 DSC I 1431-1543 (1985).
2. President Reagan. Statement on Indian Policy. 19 WEEKLY Cowr Pia Dor. 98 (Jan. 24 1983);
stt also 116 Couo. REC. 23258 (1970) (statement by President Nixon on Indian Policy).
3. W. CANBY, AHUKTAN INDIAN LAW 2 (West Nutshell Series 1981).
Washington Law Review
Vol. 62:1. W7
Fourth. Ihc federal government has a responsibili(y (o protect the tribes and
their properties, including the responsibility (o protect them from en-
croachments by Ihc stales and (heir citizens.
Even at the lime I made this list, the Supreme Court was evolving
doctrines thai have since modified some of these propositions. Subsequent
decisions have accelerated the process. Today, (he tribes are still sovereign
with inherent powers of self-government, but (he Supreme Court no longer
regards that fact as central to the resolution of disputes between the tribes
and the stales. Congressional power to alter the status of the tribes remains
plenary; there has been no change there. The third proposition—that (he
slates are wholly excluded from dealing with (he tribes unless Congress
delegates the power to them—can no longer be safely relied upon. Finally,
Ihc federal government still has a responsibility to protect the tribes, but the
level of protection from stale intrusion is considerably lower than it was just
a few years ago.
In order to understand how these changes occurred, and what (hey mean,
we must lake a brief look at (he historical foundations of federal Indian law.
In Indian law. perhaps more than in any other legal subject, we cannot
understand where we are going without knowing where we have been.
1. THE HISTORICAL PERSPECTIVE: EXCLUSION OF THE
STATES FROM POWER OVER INDIAN AFFAIRS
In colonial days, the British Crown and several of its colonies dealt with
Ihc Indian tribes as wholly independent foreign nations. Increasingly, (he
Crown took control of relations with the tribes, because the excesses of the
colonists threatened'to trigger Indian wars that (he Crown would be
required (o light. After independence, the federal government assumed
responsibility for denting with the Indian tribes for exactly the same reason:
ihc new national government feared that the stales and their citizens would
deal unfairly with Ihc Indians and that Indian wars would result.
As Ihc tribes became encompassed by the surrounding United States, the
question of their legal status arose during a series of conflicts between the
Iribcs and (heir non-Indian neighbors. The most notable of these gave rise
to the Cherokee Cases in which Chief Justice John Marshall described the
status of the Indian tribes in a manner that was to dominate the field of
federal Indian law ever after. The Cherokee Cases arose from the the State
of Georgia's attempts to obliterate the political and territorial structure of
the Cherokees. In (he firsl case, Cherokee Nation v. Georgia,4 (he Cher-
okces (ried to establish that they were a "foreign state" in order to bring an
action against Georgia in federal court.
4 .Ml US (MVl.IIIIR.lll.
-------
lmli;m Trihos in American |.;iu
Chief Justice Marshall easily accepted (he argument thai the Chcrnkces
were "a stale, ... a distinct political society, separated from others,
capable of managing its own affairs and governing itself. . . ."s He could
not accept, however, the proposition that the Cherokees were ^foreign state
and so made his famous characterization of Indian tribes as "domestic,
dependent nations."6 The consequences of Marshall's characterizations of
the Cherokees as a state, but also as a domestic dependent nation, were at
least three. As a slate, the Cherokees possessed inherent powers of govern-
ment. As a domestic dependent nation, they were subject to two limitations
on the power thai might otherwise be exercised by wholly independent
sovereigns: they could not alienate their land except to the federal govern-
ment.7 and they could not engage in relations with other foreign powers.
Marshall strengthened and elaborated upon his views one year later in
Worcester v. Georgia.* That case was an appeal by two missionaries who
had been convicted of violating a Georgia law requiring non-Indians
residing in Cherokee territory to obtain a license from the state. After an
extensive review of colonial history and the applicable treaties. Chief
Justice Marshall summed up:
The Cherokee nation, (hen, is a distinct community, occupying its own
territory, with boundaries accurately described, in which the laws of Georgia
can have no force, and which the ciii/cnM«f(ieiirpi;i have no right toenier, but
with the assent of the Chen*vi>
-------
liiili.ui liiK"> in AHUM it .in I ,iu
I'nilcd Stales June so. H uoulil h:ru- been achni: in il<- rciMil.it rule .is
guarantor of (he tribe against incursions by non-lnihans.
McBratney and Draper, however, had a profound effect on the original
scheme envisaged by Chief Justice Marshall in the Cherokee Cases. Pot
Marshall, the division of power between state and tribe was purely ter-
ritorial. McBratney and Draper made i( impossible (hereafter to decide
such questions of jurisdiction in simple geographical fashion. Georgia was
one of the original states, and its laws were held by Marshall to have no
force in Cherokee territory. McBratney and Draper permitted Colorado
and Montana law to have force within Indian country on the principle that
their admission into the Union on an equal footing with the original stales
justified the application of their law throughout the state, including Indian
country, if Indian interests were not affected. The territorial test was
replaced by something much more vague—the "interest" of the tribe in the
transaction that was subject to criminal enforcement or regulation. More-
over, the sovereign interest of the stale was to be taken into account, so long
as no interest of the tribe was affected.
The next significant case exploring problems of jurisdiction in light of
tribal interests was the 1959 decision of Williams v. Lee.IS which has served
as the foundation of much federal Indian law during the past twenty-five
years. In Williams, a non-Indian u ho wa\ a licensed trader attempted to sue
an Indian customer in slaic court to nvuvrr the purchase price of goods sold
to the customer on Ihe Navaiu reservation. The Supreme Court, in an
opinion by Justice Black, held thut the state court had no jurisdiction.
Justice Black drew upon Ihe Cherokee Cases, acknowledging that though
there had been some modification of Marshall's principles "in cases where
essential tribal relations were not involved and where the rights of Indians
would riot be jeopardized ... the basic policy of Worcester has re-
mained."16 In his much-quoted ruling, Justice Black slated: "Essentially,
absent governing Acts of Congress, the question has always been whether
(he stale action infringed on Ihe right of reservation Indians to make their
own laws and be ruled by them."17 Justice Black (hen went on to hold that
to allow the state court to exercise jurisdiction
would undermine Ihe authority of the tribal courts over Reservation affairs
and hence would infringe on the right of the Indians to govern themselves. It •
is immaterial that respondent is not an Indian. He was on Ihe Reservation and
the transaction with an Indian took place there. . . . The cases in this Court
IS. .158 U.S. 217(1959}
16 Williams. 358 U.S. M 219.
17. Id. M 220.
Washington Law Review
Vol. 62:1. IW7
have consistently guarded the authority of Indian governments over their
reservations."
The test of Williams v. Lee—whether a state action infringes on "the
right of Reservation Indians to make their own laws and be ruled by
them"—would not have been very protective of tribal authority if the area
of tribal self-government had been narrowly viewed. But (he domain of
tribal self-government was viewed very expansively in Williams and its
progeny. When tribal interests, broadly viewed, were affected, the slate
was excluded. Matters had not changed greatly since the Cherokee Cases.
II. SHIFTS IN THE HISTORICAL BALANCE: STATE INTERESTS
BEGIN TO INTRUDE INTO INDIAN AFFAIRS
A. Preemption Analysis
The beginning of the major changes that affect the status of Indian tribes
in American law today came in 1973, in McClanahan v. Arizona State Tax
Commission.1'' In McClanahan, Ihe Supreme Court unanimously held that
the Slate of Arizona could not impose an income tax on the income a
Navajo earned on Ihe reservation. This result is not at all surprising. What is
notable is Ihe route the Court traveled to reach it. Justice Thurgood
Marshall, writing for the majority, simply could have ruled that the tax,
imposed upon an Indian in Indian country, interfered with the tribe's self-
government—its sovereign interests. Instead, the Court took a different
approach to sovereignty. Although Justice Marshall discussed the Cher-
okee Cases, he pointed out that the doctrine of tribal sovereignty had
undergone considerable evolution since John Marshall's day.
|T|he trend has been away from the idea of inherent Indian sovereignly as a
bar to state jurisdiction and toward reliance on federal pre-emption. . . .
The modern cases thus lend to avoid reliance on plalonic notions of Indian
sovereignly and lo look instead to the applicable treaties and statutes which
define the limits of slate power. . . .
The Indian sovereignty doctrine is relevant, then, not because it provides a
definitive resolution of Ihe issues in this suit, but because it provides »
backdrop against which Ihe applicable treaties and federal statutes must be
read.20
The Court, speaking through Justice Marshall, then analyzed the treaties
and statutes and held that Arizona's income lax was preempted.
l« U. W22J.
19. 411 U.S. 164(1973).
20 U.MI72.
-------
Imli.m Info's in Aincrii un ! .
The MfClantihiin result was highly protective of Inhal self-povcrnntcni.
and one suspects that Chief Justice Marshall, had he been alive when
McClanahan was decided, would have happily accepted it. But Me-
Clanahan contained the seeds of enormous change. By reducing sov-
ereignty to a backdrop and relying on the preemptive effect of federal
treaties and statutes, it reversed the fundamental presumption of inherent
tribal power applicable to disputes between tribes and states.
If one starts from a proposition of inherent tribal sovereignty and power,
as 1 have, one assumes the power of the tribe to deal with anything falling
within its territorial jurisdiction. The inquiry is only whether Congress has
curtailed this power. If not, the tribe's power exists and excludes the stale
from operating on the same subject.
A preemption analysis poses a different question: has any federal treaty
or statute preempted state power and thus buttressed the sovereignty of the
tribe? Because that is the question, the beginning assumption must be that
the state does have the power to apply its law unless preempted. And in
Indian law. as in many other areas, where (he courts end up depends upon
where they start. Justice Thurgood Marshall himself always applies his
preemption analysis with great sensitivity to the "backdrop" of tribal
sovereignty, but it is probably fair to say that he does that in spite of. rather
than because of, the preemption doeirine he announced in McClanahan.
Another characteristic of preemption analysis should be mentioned: it is
extremely fact-specific. Whether u stale law is preempted depends upon the
particular treaties and statutes that apply, and upon the particular state and
tribal interests asserted in the situation in question. As a consequence,
results are unpredictable. Chief Justice Marshall's rule (hat the laws of
Georgia could have no force in Indian country may have been a plalonic
notion, but it was a clear principle with predictable results. Not so with
preemption.
B. "Inherent" Limits on Tribal Power Arising From Their Domestic
Dependent Status
Another doctrinal threat to the traditional scope of Indian sovereignty
became most clearly apparent in 1978 when the Supreme Court decided
Oliphant v. Suquamish Indian Tribe." Oliphanl is an extremely important
case, both in its own right and for the purpose of assessing the changing
foundations of federal Indian law. The issue in Oliphant was a simple one:
can a tribe arrest and try a non-Indian for a violation of tribal law occurring
on the tribe's reservation? Justice Rehnquist's majority opinion referred to
21. 4J5U.S. I9l(l97g).
Washington Law Review
Vol. 62:1. 1987
a number of treaties and federal statutes that seemed to have assumed, over
the course nf the last 200 years, that the tribes did not have the power to
exercise criminal jurisdiction over non-Indians. If the opinion had found
that any of these treaties or statutes had explicitly or implicitly deprived the
tribes of such jurisdiction, the decision would not be a particularly remark-
able one. But Justice Rehnquisf recognized that none of the treaties or '
statutes had that operative effect. The problem was approached from quite a
different angle.
The tribe frankly acknowledged that no treaty or statute gave it power to
try non-Indians. Its argument was that the power to try any person for a
crime committed within the tribe's territory was an inherent aspect of
sovereignty. The power need not be conferred by any federal statute or
treaty; it existed absent a showing that federal statute or treaty had taken it
away. The tribe's argument was squarely in line with the view of inherent
sovereign power espoused by Chief Justice John Marshall in the Cherokee
Cases. A majority of the Court in Oliphant. however, viewed sovereignly
quite differently.
The majority first said that Indian law was drawn primarily from treaties
and statutes which must be interpreted in light of the assumptions of those
who drafted (hem. The majority then held that, when viewed against the
backdrop of treaties and statutes, the tribe's power to try non-Indians was
lost upon the tribe's incorporation into the United Slates. For the first time
in ISO years, there was an expansion of the list of tribal powers held to be
inconsistent with ihe status of the tribes as domestic dependent nations.
Chief Justice Marshall had recognized only two limitations: the tribes
could not convey their land to anyone other than United States, and the
tribes could not treat with foreign powers. So why did (he Court in Oliphant
find the power to punish non-Indian offenders inconsistent with the status
nf the tribes? Because, the Court said, the United States was as interested in
protecting us citizens from "unwarranted intrusions on their personal
liberty"22 as it was in protecting its territories.
I suggest that it is far from self-evident that incorporation of tribes into
the United States deprives them of power to govern their own territories and
to punish crimes against the tribe. Admittedly Ihe Court's majority can
draw support from congressional .statements that there was really no
effective system of tribal criminal jurisdiction at the lime most of the tribes
were incorporated into the United Stales. Accurate or not, the statements
were made. But in modern terms, Oliphant's concern may have been
misguided. The Indian Civil Rights Act of 1968" gave all persons, not just
M. w«2io.
2J. 25 U.S.C. I IMI panim ( l
(; ,rr olio infra tea accompinyini ntKei 26 ind 27.
-------
Indian Tribes in American Law
Indians, the basic Bill of Rights protections against arbitrary tribal action.
The Indian Civil Rights Act affords nearly all of the due process protections
to persons in tribal court that exist in state court, with one exception: an
indigent criminal defendant is not entitled to counsel at government ex-
pense. While that deficiency is potentially a serious one, it is not imme-
diately apparent why it is more serious for non-Indians than for Indians.
The deficiency is also limited somewhat by the statute's restriction of tribal
court jurisdiction to maximum sentences of six months in prison or five
hundred dollars fine.24
Oliphant poses an enormous potential threat to (he power of the tribes,
because it permits the fashioning of new limitations on tribal power by the
Court itself. Congress has always had power to limit tribal sovereignty, but
Oliphant invites the Court to discover additional limitations that are inher-
ent in the status of the tribes.
This potential effect of Oliphant was greatly enhanced last year in
National Farmers Union Insurance Co. v. Crow Tribe of Indians** There, a
tribal court had rendered a default judgment against a non-Indian insurance
company. The company came to federal court and claimed that the tribe
lacked inherent power to enter a civil judgment against the company. The
issue was whether the federal coun had jurisdiction to entertain the claim as
one arising under federal law 'IV Supreme Court held that limitations on
tribal authority were a mailer nl Icili-rjl law. ami made it clear that this was
so whether the limitation arose trout Irvaly. statute, or the status of the tribe
as a domestic dependent nation. The company's case was therefore one
arising under federal law, and was properly brought in federal court under
28 U.S.C. $ 1331. As a result of this ruling, anyone asserting a new
limitation on tribal power under the Oliphant theory has a clear path into
federal court, at least after exhausting tribal remedies.
C. Judicial Limitations on Tribal Power Contrasted With
Congressional Limitations
This ease of entry into federal court contrasts strangely with the limita-
tions to federal court access imposed by (he Supreme Court on persons
claiming a tribal violation of the Indian Civil Rights Act of 1968. That Act
was a fairly belated congressional reaction to the fact that the guarantees of
the Bill of Rights do not restrict the actions of Indian tribes.26 The Indian
Civil Rights Act requires the tribes to honor the guarantees of free exercise.
24. 25 U.S.C. i 1302(71
2S. 105 S.Cl. 2447(1985).
26. Talton v. Mtyci. 16} U.S. 376 (1896)
Washington Law Review
Vol. 62:1, I9H7
freedom of speech and press and assembly, due process and equal protec-
tion, freedom from unreasonable search, double jeopardy, self-incrimina-
lion. cruel and unusual punishments, and similar protections.27 The Act
also provides for a remedy of habeas corpus in federal court.
Not surprisingly, numbers of lower federal courts had implied remedies
for violations of the Indian Civil Rights Act by tribes. Habeas is obviously
noi an effective remedy for an expropriation of property, or for denials of
equal protection thai occur outside of (he criminal context. Nevertheless, in
Simla Clara Pueblo v. Martinez21 the Act received a rather surprising
inlerprelalion. The Supreme Court held that habeas was the exclusive
remedy, thereby throwing Mrs. Martinez and her noncriminal equal pro-
lection claim out of federal court. The Court based its ruling on the ground
that implied remedies would constitute loo great an interference with tribal
autonomy and self-government. There are limes when it is impossible to
believe that Martinez was decided by the same court that, only two months
earlier, decided Oliphant.
An excellent case can be made for the proposition that, in light of the
traditional bases of federal Indian law and the current practical situation,
both Oliphant and Martinez were wrongly decided. One of the undercur-
rents in Oliphant is that (he tribes cannot be trusted to dispense justice
fairly. But taking non-Indians out of that system does not remedy the
problem for the Indians who remain in it. Moreover, there is clearly a
habeas remedy for non-Indians who claim that tribal courts trampled upon
(heir rights in a criminal trial. Indeed, habeas is the route by which
Oliphant got into federal court.
Martinez, on the other hand, dealt with an exercise of congressional
power that, as Jusiicc While pointed out in dissent, was obviously aimed at
limiting tribal sovereignly. As a result of (.he Court's decision, federal
substantive standards are imposed on the tribes, but a violation, other than
in the criminal area, is nol reviewable by any federal court, including the
Supreme Court.
What we are left with after Oliphant and Martinez is that tribal power
may be limited when the federal courts find, under a vague formula, that the
tribes are attempting to do something (hat is "inherently inconsistent with"
the status of the tribes as domestic dependent nations. On the other hand,
the far more specific congressionally mandated guarantees of the Indian
Civil Rights Act are largely denied enforcement in federal court. Congress.
with full power to limit Indian sovereignty, is held to have limited it very
little, while the Court itself is free to discover additional limits.
J7
21
10
» U.S.C I IW2II9RSI.
4.16 U.S. 49(19781.
-------
Imliiin Tribes in American Law
III. CURRENT APPLICATIONS OF THE DOCTRINES LIMITING
TRIBAL INDEPENDENCE FROM STATE POWER
We have, then, two doctrinal changes that now give the Supreme Court at
least the opportunity to alter its traditional approach to federal Indian law:
(I) the change from an emphasis on tribal sovereign power to a preemption
analysis in order to determine whether state law can intrude; and (2) the
discovery of new limitations on tribal powers because of the tribes' domes-
tic dependent status—along with federal court jurisdiction to impose those
limits. A review of some recent Supreme Court decisions indicates that
both doctrinal tools are being used to shift the balance between tribal and
slate power, although the trend of decisions is by no means constant or
uninterrupted.
A. Preemption Analysis
The Court's new approaches do not protect the tribes from the intrusions
of the states as thoroughly as did the old ones. But the Court's thrust has not
been all in one direction. When the tribes' own power to lax reservation
activities has been in issue, the Court has invoked ihe sovereign power of
the tribes to uphold ihe tribes' taxing power, even though it fell upon non-
Indians.29 Even when the issue has been one of a stale's power to apply its
laws in Indian country, several decisions, almost all written by Justice
Thurgood Marshall, have protected the tribes despite Ihe fact that a preemp-
tion approach was used. Justice Marshall has written three opinions for Ihe
Court which held that slates were preempted from imposing their taxes on
non-Indians performing contracts or selling equipment to tribes in Indian
country.10 In doing so, Justice Marshall has emphasized that "the unique
historical origins of tribal sovereignly make it generally unhelpful to apply
to federal enactments regulating Indian tribes, (hose standards of pre-
emption that have emerged in other areas of law."11 He has also made it
clear that the preemption by federal law need not be explicit.31 Despite
these tribal protections, however, it is clear that even Justice Marshall's
approach comes down to a weighing of competing stale and tribal interests.
This inquiry is not dependent on mechanical or absolute conceptions of slate
or tribal sovereignty, but has called for a particularized inquiry into the nature
29. W.shuiglon v. Confederated Tribes of ihe Cotville Indiini Reservation. 4471" S. 1)4 (1980).
Morion v. Jkatilla Apache Tribe. 455 U.S. 130(1982); Ken-McCee Corp. v. Navajo Tribe of Indians.
471 U.S. 195 (1913).
30. While MotiMiin Apache Tribe v. Bricker, 448 U.S. 136 (1980)-. Rinuh Navajo School Bd..
Inc. v. Bureau of Revenue. 458 U.S. 832 (1982); Central Machinery Co. v. Arizona Slate TaxComm'n.
448 U.S. 1600980).
31. While Mountain Apache Tiibe v. Bracket, 448 U.S. 136. 143 (1980).
32. Id. al 150-51.
II
Washington Law Review
Vol. 62:1. 1987
irf the state, federal, and tribal interests al stake, an inquiry designed to
determine whether, in the specific context, the exercise of slate authority
would violate federal law.M
This process of weighing and balancing interests is quite different from
merely asking, as Williams v. Lee did. whether a proposed state action
intrude!! on Indian self-government. Although Justice Marshall recognizes
lhal when only Indians are involved, the stale is likely to have a small
interest.14 he still clearly suggests that a weighing and balancing of interests
could occur. It is therefore possible that stale intrusion will be permitted,
even when Indian interests alone are involved, so long as Ihe slate has a very
high interest supporting iis intrusion, and the tribe's interest in resisting is
not correspondingly strong." We have come a long way from the Cherokee
Casts.
Justice Marshall's balancing approach is also quite explicit in one final
recent case in which he uses preemption analysis to preclude state regula-
tion of nonmember hunting and fishing on an Indian reservation. In rVYtr
Mexico v. Mescalero Apache Tribe* the Mescalerp Tribe, in cooperation
with the federal government, had engaged in an extensive lish ami wildlife
conservation program. The tribe regulated hunting and fishing by both
members and nonmembers. New Mexico conceded the right of the tribe to
regulate both groups on-reservalion but contended that it. loo, had the
power to regulate hunting and fishing by nonmembers on Ihe reservation.
The Supreme Court, again speaking through Justice Marshall, held that the
slate regulations aimed al nonmembers were preempted by federal law. As
usual. Justice Marshall gave deference to Ihe notions of tribal sovereignly
that inform his preemption analysis. He continued lo emphasize, however,
thai present preemption analysis entails balancing stale and tribal and
federal interests. Justice Marshall slated:
3.1. III. al 145.
34. 1,1. it 144.
35. Minovcr. in ihe lilcM "f ihe three la> decisions. Ramah v. Navajo School Bd.. Inc. v. Bureau
of Revenue. 458 U.S. 9)3211982). Justice Thurgood Marshall rejected a more protective standard ur|ed
by the Soliciiut General. In an amitus brief. Ihe Solkitot General argued thai the court should modify
its preemption analysh and rely instead on Ihe dormant Indian commerce clause, article I. section 8,
clause 3. "in hold lhal on-itservalkm activities involving i residentTf ibe are presumptively beyond Ihe
reach of Male law even in Ihe abwnce of comprehensive federal regulation, thus placin| Ihe burden on
Ihe State lit dcnwuiiale lhal in intrusion is either condoned by Congress or justified by a compelling
need lit protect legitimate, specified slate interests other than Ihe generalized doitc lo collect, revenue."
1,1 at 84). Justice Marshall and a majority of the Court declined ihe invilalkxt. The Solicitor General'!
proposal cmphasitei.bmvcvCT. some of the potential deficiencieiof a preemption analysis. It endangers
tribal authority when federal regulation is ilight. even though the absence of that regulation may stem
from a desire lo encourage tribal self sufficiency and independence. Ste Pekyger. J
flurt h.BuiiVj. 62 O*. L. Rf.v. 29. 3fc34 & ti.34 (I98J).
36. 462 U.S. 324(1983).
12
-------
Indian Tribes in American Law
Slate jurisdiction is preempted hy the operation of federal law il'il intcrl'crcs
or is incompatible with federal and tribal interests reflected in federal law.
unless the slate interests at stake arc sufficient to justify the assertion of state
authority.37
This formulation makes explicit (hat which had only been implicit before:
state authority could substantially interfere with tribal and even federal
interests when the stale's interests at stake are high and immediate. While
slate interests could not override an express federal preemption, tbs federal
government rarely preempts stale law expressly.
It is now lime to turn to three recent Supreme Court decisions that
illustrate how preemption analysis, with its reduced emphasis on inherent
tribal sovereignty, can lead to expansions of state authority into Indian
country, and to corresponding reductions in the powers of tribal govern-
ment.
The first case is Washington v. Confederated Trihes nfthe Colville Indian
Reservation.3* In Colville. both the Slule of Washington and the Colville
Indian Tribe were attempting in tax ciparctic sales to nomncmhcrs on the
reservation. In an curlier case.1" the Ouin had held that a stale could la*
sales of cigarettes to non-Indians, and could even require the Indian tribal
seller to collect the lax and rerun it i<> I(H- »i.ne In response to that ruling.
Ihe Colville Tribes h.nl mt^'M-d iln-n .« n t.n nn i if.ueiie sales (a lower
one than Ihc slate I.IM .iml tin-" .iifii.-.iih ii thr inM i.n should preempt the
slate lax. The Court un.iniiii»uO\ maii-il the tribes' arguments thai the
state taxes were (I) preempted by ledcrul Minutes: (2) inconsistent with
tribal self-government; and (3) invalid under the negative implications of
the Indian commerce clause.40
The Court's weighing and balancing was clearly an economic matter.
The tribes argued that most of the cigarette sellers' business depended upon
maintaining a lower total price than sellers off-reservation. The Supreme
Court said that it was apparent that the "value marketed"41 by the tribal
smoke shops was not generated on the reservations, and thai the tribes were
simply marketing a tax exemption to purchasers off-reservation. These
facts enhanced the state's interest and minimized the tribal interest—
viewed as one of self-government. The Court also held that no federal
statutes, however broadly read, preempted Washington's tax laws and that
(he Indian commerce clause at most barred only discrimination against or
37. MtscalmAparlu Tribe, 462 U.S. il 3.V4.
18. 447 U.S. 134(1980).
39. Mac v. Coafedenlcd Salish & Kreilcnii Tribes. 425 U.S. 463 (1976)
Cohittr. 447 U.S. 155-77 (While. J.. writing for the majority).
40.
41. III. n I5S. The "value" is freedom from side In for cigarettes consumed.
13
Washington Law Review
Vol. 62:1. I°N7
undue burdens on Indian commerce. The Indian commerce clause did not
preclude nondiscriminatory taxing.
The Colville majority also held that the State of Washington need not
give lax credits for the amount of tribal taxes paid. The Court staled that the
tribes had failed to demonstrate that business would be significantly re-
duced by a state tax without such credit as compared to a slate tax with a
credit. The.Court also upheld Washington's collection and record keeping
requirements for tribal smoke shops.
Justices Brennan and Marshall dissented in part, contending that the
application of slate tax law would interfere with tribal revenues and tribal
economic development encouraged by the federal government. These
justices found that the state's failure to grant a credit for tribal taxes was a
particularly glaring deficiency of the state's tax scheme.42 The lack of tax
credit does seem to subject tribal commerce to burdens greater than that
which other commerce must bear.
Justice Rehnquist also wrole a separate opinion stating with considerable
clarity his view of preemption analysis.
I see no need for (his Court to balance the state and tribal interests in enacting
particular forms of taxation in order to determine their validity. . . .Absent
discrimination, the question is only one of congrewional intent. Either
Congress intended 10 pre-empt (he stale (axing authority or il did not.
Balancing of interests is not the appropriate gauge for determining validity
since it is that very balancing which we have reserved to Congress.41
Justice Rehnquist then found no such preemption. Perhaps central lo
Justice Rehnquisl's view is his comment (hat "|a)t issue here is nol only
Indian sovereignty, but necessarily stale sovereignly as well."44 Another
central theme of Justice Rehnquist's opinion is that, in the absence of an
immunity expressly conferred by Congress, a tribe was immune from state
taxation only when there was a tradition placing the particular activities of
the tribe beyond (he reach of slate taxation. Justice Rehnquisl found no such
tradition in Colville.
Why does Colville signify a change in Indian law direction? Il does so
because Ihe very act of balancing the economic interests of the tribe against
those of the slate presumes the legitimacy of regulation by both entities, nol
only in Indian country, bul in activities in which the tribe is interested and
affected. Of course. John Marshall's original view thai stale law simply
could not cross Ihc reservation boundary has been modified. Bui until this
decade il was Mill assumed thai Ihe standard of Williams v. Lee precluded
42. 14 ii 171.
4.1 U. u 177.
44 U. >l 181
14
-------
liiili.ui
in MiiiTK.ni i .iu
the sluic from intruilmj! on the lnhc\ conduct ol n<. own .ill.iu\ HK-IO was
no explicit balancing; the inquiry was simply whether the iriba! interests
were interfered with. If so. state taw could not be applied, no matter what
the interest underlying it. Bui once the Court itself engages in a balancing
of interest, intrusions on previously protected tribal authority are almost
inevitable. True, the tribe might and the Mescalcros did later win the
balancing contest with regard to game regulation in New Mexico, but that is
no guarantee that balancing will favor tribal interest in future cases.
Colville, in my view, is the first major case where the balancing comes out
in favor of the state.
B, Inherent Limitations of Tribal Power Arising From Domestic
Dependent Status
A case that illustrates another doctrinal device to limit tribal power is
Montana v. United States,4* decided a year after Colville. One issue in that
case was the tribe's power to regulate non-Indian hunting and fishing on
non-Indian-owned lands within the reservation. The court of appeals had
upheld that power as incident to the tribe's inherent sovereignly, but (he
Supreme Court rejected thai view It resorted to the doctrine of implicit
limitation on sovereign power arising Irom the slulus of the tribes as
domestic dependent nation-. It .nlopirtl a quite narrow view of the sov-
ereignty retained by the trihcv I he Court stated thai
exercise of tribal power beyond what is necessary to protect tribal self-
government or to control internal relations is inconsistent with the dependent
status of the tribes, and so cannot survive without express congressional
delegation. . . . Since regulation of hunting and fishing by nonmembers of
the tribe on lands no longer owned by the tribe bears no clear relationship to
tribal self-government or internal relations, the general principles of retained
inherent sovereignty did not authorize the Crow Tribe |lo regulate non-Indian
hunting and fishing on non-Indian land within the reservation|.'M
The Court also staled that the Crow Tribe had traditionally accommodated
itself to the state's regulation of such hunting and fishing on fee lands within
the reservation.
I suggest that Montana represents a significant limitation of tribal
authority by use of the newly invigorated doctrine that there are various
functions inherently inconsistent with the status of tribes as domestic
dependent nations. Having revived the doctrine in Oliphant. the Court here
expands it to a purely civil regulation of non-Indian activity within the
45. 450 U.S. 544(1981).
46. Montana. 450 U.S. it 364-65.
15
Washington Law Review
Vol. 62:1. 1987
I
reservation. From the original notion that a tribe lost its power over external
(i.e.. foreign) relations upon being surrounded by and subject to the United
States, the Court has moved to the position that regulation of non-Indian
activity within the reservation is somehow external to tribal self-govern-
menl. The tribe's loss of power is not to the federal government, upon
which the tribe is dependent, but to the stale. It may be. of course, that a
different tribe in another case could establish that non-Indian hunting and
fishing on non-Indian lands within the reservation had a great impact on the
fish and game resources of the tribe itself, especially if both fish and game
move on and off of the fee lands.*7 Nevertheless, Montana shows the
potential open-endedness of the Court's new willingness to find limitations
of tribal power arising from the tribe's domestic dependent status. Montana
comes very close to placing the burden on the tribe of showing why its self-
government interests are affected sufficiently to support the regulation.
C. Preemption and Inherent Limitation Doctrines Applied Together:
Rice v. Rehner
The most extreme applications of both the preemption doctrine and the
domestic dependent nation doctrine to limit tribal authority appear in the
recent case of Rice v. Rehner** This case has several surprising and even
puzzling aspects. The issue was whether the Slate of California could
require a federally licensed Indian trader, a tribal member who operated a
liquor store on an Indian reservation, to obtain a slate liquor license. The
tribe had adopted an ordinance permitting the sale of liquor, as long as the
sales conformed to substantive slate law. This ordinance had been approved
by the Secretary of the Interior. A federal statute, 18 U.S.C. $ 1161, made
such sales legal under the federal law if they were "in conformity both with
the laws of the Stale in which such act or transaction occurs and with an
ordinance duly adopted by (he tribe having jurisdiction over such area of
Indian country."44 Against this background, the Supreme Court held that
the Male could require the license. The Court's conclusion that section 1161
supported the application of slate licensing laws is not remarkable, al-
though reasonable persons could differ on that issue. What is surprising is
the Court's remaining rationale for its decision. After reciting the often
repealed background of tribal sovereignty, the Court stated:
47. The Cwrt in Maniuna mKcd thit "|i| tribe miy ilxt rctiin inherent po*rr to eierciw civil
minority met Ihc cixulucl uf mm-lndiirmm Ice Uiuh within its menniioo when ihti conduct threaten*
if his Mime direct cltccl on the pnliiicil integrity, the economic ttcurily. or the heilth or welfare ol the
liihc." IJ. at 566.
4». 4ft) U.S. 7|J(|98.M.
4V. 18 U.S C.I 1161 <»%|.
16
-------
Indian Tribes in American Law
When we determine thai tradition has recognized a sovereign immunity in
favor of the Indians in some respect, then we usually are reluctant to infer that
Congress has authorized the assertion of slate authority in that respect
"except where Congress has expressly provided lhat State laws shall apply." .
(citing McClanahan\. Repeal by implication of an established tradition of
immunity, or self-governance is disfavored. . . . If, however, we do not find
such a tradition or if we determine that the balance of stale, federal and tribal
interests so requires, our pre-emption analysis may accord less weight to the
"backdrop" of tribal sovereignty.50
Justice Rehnquist's separate view in Colville, that tradition is important in
determining whether slate law is preempted, has thus found its way into a
majority opinion. But when Justice Rehnquist referred lo (he traditional
immunity of the tribes, he was differentiating between the tribes' activities
on the reservation, which were traditionally immune from taxation, and
activities oF non-Indians or of Indians off-reservation or even tribes off-
reservation,31 which are not traditionally exempt from state taxation. The
issue in Rice v. Rehner. however, is the state's jurisdiction lo regulate the
Sale of liquor on the reservation by an Indian trader who is a member of the
tribe. To find such power in the state it is not essential lo find an absence of
power in the tribe. It is therefore surprising to find the question of state
power largely addressed in icnm nl ihc tribe's sovereign power and whether
lhat power has been lost h\ lolct.il u-pul.itmn. or because it is inconsistent
with the status of the tnho .1-. a ilmticMic dependent nation.
Justice O'Connor's majority opinion finds that "tradition simply has not
recognized a sovereign immunity or inherent authority in favor of liquor
regulation by Indians. "32 Indeed, Congress had imposed complete prohibi-
tion by 1832 and that prohibition lasted into modern times. Her discussion
concludes, "There can be no doubt that Congress has divested the Indians
of any inherent power to regulate in this area."33 This conclusion is a
puzzling one. It seems to suggest that if Congress repealed all of its laws
about liquor in Indian country, the tribes would be wholly without power to
regulate sales of liquor by Indians on the reservation. The preemption
analysis, more properly directed to the question whether federal policy
informed by notions of Indian sovereignty preempts slate law, has been
turned against the tribe. Congressional legislation appears to have pre-
empted the tribe of all inherent or residual power to regulate the subject
matter. Not being traditional, regulation of liquor is not within tribal self-
government or any current concept of tribal sovereignty.
50. */«. 463 U.S. ti 719-20.
31. See Me«c«leroAp«die Tribe v.fcrtM. 411 U.S. M3 (19731
52. Rice. 463 U.S. il 722.
53. M. 11724.
17
Washington Law Review
Vol. 62:1, 1987
Justice O'Connor even bullresses Ihe preemption analysis she uses
against the tribes by also employing the dependent status doctrine: "the
tribes have long ago been divested of any inherent self-governmenl over
liquor regulation by both the explicit command of Congress and as a
'necessary implication of their dependent status.'"54
Justice Blackmun, joined by Justices Brennan and Marshall, attacked the
majority opinion in Rice on several grounds. First, Ihe preemption analysis
previously adopted by the Court "has never turned on whether the particular
area being regulated is one traditionally within the tribe's control."55 To
require a tradition of control seems contrary lo the federal policy of encour-
aging tribes to undertake new economic endeavors lo support their self-
government. The dissent then points out (hat slate authority has usually been
preempted, not because (he subject Falls within Ihe tribes' traditional powers,
but because federal policy favors freeing Ihe tribes from stale control, or
because comprehensive federal regulation preempts the stale.5*
This last point illustrates the prime peculiarity of the majority opinion in
Rice v. Rehner. In normal preemption analysis, the strength of the federal
regulation would operate directly toward preempting the state from acting
at all. in Rice v. Rehner, the strength of the federal regulation operates to
deprive the tribe of any power, and (hereby indirectly increases Ihe power of
Ihe slate lo fill Ihe vacuum. Admittedly, (his rationale is not the only basis
of decision in Rice v. Rfhner; but the expansive and unusual, even dis-
torted, preemption analysis and domestic dependent nation analysis are
fundamental parts of the majority opinion. Both show a potential and a
disposition to narrow greatly the area in which tribes can operate indepen-
dently of stale regulation. The Court's present approach, we must re-
member, is lo balance tribal and state interests. But when the tribes'
inherent authority is whittled down—first, by the requirement that an
activity be "traditional," second, by preemptive effects of strong federal
regulation, and. finally, by notions of additional limitations on tribes
because of their domestic status—Ihe balancing process is far more likely
than before to lip in favor of state regulation.
It is not difficult to see why Indian tribes, surrounded by the superior
sovereignty of Ihe United Slates, cannot enter treaties with foreign
powers.57 There is nothing in their status, however, that would keep the
54. U. 11726.
55. M.M739.
56. U.
)7. ti it ipprnpriue ihil tribet knc iheir foreign relaljom power to Ihe United Suiet, upon whom
they we dependent. U it not jppropruie. hnwner. to limit Iribil power hcciutc of Ihe tribe't dependent
MIIUS when Ihe power ii toil lo • Kile, upon whom Ihe tribe it not dependent. Thu WH the result in
Oliphunl tnd Kict v. Ktknir.
18
-------
Indian Tribes in American Law
tribes from regulating liquor once federal law no longer prohibits liquor to
be sold by tribes or member Indians in Indian country. Possibly some of the
analysis of sovereignty and preemption in Rice v. Kehner will be confined
to the unusual subject of liquor regulation.51 Nothing in its rationale
requires it to be so limited, however. If the same approach is applied to
other areas, Rice v. Rehnerwlll unquestionably signal the beginning of an
accelerated expansion of state authority into the activities of tribes and their
members in Indian country.
D. Shifting Presumptions: Another Limitation on Tribal Power?
There is one final straw in the wind that I think signifies a possible
change in the assumptions underlying Indian law. One must be very
cautious about this change, because it concerns the canons of construction
of statutes and treaties regarding Indian tribes. Canons of construction are
notoriously subject to manipulation. Nevertheless, some canons have been
consistently applied in the past in Indian cases.
The Supreme Court has traditionally rccojini/ed that the tribes were at a
disadvantage when lho> entered UC.HK-\ vnih the federal government. The
Court has consf(|iieniK r\il ijx.t.ihV rule* or canons of construction
lor Indian irv.iircs Iti-.iiu-* .in i<> rv i.-nvinn-il .is they were understood by
the tribal rcpn-M.-nl.iliu-* »h» p.utK ip.itol in their negotiation.59 They are
to be liberally interpreted to accomplish their protective purposes, with
ambiguities to be resolved in favor of the Indians.60 The same sympathetic
construction has been accorded to statutes dealing with Indian matters.
"[Statutes passed for the benefit of dependent Indian tribes or commu-
nities are to be liberally construed, doubtful expressions being resolved in
favor of the Indians."61
The recent trend which I perceive consists in according decreasing
deference to these canons of construction. Montana v. United States,*1
discussed above, presented a second issue in addition to the question
whether the tribe could regulate non-Indian hunting and fishing on non-
Indian-owned land. This second question concerned the tribal right of
regulating hunting and fishing founded on the tribe's claim to own the bed
58. Kicr refer* to the Hate interest in controlling the "spillover effect" off-reservation of liquor sold
on the Kiervalkm. Kicr. 463 U.S. «l 724. Ai Professor Barsh has pointed out. the tribe would have an
equally valid claim on that ground to rcfulaie oiT-res«rvalion ulei by non-Indians. "Spillovers spillover
both wayi." Barsh. Is Here 4nv Indian "Law" Le/lf A Ktview aftht Suprrme Conn'* 1982 Term. 59
WASH. L. Rev. 863. 175 (1984).
39. tulec v. Washington. 315 U.S. 6SI. 684-85 (1942).
60. Carpenter v. Shaw, 280 U.S. J63 (1930).
61. Alaska Pic. Fisheries v. United Slates. 24g U.S. 78. 89 (I9|gf
62. 450 U.S. 544(1981).
19
Washington Law Review
Vol. 62:1. 1987
of the Little Big Horn River which flowed through the reservation. In
Choaaw Nation v. Oklahoma** the Supreme Court had found in favor of
the Cherokees with regard to a somewhat similar claim in Oklahoma, and
in doing so, relied upon the sympathetic rules for the construction of
treaties.64 In Montana, however, the Court held that the treaties conveying
to the Crows the land through which the Little Big Horn flowed did not
"overcome the established presumption that the beds of navigable waters
remain in trust for future States and pass to the new Stales when they
assume sovereignly. "M The treaty that conveyed lands to the Crows in 1868
did describe the boundaries of the land and gave the Crows the sole right to
use and occupy the land. The Court stated:66
Whatever property rights the language of the 1868 treaty created, however, its
language is not strong enough to overcome the presumption against the
.sovereign's conveyance of the riverbed. The treaty in no way expressly
referred to the riverbed,... nor was an intention to convey the river bed
expressed in "clear and especial words," ... or "definitely declared or
otherwise made very plain" ....
While the Montana majority points out significant factual distinctions
between Choctaw and Montana, it nevertheless reversed the normal rules
of sympathetic construction and the presumptions that go with them. The
dissenters. Justice Blackmun joined by Justices Brennan and Marshall^
attacked the opinion on that ground.
Three of the Court's most recent statutory cases add to my suspicions. It
is true that in Montana v. Blackfeet Tribe of Indians,61 the Court invoked
the rule of sympathetic construction to hold that the Mineral Leasing Act of
1938 deprived the slates of the power, previously granted by federal statute,
to tax non-Indian mining on Indian lands under leases issued pursuant to
the Act. Problematical, however, is Oregon Department of Fish A Wildlife
v. Klamaih Indian Tribe,** in which the question was whether the Klamath
Tribe's agreehjenl to cede lands mistakenly excluded by survey from their
reservation also ceded hunting and fishing rights on those lands. The
Supreme Court agreed with the court of appeals that doubts concerning the
meaning of a treaty with an Indian tribe should be resolved in favor of the
tribe, but it simply disagreed that the cession agreement, which conveyed
"all (the tribe's) claim, right, title and interest" in the lands, or the original
1864 treaty, permitted a sympathetic construction. Justice Marshall, joined
63. 397 U.S. 620 (1970).
64. CAnrKiH-. 197 U.S. at 6)0-31.
65. Montana, 450 U.S. at 553.
66. U. HSS4.
67. I03S.CI. 2399(1985).
68. I05S. Cl. 3420(1985).
20
-------
Indian Tribes in American Law
by Justice Brennan, argued in dissent that such a literal reading ignored the
agreement's historical context, and was "not faithful to the well estab-
lished principles that Indian treaties are to be interpreted as they were likely
understood by the tribe and that doubts concerning the meaning of a treaty
should be resolved in favor of the tribe."69 Whether the majority or the
dissent is correct I leave open; there is obviously some point at which the
words of a conveyance control over any canons of construction, but there
are also reasons to doubt (hat the Indians entering the agreement under-
stood the meaning of "right, title, and interest." They did understand game
and fish and those terms are not mentioned in the cession agreement.
Finally, and the most surprising of all, is Mountain Slates Telephone &
Telegraph Co. v. Pueblo Santa Ana.10 There, the issue was whether section
17 of the Public Lands Act of I92471 authorized the Pueblo toconvey rights
in its lands to private parties, so long as the Secretary of Interior approved.
A right of way had been conveyed long ago to Mountain Slates Telephone
and Telegraph Company and the tribe claimed that the grant was invalid.
The majority of the court, for whom Justice Stevens wrote, conceded (hat
the language of section 17 supported both sides.72 The Court then analyzed
the statute at great length and came In a conclusion adverse to the tribe. The
Court relied in part on the canons of construction that a statute should not
be interpreted in a manner iltat rendered one part of it inoperative,73 and
that deference is to be given to the contemporaneous view of the executive
officer charged with administering the statute.74 Yet, at no point in the
majority opinion of this rather difficult exercise in statutory construction is
there a reference to any of the canons of sympathetic construction favoring
the Indians. Justice Brennan, joined in dissent by Justices Marshall and
Blackmun, look the majority to task for this failure.73 One gathers that
Justice Stevens, who wrote for (he majority both in Santa Ana and
Klamath. finds less guidance than previous courts have in the canons of
sympathetic construction of Indian treaties and statutes. Again, with the
warning that it is always difficult to tell the degree to which canons of
construction are being ignored, we might conclude that future statutory
construction will tilt less towards the interests of (he Indians and the tribes
than it has in the past.
69. Klamath Indian Tribr. 105 S Cl. al 3433
70. 103 S.Cl. 2«7( 1985).
71. 43STAT.64HI924).
72. Mountain Slain. 105 S. Cl. il 2990.
73. U. it 2595.
74. Id. II 2597.
75. Id. M 259J-99.
21
Washington Law Review
Vol
IV. CONCLUSION
I find several evolving modifications in the assumptions traditionally
underlying federal Indian law. The Court no longer relies on the inherent
sovereignty of the tribes to determine (he validity of the application of stale
law in Indian country. Instead the Court has adopted a preemption analysis
that emphasizes the balancing of stale against tribal interests' while viewing
tribal interests somewhat narrowly. That approach will permit further
intrusions of stale law into Indian country even in instances where tribal
interests are affected. In addition, the Court has displayed willingness to
find further limitations on tribal power derived from their status as domes-
tic dependent nations. Both the preemption approach and the dependent
sovereignly approach are particularly likely to work against the tribe with
regard to novel and nontraditional tribal activities. Finally, there is a
weakening in the application of the canons of construction favorable to the
tribes.
One can sense from these trends a feeling in the air breathed by the tribes
and (heir counsel that the golden age of litigation has at least temporarily
passed for the tribes. While congressional and presidential policy continues
to favor self-determination, and increased self-sufficiency and self-govern-
ment by the tribes.76 the Supreme Court's contemporary posture indicates
that these policies are unlikely to succeed in keeping the tribes free of
interference by stale law and stale regulation within Indian country. As the
economic activity of the tribes becomes more complex, and (he effect of
that activity on state interests becomes more direct, the tribes and the stales
will likely have to negotiate mutual accommodations in activities affecting
both Indians and non-Indians in Indian country.
If the tribes and the states are able to negotiate Iheir differences, that is
all to (he good. Negotiations, however, are greatly affected by the legal
armament (hat each side brings to the negotiating table. The danger in (he
developing trends of federal Indian law that I have described is that the
tribes' power decreases the more successful the tribes are in freeing
themselves of pervasive federal management and control. At a lime when
congressional and presidential policy favor self-determination and self-
government, and increasing economic independence and innovation by the
tribes, the current (rend of Supreme Court doctrine is counterproductive.
76. Sre tupra notes I and 2 ind Kcompinyinj leil
22
-------
Indian Law Support Center REPORTER
A National Backup
Assistance Center
of (he
Legal Service*
Corporation
FEBRUARY 1986, Volume IX, No. 2
INDIAN SELF-GOVE3RNMEOT
Felix S. Cohenl/
Not all who speak of self-Government mean the same thinq by the
term. Therefore let me say at the outset that by self-government I mean that
form of government in which decisions are made not bv the people who are
wisest, or ablest, or closest to some throne in Washington or in Fteaven, but,
rather by the people who are most directly affected by the decisions. I think
that if we conceive of self-government in these matters-of-fact terms, we may
avoid some confusion.
Let us admit that self-government includes graft, corruption, and the
making of decisions by inexpert minds. Certainlv these are features of
self-government in white cities and counties, and so we ought not to be scared
out of our wits if somebody jumps up in the middle of a discussion of Indian
self-government and shouts "draft" or "corruption."
Self-government is not a new or radical idea. Rather, it is one of
the oldest staple ingredients of the American way of life. Many Indians in
this country enjoyed self-government long before European immigrants who came
to these shores did. It took the white colonists north of. the Rio" Grande
about • 170 years to rid themselves of the traditional European pattern of the
divine right of kings or, what we call today, the long arm of bureaucracy, and
to substitute the less efficient but more satisfying Indian pattern of
I/Reprinted from The Legal Conscience; Selected Papers of Felix S.
Cohen (New York 1970). Tins article first appeared in 1949 in The American
Indian.
Ed. Note: This article by Felix Cohen was written durina the emergency of the
Termination Era in federal Indian policy, and thus is insightful for that
reason. Moreover, because of the popularization of the term "Indian
Self-Government" over the past fifteen years, the article provides a necessarv
perspective or context for students of contemporary federal Indian policy.
-------
self-qovernment. South of the Rio Grande the process took more than
centuries, and there are some who are still skeptical as to the completenes:
of the shift.
This is not the time and place to discuss the ways in which th
-------
the Governmental rights of anv state or municipality except in .so far as those
riahts have been curtailed or qualified by Act of Conqress or by treaty, and
such qualifications, are relatively minor, in fact-. When, at last, my job was
done and the Solicitor's opinion had been reviewed and approved by the proper
authorities of the Interior Department and properly mimeographed, I learned to
my dismay that all copies of the opinion in the Indian Office had been
carefully hidden av;ay in a cabinet and that when an Indian was found reading
this opinion, the copy was forthwith taken from his hands and placed under
lock and key. Incidentally, the Indian whose reading was thus interrupted had
spent more years in school and college than the men who controlled the lock
and key. The Indian Office was sure that the opinion, if released to the
public, would be most disturbing. I suppose they were riaht. The opinion was
disturbing to the Indian Office. Its suppression was equally disturbing to
me. Mv despondency was somewhat relieved when I found that Chief Justice
Marshall and Pope Paul III and Bartholomew de las Casas had all received the
same treatment. It was of John Marshall's decision uphelding the rights of
self-government of the Cherokee Tribe that an old Indian fighter in the White
House, President Jackson, said, "John Marshall has made his decision. Now let
him enforce it." Itie sovereign State of Georgia paid no attention to the
decision of the United States Supreme Court and the aood missionary whom the
Supreme Court had freed continued to languish in a Georaia prison. And what
happened to John Marshall in 1832 was not novel. The same thing happened to
Bartholomew de las Casas 300 years earlier when, as Archbishop of Chiapas, he
endeavored to read to his flock of Spanish landowners the guarantees of Indian
freedom signed by the Pope and by the King of Spain. He was not allowed to
read these documents by the outraged landowners of his archdiocese. In fact,
he was driven from his church. History has a strange way of repeating
itself. I was relieved to find myself in such good company, and so, instead
of resigning, I distributed copies of the opinion where I thought they would
do the most good.
How can we explain the fact that despite all the respect and
reverence shown to the principle of Indian self-government across four
centuries, there is so little left today of the fact of Indian
self-government? How can we explain this discrepancy between word and deed?
The simplest explanation of course, and the one that is easiest for
simple, unsophisticated Indians to understand is the explanation in terms of
white man's hypocrisy.
I think we must go deeper into the wellsprinqs of human contact and
belief to understand what is happening in the field .of Indian self-government
and to relate facts to words.
Double-talk is not alwavs a sign of hypocrisy. Probably the easiest
way of maintaining consistency in our principles is to have a second-string
substitute vocabulary to use in describing any facts that do not fit into the
vocabulary of our professed principles. Thus, if we believe in liberty and
find that some particular exercise of liberty is annoying, we may call that
license, rather than liberty. So it is possible to talk about the virtues and
and values of self-government without allowing this talk to influence our
conduct in any way, if we have a substitute vocabulary handy which will permit
us to dismiss the appeal for self-government in any concrete case, without
using the term "self-qovernment." The second vocabulary to which professed
-4-
-------
believers in self-government continually turn when concrete cases arise is tP
vocabulary that talks about "a state within a r;t3te," "nogrelation," and, in
the words of the Hoover Report, "progressive measures to integrate the Indians
into the rest of the population as the best solution of 'the Indian problem.ln
There are two answers to this double-talk: One is to deny the
cliches and to insist that there is nothing wrono about havina a state within
a state; that, in fact, , this., is. the whole substance of American federalism and
tolerance. We may qo on to say that the riqht of people to segregate
themselves and to mix with their own kind and their own friends, is a part of
the right of privacy and liberty, and that the enioyroent of this riqht, the
right to be different, is one of the most valuable parts of the American way
'of life. We may say further that it is not integrate Indians or Jews or
Catholics or Negroes or Holy Rollers or Jehovab's Witnesses into the rest of
the population as a solution of the Indian, Jewish, Negro, or Catholic
problem, or any other problem; but that it is the duty of the federal
government to respect the right of any group to be different so long as it
does not violate the criminal law.
Apart from this challenging of cliches, there is a second cure for
the habit of double-talk in bur discussions of Indian self-government. That
remedy is to reject what Stuart Chase called "the tyranny of words" and to
think facts.
Ttie great American philosopher, Ralph Barton Perry, coined the(
phrase, "the egocentric predicament" to call attention to the fact that each
of us is at the center of his world and cannot help seeing the world throuah
his own eyes and from his own position. It takes a certain amount of
sophistication to realize that the vision of others who see the world from
different perspectives is just as valid as our own. One of the striking
features of the administrative or bureaucratic mind is that it lacks such
sophistication. Thus, it often turns out that the officials who have most to
say in praise of Indian self-government have a certain blind spot where Indian
self-government comes close to their own activities.
I recall that when we were helping Indians draft the constitutions
and charters which were supposed to be the vehicles of self-government under
the Wheeler-Howard Act, all of the Indian Bureau officials were very strongly
in favor of self-government, and in favor of allowing tribes to exercise to
the full extent their inherent legal rights. There was only one difficulty.
The people of the Education division were in favor of self-government in
forestry, credit, leasing law and order, and every other field of social
activity except education. Of course, education, they thought, was a highly
technical matter in which tribal council politics should have no part.
Education should be left to the experts, according to the experts, and the
experts were to be found in the Education Division. Similarly, with the
Forestry Division. They were all in favor of self-government with respect to
education, credit, agricultural leases, law and order, and everythina else
except for forestry. Forestry, of course, involved matters of particular
complexity and difficulty in which the experts ought to make the decisions,
and the experts, of course, were to be found in the Forestry Division. So it
was the Credit Section, the Leasing Section, the Law and Order Division, and
all the other divisions and subdivisions of the Indian Bureau. Ttie result was
that while every official was in f*vor of self-government generally, by the
-------
same token he was opposed to self-government in the particular field over
which he had any jurisdiction. In that field he could see very clearly the
advantages of the expert knowledae which he and his staff had accumulated, and
the disadvantaaes of lay judgment influenced bv so-called political
considerations which would "be involved in decisions of local councils.
Those of us in the Department who had been qiven a special
responsibility for protecting Indian tribal self-government finally went to
the Commissioner and pointed out that if we followed the traditional practice
of yielding to each expert division on the matters with which it was
concerned, there would be no Indian self-government. There was a long and
bloody argument and eventually the Connissioner upheld the principle .which is
now written into most Indian tribal charters, that the Indians themselves, at
some point or other, may dispense with supervisory controls over most of their
various activities. Some of the charters include a special probationary
period of five years or ten years, during which lea"ses and contracts are
subject to Departmental control. In many cases, particularly among the
Oklahoma tribes, this period has terminated and the Indians are free, if they
choose to do so, to.make their own leases and contracts and various other
economic decisions without Departmental control. That, at least, is what the
charters and constitutions say.
Yet I must add that instances have been called to my attention where
decisions and ordinances that were not supposed to be subject to review by
superintendents or by the Commissioner of Indian Affairs have been rescinded
or vetoed by these officials. Tribes without independent legal guidance
frequently acquiesce in such infringements upon their constitutional and
corporate powers. Thus many of the gains of the Roosevelt era are being
chipped away.
Let me give one more instance of the egocentric predicament in
action. A certain Southwestern superintendent recently wrote an eloquent
article in defense of Indian self-government, and in support of the idea that
the Indian Bureau should work itself out of its job. A few weeks later some
of the tribes under his jurisdiction decided that they needed legal assistance
and proceeded to employ attorneys to help them handle their own leasing,
grazing and social security problems. At this point all sorts of reasons
began "to occur to the superintendent why the tribes under his agency should
not be allowed to select their own attorneys. In fact, for many months, as
fast as one of his objections-was met another objections occurred to him.
Here is a superintendent who is doing the best thing, as he sees it,
for his Indians. He is, I believe, entirely sincere. Recently he explained
that if one of these attorneys contracts were approved he would be out of job,
so far as this particular tribe was concerned. Now you will recall that this
is the same superintendent who wrote an article uraing that the Indian Bureau
work itself out of a job. But when the matter came to an issue in concrete
terms affecting his own job, he saw the question in a different light. That
is only human. That is a part of the egocentric predicament. And it is that
predicament which makes the adherents and defenders of self-government so much
nore dangerous to the cause of Indian self-government than any outright
adversaries. If self-government were a man it might repeat, "God preserve me
from my friends. I can take care of my enemies."
-------
Unfortunately, it is not the tribal decisions which we aaree w
that test our belief in the riqht of self-Government. It is decisions that
loathe and believe to be frauqht with death that test our beliefs in tribal
self-government, just as it is religious opinions that we loathe and believe
to be frauqht with death that test our belief- in religious tolerance. But it
takes a vast amount of sophistication or philosophy to say what Justice Holmes
once said, "I think we should be eternally vigilant against attempts to check
the expression of opinion that we loathe and believe to be fraught with
death." Allowing others to express opinions we agree with_is no test at all
of our belief in free speech.' To quote again from Justice Holmes: "But when
men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe in the very foundations of their own
conduct, that the ultimate good desired is better reached by free trade in
ideas."
May we not profit, may not the world profit, if in a few places in
our Western Hemisphere there is still freedom of an aboriginal people to try
out ideas of self-government, of economics, of social relations, that we
consider to be wrong? After all, there are so many places all over the world
where we Americans can try out the ideas of economics and government that we
know to be right. Is there not a great scientific advantage in allowing
alternative ideas to work themselves out to a point where they can demonstrate
the evils that we believe are bound to flow from a municipal government that
maintains no prisons, or from a government that gives land to all members of
the group who need it? Are we not lucky that the areas within which these
governmental ideas can work from themselves out are so small that they cannot
possibly corrupt the nation or the world?
Indeed, is there not a possibility that we can learn from example--
horrible examples, perhaps, or perhaps examples to be emulated? Have we not
been learning from Indian examples for a good many years? Have we not been
taking over all sorts of horrifying Indian customs, disrespect for kings and
other duly appointed authorities, the smoking of poisonous weeds, like
tobacco, and the eating of poisonous plant products, like tomatoes, potatoes,
tapioca, and quinine, not to mention cocoa and cocaine? Of course, we must
all of us start with the assumption that we are right or as near being right
as we can be. But can we riot also recognize, with Justice Holmes, that time
has upset many fighting faiths, and that even if we are possessed of absolute
truth it is worthwhile to have somebody somewhere trying out a different idea?
Just as serious as the habit .of double-talk or the egocentric
predicament is the method of procrastination as a way of avoiding the concrete
implications of Indian self-government. On May 20, 1834, not 1934 but 1834,
the House Committee on Indian Affairs reported that a large part of the
activity of ^ the Indian Bureau was being carried on in violation of law and
without any 'statutory authority. It urged that the Indian Bureau work itself
out of a job by turnino over the various jobs in the Bureau itself to the
Indians and by placing the Indian Bureau employees on the various reservations
under the control of the various Indian tribes. Ttiese recommendations were
written into law. Ttiey are still law. Tfte justice of these recommendations
has not been challenged for 115 years. But always the answer of the Indian
Bureau is: Give us more tune. We must wait until more Indians have gone to
college, until the Indians are rich, until the Indians are skilled in politics
and able to overlook traditional jealousies, until the Indians are experts in
-------
all the fields in which the Indian Bureau now employs experts. But we are
never told how the Indians are to achieve these aoals without participation in
their own government. And so perhaps some of us are entitled to look with a
skeptical eve upon the new legislative proposals by which the Indian Bureau is
to work itself out of a job after the usual interim 10 year or 20 year period
of increased appropriations.
what provokes skepticism is the fact that, the various hills which ore
being introduced into Congress to achieve this objective Generally end up by
giving new powers and new millions of dollars not to the Indian tribal
councils but to the Indian Bureau. And when we find that specific dates are
not attached to any promised transfers of- powers to the "tribes, we are
entitled to be skeptical. The record shows that for more than one hundred
years the aggrandizement of Indian Bureau power has been justified on the
ground that this was merely needed for a brief temporary period until
authority could be conveyed over to the Indians themselves.
Indian Bureau government, like other forms of colonialism, starts
from the basic premise that government is a matter of knowledge or wisdom. If
we accept this basic premise, there is no answer to the aristocratic argument
of Alexander Hamilton that government should be handled by the rich, the well
born, and the able. If it be said that rich people and well born people are
not necessarily able, the obvious answer is that those who are rich or well
born are at least more likely to have expert knowledge, training, and
experience than those who are poor or the children of poor families, and that
in government we must proceed by general rules, under which it is safe to say
that the rich, the well born, and the able will do a more expert job than
others in the posts of government. One of the greatest of our Secretaries of
the Interior, also, like Hamilton, an immigrant from lands that worshipped
empires, Carl Schurz, once said to an Indian group that was inclined to object
to the activities of some local agency personnel: "Tt>e Great Father is a very
wise man. He knows everything. If there is anything wrong with your agent,
he will know it before either you or I know it."
I think that if government were merely a matter of wisdom and expert
knowledge, the argument of Carl Schurz and Alexander Hamilton would be
irrefutable. The answer to Schurz and to Hamilton is that government is not a
science; it is not primarily a matter of wisdom or technique or efficiency.
Government is a matter chiefly of human purpose and of justice, which depends
upon human purpose. And.each of us is a more faithful champion of his own
purposes than any expert. "Hie basic principle of American liberty -is distrust
of expert rulers, and recognition, in Acton's words, that power corrupts -and
that absolute power corrupts absolutely. That is why America, despite all the
lingo of the administrative experts, has insisted upon self-government rather
than "good government," and has insisted that experts should be servants, not
masters. Arid what we insist upon in the governing of these United States, our
Indian feMow-citizens also like to enjoy in their limited domains: the right
to use experts when their advice is wanted and the right to reject their
advice when it conflicts with purposes on which we are all our own experts.
Ihe classical answer to the Harailton-Schurz-Indian Bureau philosophy of
"expert government" is the answer given by Thomas Jefferson in a letter to the
Cherokee Indians in 1808. Jefferson said: "Ttie fool has as great a right to
express his opinion by vote as the wise, because he is equally free and
equally master of himself."
-8-
-------
Recently I heard repeated the words of Nazi Admiral Doenitz, as he
faced his judges at the collusion of the Nuremberg Trial. The principle of
expert leadership, he said, had proved itself in the armed forces as a
principle of efficiency. It seemed to him that the same principle would prove
itself in the field of government, but the results shows that the leadership
principle in government had brought in its train only ghastly destruction.
Let us hope that we will not have to wait and see, as Admiral Doenitz
saw, what happens when self-government and minority rights are subordinated to'
expert government: and the leadership principle. Let us he thankful that in
this country we have in laboratory proportions before us, in proportions so
small that the individual effort of half a dozen of us can make a real
difference, this perennial conflict between democratic self— government and the
various modern forms of aristocracy, or government by experts. The issue we
face is not the issue merely of whether Indians will regain their independence
of spirit. Our interest in Indian self-government today is not the interest
of sentimentalists or antiquarians. We have a vital concern with Indian
self-government because the Indian is to American what the Jew was to the
Russian Czars and Hitler's Germany. For us, the Indian tribe is the miners'
canary and when it flutters and droops we know that the poison gasses of
intolerance threaten all other minorities in our land. And who of us is not a
member of some minority?
The issue is not only an issue of Indian rights; it is the much
larger one of whether American liberty can be preserved. If we fight only for
our own liberty because it is our own, are we any better than the dog who
fights for his bone? What is my own divides me from my fellow man. Liberty,
which is the other side of the shield of tolerance, is a social affair that
unites me with my fellow man. If we fight for civil liberties for our side,
we show that we believe not in civil liberties but in our side. But when
those of us who never were Indians and never expect to be Indians fight for
the cause of Indian self-government, we are fighting for something that is not
limited by the accidents of race and creed and birth; we are fighting for what
Las Casas and Vitoria and Pope Paul III called the integrity or salvation of
our own souls. We are fighting for what Jefferson called the basic riahts of
man. We are fighting for the last best ho^ of earth. And these are causes
that should carry us through many defeats.
BUREAU OF INDIAN AFFAIRS 1987 BUDGET REQUEST IS $923.7 MILLION
The President's 1987 budget request of $923.7 million in
appropriations for the Bureau of Indian Affairs fBIA) puts new emphasis on the
concepts of ^Indian self-determination and tribal self-government through the
introduction of a new line item category for tribal/agency operations, putting
almost one-third of the total BIA budget under more direct control of the
tribes.
The 1987 request also proposes the transfer of the $22 million
Johnson O'Malley education program to the Department of Education (DOE) and
the move of $11.5 million in Title TV education programs from DOE to the BIA.
Special legislation to effect this change will be needed. The rationale is to
have all programs affecting Indian students attending public schools
-9-
-------
WASHINGTON UNIVERSITY
JOURNAL OF URBAN
AND
CONTEMPORARY LAW
The School of Law
Washington University
Cite as 41 WASH. U.J. URB. & CONTEMP. L. (1992)
Copyright © 1992 by Washington University
-------
CONGRESSIONAL DELEGATION OF
ENVIRONMENTAL REGULATORY
JURISDICTION: NATIVE AMERICAN
CONTROL OF THE RESERVATION
ENVIRONMENT
Native American Tribes,1 America's original inhabitants, have a
strong and unique relationship with the natural environment.2 Re-
cently, many tribes have taken steps to preserve the environment in
"Indian country."3 While attempting to assert regulatory authority
I. Because courts «nd legislatures commonly use the term "Indian," this Note will
use the terms "Indian" and "Native American" interchangeably. The term "Native
American" or "native" is generally preferred, however, when referring to the aboriginal
peoples of North America.
2. See Richard A. Du Bey et •!., Protection of the Reservation Environment: Haz-
, ardous Waste Management on Indian Lands, 18 ENVTL. L. 449, 450 (1988); tee also
Chief Justice Tom Tso, The Process of Decision 'faking in Tribal Courts, 31 ARIZ. L.
REV. 225 (1989). With regard to tribal courts' perspective when rendering decisions,
the Chief Justice of the Navajo Nation's Supreme Court stated, "(wje refer to the earth
and sky as Mother Earth and Father Sky. These are not catchy titles; they represent
our understanding of our place. The earth and sky are our relatives .... Understand-
ing this relationship is essential to understanding traditional Navajo concepts which
may be applied in cases concerning natural resources and the environment." Id. at 233-
34.
3. The statutory definition of "Indian country" includes:
(a) all land within the limits of any Indian reservation under the jurisdiction of the
United States Government, notwithstanding the issuance of any patent, and, in-
cluding rights-of-way running through the reservation, (b) all dependent Indian
communities within the borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or without the limits
of « state, and (c) all Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
133
-------
134
JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 41:133
over their territory, tribal regulatory programs inevitably reach non-
native people and enterprises located within the reservation.4 How-
ever, environmental protection and regulation has long been the exclu-
sive domain of federal and state regulatory agencies.3 These assertions
of tribal authority have led to jurisdictional conflicts involving ques-
tions of tribal, federal, and state sovereignty. Tribal implementation of
environmental regulatory schemes thus adds a new chapter to the re-
cent proliferation of Indian litigatiqn.6
This Note will focus on the ability of tribal governments to effec-
tively and lawfully implement their own environmental programs to
both Indians and non-Indians located on tribal land. Part I examines
the common law origins of tribal sovereignty and the federal govern-
ment's inconsistent Indian policies which are the source of most of to-
18 U.S.C } 1151 (1988).
Thus, "Indian country" technically encompasses more territory than a reservation
because the term "Indian country" includes* native lands located outside the reservation
borders as well as land within reservation boundaries. In general, this Note will use the
term* "Indian country," "native lands," "reservation lands" and similar terms to de-
scribe all land within the exterior boundaries of Indian country as described by the
statute.
Although the above definition is specifically applicable in the criminal context, it is
often used to describe Indian territory in the civil context as well. See DeCouteau v.
District County Court, 420 U.S. 42S, 427 rj.2 (1975).
4, See generally FELIX S. COHEN, HANDBOOK OP FEDERAL INDIAN LAW (1982)
(hereinafter COHEN) for a historical overview of self-government in Indian country and
the challenges by states and non-natives. The modern Indian reservation is a "checker-
board" pattern of Indian owned and non-Indian owned lands. CHARLES F. WILKIN-
SON, AMERICAN INDIANS, TIME AND THE LAW 9 (1987). The checkerboard pattern U
the result of early federal Indian policies which allowed settlement and alienation of
reservation lands. Id. at 8. . .
Generally, reservation Uujds are either held in trust by the federal government, hold
in fee by • tribe, or held in fee by non-Indians. Land held in fee by non-natives (herein-
after "fee land") has the greatest implication for purposes of this Note. Jurisdictional
conflicts frequently involve fee land. Tribes attempt to enjoin state action affecting fee
land within the reservation, and slate or non-native landholders attempt to bar tribal
assertions of regulatory jurisdiction on fee land.
5. Du Bey, supra note 2, at 450-51. One consequence of the federal and state regu-
latory agency's exclusive domain over environmental protection is the reservation envi-
ronment's virtual neglect. Id. at 451. The lack of protection stems from the tribal
governments' inability to directly participate in, or receive funding through, federal en-
vironmental grant programs administered by the Environmental Protection Agency
(EPA). Id.
6. See Peter W. Sly, EPA and Indian Reservations: Justice Stevens' Factual Ap-
proach, 20 Envtl. L. Rep. (Envtl. L. Inst.) 10,429. 10.430 n.12 (1990) (noting that
"(j]inc« 1970, the Supreme Court has issued more Indian law decisions than in the
combined fields of consumer and antitrust law").
1992J
ENVIRONMENTAL REGULATION OF TRIBAL LANDS
135
day's legal problems. Parts II and III consider two potential threats to
tribal implementation of environmental programs throughout the res-
ervation. Part II analyzes state assertions of regulatory jurisdiction in
Indian country. Part III explores the limits of tribal jurisdiction with
respect to the ability of tribes to regulate non-Indians on reservations.
Part IV reviews federal environmental statutes and their inconsistent
treatment of Indian tribes. Finally, Part V suggests various ways in
which Congress can respect tribal rights to self-determination and pre-
clude endless and costly litigation between state and federal or tribal
authorities.
I. THE ORIGINS OF TRIBAL SOVEREIGNTY
In two early Indian law cases, Chief Justice John Marshall boldly7
set the framework for the current federal Indian policy which views
tribes as sovereign political bodies.* In Cherokee Nation v. Georgia,9
Marshall first enumerated the trust relationship10 between the United
States and the tribes. Although Marshall ruled that the Indians were
not independent "foreign nations" within the meaning of the Constitu-
7. Marshall's decisions were bold because they directly conflicted with President
Andrew Jackson's executive policy at the time. Jackson's administration vigorously
pursued a policy to move Indians to Western la- Is. In his First Annual Message to
Congress in December 1829, Jackson clearly prescribed that "if [Indians] remain within
the limits of the States they must be subject to [the stales'] laws." President Jackson on
Indian Removal (Dec. 8, 1829), reprinted in FRANCIS P. PRUCHA, DOCUMENTS OF
UNITED STATES INDIAN POLICY 47, 48 (1990).
8. See President's Statement on Indian Policy, 1983 PUB. PAPERS 96 (Jan. 24, 1983)
[hereinafter Reagan Indian Policy]. Former President Ronald Reagan's official Indian
Policy Statement explicitly recognized Indian tribes as sovereign political entities by
acknowledging the enduring "govemment'tc-govemment relationship between the
United Stales and Indian tribes." Id. at 96. See also Proclamation No. 6080 3 C.F.R.
192 (1990). Although President Bush has not issued an official policy statement con-
cerning Indians, Congress designated "National American Indian Heritage Week" for
the week beginning December 3, 1989. In his proclamation, President Bush stated that
"tribal elected governments and the United State* have now established a unique and
special govemment-to-government relationship ... we look forward to greater eco-
nomic independence and self-sufficiency for Native Americans, and we reaffirm our sup-
port for increased Indian control over tribal government affairs." Id. at 193.
9. 30 U.S. (5 Pet.) I (1831).
10. The trust relationship has been described as "one of the primary cornerstones of
Indian l»w." COHEN, supra note 4, at 221. The relationship defines the standards of
conduct for the federal government when interacting with native governments. Id, at
220. Treaties, statutes, executive orders, and administrative rules and regulations are
construed in light of federal trust obligations; thus, federal action will be read in a man-
ner favorable to Indians. Id. at 220-21.
-------
136
JOURNAL OF URBAN AND CONTEMPORARY U*V [Vol. 41:133
tion," he described them as "domestic dependent nations"12 to whom
the federal government owes a special responsibility.13 This responsi-
bility includes the general protection14 and the insurance of tribal na-
tions' economic stability.13
One year'later, in Worcester v. Georgia,16 Justice Marshall over-
turned a Georgia law forbidding whites in Cherokee country without a
state permit.17 Worcester became the first case in which the Supreme
Court held that state law is not applicable to affairs within Indian terri-
tory.1* Thus, Worcester defined the state jurisdictional limits by geo-
graphical boundaries rather than by personal jurisdiction.19
The federal-tribal trust relati'pnship described in Cherokee Nation
and the jurisdictional analysis from Worcester laid the groundwork for
modern legal analysis of tribal regulations. Just as the Cherokee Na-
tion Court recognized Indian tribes as distinct governmental entities,20
recent presidential administratipns have explicitly recognized tribes as
11. 30 U.S. (5 Pet.) at 20. Marshall did not grant relief to the Indians, who sought
to enjoin the fttte of Georgia from implementing their laws in Indian country, because
the Constitution extends power to the judiciary to hear case* and controversies only
"between k Mate or the citizens thereof,'and foreign states, citizens, or subjects." Id. at
15 (quoting U.S. CONST, art. Ill, $ 2, cl. 1). Therefore, be held that the Court did not
have jurisdiction to hear the case. Id. at 20.'
12. Id. at 17.
13. Id. Marshall stated that the Indians' "relation to the United States resembles
that of a ward to his guardian." Id. See alto Larry B. Leventhal, American Indians-
The Tnut Responsibility: An Overview, 8 HAMLINE L. Rev. 625 (1985) (discussing the
parameters of the trust relationship between the United States and the Indian tribes);
Mark Allen, Comment, Nairn American Control of Tribal Natural Resource Develop-
ment In the Context of the Federal Trust and Tribal Self-Determination, 16 B.C. EN VTL.
AFP. L. REV. 857 (1989) (discussing the trust responsibility in the context of environ-
mental regulation on reservation lands).
14. See United States v. Kagama. 118 U.S. 375 (1886) (discussing protection from
state intrusion as part of the federal trust responsibility).
IS. 30 U.S. (5 Pet.) at 17 ("They look to our government for protection ... [and]
appeal to it for relief to their wants ...").
16. 31 U.S. (6 Pet.) 515 (1832).
17. The petitioner in Worcester was a non-Indian missionary who was condemned
to four years of hard labor in « Georgia penitentiary. Id. at 532. The Court held that
the Georgia law was unconstitutional and had no force to deprive plaintiff of his prop-
erty or liberty. Id. at 596.
18. COHEN, supra note 4, at 259.
19. 31 U.S. (6 Pet.) at 557. Native tribes are "distinct political communities, having
territorial boundaries, within which their authority is exclusive, and having a right to all
the lands within those boundaries." Id.
20. Earlier Indian cases were not particularly sympathetic to the concept of Indian
1992]
ENVIRONMENTAL REGULATION OF TRIBAL^NDS
sovereign nations.21 Furthermore, Justice Marshall considered trUx
to be much like states22 in terms of self-government; similarly, today
Congress often treats tribes as states for purposes of implementing the
own environmental programs.23 Thus, the source of today's jurisdi*
tional disputes in Indian country does not lie in philosophical diffe
ences between today's government and that of the early Republt
Instead, the source lies in several important nineteenth century devc
opments regarding federal Indian policy. Soon after Justice Marsh?
laid the foundation for tribal sovereignty, the principles established
Cherokee Nation and Worcester began to erode.24
A. The "Checkerboard" Reservation
A series of nineteenth century congressional acts led to the seve
erosion of Indian land holdings. The 1830 Indian Removal Act23 a'
thorized the President to exchange land west of the Mississippi Riv>
for eastern tribal lands.2' The forceful removal27 of the Indians cr
ated many western Indian land holdings and reservations in tl
West.2* The Indians' migration to the western frontier solved nothii
tribal sovereignty. See, e.g., Johnson 9. M'Intash, 21 U.S. (8 Wheat.) 543 (182
Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).
21. See supra note 8 for a discussion of recent Indian policies.
22. See 30 U.S. (5 Pet.) 1. 16 (1831) (recognizing the Cherokee tribe as a bo-
capable of managing its own affairs and stating that "they have been uniformly be
treated as a state from the settlement of our country").
23. See infra notes 149-168 and accompanying text for a detailed description
environmental laws that view tribes as states.
24. President Jackson allegedly reacted to the Worcester decision by stating, "Jol
Marshall made his law; now let him enforce it." COHEN, supra note 4, at 83. in f»<
the administration at the time did nothing to enforce the decision. Followers of Jacks-
requested the governor of Georgia to pardon the petitioner to avoid potential etnbi
rassment resulting from the President's receipt of an enforcement order from t
Supreme Court. Id. at 83 n.175.
25. Act of May 28, 1830, ch. 148, 4 Slat. 411 (1830).
26. Id.
27. Although Jackson's removal policy was contemplated as voluntary, in pracli
the program was coercive. The military was needed for effective removal because t
Indians generally resisted leaving their homeland. See COHEN, supra note 4. at 91-'
see also Robert A. Williams, Jr., Documents of Barbarism: The Contemporary Legacy
European Racism and Colonialism in the Narrative Traditions of Federal Indian La
31 ARIZ. L. REV. 237. 239-58 (1989) (positing that the removal stems from the legs
of European-based racism which continues to dominate federal policy and attitudes '
ward natives).
28. See COHEN, supra note 4, at 124 (stating that the rapid expansion of the wh
-------
138
JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 41:133
and merely delayed the problems that imminent western expansion
would soon create.
As the frontier shrank, differences between westbound settlers and
Indian tribes became more prominent,29 In 1887, Congress passed the
Dawes Act (also called the General Allotment Act)30 which severely
altered the original title rights on most reservations. Under the Act,
individual Indians were allotted parcels of reservation land,31 while
surplus lands were sold to non-Indian homesteaders.32 This parceling
of reservation land had devastating effects on Indian landholdings,"
resulting in the present day "checkerboard" ownership pattern on
many reservations.34 Checkerboard ownership is the principal source
of most of today's jurisdiction^ problems.31
While the Indian policies of the late nineteenth and early twentieth
centuries attempted to assimilate the Indians into the white culture,
population nude it necessary to limit the mobility of Indian tribe* and force them to
settle on permanent reservations).
29. Id. at 132. Eastern philanthropists wanted to cultivate and civilize the "savage"
Indiani and the western expansionists wanted the Indians' land. Other interests in-
cluded those of private land speculator*, the timber industry and the railroads. Id.
30. 25 U.S.C. }} 331-34. 339. 341-42, 348-49, 354, 381 (1988).
31. See COHEN, supra note 4.-at I3O-31. Title to this land was held in trust by the
federal government for twenty-five years or longer at the President's discretion. Id. at
13). During this period, any alienation or encumbrances were void. Id. If surplus land
existed after the allotments were made, lite government usually bought the land and
sold it to private parties. Id. (
32. Id. at 130-32. The Dawes Act and other nineteenth century Indian policies
were actually attempts to destroy the tribal system which reformers thought was neces-
sary in order to allow the Indian* to lully participate in the American lifestyle. Id. at
131. Reformers also attempted to terminate the existence of reservations because of
fundamental differences between the Indians and the Americans regarding property
ownership concepts. Id. at 13H32. The idea of individual land ownership was central
to the American way of life. On the other hand, the Indians firmly believed in commu-
nal property ownership. Dawes Act advocate* felt that assimilation would be impossi-
ble unless these socialist communities were destroyed. Id. at 131 n.39. Therefore,
individual ownership, through allotments, became necessary to meet the assi inflationist
goal. Id. at 131.
33. By the time the allotment program came to an end, Indian landholdings dimin-
ished from 138 million to 52 million acres. Set WILKINSON, supra note 4. at 8.
34. Id. at 8-9 (noting that Indian country now contains tribal land, allotted trust
land held by Indians, fee land held by both Indians and non-Indians, federal public land
and itate land).
35. Checkerboard jurisdiction is inefficient and results in various possibilities of tri-
bal, federal and state jurisdiction. Id. at 9. Moreover, the lack of a well-defined juris-
dictional doctrine causes repetitious and unnecessary litigation. Id.
1992J ENVIRONMENTAL REGULATION OF TRIBAL LANDS
139
support for assimilation began to wane with the implementation of
New Deal reforms.36 Ultimately, the assimilation policy was repudi-
ated in 1934; however, the jurisdictional picture on reservations was
irreversibly clouded.
B. The Road To Tribal Self-Determination
The Indian Reorganization Act of 1934 (IRA)" was an attempt to
encourage tribal economic development and self-determination.38 The
basic premise behind the IRA was to allow native tribes to govern
themselves effectively with the federal government's help.39 Although
the IRA was a positive step towards true tribal self-determination, it
contained many flaws.40 Dissatisfaction with the Act resulted in sev-
eral amendments and attacks on the IRA's principles in the 1940's and
1950's, including regression to an assimilation policy.41 The late
I960's, however, saw the emergence of tribal self-determination as the
dominant federal Indian policy.42
Current federal Indian policies do not threaten tribal autonomy.43
36. See COHEN, supra note 4, at 145-52 (discussing the new policy of preserving the
Indian culture and the laws enacted to fulfill this goal).
37. Act of June 18, 1934, ch. 576, 48 Sui. 984 (codified as amended at 25 U.S.C.
85 461. 462. 464. 465, 466-70. 471-73, 474, 475, 476-78. 479 (1988)).
38. Set COHEN, supra note 4, at 147.
39. Id.
40. For example, Section 16 of the Act permitted the tribe* to draft and adopt their
own constitution. Id. at 149. However, most of these constitutions were standardized
forms provided by the Department of the Interior which granted only limited tribal
autonomy. Id. In addition, the IRA authorized the purchase of new lands for tribal
use but Congress never appropriated the necessary money. Id. at 150.
41. Id. at 153-59 (outlining the specific attacks on and proposals for the IRA).
42. See generally President's Special Message to the Congress on the Problems of
the American Indian: "The Forgotten American," PUB. PAPERS 335 (March 6, 1968)
(President Johnson's Message to Congress on Indian Affairs); President's Message to
Congress on Indian Affairs, Pu». PAPERS 564 (July 8, 1970) (President Nixon's
Message to Congress on Indian Affairs). Also, several congressional acts from the
1960's and 1970's manifested the self-determination policy. See, e.g., Indian'Civil
Rights Act, 25 U.S.C. §§ 1301-41 (1988); Indian Self-Determination and Education
Assistance Act. 25 U.S.C. §§ 450-50n, 455-58(e) (1988).
43. Although beyond the scope of this Note, current federal Indian policies are not
immune from serious criticism. They have been described as attempts to cut funding
for tribal governments while doing as little political damage as possible during a budget-
ary crisis. Indeed, recent administrations may be shirking their federal trust obliga-
tions. The policy statements' rhetoric, at the very least, clearly supports tribal self-
determination. The administration should be held accountable for such rhetoric
through a continued federal-tribal cooperation. See Allen, supra note 13, at 885-87.
-------
,40
,L OF URBAN AND CONTEMPORARY UW [Vol. 41:133
Other barriers to tribal autonomy, however, continue to exist. One po-
tential barrier arises when states attempt to assert regulatory jurisdic-
tion in the Indian country.44 As the next section demonstrates, federal
courts have not clearly articulated when a state may lawfully assert
regulatory authority over tribal lands.45
II. LIMITS OF STATE REGULATORY JURISDICTION
The landmark case of Williams v. Lee46 opened the modern era of
federal Indian law.47 The Supreme 'Court addressed the issue of
whether a state court has civil jurisdiction over reservation Indians.48
In Williams, a non-native store owner operating on a Navajo Indian
Reservation sought to collect payment for goods sold to an Indian and
his wife on credit.49 The petitioners moved to dismiss, asserting that
the tribal court, rather than the state court, had jurisdiction.30 In
granting the motion, the Supreme Court ruled that "state court jurisdic-
tion unlawfully infringed on the ability of the tribes to make and en-
force their own laws." Moreover, the Court found that a party's non-
44. Another jurisdiction*] dispute occurs when states and tribes assert criminal ju-
risdiction in Indian country. The unique problems related to criminal jurisdiction in
Indian country are beyond the scope of this Note. For a more detailed analysis of this
area of Indian law, see, e.g., COHEN, supra note 4, at 286-308; Robert N. Clinton, Crim-
inal Jurisdiction over Indian Lands: A Journey Through a Jurifdictional Maze, 18 ARIZ.
L. REV. 503 (1976). See also Duro v. Reina. 1 JO S. Ct. 2053 (1990) (holding that a tribe
has no criminal jurisdiction over an Indian who -is not a member of the tribe asserting
jurisdiction); United States v. Wheeler, 435 U.S. 313 (1978) (upholding tribal criminal
jurisdiction over tribal members); Oliphant v. Suquamish Indian Tribe, 43S U.S. 191
(1978) (holding that tribes have no criminal jurisdiction over non-Indians on the
reservation).
45. See, eg., White Mountain Apache Tribe v. Bracket, 448 U.S. 136, 142 (1980)
(stating that "there is no rigid rale by which to resolve the question whether a particular
state law may be applied to an Indian reservation or to tribal members").
46. 358 U.S. 217 (1959).
47. See WILKINSON, supra note 4, at 1-3 (discussing the importance of William* to
all subsequent Indian law decisions).
48. 358 U.S. at 218.
49. Id. at 217-18.
50. U. at 218. The Supreme Court of Arizona rejected this argument, holding that
no congressional act expressly denies Arizona courts' jurisdiction over the matter. Id.
51. Id. at 223. In so holding, the Court stated that "(tjhere can be no doubt that to
allow the exercise of state jurisdiction here would undermine the authority of the tribal
courts over Reservation affairs and hence would infringe on the right of the Indians to
govern themselves." Id.
1992]
ENVIRONMENTAL REGULATION OF TRIBAL LANI
141
native status was immaterial." The Court invoked the "infringement
test" stating that, absent Congressional authority to the contrary, a
state has regulatory authority as long as such authority does not in*
fringe on tribal self-government.53
Although based on logical notions of tribal sovereignty, the "in-
fringement test" is problematic in its application. The test does not
articulate clear standards to determine when states infringe on tribal
self-governance.54 Fortunately, a new test evolved in order to better
determine the validity of state actions on the reservation.
A. Preemption
In McClanahan v, Arizona State Tax Commission,55 the Supreme
Court held that a state cannot tax a reservation Indian for income de-
rived exclusively from reservation resources.56 The Court noted that
the modern trend was away from the "infringement test" and toward
reliance on federal preemption when considering the validity of state
laws in Indian country.57 Thus, the Court ruled that federal treaties58
and laws59 preempted the state tax.60 .
52. 358 U.S. at 223.
53. • Id. at 220. "Essentially, absent governing Acts of Congress, the question has
always been whether the state action infringed on the right of reservation Indians to
make their own laws and be ruled by them." Id. Cf. Utah & Northern Railway Co. v.
Fisher, 116 U.S. 28, 31 (1885) (noting that a state only has jurisdiction over an Indian
reservation where the controversy is in its cognizance).
The basis of the Court's infringement analysis was the notion of tribal sovereignty as
articulated in Worcester v. Georgia. 31 U.S. (6 Pet.) 515 (1832). 358 U.S. at 218-20.
54. See WILKINSON, supra note 4, at 4 (stating that "in the crucial area of tribal-
slate relations, the specific shape of doctrine has yet to be formed").
55. 411 U.S. 164 (1973).
56. Id. at 165. McClanahan sought a refund of state taxes withheld from her reser-
vation wages. When the slate refused, she sued the state requesting the return of her
money and a declaration that the state tax was not applicable to reservation Indians.
Id. at 165-66.
57. Id. at 172. "fTJhe trend has been away from the idea of inherent Indian sover-
eignty as a bar to state jurisdiction and toward reliance on federal pre-emption. The
modem cases thus tend to ... look ... to the applicable treaties and statutes which
define the limits of stale power." Id. (citation omitted).
58, "The beginning of our analysis must be with the treaty which the United States
government entered with the Navajo Nation in 1868." Id. at 173-74.
59. Statutes that the Court considered in rendering its decision included the Ari-
zona Enabling Act, the Indian Civil Rights Act of 1968, and the Buck Act (a federal
guidance system for state taxation of those living on federal land). Id. at 175-78.
60. Id. at 173. "When the relevant treaty or statutes are read with this tradition of
-------
142
JOURNAL OF URBAN AND CONTEMPORARY L*W {Vol. 41:133
Reliance on the preemption analysis did not render the "infringe-
ment test" irrelevant. Instead, tribal sovereignty became the backdrop
for the preemption analysis.61 Courts have struggled, however, to fit
sovereignty notions into their preemption analysis.62
B. Current Doctrine
In While Mountain Apache Tribe v. Bracker,63 the Supreme Court
articulated the present approach to jurisdictional conflicts between
states and tribes when a state seeks authority over reservation activities
of non-natives.64 The modern test combines elements of both McClan-
ahan and Williams by barring state jurisdiction if the state law either
infringes on tribal sovereignty or is preempted by federal law.63
Although each is an independent barrier to state jurisdiction,66 the two
are related.67 Today, most courts rely primarily on preemption analy-
sis.6* Against the backdrop of tribal sovereignty, preemption analysis
requires a "particularized inquiry" into the relevant state, federal and
sovereignty in mind, we think it clew that Arizona ba* exceeded it* lawful authority by
attempting to tax appellant." Id. ;
61. Id. at 172. "The Indian sovereignty doctrine is relevant, then, not because it
provides a definitive resolution of the issues .'. . but because it provides » backdrop
against which the applicable treaties tad federal statutes must be read." Id.
62. Set, e.g., Moe v. Confederated Salish ft Kootenai Tribes, 423 U.S. 463, 482-83 "
(1976) (upholding a state tax on cigarettes 'sold to non-natives on * reservation, relying
on the state's interest in taxing non-natives rather than tribal sovereignty interests).
63. 448 U.S. 136 (1980).
64. Id. at 137. In Bracker. Arizona sought to apply a licensing requirement and
fuel tax to a non-Indian logging company operating exclusively on the Fort Apache
Reservation.
65. Id. at 142. "FirsCthe exercise of such authority may be pre-empted by federal
law. Second, it may unlawfully infringe 'on the right of reservation Indians to make
their own laws and be ruled by them.'" Id. (quoting Williams v. Lee, 358 U.S. 217. 220
(1959)) (citations omitted).
66. Id. at 143. Either barrier, standing alone, would be a sufficient basis to hold a
Hate law inapplicable to activities undertaken on Indian land or by tribal members. Id.
67. Id. The Indians' right to self-government is ultimately subject to the broad
power of Congress. Moreover, the tradition of tribal sovereignty over the reservation
and the tribe must aid in determining whether federal law preempts the exercise of state
authority.
68. This reliance is probably due to the difficulty court* have in discerning unlawful
infringement Furthermore, legislative guidelines are better articulated in subject mat-
ter statutes than the vague treaties establishing Indian country. \See WILKINSON, supra
note 4, at 94.
1992J
ENVIRONMENTAL REGULATION OF TRIBAL LANDS
143
tribal interests.69 The Bracker Court balanced the various interests
and determined that the federal and tribal interests outweighed state
interests.70
C. Balancing the Interests in the Environmental Context
A particularized inquiry into the tribal, federal, and state interests in
environmental protection demonstrates the states' inability to regulate
non-native enterprises operating on the reservation.71 Because air,
69. 448 U.S. at 145. "This inquiry is not dependent on mechanical or absolute con-
ceptions of state or tribal sovereignty, but has called for a particularized inquiry into the
nature of the state, federal, and tribal interests at stake, an inquiry designed to deter-
mine whether, in the specific context, the exercise of state authority would violate fed-
eral law." Id. See generally Stephen M. Feldman. Comment, The Developing Test For
Slate Regulatory Jurisdiction in Indian Country: Application in the Context of Environ-
mental Law, 61 OK. L. REV. 561 (1982) (applying the particularized inquiry to environ-
mental regulatory laws).
70. 448 U.S. at 145-53. As to the federal interest*, the Court emphasized the com-
prehensive and pervasive nature of the government's regulation which included specific
congressional acts and detailed regulations by (he Secretary of the Interior. Id. at 145.
The Court further noted that imposition of the state taxes would undermine federal
authority and objectives. Id. at 149. See also Warren Trading Post Co. v. Arizona Tax
Comm'n, 380 U.S. 685, 686 (1965) (holding that pervasive federal regulation of Indian
traders prohibited a state tax on a non-Indian company operating a retail trading busi-
ness on a reservation).
With respect to tribal interests, the Court noted that the tax would undermine the
federal policy of supporting the tribe's ability "to revitalize their self-government" and
take control of their "business and economic affairs." 448 U.S. at 149 (quoting Mes-
calero Apache Tribe v. Jones, 411 U.S. 145, 151 (1973)).
As to the state's interest, the Court found that the general interest in raising revenue
was not sufficient to allow state intrusion into the federal regulatory scheme. 448 U.S.
at 150.
71. Several commentators reached this conclusion even before the Supreme Court
articulated the balancing test in Bracker. See, e.g., i. Kemper Will, Indian Lands Envi-
ronment-Who Should Protect It, 18 NAT. RESOURCES J. 46S, 504 (1978) (postulating
that states will not have jurisdiction over non-Indian operations on a reservation with
regard to environmental issues); Lynne E. Petros, Comment, The Applicability of the
Federal Pollution Acts to Indian Reservation* A Cost for Tribal Self-Government, 48 U.
COLO. L, REV. 63,93 (1976) (stating that the Indians' interests in self-government man-
date tribal jurisdiction over environmental regulation).
Post-Brac&er commentators reaching the conclusion that states are unable to regulate
non-native enterprises on reservations include: Judith V. Royster & Rory Snow Arrow
Fausett, Control of the Reservation Environment: Tribal Primacy, Federal Delegation,
and the Limits of State Intrusion, 64 WASH. L. REV. 581, 659 (1989) (concluding that
state environmental laws are preempted by federal law and Indian sovereignty); Du
Bey, supra note 2, at 503 (noting that absent specific statutory language authorizing
state jurisdiction over Indian country, states do not possess the power to implement
environmental regulatory programs); Stephen M. Christenson. Note, Regulatory Jura-
-------
144
ItNAL
OF URBAN AND CONTEMPORARY UW [Vol. 41:133
water, and land pollution often know no boundaries, all three types of
government have substantial interests in protecting their citizens from
the dangers of pollution emanating from reservation lands.72
Federal interests stem, in part, from their trust obligation to protect
native governments from unlawful state intrusion.73 In the area of pol-
lution control, the trust responsibility includes preventing tribal lands
from becoming a haven for environmental statute violators and encour-
aging native governments to effectively develop, implement and enforce
their own environmental programs.74' In addition, federal interests in-
clude the general policy of encouraging tribal self-determination.73
Inherent in this general self-determination policy is the policy of pro-
moting tribal control over the reservation environment.76
General tribal sovereignty interests and their ability to regulate res-
ervation territory are subject to a balancing test when determining the
validity of state actions.77 In the environmental protection area, native
»
•
diction over Non-Indian Hazardous Waste in. Indian Country, 72 IOWA L. REV. 1091.
1116 (1987) (concluding lh«t tribal governments are the proper authority to regulate
non-Indians under federal environmental statutes). But see Leslie Allen. Who Should
Control Hazardous Waste on Native American Lands? Looking Beyond Washington De-
partment of Ecology v. EPA, 14 ECOLOGY L.Q. 69. 1 15 (1987) (reaching the conclusion
that states should have regulatory jurisdiction over hazardous waste in Indian country).*
72. Royster * Fausett. supra note 71, af584-8S.
73. See United States v. Kagama, 1 18 'U.S. 375. 384 (1886) (noting that protecting
tribal government* from state intrusions on the reservation was one of the initial reasons
for developing the federal trust responsibilities).
74. The federal government is just beginning Co fulfill their trust duties with respect
to allowing native governments to establish their own environment*! regulatory
schemes. Ste The jtndian Fnyimnnu^.l Royiil.tory Ifofrgpcmgnt Act of 1990. Pub.
L. No. 101-408, $ I, 104 Stat. 883 (codified as amended at 42 U.S.C. § 299TR«tIblish.
ing grant* to Uibes for the specific purpose of enabling them to develop, monitor and
enjbige tribal environmental laws). • r ' '
See generally Allen, supra note 13 for a discussion of the federal trust obligations in
the environmental context.
75. ' See supra notes 8 and 42 and accompanying text for a brief discussion of recent
presidential administrations' Indian policy goals of promoting tribal self-determination.
76. See ENVIRONMENTAL PROTECTION AGENCY, EPA POLICY FOR THE ADMIN-
ISTRATION OF ENVIRONMENTAL PROGRAMS ON INDIAN RESERVATIONS (1984) (here-
inafter EPA INDIAN POLICY] (stating that the EPA will recognize native governments
as the primary parties responsible for establishing standards and policy affecting Indian
reservations; the EPA will also encourage tribes to assume certain management respon-
sibilities for environmental programs); see also The Environmental Protection Agency
and Tribal Governments, AM. INDIAN L. NEWSL. (American Indian Law Center, Albu-
querque. N.M.), Jan.-Feb. 1985, at 4 (summarizing the main points of the EPA Indian
policy).
77. See, e,g., Colville Confederated Tribes v. Walton, 647 F.2d 42. 52 (9th Cir.
1992]
ENVIRONMENTAL REGULATION OF TRIBAL LAN
145
governments have a particular interest in ensuring that the reservation
does not become a dumping ground for hazardous waste or a regula-
tion free sanctuary for enterprises looking for loopholes around costly
pollution control laws.7* A related tribal concern is the threat of pollu-
tion spillover from nearby off-reservation sources.79 As the political
bodies closest to the reservation population,80 native governments are
directly responsible and accountable for the health and welfare of their
people.81 Indeed, tribal governments are best able to determine their
people's needs and the condition of their land. In addition, native in-
terests include the right to control land use on the reservation82 and the
1981) (suggesting that the state of Washington may not regulate waterways on a reser-
vation because the regulation of water on a reservation is critical to the tribes); Segundo
v. City of Rancho Mirage, 813 F.2d 1387, 1393 (9th Cir, 1987) (considering the tribe's
land use interests in striking down state rent control ordinances); cf. Rice v. Rehner,
463 U.S. 713, 720 (1983) (finding that when there is a lack of Indian traditions in a
particular activity, the backdrop of tribal sovereignty is given less weight when balanc-
ing federal, tribal and state interests).
78. See, e.g., EPA Surveys Indian Tribes For First Look at Environmental Problems
on Reservations, 17 Env't Rep. (BNA) 1424 (Dec. 19,1986) (citing results of EPA study
indicating that water quality, solid waste, and sewage treatment are serious problems on
many reservations); Study finds 1.200 Sites near Indian Lands. Recommends Immediate
Action at Six Locations, 16 EnVt Rep: (BNA) 1228,1228-29 (Nov. 8, 1985) (identifying
nearly 1.200 hazardous waste generators or sites on or near Indian land and indicating
/hat "midnight dumping" is a contributing factor to the growing pollution problem).
79. See Royster ft Fauselt, supra note 71, at 651 n.276 (arguing that spillovers
should not only be a state concern but also a tribal concern because tribes are just as
threatened by off-reservation pollution sources as states are by on-reservation sources).
80. See Reagan Indian Policy, supra note 8, at 96. Former President Reagan stated,
"(i]his administration believes that responsibilities and resources should be restored to
the governments which are closest to the people served. This philosophy applies not
only to Slate and local governments but also to federally recognized American Indian
tribes." Id. The former President recognized that native governments, rather than
states, have the primary authority over the well-being of their people. Id.
81. See infra note 111 and accompanying text for a discussion of how tribal con-
cerns become more important when the tribe's health and welfare is implicated.
82. Several courts have upheld native land use and zoning authority over non-native
lands on the reservation. See. e.g.. Segundo v. City of Rancho Mirage. 813 F.2d 1387,
1393 (9th Cir. 1987) (recognizing that "(ijl is beyond question that land use regulation
is within the Tribe's.legitimate sovereign authority over its lands"); Knight v. Shoshone
& Arapahoe Indian Tribes. 670 F.2d 900, 903 (10th Cir. 1982) (opining that "the inter-
est of the Tribes in preserving and protecting their homeland from exploitation justifies
the zoning code," notwithstanding the fact that the code affects non-Indians); see also
United Stales v. Mazurie. 419 U.S. 544, 557-58 (1975) (holding that tribes can subject
non-Indians to liquor sales regulations); Pinoleville Indian Community v. Mendocino
County. 684 F. Supp. 1042, 1047 (N.D. Cal. 1988) (enjoining operations of asphalt and
cement plants because of the threatened injury to land, water, air, as well as the health
of Indians); Jane E. Scott, Note, Zoning: Controlling Land Use on the Checkerboard:
-------
146
JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 41:133
related right to control the extent of reservation development."
State interests include spillover threats from tribal to state lands,"
the possibility of relatively lenient native pollution standards85 and the
potential inability of tribes to effectively control pollution.86 Moreover,
the desire to regulate all lands within its border, including Indian coun-
The Zoning Powers of Indian Tribes after Montana v. United States, 10 AM. INDIAN L.
REV. (87 (1982) (noting the increasing responsibility that Indian tribes have over the
management of environmental resources on their reservations).
83. See Reagan Indian Policy, supra note 8, at 98 ("TribaJ governments have the
responsibility to determine the extent and the methods of developing the tribe's natural
resources."),
84. This interest is essentially nullified because tribal concerns regarding spillover
pollution are equally as great as state concerns. See Royster ft Fausett, supra note 71,
at 652.
85. Compart Allen, supra note 71, It 98 n. 177 (arguingthat a state's most pressing
interest is protecting its environmental program from lesser tribal standards; discounts
the threat from neighboring states because states rarely share urban developments and
are often separated by geographic features) with Royster A Fausett, supra note 71, at
654 n.287 (arguing that distinguishing state-state borders from state-tribal borders is
chimerical). '
Many states are legitimately concerned that waste management companies, in an at-
tempt to evade state regulation, and taxes, will offer tribes lucrative proposals to locate
on reservation land. In practice, however,* many tribes that have been tempted with
such lucrative proposals have rejected them out of concern for their land. See, e.g.,
Macy Hager et al., 'Dances w/(A Cartage'. ^EWSWEEK, Apr. 7-9. 1991, at 36; Bill Lam-
brecbt, Arizona Indian Tribe Backs Out of Deal to Accept Toxic Waste, ST. Louis POST-
DISPATCH. Feb. 3. 1991, at Al; Ronald Smothers, Futurt in Mind. Choctaws Reject
Plan For Landfill, N.Y. TIMES. Apr. 21, 1991, § 1, at 22; Roger Worthington, Tribes
Resist Tempting Landfill Offers, CHI. THIS., Sept. 22, 1991, at C4.
86. Many tribes are extremely destitute and may lack the financial resources and
expertise to effectively implement and enforce pollution control laws. However, the
EPA must approve tribal programs and provide education and technical assistance to.
the tribes. See generally EPA INDIAN POLICY, supra note 76.
In addition, the federal government recognizes native governments' needjgrjlnandial<
assistance. See Indian Environmental Regulatory Enhancement Act of '1990. Pub. L.
No. 101-408. 104 Stat. 883,(codified as amended at 42 U-S.C. $ 2991) (appropriating
lUiuliug mil tftnonzuig the Department of Health and Human Services to award
grants to tribes for environmental regulatory purposes).
Environmental funding exemplifies federal recognition of their trust responsibilities.
See 136 CONG. REC. S6866 (daily ed. May 23, 1990) (stating that "[f]or many years,
Indian tribes have been attempting to address their own environmental problems with-
out adequate federal assistance") (statement of Sen. McCain).
Finally, Senator McCairf. introduced a bill on August 2, 1991 for the purpose of in-
creasing tribal governments' capacity for waste management on Indian lands. This bill
explicitly recognizes the federal trust responsibility toward tribal governments and ac-
knowledges the inherent authority of tribes to regulate tribal lands. It also seeks to
establish a system of tribal regulation and federal review of waste management and
disposal activities and to provide technical and financial assistance to tribal govern-
1992}
ENVIRONMENTAL REGULATION OF TRIBAL LANDS
147
try,*7 and to regulate non-native state citizens,** has boosted state in-
terests in regulating fee land.89
Another interest which is not directly attributable to tribal, federal,
or state governments includes avoiding checkerboard jurisdiction.90
Such jurisdiction creates inconsistent standards and piecemeal author-
ity which leads to confusion among the regulated states.91 However, it
is well settled that checkerboard jurisdiction is avoidable only by giving
the tribes sole authority to control the reservation because the states
cannot regulate the natives or the reservation.91
Although each respective government has compelling interests in
regulating Indian country, the conclusion that tribal government laws
preempt state environmental laws when applied to the reservation is
unavoidable. Reservation activities, including those on fee land, di-
rectly affect native Americans. Since tribal governments have primary
authority over the health and welfare of their people, environmental
ments to effectively implement waste management programs^S. 1687^ 102nd Cong., 1st
Sess. §5 2-3 (1991).
87. See Allen, supra note 71, at 99-100 (asserting that states are concerned over the
havoc that the patchwork of regulatory jurisdiction wreaks on unified environmental
programs).
88. Concededly, a tribe's regulatory interest diminishes when their authority
reaches non-Indians. However, courts have consistently held that native governments
have jurisdiction over territory and not merely over people. See supra notes 16-19 and
accompanying text for a discussion of the origin of this rule.
89. See generally Charles F. Wilkinson, Crou-Jurisdiclional Conflicts: An Analysis
of Legitimate Slate Interests on Federal and Indian Lands, 2 U.C.L.A. J. ENVTL. L. &
POL'Y 145, 156-62 (1982) for a historical discussion of legitimate sute interests in regu-
lating native lands.
90. Just because checkerboard ownership patterns exist does not mean that checker-
board jurisdiction must also exist. See. e.g., Craighton Goeppele, Note, Solutions For
Uneasy Neighbors: Regulating the Reservation Environment After Brendale v. Confeder-
ated Tribes & Bands of Yakima Indian Nation, 109 S. Ct. 2994 (1989), 65 WASH. L.
REV. 417, 424-25 (1990) (arguing that "(c]omprehensive planning is impossible with
two uncoordinated, independent bodies regulating land use on the reservation"); Jessica
S. Gerrard, Note, Undermining Tribal Land Use Regulatory Authority: Brendale v.
Confederated Tribes, 13 U. PUOET SOUND L. REV. 349, 375 (1990) (suggesting that,
under the current checkerboard zoning scheme, comprehensive land use regulation will
never be achieved). ~~~
91. See Goeppele, supra note 90, at 424-25,
92. See, e.g., California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207
(1987) (prohibiting the imposition of sute and county gambling laws within the reserva-
tion because state laws are applicable to tribal Indians only if Congress expressly pro-
vides); Washington Dep't of Ecology v. EPA, 752 F.2d 1465, 1467-68 (9lh Or. 1985)
(holding that a slate has no authority under RCRA to regulate Indian hazardous waste
on a reservation).
-------
146
L OF URBAN AND CONTEMPORARY LAW {Vol. 41:133
regulation is in their hands.93 Additionally, the trust relationship
which intertwines both federal and tribal interests tips the scale in
favor of the Indians.94 Perhaps the most vital interest shifting the bal-
ance toward native governments, particularly in the environmental
context, is the special relationship native Americans have with their
land.95
The conclusion that states are unable to regulate any part of the res-
ervation environment does not end the inquiry. The question still re-
mains: Who fills the regulatory gap? Increasingly, tribes have
attempted to fill the gap, but their success has been limited by judi-
cially-imposed barriers to tribal jurisdiction over non-native reserva-
tion activity.*6 Inevitably, conflicts arise when tribes assert jurisdiction
throughout the reservation, especially when their jurisdiction reaches
non-Indians_onJ«Jand.97
III. THE SCOPE OF TRIBAL* REGULATORY POWER
A. Montana and Its Exceptions
Native American governments have exclusive jurisdiction over non-
natives on tribal land.9' However. Montana K United States," the
93. See Royster A Fausett, supra note 7t,.at 655 (asserting that native governments
should regulate the reservation environment because pollution directly affects the health
and welfare of tribal members).
94. Set supra notes 7-24 and accompanying text for an historical overview of the
development of the federal-tribal trust relationship.
95. Set Crow Tribe of Indians v. Montana, 819 P.2d 895, 902 (9th Cir. 1987} (find-
ing the tribe's power to manage the use of their natural resources particularly important
in precluding Montana's assertion of taxes on coal mined within the Crow reservation),
aff'd, 484 U.S. 997 (1988); set also Tso, supra note 2, at 234. The Chief Justice of the
Supreme Court of the Navajo Nation described the unique relationship between Indians
and their environment:
(W]e are so related to the earth and the sky that we cannot be separated without
harm. The protection and defense of both must be preserved. On the other hand,
the dominant society views thjngs in terms of separateness, of compartmentaliza-
tion. For this reason, the Navajo Nation is best able to make the laws and deci-
sions regarding our own preservation and development Id.
96. Stt generally Russel L. Barsh, h There Any Indian "Law" Left? A Review of the
Supreme Court's 1982 Term, 59 WASH. L. REV. 863 (1984) (criticizing several Supreme
Court decisions which limit tribal jurisdiction in several legal contexts).
97. See supra notes 46-70 and accompanying text for a discussion of jurisdiction*)
conflicts between states and tribes and the judicial tests applied.
98. See, e.g., New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 343-44 (1983)
(recognizing "the strong interests favoring exclusive tribal jurisdiction" in holding that
"concurrent jurisdiction by the State would effectively nullify the Tribe's unquestioned
1992]
ENVIRONMENTAL REGULATION OF TRIBAL LANDS
149
seminal case in the area of modern tribal jurisdiction, created the gen-
eral presumption that tribal governments have no regulatory jurisdic-
tion over non-natives when their activities occur on fee land.100 "rhia
This
general rule is not absolute,101 but instead creates a rcbuttable pre-
authority to regulate the use of its resources by member* and non-members"); Washing-
ton Dep't of Ecology v. EPA. 752 F.2d 1465, 1467-68 (9th Or. 1985) (holding that
RCRA does not authorize a state to regulate Indiana on native lands); tee also Stephen
E. Woodbury. New Mexico v. Mescalcro Apache Tribe: Whtn Can a State Concurrently
Regulate Hunting and Fishing by Nonmentben on Reservation Landst, 14 N.M. L.
REV. 349 (1984) (discussing concurrent state-tribal jurisdiction as it affects hunting and
fishing rights).
99. 450 U.S. 544 (1981).
100. Id. at 565. The general proposition is "that the inherent sovereign powers of
an Indian tribe do not extend to the activities of nonmemben of the tribe." Id. The
Supreme Court decided two similar cases around the time at Montana. Read in con-
junction, these cases seem to limit the general presumption Montana creates because
they establish independent grounds on which to analyze tribal assertions of civil regula-
tory jurisdiction.
In Washington v. Confederated Tribes of Colvtlle Indian Reservation, 447 U.S. 134
(1980), a pit-Montana case, the Court held that "[tjribal powers are not implicitly
divested by virtue of the tribes' dependent status." Id. at 153. Instead, the Court
"found such a divestiture in cases where the exercise of tribal sovereignty would be
inconsistent with the overriding interests of the National Government." Id.
In the environmental control context, there will never be the problem of inconsis-
tency with national standards because tribal pollution control programs are subject to
EPA approval and must meet minimum federal standards. See infra notes 143-81 and
accompanying text for a discussion of tribes' roles under federal environmental pro-
grams. See also Confederated Salish A Kootenai Tribes v. Namen, 665 F.2d 951, 963-
64 (9th Cir. 1982) (applying Cohillt and Montana alternatively in allowing tribal regu-
latory authority under either test).
In the posl-Montana case of Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982),
the Court upheld a tribal severance lax on oil and ga* production on tribal land which
the tribal governments imposed on non-natives. Id. at 137. The Court found that the
power to tax did not derive solely from the tribe's power to exclude non-natives from
tribal land, but rather from the tribe's general sovereign authority to control economic
activity in its jurisdiction. Id. Furthermore, the Court concluded that even if the tribe
derived the power to tax solely from its exclusionary power, then non-natives lawfully
entering tribal lands would remain subject to a tribe's power to exclude. Id. at 144.
Also, tribes possessed the lesser but related power to place conditions on non-natives'
conduct and presence on the reservation. Id. at 144-45. See also Morris v. Hitchcock,
194 U.S. 384 (1904) (upholding tribal tax based on the tribe's power to exclude non-
members); Buster v. Wright, 135 F. 947 (8th Cir. 1905) (relying on the power to exclude
in upholding a requirement that non-Indians must pay a fee to trade within the reserva-
tion's borders);
-------
150
JOURNAL OF URBAN ANp CONTEMPORARY i/W [Vol. 41:133
sumption if the tribal regulation falls under either of two broad excep-
tions. First, a tribe may regulate nbnmembcrs who enter consensual
relationships with the tribe,102 Secpnd, a tribe may assert regulatory
jurisdiction if nonmcmbers' activities threaten or directly affect the
tribe's political integrity, economic security or health and welfare.103
The second exception becomes more important, and its reasoning
more powerful, for purposes of environmental protection. However,
both exceptions enable a tribe to control the reservation environment.
For example, Montana's first exception will apply to nearly all reserva-
tion enterprises that are subject to federal environmental laws. Many
reservation lands contain an abundance of natural resources.104 Busi-
nesses seeking these resources have to enter mining leases or other con-
tractual arrangements in order to obtain access to raw materials
located on tribal land."" This scenario subjects a non-native business
to tribal regulations when it is located on fee land.106 In addition, the
first Montana exception does not require a nexus between the consen-
sual agreement and the regulated activity.107
Furthermore, the consensual relationship exception10* pertaining to
commercial dealings does not require an explicit arrangement or con-
tract.109 This becomes important for tribal jurisdiction over businesses
operating landfills or hazardous waste sites located on fee land. The
only jurisdictional requirement needed 'to regulate such enterprises is
102. Id. "A tribe may regulate, through taxation, licensing, or other means, the
activities of nonmemben who enter consensual relationships with the tribe or its mem*
ben, through commercial dealing, contracts, leases, or other arrangements." Id.
103. «. at 566,
104. Str Allen, supra note 13, at 887 (noting that many tribes own great mineral
wealth).
105. Set, t.g., FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311, 1312 (9th Cir.
1990) (enforcing the Tribal Employment Rights Ordinance which required all reserva-
tion employers to give mandatory hiring preference to natives).
106. Id.
107. Id. at 1315 (relying on Cardin v. De La Cruz, 671 F.2d 363 (9th Cir.), cert.
denied, 4)9 U.S. 967 (1982))i In FMC, the valid employment ordinance had no direct
link with the mining lease* and contracts. Id.
108. Set supra note 102 and accompanying text for an explanation of the consensual
relationship exception u enumerated in Montana.
109. Set. e,g., Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 593 (9th
Cir. 1983), cert, denied, 466 U.S. 926 (1984) (upholding Navajo regulation of non-Indi-
ans because of their business dealings on the reservation with tribal members); Cardin v.
De U Cruz, 671 F.2d 363, 366 (9th Cir), cert, denied, 459 U.S. 967 (1982) (upholding
the application of health and safety regulations to non-Indian grocery store owner on
fee land because he opened his store for tribal business).
1992]
ENVIRONMENTAL REGULATION OF TRIBAL LAUDS
151
for the tribe and the business to engage in commerce.110 Thus, as long
as the tribe's solid waste contributes to the landfill or dump, the juris-
dictional requirement is satisfied.
The second Montana exception always applies to enterprises subject
to federal pollution control laws. Any pollution source is a direct
threat to tribal health and welfare111 and can affect tribal economic
security by decreasing the value of tribal lands located near the
source.112 Pollution can also affect a tribe's political integrity when-
ever a tribal regulation is challenged."3
Thus, under either of Montana's broad exceptions, tribes have the
jurisdictional authority to regulate the entire reservation, including
non-native owned fee land. However, the Supreme Court recently
complicated the Montana analysis in Brendale v. Confederated Tribes
110. Set FMC, 905 F.2d at 1315 (stating that a non-native company subjects itself
to the civil jurisdiction of tribes when it actively engages in commerce with the tribes).
111. Sft Babbitt Ford, 710 F.2d at 593. The Babbitt court found that vehicle re-
possession consent regulation "is designed to keep reservation peace and protect the
health and safety of tribal members. The Navajo reservation coven a vast expansion of
land. Repossession of an automobile has the potential to leave a tribal member stranded
miles from his or her nearest neighbor." Id. See also Knight v. Shoshone & Arapahoc
Indian Tribes, 670 F.2d 900, 903 (10th Cir. 1982) (finding that zoning ordinance "re-
lates substantially to the general welfare of those living on the Reservation and reflects
the Tribes' concern over the perceived threat to the rural character of the Reservation
and the lifestyle of a majority of those living on the Reservation"); Confederated Salish
& Kootenai Tribes v. Namen. 665 F.2d 951, 964 (9th Cir.), cert, denied, 459 U.S. 977
(1982) (holding that the tribe had authority to regulate the common law riparian rights
of non-Indians owning property bordering reservation property because of the potential
affect on tribal health and welfare).
112. Namen, 665 F.2d at 964. The court reasoned that the use of the non-Indian
property on the border of the reservation property, a lake, could create a pollution
problem resulting in damage to the economy, welfare, and health of the tribes. Id. See
also FMC v. Shoshone-Bannock Tribes, 905 F,2d 1311,1315 (9th Cir. 1990). The FMC
court did not reach the second Montana exception, but if it had, the court surely would
have found that FMC's activity affected the tribe's economy since FMC was the largest
employer on the reservation and was making royalty payments to the tribe. .
Tribal courts have also applied the Montana exceptions to uphold tribal ordinances
and regulations. See, e.g., Colvillc Confederated Tribes v. Cavenham Forest Industries,
14 Indian L. Rep. (Am. Indian Law. Training Program) 6043 (Colv. Tr. Ct., Nov. 16,
1987) (granting preliminary injunction against landfill operator because its activities
"have the ability to affect the value of surrounding Indian allotments and thereby may
affect the economic security of the tribes and its members").
113. Colville, 14 Indian L. Rep. at 6043. "Cavenham's refusal to recognize the
tribes' power to regulate zoning on the reservation directly affects the tribes' political
integrity." Id.
-------
152
IAL OF URBAN AND CONTEMPORARY LAW [Vol. 41:133
and Bands of Yakima Indian Nation."4
B. Brendale: Narrowing the Exceptions
Brendale consisted of two cases consolidated on appeal. In the first
case, Philip Brendale, a non-member, attempted to divide his twenty
acre parcel of land located on the reservation's closed area into two
cabin sites.119 In the second case, Stanley Wilkinson, also a non-mem-
ber, sought to subdivide his thirty-two acres located in the open area of
the reservation.116 Both proposed subdivisions complied with Yakima
County zoning but violated the tribal zoning ordinances.117
Three divergent opinions made up the Supreme Court's holding in
Brendale. A plurality of four justices,11'joined by two concurring jus-
tices,119 held that the tribe does not have the authority to zone non-
member fee lands in the open area. However, the two concurring jus-
tices, joined in part by the three dissenting justices,120 held that the
tribe has the power to zone non-mediber property in the closed area.
Therefore, Brendale's ultimate holding is that tribes may enforce their
zoning laws on non-member fee land in reservation areas that are
closed to the public, but not in areas open to the public.
In bis plurality opinion, Justice White narrowly interpreted the sec-
ond Montana exception121 and concluded that it did not apply to every
situation adversely affecting the tribe..)22 The impact on the tribe must
114. 492 U.S. 408 (1989).
115. Id. at 417-18. The Yakiraa Reservation: consists of two parts: a "closed area"
which is closed to the general public and an "open area" to which the public has access.
Id. at 415-16.
116.
117.
Id. at 418.
Id.
118. Justices Rehnquist, Scalia and Kennedy joined Justice White's plurality. 492
US. at 414.
119. Justice O'Connor joined Justice Stevens' concurring opinion. Id. at 433.
120. Justice Blackmun wrote the dissenting opinion with which Justices Brennan
and Marshall joined. U. at 448.
121. The parties agreed that the first Montana exception did not apply because
Brendale and Wilkinson had no "consensual relationship" with the Yakima Nation sim-
ply by owning reservation land. Id. at 428.
122. Id. at 431. The plurality found it "significant that the so-called second Mon-
tana exception is prefaced by the word 'may'. . . . This indicates to us that a tribe's
authority need not extend to all conduct that 'threatens or has some direct effect on the
political integrity, the economic security, or the health or welfare of the tribe,' but in-
stead depends on the circumstances." Id. at 428-29 (quoting Montana v. United States,
450 U.S. 544. 566 (1981)).
1992]
ENVIRONMENTAL REGULATION OF TRIBAL LANDS
153
be demonstrably serious and imperil the tribe's political integrity, eco-
nomic security, or health and welfare.123 White reasoned that the
county zoning ordinance did not seriously threaten tribal interests.12
Thus, White held that the tribe cannot zone non-native fee lands, re-
gardless of whether it is in open area.123
In stark opposition, Justice Blackmun's dissent"* found that the
tribe has the authority to zone all non-member fee land in either the
open or the closed area.127 Justice Blackmun reasoned that the ability
to zone reservation land fell within the second Montana exception be-
cause of the Indians' "unique historical and cultural connection to the
land."128 Moreover, Justice Blackmun declared that once the tribe de-
cides to exercise its power to zone, the power is exclusive because any
concurrent zoning would be unworkable.129
Justice Stevens' concurrence130 was essential to the ultimate disposi-
tion of the case because he distinguished the open areas on the reserva-
tion from the closed areas. Stevens based his opinion on the tribal
government's power to exclude non-members from their territory.131
He reasoned that because only a small portion of the closed area was
fee land,132 the tribe retained its exclusionary power throughout most
of the area.133 Therefore, the tribe's ability to define and maintain the
closed area's pristine character by zoning non-members' land was not
impaired merely because non-members owned a few parcels of land.134
123. 492 U.S. at 431.
124. Id. at 432.
125. Id.
126. Id. (Blackmun, J., dissenting).
127. 492 U.S. at 463.
128. Id. at 458.
129. Id. at 466-68.
130. Id. at 433 (Stevens, J., concurring).
131. 492 U.S. at 434. See also supra note 100, discussing Men-ion v. Jicarilla
Apache Tribe, 455 U.S. 130 (1982) and the power to exclude as an independent basis to
regulate the entire reservation.
132. Id. at 438. Only 25,000 of the 807,000 acres in the closed area was owned in
fee. Id.
133. Id. at 441. "By maintaining the power to exclude nonmembers from entering
all but a small portion of the closed area, the Tribe has preserved the power to define the
essential character of that area. In fact, the Tribe has exercised this power, taking care
that the closed area remains an undeveloped refuge of cultural and religious signifi-
cance " Id.
134. Id. "[T]he fact that a very small proportion of the closed area is owned in fee
does not deprive the Tribe of the right to ensure that this area maintains its unadulter-
-------
154
JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 41:133
Stevens distinguished the open area because non-natives held almost
half of the land in fee.135 Since the tribe could no longer exclude non-
members front much of the open area, they also could not zone non-
members' land in the area.136 Stevens also emphasized the tribe's in-
ability to maintain the open area's unspoiled character because most of
the fee land was industrialized and developed.137
Brendale's application is extremely problematic because neither Jus-
tice White's narrow reading of Montana nor Justice Stevens* "power to
exclude" analysis examine tribal authority to impose regulations on the
reservation.
Justice White fails to articulate clear standards for future courts fac-
ing similar fact situations in various regulatory contexts. The "circum-
stances" sufficient to threaten the tribe and thereby allow it to regulate
non-natives on fee land are not clearly spelled out. In the environmen-
tal context, however, the presence of an enterprise subject to federal
environmental laws clearly poses ajd&nonstrably serious threat.13*
Justice Stevens' approach creates checkerboard jurisdiction, which is
particularly troublesome in the environmental context. Checkerboard
jurisdiction spawns inconsistent standards, undermines comprehensive
environmental planning and encourages enterprises to locate in areas
with the most relaxed standards.139 This may tempt local or tribal
governments to relax their .standards in order to lure profitable enter-
prises onto their land.
Even under the difficult Brendale aealysis, tribes still retain author-
tied character." Id. at 444. Furthermore, Stevenl determined th*t Congress, in enact-
ing the Dawes Act, did not intend that Tribes would lose control of their reservations
limply because non-memben owned a few small parcels of land within the reservation.
Id. at 441.
135. 492 U.S. at 446. Stevens also emphasized that non-natives in the open area
could not participate in tribal elections. Id. at 445.
136. Id. at 444-4J. "Because the Tribe no longer has the power to exclude non-
memben from a large portion of this area, it also lacks the power to define the essential
character of the territory." Id.
137. Id. at 445. "In 'sharp contrast to the pristine, wilderness-like character of the
'Closed Area,'' the open area is marked by 'residential and commercial
developmen[tl.' " Id. (quoting Yakima Indian Nation v. Whiteside, 617 F. Supp. 730,
752 (E.D. Wash. 1985)).
138. Stttupn notes 111-13 and accompanying text discussing how governmental
controls on pollution affect • tribe's political integrity, economic security, and health
and welfare.
139. See Royster A Fausetl, supra note 71, at 656 (concluding that checkerboard
jurisdiction adversely affects the tribal pollution control scheme). '
1992]
ENVIRONMENTAL REGULATION OF TRIBAL LANDS
155
ity to regulate the reservation environment. Moreover, the Brendale
Court stressed the fact that Congress did not expressly delegate the
power to zone fee lands to the tribe.140 However, some environmental
laws expressly delegate jurisdiction on fee lands to native govern-
ments.141 In those instances, jurisdictional analysis is unnecessary.
Other environmental statutes do not explicitly grant tribes jurisdiction
over fee lands.142 Therefore, unless precluded by congressional amend-
ment, courts must undertake the complicated and imprecise jurisdic-
tional analysis enumerated in Brendale.
IV. ENVIRONMENTAL REGULATION ON INDIAN RESERVATIONS
Congress has taken steps to recognize native governments' status as
the primary decision-making body for reservation environmental mat-
ters.141 However, only the Clean Water Act (CWA) and Clean Air Act
(CAA) delegate jurisdiction over all reservation lands to the tribes.144
The Comprehensive Environmental Response, Compensation and Lia-
bility Act (CERCLA) treats tribes as states in certain circumstances
but fails to define the jurisdictional bounds in which tribal authority
governs.145 The Safe Drinking Water Act (SDWA) delegates the abil-
ity to make jurisdictional determinations on a case-by-case basis to the
Environmental Protection Agency (EPA), thus leaving the jurisdic-
tional question an open issue.146 The Federal Insecticide, Fungicide
and Rodenticide Act (FIFRA) contains no provisions dealing with
tribes as states, but the EPA regulations contemplate some tribal par-
140. 49Z U.S. at 428.
141. See. e.g.. Clean Water Act, 33 U.S.C. §§ 1251-1387 (1988); Clean Air Act, 42
U.S.C. §§ 7401-7642 (1988); see also infra notes 149-61 and accompanying text discuss-
ing recent Clean Water Act and Clean Air Act amendments.
142. See, €.g.. Safe Drinking Water Act. 42 U.S.C. §5 300f-300j-26 (1988): Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136-136y (1988); Resource
Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992 (1988).
143. The EPA has also taken steps to recognize triNil authority as the primary
regulating body for the entire reservation environment. See EPA INDIAN POLICY,
supra note 76; see also Administration of Indian Programs by the Environmental Protec-
tion Agency: Hearings Before the Select Committee on Indian Affairs, 101st Cong., 1st
Sess. 4 (June 23, 1989) (statement of F. Henry Habicht HI, Deputy Administrator,
EPA).
144. See infra notes 149-61 and accompanying text for a discussion of CWA and
CAA,
145. See infra notes 162-64 and accompanying text for a discussion of CERCLA.
146. See infra notes 165-68 and accompanying text for a discussion of SDWA.
-------
156
JOURNAL OF URBAN AND CONTEMPORARY UW [Vol. 41:133
ticipation.147 The Resource Conservation and Recovery Act (RCRA)
ignores jurisdiction and merely views tribes as municipalities, creating
serious problems for tribal authority.148 As a result, the CERCLA,
SDWA, FIFRA, and especially RCRA are in dire need of amendment.
A. CWAandCAA
Congress amended the Clean Water Act149 in 1987 to allow tribes to
be treated as "states" for cer*
-------
158
JOURNAL OF URBAN AND CONTEMPORARY UW (Vol. 41:133
tions in which tribes shall be treated as states.163 Unlike the CWA and
CAA, however, Congress does not expressly delegate jurisdictional au-
thority to tribes.164 By failing to clearly define tribes' jurisdictional
boundaries', Congress has given little guidance to tribes attempting to
implement their own CERCLA programs; tribes are unsure as to the
scope of their programs. For example, tribal implementation of CER-
CLA programs to non-Indian enterprises located within reservation
boundaries may lead to protracted litigation in which these enterprises
challenge tribal jurisdiction under CERCLA. Thus, CERCLA's provi-
sions pertaining to Indian tribes are incomplete without a clear defini-
tion of tribal jurisdictional authority.
C. SDWA
In 1986, Congress amended the Safe Drinking Water Act163 to allow
tribes to warrant state treatment.166 Like CERCLA, the SDWA also
does not expressly delegate jurisdiction to tribes. Instead, it delegates
jurisdictional determinations to the EPA.167 The statutory framework
tpoiue, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601-9675
(1988).
163. Stt 42 U.S.C. $ 9626(a). Tribe* are treated at lUtet for purpose* of several
CERCLA provision* including notification of releases, consultation on remedial ac-
tions, access to information, roles and responsibilities under the national contingency
plan, and submittal of priorities for remedial action. Id.
164. Under the CWA, Congress has expressly denned tribal jurisdiction as any-
where "within the borders of an Indian reservation." 33 U.S.C. § 1377(eX2). Under
the CAA, Congress ha* defined tribal jurisdiction as anywhere "within the exterior
boundaries of the reservation or other areas within the tribe's jurisdiction." 42 U.S.C.
§ 7601(dX2XB). In contrast. Congress docs not define tribal jurisdiction under
CERCLA.
161. 42 U.S.C. §§ 300f-300j-26 (1988).
166. Id. at §300j-ll(aXl).
167. In other words, the CWA and CAA provide that tribes may be treated as states
if their proposed program is applied within the reservation borders and the tribe other-
wise meets the criteria for state treatment. Thus, Congress solves the jurisdictional is-
sue by expressly stating that tribes can regulate the entire reservation, regardless of
ownership. See supra notes 131-43 and accompanying text.
In contrast, the SDWA provides that the EPA may treat tribes as states if the tribe's
proposed program is applied within the area of their jurisdiction and the tribe otherwise
meets the criteria to qualify as a state. Thus, the CWA and CAA define the tribe's
jurisdiction as anywhere within the reservation boundaries, while the SDWA leaves the
jurisdictional determination to the EPA. See 42 U.S.C. $ 300j-ll(bXIKB), which pro-
vides that treatment as a stale "shall be authorized only if: ... the functions to be
exercised by the Indian Tribe are within the area of the Tribal Government's jurisdic-
tion ..." Id.
1992J
ENVIRONMENTAL REGULATION OF TRIBAL LANDS
159
of the SDWA piandatcs^a time-consuming and expensive administra-
tive process. During this process, jurisdictional analysis is necessary at
least once by the EPA, and potentially several times if a court reviews
the EPA determination. As a result, Congress has created costly litiga-
tion and tribes must allocate scarce funds and resources toward attor-
ney's fees and court costs rather than implementation and
enforcement. Additionally, the EPA determines jurisdiction on a case-
by-case basis which leads to potential inconsistent determinations.
Each time a tribe submits a program, the affected state may challenge
tribal jurisdiction before the EPA makes a final ruling.168 Congress
could effectively preclude long court battles and foreclose potential in-
consistencies by amending the SDWA with provisions similar to those
in the CWA and CAA.
D. FIFRA
The Federal Insecticide, Fungicide, and Rodenticide Act169 contains
no provisions for treating tribes as states. The only mention of native
tribes in FIFRA is a provision allowing the EPA to delegate tribal au-
thority to implement pesticide applicator certification programs.170
FIFRA is an example of a statute which neglects Indian tribes and
should be amended to facilitate greater tribal participation in all as-
pects of the statute's scheme.
E- RCRA
The Resource Conservation and Recovery Act171 is another example
of an environmental statute which ignores native governments.172 Ju-
risdictional disputes under RCRA are likely to increase in the near
future with the advent of solid and hazardous waste disposal as a seri-
168. Tribe* receive enforcement authority via a three step process: 1) the tribe
must seek and acquire treatment as a state; 2) the tribe may apply for a grant for a
Public Water System or Underground Injection Control Program; and, 3) the tribe may
then apply for primary enforcement authority for their program. 40 C.F.R. § 35.465
(1990). Notice and comment procedures allow states thirty days after submission of a
tribe's application to challenge tribal jurisdictional claims. 40 C.F.R. § I42.78(c)
(1990).
169. 7 U.S.C. §§ !36-136y (1988).
170. Id. § I36u(a).
171. 42 U.S.C. §§ 6901-6992k (1988).
172. The only mention of Indians in the r'atute is in the definition section which
defines "municipality" to include "an Indian tribe or authorized tribal organization."
Id. $ 6903(13).
-------
150
JOUWTO. OF URBAN AND CONTEMPORARY LAW (Vol. 41:133
ous problem on and near many reservations.173 Furthermore, waste
disposal enterprises are targeting Indian reservations with increased
vigor.
174
RCRA is the only environmental statute considered in this Note that
neither contains tribe-as-states provisions nor authorizes tribal imple-
mentation of any substantive provisions. Furthermore, in light of re-
%nt case law, Congress' failure to amend RCRA with provisions for
\iU tribal participation in RCRA programs will continue the line of
nequitable court rulings. In Washington Department of Ecology v.
$PA,"S the Ninth Circuit held that RCRA applied to Indian reserva-
ions.17* However, tribal sovereignty advocates did not oppose the de-
ision177 because its application foreclosed state regulatory authority
>ver Native Americans on the reservation.17*
Additionally, a recent Eighth Circuit case demonstrates the
iroblcms that can occur when RCRA iq applied to the reservation. In
Hue Legs K United States Bureau of Indian Affairs"9 the court relied
n Washington Department of Ecology, holding that RCRA applied to
pen dumps on the reservation and imposed liability on the tribe for
.CRA violations.110 By amending RCRA to allow full tribal partici-
ation, Congress can avoid the in qui table result of imposing liability
a tribes for RCRA violations absent their -ability to obtain primary
rgulatory authority to implement their own RCRA scheme.181
173. Set mprn note 78 and accompanying text, discussing the growth of the pollu-
» problem on Indian reservation*.
174. See Pamela A. D'Angelo. Wastt Management Industry Tuns to Indian Ratr-
tions as States Close Landfills, 19 Env't Rep. (BNA) 1607, 1609 (Dec. 28. 1990)
ropting tribe* with the prospect of providing reservations with profitable businesses
d jot* in order to get around the dearth of state facilities and avoid stale taxes).
175. 752 F.2d 1465 (9th Or. 1985).
176. Id. at 1469.
177. Stt, e.g., Du Bey, supra note 2, at 503 (noting that the Washington Department
Ecology decision encouraged tribal self-government over hazardous waste
aagemenl).
178. The Washington Department of Ecology court held that the EPA regional ad-
outrator properly refused to approve a proposed state program because RCRA does
: authorize states to regulate natives on the reservation. 752 F.2d at 1467-68. The
m, however, evaded the issue of whether the state could implement their program to
ulatc non-natives on reservations. Id. at 1468.
79. 867 F.2d 1094 (8th Cir. 1989).
80. U. at 1097.
81. Senator McCain of the Senate Select Committee on Indian Affaira has en-
ised hope that Congress will amend RCRA so that it treats tribes at states. Stt
1992]
ENVIRONMENTAL REGULATION OF TRIBAL LANDS
161
V. CONCLUSION
Amending all environmental laws to allow Native American tribes
to regulate the environment throughout the reservation, even if it af-
fects non-natives, will serve several useful purposes. First, amend-
ments will promote the federal Indian policy goals of tribal self-
determination without undermining pollution control laws because the
EPA must first approve tribal environmental programs. Second, con-
gressional amendments will create certainty in environmental regula-
tion because the regulated parties will avoid checkerboard jurisdiction.
Finally, and most importantly, the amendments will foster tribal sover-
eignty by allowing native governments to take responsibility for the
health and welfare of their people and their land.
Douglas A. Brockman*
Administration of Indian Programs by the Environmental Protection Agency: Hearing
Before the Senate Select Comm, on Indian Affairs, iOtst Cong., 1st Sess. 2 (1989).
In a recent select committee hearing, a leading Indian law attorney urged congres-
sional enactment of tribal amendments to RCRA. Noting that the Clean Air, Clean
Water and Safe Drinking Water Acts have all been amended, this advocate character-
ized RCRA M "the last domino that needs to fall." Set Status ofjurisdictional Author-
ity in Indian Country. An Assessment of Emerging Issues: Hearing Before the Senate
Select Comm. on Indian Affairs, 102nd Cong., 1st Sew. 34 (1991) (statement of Kevin
Cover, Counsel, (Carnpo Band of Mission Indians).
• J.D. 1992, Washington University.
-------
Ou i
^VJ
^ fiSkydu;a
UNITED STATES COURT OF APPEALS
:ILED
SEP 3 0 1986
1
2
3
4
5
6
7
8
9
10
1 1
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
072
lev. 3/82;
xp*
-------
1
2
3
4
5
6
7
8
9
10
11
12
13 jj
15 I
16
17
18
19
20
21
22
23
24
25
26
application of the regulation to her violates her right to
protection and that the regulation was invalidly promulgated. The
district court granted summary judgment for the government.
We are confronted with the question of the present validity
of an administrative regulation's eligibility standard, when the
statute under which the standard was purportedly promulgated has
been amended to provide a more inclusive standard of eligibility.
Ive hold that the DIA's continued restrictive application of the
one-quarter degree Indian blood standard is not in accordance with!
the law, and we reverse.
Standard of Review
A grant of summary judgment is reviewed de novo. A.StlSo.D^Vj.
CQ.LXf 760 F.2d 616, 818 (9th Cir. 1906). The reviewing court nustj
determine whether there is any genuine issue of material fact sum
whether the substantive law was correctly applied. Id..
"Prior to reaching any constitutional questions, federal
courts must consider nonconstitutional ground[s] for decision."
2eQQ_vA_l]£ls.on, 105 S. Ct. 2992, 2997 (1905) (citations omitted).
This is a fundamental rii'le of judicial restraint. Id., at 2990
(citing 2hr.ee_Mfili2i£d._Ir.it2e2^2f>tbe_E2ii_Oej:ibQld_EsssivfliiQQ
vx_W2id_EllS.iQSg£iaax_Ej.Cj.» 467 U.S. 138 (1984)). Thus, we first
consider Zarr-'s challenge to the BIA's promulgation of the
regulation.
A challenged regulation will be set aside if "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance^
O72
•v.B/82)
-2-
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
15
16
17
18
19
20
21
22
23
24
25
26
with law." 5 u.s.c. § 706(2)(A) (1982); citizeD5_t2_Ecsseiye
Q3ZfitiflD-Eaillx_InC*-XA.yfilBfi/ 4°1 U.S. 402, 416 (1971). In
determining whether agency action is arbitrary or capricious, the,
reviewing court must determine whether there has been a clear
error of judgment and whether the agency action was based on a
consideration of- the relevant factors. Na.n.c.£_yA_EQyir_Qnm.£Qtsi
Er_Q£ec.iio.D_Agen.cy., 645 F. 2d 701, 705 (9th Cir.), QeriA_d.eDied_, 454[
U.S. 1081 (1981). In addition, an administrative regulation rr.ust
fall within the authority conferred by Congress on the
administering agency. Qhr.yilei_Co£2j._ix_Bj:2KDf 441 U.S. 281, 300
(1979) . Such grant of authority need not be specific: "What is
important is that . . . the grant of authority contemplates the
regulations issued." Id. The regulation needs to be reasonably
related to the purposes of the enabling legislation. Ca.lif.2C.Qia.
y-jL-HflCJif 663 F.2d 855, 860 (9th Cir. 1981).
Administrative agencies are entitled to great deference in
interpreting statutes under their authority. Ud_a.l.l_y.JL_Ta.ll[na.n,
380 U.S. 1, 16 (1965). To sustain the regulation, the court "need
not find that its construction is the only reasonable one, or ever
that it is the result I the court] would have reached had the
question arisen in the first instance in judicial proceedings."
Id. (quoting uaeffiDlsycfint.csffiseDsaiiQn-CointDissisD.Qf-Alaslia-y*1
AtfiSCQ, 329 U.S. 143, 153 (1946)). The regulation need only be "a
reasonable interpretation" of the relevant statute
sf_&iDfiiicfl-2A
380, 389 (1984).
X072
Rev.8/82)
-3-
-------
On the other hand, in order for an agency interpretation
be granted deference/ it must remain consistent with congressional
purpose. Sfifi B2C£2Q_y.A_BUiZr 415 U.S. 199, 232 & 237 (1974).
Finally, acts passed for the benefit of Indian? must be liberally
construed, with doubtful or ambiguous expressions resolved in the
Indians' favor. n£y_a.n_y_x_Itas_c.a_Co_y.n.fcy_, 426 U.S. 373, 392 (1976).
1. 25 D.S.C. S 471
Zarr's application for a higher education grant was denied by
H
the BIA for failure to meet the eligibility requirements of 25
lu
I ft II
IS
19
20
•o
C.F.R. § 40.1, which provides that:
IfJunds appropriated by Congress for the education of
Indians may be used for making educational loans and
grants to aid students of one-fourth or more degree of
Indian blood attending accredited institutions of higher
education or other accredited schools offering
vocational and technical training who reside within the
exterior boundaries of Indian reservations under the
jurisdiction of the [BIA] . . . .2/
Zarr contends that this regulation was promulgated and is
administered without congressional authorization or ratification,
and that it is not in accordance with law. The BIA relies on a
number of statutes for direct and indirect authority for the
promulgation .and administration of the one-quarter degree Indian
blood restriction. We first look to the administrative regulation
and its enabling legislation to determine whether the regulation
falls within the authority conferred upon the administering
agency, Ciiiy.sler»G2IE.»_i*..!t2w.£i» 441 U.S. at 302, and whether the
regulation is reasonably related to the purposes of the enabling
legislation. Calii2tQ.i§_2j._ll22.!lr 663 F.2d at 860.
-4-
-------
Title 25 C.F.R. Part 40, which includes the challenged
regulation, section 40.1, is entitled "ADMINISTRATION OF
EDUCATIONAL LOANS, GRANTS AND OTHER ASSISTANCE FOR HIGHER
EDUCATION." Section 40.1's predecessor, which contained the
identical one-quarter degree Indian blood eligibility requirement,
was first promulgated in 1957 as section 32.1 of Title 25. 22
Fed. Reg. 10,533 (1957). An introductory note denominated
"AUTHORITY" preceding section 32.1 expressly states that the
regulation was promulgated under authority of 25 U.S.C. § 471.3/
Part 40 continues to cite 25 U.S.C. § 471 as its enabling
authority.
Section 471 was enacted by Congress on June 18, 1934 as part
of the comprehensive Indian Reorganization Act, 25 U.S.C. S§ 461-
479 (1982), and provides simply for the appropriation of a sum of
money "for loans to Indians for the payment of tuition and other
expenses in recognized vocational and trade schools." We observe
that section 471 appropriates moneys for loans; nowhere in that
j| section is there an appropriation for or an authorization of
is jl
expenditure of moneys for grants. Likewise, subsequent acts of
19
amendatory legislation affecting expenditures of moneys under
section 471 refer only to loans. ge_e, e^g.*, 25 U.S.C. $ 482 (Act
of May 7, 1949— revolving--loan-fund-); 2-5 U.S.C. § 1461 (Indian-
Financing Act.- same). Thus it would seem from the plain language
of section 471 that the provision does not confer authority upon
the BIA to distribute moneys for higher education grants.
-5-
-------
10
II
Nevertheless, we find congressional authority for the gr.
program. Even if section 471 does not authorize expenditure of
moneys for educational grants, the Snyder Act, 25 U.S.C. § 13,
provides sufficient authority for the Secretary to spend money for
educational programs that would encoirpass higher education grants.
The Snyder Act "provides the underlying congressional authority
for most BIA activities," WQ££QQ_y..*_Eui£f 415 U.S. at 205-06, and
provides in part:
The Bureau of Indian Affairs, under the supervision of
the Secretary of the Interior, shall direct, supervise,
and expend such moneys as Congress may . . .
appropriate, for the benefit, care, and assistance of
the Indians throughout the United States for the
following purposes:
General support and civilization, including education.
• * *
i| 25 U.S.C. § 13 (enacted Nov. 2, 1921) (emphasis added). Indeed^"
!•( !j
.1
the Secretary now relies, in part, on the Snyder Act for the
promulgation of the one-quarter degree Indian blood requirement.
We shall address those arguments in Part 2 of our opinion. For
present purposes, we hold that the BlA's incorrect citation of 25
U.S.C. § 471 as authorizing a regulation for a grant program is
not fatal to the validity of the regulation where the authority if
manifest in another statute.
This conclusion "does" rtot resolve the question of the-one-
quarter degree Indian blood requirement, however, for aside-from
the broadly inclusive "Indians throughout the United States"
provision, the Snyder Act contains no additional definition of wh<
is considered an eligible Indian for Snyder Act purposes.. Nc
is
10
20
21
-6-
-------
1
2
3
4
5
6
7
8
9
10
1 1
12
13 i:
I* i|
ii
15 !!
16 |
17
18
19
20
21
22
23
24
25
26
does this conclusion make further discussion of section 471
unnecessary. The DIA has twice cited that section for authority
in promulgating the challenged regulation, and we believe it did
so for a reason. Further, the DIA continues to rely on section
471 in its briefs. Thus, we next examine the history of section
471 to ascertain whether that section now provides authority for
the EIA's requirement of a one-quarter degree Indian blood
eligibility restriction.
There is no definition in section 471 of who is an Indian,
nor is there an eligibility criterion contained in that section.
Section 479 of the Indian Reorganization Act does provide a
definition, however, and states that
tt]he term "Indian" as used in sectionf ] . . . 471
... of this title shall include all persons of Indian
descent who are members of any recognized Indian tribe
now under Federal jurisdiction, and all persons who ere
descendants of such members who were, on June 1, 1934,
residing within the present boundaries of any Indian
reservation, and shall further include all other persons
of one-half or more Indian blood.
25 U.S.C. § 479. As a person of Indian descent who is a member oij
a recognized tribe, Zarr qualifies under this definition.
On May 10, 1939, section 480 was added, providing that
[oJn and after May 10, 1939 no individual of less £han
one-quartex degree of Indian blood shall be'eligible for
a loan from funds made available in accordance with the
provisions of section!.] ....... -.471 '. .. „.....
25 U.S.C. § 480. Further, in May 1948, Congress created a
revolving loan fund, which authorized the Secretary to prescribe
regulations to make loans from the funds established under the
AQ72
IR«v.8/82)
-7-
-------
6
8
9
10
1!
12
Indian Reorganization Act of 1934, "Provided, That no portion
these funds shall be loaned to Indians of less than one-quarter
Indian blood." 25 U.S.C. § 482.
Thus, it is clear that until May 1939, an Indian of Zarr's
blood quantum would have been included within Congress' definition
of an eligible Indian for programs administered under section 471.
It is also clear that after May 1939, under section 480, an Indian
of 7/32d degree blood quantum would be excluded from any program
operating under the authority of section 471. Therefore, when the
BIA promulgated the predecessor regulation to 25 C.F.R. § 40.1 in
1957, it was clearly acting within the scope of the authority
granted by Congress in restricting loans to Indians of one-quartet
or more degree Indian blood.
It would also have been reasonable in 1957 for the BIA tc^V
rely on congressional approval of a one-quarter degree Indian
blood restriction as expressed in 25 U.S.C. §§ 480 and 482 for
restricting grants to Indians of one-quarter blood or more.
Although the BIA could not promulgate a grant program under
section 471, which only' authorizes loans, the grant program would
survive under the authority granted by the Snyder Act. The BIA
could not look to the Snyder Act for a one-quarter degree Indian
: I
blood restriction, however, for that act contains no such
restriction. Section 471, as amended by sections 480 and 482,
does provide authority for a one-quarter degree Indian blood
restriction, so the EIA could reasonably rely on section 471 and
its amendatory legislation to restrict higher education grants to
19
-8-
-------
Indians of one-quarter or more degree Indian blood. The rationale
is based on the recognition that the
power of an administrative agency to administer a
congressionally created and funded program necessarily
requires the formulation of policy and the making of
rules to fill any gap left, implicitly or explicitly, by
Congress. In the area of Indian affairs, the Executive
has long been empowered to promulgate rules and
policies, and the power has been given explicitly to the
Secretary and his delegates at the BIA.
Uo.r.£QQ_y.jL_Buis, 415 U.S. at 231 (footnotes omitted); S££_fll£O 25
U.S.C. §§ 9, 2 (1982). The Snyder Act nowhere contains a
definition of Indian or any restrictive eligibility standard;
therefore, it would have been reasonable for the BIA to look to
other expressions of congressional intent in formulating an
eligibility standard to "fill the gap." This does not end the
analysis, however, for agency power to make rules carries with it
the responsibility to remain consistent with governing
legislation, MQ£tSCLJi*_Euiar 415 U.S. at 232, and as we discuss.
Congress has since changed the governing legislation.
1" ij In April 1974, Congress enacted the Indian Financing Act, 25
IS11, U.S.C. §§ 1451-1543 (1982). Section 1461 of the Financing Act
to
II
i:
19
20
21
provides for the administration under a single Indian Revolving
Loan fund of a number -of separate Indian financing programs,
including programs authorized under the Indian Reorganization Act
of 1934 (which includes 25 U.S.C. § 471). Section 1462
specifically authorizes loans for education purposes. 25 U.S.C.
S 1462. Section 1452 of the Indian Financing Act provides
definitions:
-9-
-------
For the purpose of this chapter, the term—
(b) "Indian" means any person who is a member of any
Indian tribe ... which is recognized by the Federal
Government as eligible for services from the Bureau of
Indian Affairs ....
25 U.S.C. § 1452 (emphasis added). Thus, section 471 Indian
loan programs were brought under the single umbrella revolving
loan fund, and for purposes of that program, which includes
provision for educational loans, the term "Indian" was redefined
to mean any person who is a member of a federally recognized
tribe. It is clear that after 1974, Congress intended that
10 persons like Zarr, who are enrolled members of a federally
" I recognized tribe, should be eligible to participate in programs
promulgated under the authority of the enumerated sections,
including section 471. U!igLhes_A.it_Co.tpJt_Y.A_Puj2l.ic__Ui.il.i£.i2.S.
C2IDEi£5i2Qf 64<5 F.2d 1334, 1337 (9th Cir. 1981) {to determine the
intent of Congress, courts must look first to the plain meaning of
the statute) .
The legislative history of the 1974 Indian Financing Act
supports this conclusion and demonstrates that Congress intended
19 to establish a uniform statutory standard for administering BIA
loan funds.
Title I tof the Indian Financing Act] consolidates the
four existing Indian revolving Toari funds administered
by the Bureau of Indian Affairs .... It additionally
provides a statutory structure for the programs, most of
which is [sic] currently implemented through
administrative rules and regulations.
H.R. Rep. No. 907, 93d Cong., 2d Sess., t£F2liUi£d_iu. 1974 U.S.
Code Co~g. & Ad. News 2873, 2875' (emphasis added).
-10-
-------
The BIA attempts to dismiss the effect of the Indian
Financing Act of 1974 by asserting that this legislation did not
specifically repeal the blood quantum eligibility standards
established by sections 480 and 482. This argument is specious,
for the plain meaning and clear intent of the language contained
in section 1452 is to redefine who is an "Indian" for purposes of
consolidating the administration of numerous funding programs
under the Indian Financing Act's uniform standard. This
s
conclusion is obvious, whether we construe the Indian Financing
0 !
Act as an amendment to or as an implied repeal of inconsistent
!u
provisions of the Indian Reorganization Act. $££ 1A N. Singer/
ICQ, §§ 22.22, 22.30 (C. Sands 4th
ed. 1985}.
I! The BIA also contends that sections 471, 480, and 482 read
'-» I!
together remain the source of authority for the blood quantum
standard promulgated in 25 C.F.R. S 40.1. Again, this
16
I
|j construction ignores the plain language and intent of the Indian
Financing Act, and the agency is not free to ignore the statute
IS
and continue to administer the various loan programs under
whatever standard it believes is correct or expedient. An
agency's power to make rules that affect substantial individual
rights carries with-it the responsibility- to-remain consistent
with governing legislation, {!p,r.to.Q_Y*_BuiZ» 415 U.S. at 232, and
the BIA's eligibility standard is no longer consistent with that
of Congress.
-11-
-------
The BIA further argues that even if loan eligibility can n
longer be based upon one-fourth blood degree pursuant to the
Indian Financing Act, it is reasonable to base eligibility for
outright grants, which have no payback requirements, on the more
restrictive standard. We note, however, that the express language
h
! of the BIA's regulation establishes a one-quarter degree blood
0
10
:o
quantum eligibility criterion for both "educational loans and
grants." 25 C.F.R. § 40.1. The DIA was aware of the import of
congressional redefinition of an eligible Indian for educational
loans, Sfifi_SiiEta note 5, but the agency did not correct the
outmoded eligibility standard for "educational loans and grants"
contained in 25 C.F.R. § 40.1. Moreover, to the extent that the
BIA is relying on 25 U.S.C. § 471, its argument fails because
section 471 and its amendatory provisions do not authorize grart"Wr.
To the extent that the agency relies on the Snyder Act, the Snyder
Act itself contains no restrictive eligibility standards, and the
BIA- has not expressly promulgated a one-quarter degree Indian
blood standard for such a Snyder Act program. $§£ infia Part 2.
3 !i -
Further, the BIA does not offer any explanation why such a
construction is reasonable, or how making distinctions based upon
differing degrees of blood quanta among Indians who are members of
federally recognized tribes furthers Congress' intent as expressed
in the 1974 Indian Financing Act concerning expenditure of moneys
appropriated for the benefit of Indians.
To summarize, the BIA promulgated the challenged regulation
under 25 U.S.C. § 471, and that statute comes under the Indian
-12-
-------
Financing Act's coverage, including its definition of who is an
Indian for purposes of the Act. The BIA's more restrictive
definition of who is an Indian eligible to participate in the
higher education grant program, although valid when the regulation
was first promulgated in 1957, is now contrary to Congress'
definition. Therefore, the BIA's eligibility standard does not
fall within the current authority conferred by Congress. To the
contrary, the regulation defeats the congressional purpose
expressed in the 1974 Indian Financing Act of redefining eligible
Indians under a more inclusive standard and establishing a
statutory structure for programs previously implemented through
administrative rules and regulations. Thus, we hold that the
regulation is not in accordance with the governing legislation.
2. The Snyder Act
The BIA next contends that the Secretary acted within his
authority under the Snyder Act, 25 U.S.C. § 13, in rejecting
i| Zarr's application. The BIA argues that the grant program to
I" !!'
:! which 2arr applied is a Snyder Act program. Although we have held
Ib :'
1 that the BIA could have promulgated the grant program under the
10
Ju
21
Snyder Act, we do not necessarily conclude that the BIA in fact
relied on the Snyder Act in promulgating the one-quarter degree
Indian blood .restriction... .As..discussed io_Ear_t .!» §AL£ta» the BIA
ii cites the Indian Reorganization Act of 1934, 25 U.S.C. S 471, not
2* j!
;i the Snyder Act, as its source of authority in promulgating 25
ii C.F.R. Part 40. When the BIA intends to promulgate regulations
under the Snyder Act, it knows how to do so. Co.03Bar.fi 25 C.F.R.
-13-
-------
1
2
3
4
5
6
7
8
9
10
1 1
12
13
15
16
1.7
18
19
20
21
22
23
24
2.5
26
572
Part 20, FINANCIAL ASSISTANCE AND SOCIAL SERVICES PROGRAM, whi<
specifically cites the Snyder Act, 25 U.S.C. S 13, for its sour£e
8/
of authority. The BIA's reliance on the Snyder Act is a post
hoc attempt to supply a foundation for the agency's regulation.
Although we give deference to administrative agencies when they
interpret statutes and regulations under their authority, i2d.all_y.ji
XallE20/ 300 U.S. at 16, in this case we must give at least equal,
if not controlling, deference to the agency's express recitation
of the source of its authority when it first promulgated the
regulation.
In buttressing its Snyder Act argument, the BIA contends thatj
"Congress1 own use of a one-fourth blood degree standard for
Indian educational assistance [in] 25 U.S.C. § 297 demonstrates
that the Secretary's promulgation of the identical standard und'^F
the Snyder Act is reasonable." Section 297 does impose
limitations on expenditures to educate children "of less than one-
fourth Indian blood," but it applies only to expenditures in BIA
Indian day schools. 25 U.S.C. § 297 (enacted May 25, 191B>. In
the district court, the "BIA argued that section 297 was
"lf]oremost among the statutes requiring a one-quarter Indian
blood degree," and that "this eligibility standard is likewise
required by § 297 to apply to all appropriations 'used to educate.!
otherwise eligible Indians." (Emphasis by BIA). On appeal,
however, the BIA correctly "dotes] not contend . . . that 25
U.S.C. 297 provides direct authority for promulgation of Indian
higher education grant tone-quarter degree] eligibility
-14-
-------
standards." it is clear that section 297 is inapplicable to
Indian higher education grant programs.
Of greater import, on December 28, 1985, Pub. L. No. 99-228
was enacted, repealing section 297 and its one-quarter degree
Indian blood standard. 25 U.S.C.A. § 297 (West Supp. 1986). In
its stead, Congress amended 25 U.S.C. § 2008(f) to provide:
In this section "eligible Indian student" means a
student who—
(1) is a member of or is at least a 1/4 degree Indian
blood descendant of a member of an Indian tribe which is
eligible for the special programs and services provided
. . . through the Bureau of Indian Affairs ....
25 U.S.C.A. § 2008{f)(West Supp. 1986)(emphasis added).
The legislative history of this repeal and amendment
convincingly reveals that Congress now rejects, if it had not done
so earlier, a single one-quarter degree Indian blood eligibiity
restriction. The remarks accompanying the bill's introduction
demonstrate that Congress is concerned that a one-quarter degree
blood quantum without more is an impermissible racial
classification. The bill's sponsor made the following remark,s:
I introduced this bill for various reasons, including
the fact that for all BIA services, except education,
membership in a federally recognized tribe is the sole
criteria for eligibility. Second, the Congress has
passed at least six major acts since 1918 dealing with
education or eligibility for services and in each of
those" tribal membership is the criteria. It simply
makes no sense now to change a practice that has
continued for over half a century in a way that will
discriminate, by race/ against certain children, and to
use as justification an old law that has been repealed
by implication on at least six occasions.
131 Cong. Rec. 17,649 (1985)(statement by Senator Melcher
introducing S. 1621) (emphasis added). £e_e_alsc S. Rep. No. 180,
-15-
-------
lu
99th Cong., 1st Sess. 1, teBr.int£5l_ia 1985 U.S. Code Cong. & Ad.
News 2672 ("S. 1621 is intended to bring consistency to the
eligibility criteria used for BIA programs."). Thus, it is clear
that 25 U.S.C. 5 297 cannot serve to justify continued application
of the challenged regulation.
Even if the Snyder Act, considered broadly, can bo construed
as additional or alternative authority for the challenged
regulation, we believe that it cannot be construed to provide
authority for the continued use of the one-quarter degree Indian
blood eligibility requirement in this case. Assuming that the BIA
relied sub silentio on the Snyder Act to authorize higher
education grants when it first promulgated 25 C.F.R. Part 40, it
appears that the agency looked to 25 U.S.C. § 471 for
authorization of the restrictive one-quarter degree Indian blood
standard. As we have discussed, the BIA could not have looked to
the Snyder Act for a restrictive definition or eligibility
standard, for it contains none.
Where Congress has determined to make Indian blood quantum an
is I!
eligibility factor in the past, it has expressly so provided.
19
See., £*ajL» 25 U.S.C. § 297. It did not do so in the Snyder Act,
2(J
and we refuse to construe its general language authorizing
appropriations for educational assistance for "the Indians
throughout the .United.States" as authority to continue restrictive
distinctions among members of federally recognized tribes. To
make such a construction would be at odds with recent expressions
js
of congressional intent to establish a uniform inclusive standard
lu
-16-
-------
1
2
3
4
5
6
7
8
9
10
1 1
12
13 !
* 1
I *+
15
16
17
18
19
20
21.
22
23
24
25
26
for BIA funded programs, as manifested by the Indian Financing
Act, and particularly with respect to Indian education programs,
£x2j., Pub. L. No. 99-228. In the absence of express language in
the Snyder Act demonstrating that Congress intended to make
distinctions among Indians who are tribal members but who have
different degrees of Indian blood, it would thwart every
indication of congressional intent to permit the BIA to rely on
its power to "fill any gap left" by Congress, M2Ii2D_Vi_Euiz/ 415
U.S. at 231, to support its use of the discredited restrictive
standard.
Such a construction would also be at odds with the BIA's
other Snyder Act programs. Where the BIA has promulgated
regulations expressly on the authority of the Snyder Act, it has
used an enrolled membership or alternatively an Indian blood
standard. SfiS-SUBta note 8. We observe that the EIA itself, in
an analogous context, has recently rejected the limiting one-
quar.ter criterion in favor of a more inclusive eligibility
standard, by defining an Indian as a person "who is an enrolled
member . . . or a descendant of one-fourth degree or more Indian
blood of an enrolled member and any person not a member of the
... tribes who* possesses at least one-half degree of Indian
blood -.-;•-..» 25 C.F.R. S 27.--ltr)- (1986) (emphasis added) in
Part 27, VOCATIONAL TRAINING FOR ADULT INDIANS. The BIA explained
that "Paragraph (i) of sec. 27.1, definition of 'Indian1, has beer
changed to conform to the most recent standard Bureau definition.1*
49 Fed. Reg. 2100 (1984) (emphasis added). gfig.alSQ SUEta notes
>72
iv.6/82)
-17-
-------
8
o
10
II
1, 7, and 8» There is no logical explanation why an antiquated
standard should apply to Zarr.
Finally, to the extent that there is any ambiguity concerning
the interpretation and co-application of the 1921 Snyder Act, the
1934 Indian Reorganization Act, the 1974 Indian Financing Act, and
the 1985 repeal of 25 U.S.C. § 297 and the amendment of section
2008(f), the ambiguity should be resolved in favor of including
all enrolled members of recognized Indian tribes within the grant
program. 5££ Br.y.£Q_y,J._I£a.S.£a_C2UDi;y..' 426 U.S. at 392; 5£S_al£2
wil£2D._y.*_Wat£/ 703 F.2d 395, 402 (9th Cir. 1983) (general
assistance program under Snyder Act is for "special benefit of
Indians and must be liberally construed in their favor"). Such a
construction is consistent both with other Snyder Act and Indian
Reorganization Act programs, and with recent congressional ac
We therefore hold that the Snyder Act does not provide authority
is
for the continued application of the one-quarter degree Indian
r
13
blood quantum eligibility requirement of 25 C.F.R. § 40.1.
3. Congressional Ratification
The BIA also contends that Congress has ratified the one-
quarter degree Indian blood standard through eleven years of
appropriation acts based upon Interior Department budget requests
which explicitly cited the one-quarter-degree standard.
This court has held that "ItJhe mere appropriation of funds/
however, does not constitute congressional ratification . . . ."
Bin£aB-Bana.e£-t5issiaii»liidiaiis_Y*.Hai:iiaf 6ia F.2d 569, 573 oth
Cir. 1980). "Ratification by appropriation will not be found
-18-
-------
is
19
20
:\
unless the government has sustained 'the heavy burden of
demonstrating congressional knowledge of the precise course of
action alleged to have been acquiesced in.1" 14. (quoting C.ity._o.£.
Sani3_Claia_}j.L_fcQd.EU£, 572 F.2d 660, 672 (9th cir.), ceiia.dfinisi,
439 U.S. 859 (1978)). Moreover, the appropriation must plainly
show a purpose to bestow the precise authority which is claimed.
Id.A at 573.
The government has not shown that Congress was actually aware
of the one-quarter degree blood quantum, much less that it
intended to approve that quantum. There is no evidence of
congressional hearings or findings discussingr approving, or even
acquiescing in the promulgation standard; there is no indication
that Congress ever discussed that particular regulation or the
Department's budget requests. There is contrary evidence,
however, that Congress rejects the one-quarter standard in favor
of a membership in a recognized tribe standard. Indian Financing
Act. of 1974, 25 U.S.C. S 1452; Pub. L. No. 99-228. We hold that
jj the government has not met its "heavy burden" of showing
congressional ratification by appropriation.
4. Attorneys Fees
Zarr seeks attorneys fees under the Equal Access to Justice
Act (EAJA) , 28 U.fr.C.-S-2412- (West Supp. 1986) . Although we hold
that the government's promulgation of the one-quarter degree
Indian blood eligibility requirement was beyond the authority
conferred by Congress* we do not believe that the government's
position was not "substantially justified" as would be required in
-19-
-------
8
9
10.
II
12
order to award attorneys fees under section 2412(d)(1)(A).
Therefore, although we recognize the value of the service that
Zarr has rendered to her fellow Indians of less than one-quarter
degree blood, we are not free to award attorneys fees under the
EAJA.
Conclusion
We hold that neither the Indian Reorganization Act, 25 U.S.C.
5 2471, as amended by the Indian Financing Act, 25 U.S.C. 5 1452,
nor the Snyder Act, 25 U.S.C. § 13, provides authority for the
BIA's continued application of a one-quarter degree Indian blood
quantum eligibility requirement for Indian higher education grants
under 25 C.F.R. § 40.1. In view of the 1974 Indian Financing Act,
the regulation makes unauthorized distinctions among Indians who
are members of federally recognized tribes and have differing
amounts of Indian blood. Nor did Congress ratify the one-quarter
degree blood quantum eligibility standard.
Because we conclude that the regulation falls outside of the
': authority conferred on the BIA, and that it is not reasonably
is |;
I! related to the purposes of the various congressional enabling
i9 '!
1| acts, we do not reach Zarr's trust obligation and equal protection
:o ,|
arguments. Because the district court's grant of summary judgment
was predicated upon the validity of the one-quarter degree Indi-an-
blood eligibility standard which we hold invalid, we reverse and
remand for further proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
is
Id
-20-
-------
FOOTNOTES
I/ As a member of a federally recognized tribe, Zarr satisfies
the definition of "Indian" and is eligible to participate in the
vast majority of BIA programs, including, for example, the
programs and services provided under the following statutes and
regulations: 25 U.S.C. § 450b(a)(Indian Self-Determination and
Education Assistance Act); 25 U.S.C. § 1603(c)(Indian Health Care
Improvement Act); 25 U.S.C. § 1452(b) (Indian Financing Act); 25
U.S.C. § 1903 (3)i (Indian Child Welfare Act); 25-U.S.C. § 479
(Indian Reorganization Act)(as amended by 25 U.S.C. § 1452, Indian
Financing Act of 1974); 25 C.F.R. § 5.1(a)(Indian Preference in
Employment); 25 C.F.R. § 32.2(m) (Indian Education Policies); 25
C.F.R. § 41.3 (h) {Grants to Tribally Controlled Community
Colleges); 25 C.F.R. § 26.1 (g) (Employment Assistance for Adult
Indians) .
9 jj 2/ The regulation continues:
ij
10 [' Such educational loans and grants may be made also to
.;•' students of one-fourth or more degree of Indian blood
who reside near the reservation when a denial of such
loans or grants would have a direct effect upon Bureau
programs within the reservation. After students meeting
these eligibility requirements are taken care of, Indian
students who do not meet the residency requirements but
are otherwise eligible may be considered.
25 C.F.R. § 40.1 (1986). Thus, an Indian student of one-quarter
degree blood quantum living far off the reservation beyond the
residency criterion would become eligible for a higher education
grant if funding permitted, while an Indian student of 7/32 degree
blood quantum living on the reservation could never become
elig ible.
3/ Section 32.1 was amended in part in I960, 33 Fed. Reg, 9708
(1968). However, that amendment did not involve the challenged
blood quantum requirement, which has continued into the present
section 40.1. £e_e 47 Fed. Reg. 13,327 (1982) (25 C.F.R. § 32.1
redesignated section 40.1).
4/ Zarr is clearly an Indian under this definition. See_SUEta
ii note 1.
">"> ;i
:j S/ Although the BIA failed to amend the challenged regulation to
.'* :; account for Congress' new eligibility standards for educational
'! loans to Indians, it is evident that the agency understood that a
1' :i new, more inclusive standard was required under the Indian
'•t Financing Act. The DIA promulgated a new Part 101 under the
j authority of the 1974 Indian Financing Act, which, in part,
Ii authorizes direct educational loans to individual Indians. 25
C.F.R. §S 101.2(b) (3) and (4). The BIA defined an eligible Indian
-21-
-------
19
:o
as "any person who is a member of any Indian tribe . . . which TRfP
recognized by the Federal Government as eligible for services from
the IBIAI." 25 C.F.R. § 101.l(c). £e_£_su2La note 4.
6/ The BIA fails to note that neither sections 480 nor 482
specifically repealed the more inclusive definition of "Indian"
found in section 479.
7/ The BIA's definition is also not internally consistent with
its own regulations concerning other vocational training programs.
CQEEait 25 C.F.R.'Part 27, Vocational Training for Adult Indians,
which defines an "Indian" for purposes of that program to mean
"any person of Indian or Alaska native descent who is an enrolled
member of any of those tribes listed ... as recognized by and
receiving services from the Bureau of Indian Affairs or a
descendant of one-fourth degree or more Indian blood of an
enrolled member . . . ." 25 C.F.R. § 27.1(i) (emphasis added).
8/ Interestingly, for this Snyder Act program, "'Indian* means
any person who is a member, or a one-fourth degree or more blood
quantum descendant of a member of any Indian tribe." 25 C.F.R.
§ 20.l(n) (emphasis added). Ac.c.er.d_, 25 C.F.R. Part 256, HOUSING
IMPROVEMENT PROGRAM, § 256.2(e) (another specifically cited .Snyder
Act program, defining Indian either as an enrolled member or of
one-half or more degree Indian ancestry) .
-22-
-------
CONSTITUTION AND BYLAWS
of the
SUQUAMISH TRIBE
PORT MADISON RESERVATION, WASHINGTON
AS AMENDED
PREAMBLE
We, the people of the Suquamish Indian Tribe of the Port Madison Res-
ervation in the State of Washington, in order to establish our tribal
organization, to develop our community resources, to administer justice,
and to promote the economic and social welfare of ourselves and our
descendants, do hereby establish this constitution and bylaws.
ARTICLE I - TERRITORY
The territory in which the Suquamish Tribe has a beneficial ownership
interest includes that portion of the Port Madison Reservation remaining
in an unallotted status at the time of the approval of this constitution
and bylaws, and any other lands which may be acquired for or by, and held
in the name of, the Suquamish Tribe. The jurisdiction of the tribe over
such lands, and over the allotted lands within the original boundaries of
the Port Madison Reservation, shall not be inconsistent with applicable
Federal and State laws. However, nothing in tin's Article shall be con-
strued as restricting the treaty hunting and fishing rights of members,
including the right to fish in usual and accustomed places.
ARTICLE II - MEMBERSHIP
Section 1. - The membership of the Suquamish Indian Tribe shall consist of
the following:
(a) All persons of Suquamish Indian blood whose names appear on the
official census roll of the tribe as of January I, 1942; Provid-
ed, that such persons have not relinquished membership in the
Suquamish Tribe or have not become enrolled as members of any
other tribe, band or Indian Community; and Provided, further,
that such roll may be corrected subject to the approval of the
Secretary of the Interior.
(b) All children born between January 1, 1942, and the date of
approval of this constitution and bylaws, to persons who are
members; Provided, that these children who have been enrolled as
members of other.tribes shall be eligible if within one year
from the date of approval of this constitution, they or their
parents acting in their behalf, apply for membership in the Su-
quamish Tribe and they relinquish membership in the other tribe.
-------
(c) All persons of 1/8 or more Indian blood born to any member of
the Suquamish Tribe, after the date of approval of this consti-
tution and bylaws.
Section 2. - An application for membership by adoption from any person of
1/8 degree or more Indian blood may be approved by a majority of tribal
members present at a regular or special general council meeting, and must
also be approved by the Secretary of the Interior.
ARTICLE III - POWERS OF THE GOVERNING BODY
Section 1. - The governing body of the Suquamish Indian Tribe shall be
known as the Suquamish Tribal Council. The Council shall have the follow-
ing powers and duties subject to any limitations imposed by applicable
State laws or statutes of the United States and the regulations of the
Secretary of the Interior:
(a) To negotiate with Federal, State, and local governments and
others on behalf of the tribe and to advise and consult with
representatives of the United States government on all activ-
ities which may affect the tribe.
(b) To acquire, manage, lease, use, and contract all tribal real
property and other tribal assets, together with all improvements
which may be acquired by the tribe from the United States govern-
ment or elsewhere, with the approval of the Secretary of the
Interior wherever required by Federal law.
(c) To prevent the sale, disposition, lease, or encumbrance of trib-
al lands, interest in lands, or other tribal assets, without the
consent of the tribe.
(d) To employ legal counsel, the choice of counsel and fixing of
fees to be subject to the approval of the Secretary of the Inter-
ior, so long as such approval is required by Federal law.
(e) To advise the Secretary of the Interior with regard to all appro-
priation estimates or Federal projects for the benefit of the
tribe prior to the submission of such estimates to the Bureau of
the Budget and the Congress.
(f) To administer any funds within the control of the tribe and to
make expenditures of available funds for tribal purposes in
accordance with a budget approved by the tribal council. All
expenditures of the tribal funds under control of the tribal
council shall be made only by resolution duly approved by the
tribal council in regular or special meetings, and the amount
so expended shall be a matter of record available to all tribal
members and the Bureau of Indian Affairs at all reasonable
times.
- 2 -
-------
(g) To determine its own rules of procedure.
(h) To promulgate and enforce ordinances which shall be subject to-
approval by the Secretary of the Interior governing the conduct
of members of the Suquamish Indian Tribe regarding hunting, fish-
ing, and shell fishing.
** (i) To pass ordinances that govern the conduct of all persons and
regulate all property within the Tribe's jurisdiction to the
fullest extent allowed under applicable federal law, that
provide for the maintenance of law and order and the
administration of justice, and that promote the social and
economic welfare of the Suquamish people.
** (J) To take such actions as are necessary to carry into effect any
of the foregoing powers and duties.
ARTICLE IV - MANNER OF REVIEW
Section1. - Any resolution or ordinance which by the terms of this consti-
tution is subject to review by the Secretary of the Interior, shall within
10 days of its enactment be presented to the Superintendent or Officer in
Charge of the agency exercising jurisdiction, who shall within 10 days
after its receipt, approve or disapprove it.
Section2. - If the Superintendent or Officer in Charge approves any reso-
lution or ordinance which is subject to review, it shall thereupon become
effective, but he shall transmit the enactment bearing his endorsement to
the Secretary of the Interior, who may, within 90 days of the date of its
receipt rescind the resolution or ordinance for any cause by notifying the
Suquamish Tribe of his veto.
Section 3. - If the Superintendent or Officer in Charge disapproves any
resolution or ordinance which is subject to review, he shall within 10
days after its receipt, advise the Suquamish Tribal Council of his reasons
therefore, and if these reasons appear to the council insufficient, it
may, by vote of the majority of all members, refer the resolution or
ordinance to the Secretary of the Interior, and if approved by him in
writing it shall become effective.
ARTICLE V - ELECTIONS
Section 1. - The Suquamish Tribal Council shall consist of a Chairman, a
Vice-Chairman, a Secretary, a Treasurer, and three (3) Members. All shall
serve for a three year term.
Section 2. - Nominations for council positions shall be made from the
floor and votes are to be cast for their election by secret ballot at the
annual general council meeting in January every third year. Procedures to
be followed at this election will be in accordance with an electoral code
adopted by the general council. There must be at least two candidates for
each position and the candidates receiving the highest number of votes
shall be elected.
Section 3. - The election will take place after all annual reports and old
business have been presented. Newly elected officers will assume their du-
ties immediately and serve until their successors have been duly elected.
- 3 -
-------
Section 4. - Any enrolled member of the tribe 18 years of age or older
shall have the right to vote except in those elections called by the Secre-
tary of the Interior, in which case he shall be at least 21 years of age.
Any enrolled member 21 years of age or older shall be eligible to serve on
the tribal council.
Section 5. - All election disputes, including the determination of the
qualifications of any voter, if questioned, will be resolved by the gen-
eral council.
ARTICLE VI - DUTIES OF OFFICERS
Section 1. - The Chairman of the tribal council shall preside over all
tribal and general council meetings of the tribe. He shall be .allowed to
vote only in case of a tie. He shall countersign all checks involving the
expenditures of tribal funds and exercise any authority specifically dele-
gated to him by the tribal council. He shall sign all correspondence.
Section 2. - The Vice-Chairman of the tribal council shall assist the
Chairman when called upon to do so, and in the absence of the Chairman he
shall preside. When so presiding, he shall have all the rights, privi-
leges, and duties as well as the responsibilities of the Chairman.
Section 3. - The Secretary shall prepare all tribal correspondence and
shall not sign notices or documents unless authorized by the tribal
council. It shall be the duty of the Secretary to keep a complete and
accurate record of all matters transacted at council meetings and to sub-
mit copies of minutes of all meetings of the tribal council and general
council to the Western Washington Agency. He shall mail notices of
special meetings to all qualified voters at least 10 days prior to such
meetings.
Section 4. - The Treasurer shall have custody of and be responsible for
all funds in the custody of the tribal council. The Treasurer shall
deposit all such funds in such federally insured banks or elsewhere as
directed by the tribal council and shall keep proper records of such
funds. The Treasurer shall report on all receipts and expenditures and
the amount and nature of all funds on hand at the annual general council
meeting, and upon request of the tribal council. The Treasurer shall not
pay out any funds except when authorized to do so by a resolution of the
tribal council and all checks must be signed by the Treasurer and counter-
signed by the Chairman. The tribal council shall decide when the amount
of funds being handled by the Treasurer has become large enough to justify
the need for an annual audit. It shall then require that the books and
records of the Treasurer shall be audited by either a competent auditor or
by a Federal employee, appointed by the Secretary of the Interior or his
authorized representative. The Treasurer will be required to have a
surety bond satisfactory to the tribal council and the Superintendent of
the Agency. The surety bond will be obtained at the expense of the Suqua-
mish Tribe.
. 4 -
-------
Section 5. - The tribal council shall appoint such committees and other
personnel as required and shall outline their duties and responsibilities
by proper resolution.
ARTICLE VII - VACANCIES AND REMOVAL
Section 1. - If any member of the council shall die, resign, or shall be
found guilty of a felony or misdemeanor involving disonesty in any Indian,
State, or Federal court, a vacancy in his office shall automatically be
created, and at its next regular or special meeting, the tribal council
shall appoint someone to fill the office until the next annual general
council meeting at which time a successor shall be elected pursuant to
Article V to fill the office for the balance of the unexpired term.
Section 2. - The members of the tribe shall have the power to remove any
member of the tribal council by filing a petition with the Secretary of
the tribal council, signed by at least 25 percent of the eligible voters,
asking for the removal of said member of the tribal council; Provided,
that no such person may be removed except at a special general council
meeting at which he shall have an opportunity for a hearing. The vote of
the qualified voters at such meeting will decide whether such person is to
be removed; Provided, that 25 percent or more of the eligible voters shall
vote in such meeting, which shall be held within 30 days after the filing
of the petition.
ARTICLE VIII - MEETINGS
Section 1. - The tribal council shall hold meetings as called either in
writing or verbally by the Chairman or three members of the council at any
time when tribal business is to be transacted. No business shall be trans-
acted unless a quorum of four voting members is present.
Section 2. ^ There shall be an annual meeting of the general council on
the second Sunday of January of each year. Special meetings of the gener-
al council may be called at the discretion of the Chairman, and shall be
called by him at the request in writing of a majority of the tribal coun-
cil, or by a written request of 25 percent of the members of the general
council. A quorum shall consist of 50 eligible voters at either the
annual meeting or at special meetings.
Section 3. - The general council shall be composed of all tribal members
who are at least 18 years of age.
ARTICLE IX - REFERENDUM
Upon receipt of a petition of at least 25 percent of the eligible voters
of the tribe, or upon the request of the majority of the members of the
tribal council, the Chairman shall call a general council meeting to be
held within 30 days of receipt of such petition or request, to consider
any enacted or proposed ordinance or resolution, and the vote of the
majority of the qualified voters in such referendum will decide whether
- 5 -
-------
*he enacted or proposed ordinance or resolution shall thereafter be in
effect; Provided, that 25 percent or more of the eligible voters shall
vote in such referendum.
ARTICLE X - AMENDMENTS
Section 1. - This constitution and bylaws may be amended by a majority
vote of the qualified voters of the tribe voting at an election called for
that purpose by the Secretary of the Interior, provided that at least 30
percent of those entitled to vote shall vote in such an election, but no
amendment shall become effective until it shall have been approved by the
Secretary of the Interior.
Section 2. - It shall be the duty of the Secretary of the Interior to call
such election on any proposed amendment upon receipt of a petition signed
by 30 percent of the qualified voters of the tribe, or by a majority of
the tribal council.
ARTICLE XI - BILL OF RIGHTS
All members of the Suquamish Indian Tribe shall be accorded equal rights
pursuant to tribal law. No member shall be denied any of the rights or
guarantees enjoyed by non-Indian citizens under the Constitution of the
United States, including, but not limited to, freedom of religion and
conscience, freedom of speech, the right to orderly association or assem-
bly, the right to petition for action or the redress or grievances, and
due process of law.
ARTICLE XII - ADOPTION
This constitution and bylaws when adopted by a majority vote of the quali-
fied voters of the Suquamish Tribe of Indians of Washington voting at an
election called for that purpose by the Secretary of the Interior provided
at least 30 percent of those entitled to vote, shall vote in such an elec-
tion, shall be submitted to the Secretary of the Interior, and if ap-
proved, shall be effective from the date of such approval.
- 6 -
-------
APPROVAL
I, John A. Carver, Jr., Under Secretary of the Interior of the United
States of America, by virtue of the authority granted me by the Act of
June 18, 1934 (48 Stat. 984), as amended, do hereby approve the attached
Constitution and Bylaws of the Suquamish Tribe, Port Madison Reservation,
Washington.
Approval recommended:
James E. Officer - June 16, 1965
Associate Commissioner
Bureau of Indian Affairs
John A. Carver, Jr.
Under Secretary of the Interior
(SEAL)
Washington, D.C.
Date: July 2, 1965
* Amendments I, II, and III
Approved by Area Director 11/27/78.
** Amendment IV
Approved by Acting Area Director 1/15/81.
- 7 -
-------
THE GENESIS AND PHILOSOPHY OF THE INDIAN REORGANIZATION ACT
By John Collier
Twenty years ago, at Pittsburgh, it was my privilege to invite the MA
and it members to participate through research and sophisticated advice in
making Indian Policy and implementing it. Six months after that date, the
Indian Reorganization Act, which stands undestroyed yet, became law. Our
discussion, here at Tucson at the end of 1953, is timely. Twenty years of
the application in hundreds of human areas,of a philosophy which was a
slowly-formulated hypothesis of social action, have spread before us the
experimental verifications (sometimes the non-verifications) of the philosophy
of hypothesis. My own assigned topic is the genesis and philosophy of the
IRA. The genesis and philosophy--the record of how the Indian Reorganization
Act came into being--!arnely contains and even makes explicit the philosophy
simile. When into a saturated solution a thread is introduced, crystal
formation may take place around the thread. The saturated solution, in this
instance, was Indian need and opinion, and opinion in the larger community
including Congress in the dozen years before 1934. Sometimes I, sometimes
others, and in the end a multitude of Indians, served as the crystallizing
thread.
Our present discussion is timely for a reason not unique to Indian
matters. I have remarked that the IRA, as the organic act of Indian affairs,
stands yet undestroyed. But more—the philosophy of .the IRA stands un-
repudiated, even un-contested, being a philosophy consonant with American
realities and American values and ideals. Unrepudiated, un-contested, there
the philosophy abides; while administrative and legislative actions rush
ahead oblivious toward the philosophy and toward the experimental record.
No—not even wholly oblivious; for these administrative and legislative
actions verbally sanction themselves through professing the philosophy, even
while the actions contradict, negate, and seek to destroy, and in vital areas
have destroyed, both the structures which the philosophy built and the human
goods which it conserved or newly created. I say that this condition is not
unique to Indian affairs; though it is peculiarly operative and paramount in
Indian affairs; for as all of us know with dismay, the American event, cultur-
al, political, and even spiritual, is being swayed by distractions and by
organized pressurings away from its mooring or base—from its foundations of
constitutional laws and bills of rights and tolerance and the positive
affirmation of human, cultural, intellectual diversity: from the American
philosophy and this philosophy's experimental, pragmatic record. And as in
the situation of Indian affairs, so in the larger sphere, the American phil-
osophy as a verbal profession stands un-contested, unrepudiated, and those
who try to destroy the American way are the most vocal professors of the
American way. This remark is not a digression from my topic; for the
Indian Reorganization Act in its historical reference is the American way,
and in its future reach it is a seeking by Indians and for Indians for full
entry to, full oarticipation in, that American way whose submergence or even
extinction every one of us at this meeting fears.
Now, to the genesis of the IRA. I ask you to bracket with the IRA the
Oohnson-O'Malley Act of 1934; the Indian Arts and Crafts Board Act of the same
year; the repeal -of the so-called espionage acts affecting Indians; and of
the regulations governing Indian religious observances; and the arrangements
-------
administrative and budgetary, commencing in 1933, through which the Indian
Service and the Department of Agriculture cooperated in ecological and land-
utilization research and in soil and water conservation through nearly the
entire Indian country outside Alaska. These several other enactments and arrange-
ments were supplemental to the IRA and were "geared in" systematically with
the IRA operations. I would even ask that you bracket with the IRA the
Indian tribal claims act, formulated by Nathan R. Margold just before the
Indian New Deal was launched though it did not become law (through Felix
S. Cohen and William A. Brophy's efforts) until 1946; for this tribal claims
act re-affirms one of the essential affirmations of the IRA, namely, the
fundamentally bi-lateral nature of the Government-Indian relationship. This
bi-lateral, mutually consenting, contractual nature and foundation of the
Government-Indian relationship, graven at the very base of Federal Indian law
and of Indian relations, is the particular datum which the present Congress
and Interior Department, and President Eisenhower himself, have been oblivious to.
Now for the genesis specifically of the IRA. I have stated that this
genesis largely contains and even makes explicit the philosophy of the IRA.
We start with the year 1917. In that year the forced-fee-patenting of
allotted lands was launched as a sudden and by intention universal operation.
It was announced as the operation which would make an epoch—an epoch of
Indian Bureau "withdrawal" and of "Indian emancipation" and of massive savings
of Government money. Its accomplishment was exclusively to change the
allotted land nightmare (as it later came to be called) into a swifter killing
of nightmared Indians, separating numerous Indians from their remnants of land
and piling up claims against the Government which Congress grudgingly paid
across the ensuirtg decade and longer. Intellectually, however, the'"withdrawal"
onset left a residue, forcing into the Indian and even the Congressional
mind that image of the Indian allotment system which President Theodore Roosevelt
had supplied in a message to Congress in 1901: "A powerful crushing machine
for the destruction of all there was of Indian tribal possessions."
Thereafter, Indian affairs rested under a kind of chilled trance until
1922. That was secretary Albert B. Fall's great year. The year of the
Bursum Pueblo Bill, transferring to white squatters the Pueblo land titles;
the year of the attempted expropriation, by Secretarial order, of the Indian-
owned oils and minerals in the excutive .order reservations; and of the
"Indian Omnibus Bill" for the fragmenting and alienation of all Indian prop-
erties; and of the renewed official prescription of the Indian religions.
None of these 1922 enterprises quite succeeded, but they came dramatically
close to success; and the effect on the Indian mind was that of several man-
eating tigers released from Washington into many parts of the Indian country.
Among the Indian reactions, the most concentrated and sustained was that of
the-New Mexico pueblos, whose ATI-Pueblo Council, revived after two and a half
centuries, actually stormed the public mind of the United States. From that
date onward, the explorations, researches and consultations toward that which
became the IRA went ahead continuously until 1934. Numerous well-wishers of
the Indians and an ever-increasing number of Indian groups and tribes, were
involved in the search. I would state the matter thus:
Prior, by and large, to 1870, Government-Indian relations as a matter
of law, and in theory, and sometimes in practice, had been bilateral—that
is, contractual, and governed by mutual consent formalized into treaties
and agreements. The agreements, in contrast to the Canadian record, had been
-------
entered upon recklessly by the United States and with small intention of
fulfilling them; violations of the agreements had resulted in numerous
Indian wars which had proved humiliating and costly to the Government.
Indian reliance on the hundreds of convenants, which the white man's government
broke at will, had built up into an almost all-penetrating frustration,
even hopelessness, in the Indian mind. Then, in rapid progression after
about 1870, the Government nakedly cast aside the bilateralism of Indian
affairs. Legislatively and administratively, negotiation and consent were
replaced by Governmental fiat. The governing of Indians by fiat reached
its climax in the General Allotment Act of 1887; but in fact, a myriad course
of arbitrary governmental action went ahead, under the control of a philosophy
not only implicit but exhaustively stated. The philosophy viewed Indian
social organization, culture, religion, community enterprise, personality,
and any form of self-determination, as nothing except a barrier to the exer-
cise of Government power, and an imprisonment of the Indian spirit. Even the
relation of the generations was attacked with systematic intent. Government
invaded, past any and all of the structures of Indian life, to the individual
as a fiat-decreed social isolate. Government's Indian Service became struc-
tured— into a monolithic and authoriatarian structure and a monopolistic one.
Not only Indian initiative, but participation and consent became ruled out.
Intervention by any other branch of the United States Government except
Congress and the Courts, became ruled out; the Indian Bureau existed as an
aggressive monopolist. Indian Service in its turn became, inevitably, by
intention a regimented operation through bureaucrat!zed robots; but at the
tops Indian affairs came to be looked upon as the prerogative of local members
of Congress. Such was the accumulated state of facts when Albert B. Fall
supplied, in the legislative and executive melodramas of the years 1921-23,
the shock which brought Indians to the search for basic solutions.
(Every thinker involved in Indian matters by 1922, recognized that
particular ameliorations, and local or even universal defensive actions,
within the system which I have characterized, must be fruitless. President
Lincoln had supplied a phrase: "The accursed system of Indian Affairs."
All workers for and with Indians, by 1922, were convinced, obscurely or
explicitly, that unless the philosophy in Indian matters could be changed,
and the system of Indian affairs be reoriented and reconstructed, the tribes
and their members were doomed. Therefore, from 1922 forward, while many
particular struggles were waged, by the Indians and their white friends, the
controlling preoccupation was that of discovering a new philosophy, and of
impressing a changed orientation and structuring, in the Federal-Indian
relation. Effort for and by Indians became, to use an important current
concept, problem-centered; and upon this problem of how to achieve a new
orientation, first intellectually and then politically and legislatively, the
work of the Indians and their friends became concentrated.
The solution was pursued through litigations, particularly those which
were related to the Pueblo land situation, a situation whose roots were in
the Joseph decision of 1871; through researches into the history of Indian
land tenure and use; researches into the history and the then-status of
Indian indebtedness to the Government, totally around $60 million in the
1920's; researches historical and anthropological into the Indian organiza-
tions as they had existed, and still existed in limited regions, and into
the effect upon Indian social emergies of the destruction of the Indian
organizations; and researches into the conditions of the Indian resources-base
-------
and of its wastage, within the concept voiced to Congress by the Assistant
Commissioner of Indian Affairs in 1917, that since the Indians were by policy
being liquidated, their forest, soil and water resources should not be conserved
but liquidated. I mention only two or three names of individuals and groups,
the movers in these endeavors. One name is that of Richard H. Hanna of New
Mexico, who handled the Pueblo land litigations and subsequently, researches
into aboriginal occupancy in Alaska; Congressman James A. Prear of Wisconsin
and Senator William H. King of Utah who brought genuinely first-rate intellects
to bear upon the whole reach of the Indian's problems; the American Indian
Defense Association, from 1923 onward; Nathan R. Margold who studied with
profound attention and creativeness the vast subject of Indian claims against
the Government; the Senate Investigating Committee in the years 1927 to 1932;
and the Brookings Institute, which produced in 1928 the monumental Men am and
Associates Report on the Problem of Indian Administration. A word about the
last-mentioned research. It cast decisive illumination upon Indian education,
Indian health work, Indian income and living standards, and the deficiencies
of Indian Service, while leaving somewhat vague the core subjects of Indian
land tenure and Indian tribal or corporate organization.
I will now try to summarize the conculsions to which all of the 12
years of consultation, research and practical effort tended. Largely; these
results had become verbalized into official utterances before the end of the
Herbert Hoover presidency and the Wilbur-Rhodes-Scattergood Indian adminis-
tration, 1929-33.
1. The new Indian policy must be built around the group-dynamic
potentials of Indian life. This meant'an ending of the epoch
of forces atomization, cultural prescription, and administrative
absolutism, and an affirmative experimental search for the power
abiding within Indians, waiting for release through the enfranchise-
ment of the recreation of Indian grouphood.
2. The monolithic Federal-Indian administration, with stereotyped
programs for all Indians everywhere, must be changed over to be-
come flexibly adapted and evolving administration, fitted to the
cultural, economic, geographic and other diversities of the Indians,
which the generations of the steam roller had not been able to
flatten out.
3. In place of an Indian Bureau monopoloy of Indian Affairs, there
must be sought a cumulative involvement of all agencies of
helpful!ness, Federal, state, local and unofficial; but the
method must not be that of simply dismembering the Indian Service,
but rather of transforming it into a technical servicing agency and
a co-ordinating, evaluating, and within limitations, regulatory
agency.
4. Finally, and most difficult to state in a few words, the conclusion
emerged that the bilateral contractual relationship between the
government and the tribes (the historical, legal and moral founda-
tion of Government-Indian relations) must no longer be merely ignored
and in action thrust aside and replaced by unilateral policy-making.
Rather, instrumentalities must be revived, or newly invented, to
enable the bilateral relationship to evolve into modern practicable
forms—forms through which the "group - lift space" of the tribes
-------
could shift from the exclusively governmental orientation toward
an orientation to the American commonwealth in its fullness. I
state this last conclusion rather ponderously and abstractly; but
at the very core of the Indian Reorganization Act, precisely, is
the revival, and the new creation of, means through which the
Government and the tribes reciprocally, mutually, and also experi-
mentally, can develop the Federal-Indian relation, and the Indian
relation to all the rest of the commonwealth, on into the present
and future.
A very few works now as to the legislative coming-into-being of the
Indian Reorganization Act, intended as a new compact—evolving compact--
between the Government and the tribes and a new organic act for Indians.
In the Fall of 1933, the tribes were circularized with questions
inviting discussion; the most urgent of these questions having to do with
the allotted and fractionated Indian lands.
At the same time, Ward Shepard, then Chief Conservationist of the
Indian Service, urged that, insofar as practicable, all Indian legislative
proposals by the Interior Department be offered in a single legislative
bill. There existed a philosophy, theory or hypothesis, an integrating core
of ideas. Let a single bill contain them, Shepard urged, and let the bill
be justified to Congress, the Indians and the general public in terms of the
knowledge out of which the bill had grown, and the philosophy it was designed
to implement. This suggestion was agreed to, and in the Solicitor's Office,
the prime movers were three: Nathan R. Margold, Solicitor; and Felix S.
Cohen and Charles Fahy, Assistant Solicitors. The non-legal personnel of
the Indian Office participated, and I mention particularly Walter V. Woehlke,
Ward Shepard, and Robert Marshall. As introduced in the Senate and House by
Wheeler of Montana and Howard of Nebraska, the bill contained five sections.
One section provided statutory authority and procedural direction for Indian
tribal courts. This section was eliminated in committee. Another section
empowered the Secretary of the Interior to consolidate the allotted lands
and fractionated allotments, within limitations which safeguarded all property
rights. This section, too, was eliminated in committee. The substance of
the remaining three sections, became law. Two important provisos, not in the
bill as introduced, were added. Oneof these was a requirement that tribes
which should bring themselves under the Act should conserve their vegetative,
soil, water, and timber resources. The other proviso, initiated by Represent-
ative Howard, Chairman of the House Indian Committee, imported into Federal
statute-making a new element; it made the Indian Reorganization Act operative,
after enactment, only when a given tribe, at a formal referendum of all its
male and female.adult members, voted to make it operative.
Seante and House hearings, starting early in 1934, went ahead for more
than two months. They were suspended while the bill was discussed at regional
congresses of the tribes—congresses fully recorded. The Congressional hear-
ings were resumed, and the bill was passed in July, 1934. I sketch briefly
the main features of the Indian Reorganization Act:
It prohibited the future allotment of Indian lands, empowered those
tribes which might incorporate under the Act to proceed with the voluntary
consolidation of fractionated lands; and established a policy, and authorized
the funds, for the purchase of needed lands, titles to be not individual but
tribal.
-------
It established a revolving credit fund, in the nature of grants to
tribes which then would lend their portion of the fund to individuals and
associations within the given tribes; and repayments would stay with the
tribe for relending.
It provided that any tribe so desiring could form itself into that which
the Supreme Court had defined the New Mexico Pueblos to be: "In the nature
of municipal corporations," with home-rule powers in the political and human-
relation spheres. A tribal constitution, once adopted, could be annulled or
amended only through the tribe's own initiative.
It provided similarly and with like safeguards for tribal charters of
incorporation for economic enterprises.
It authorized the incorporated and/or chartered tribes not merely to
take to themselves, in advancing stages, the functions of the Indian Bureau,
but in addition, to draw to themselves, through contracts, or otherwise,
State and local services and the services of unofficial agencies. (The
Johnson-O'Malley Act of the same year, 1934, similarly authorized the
Interior Department to devolve its Indain Service functions, through con-
tracts and grants-in-aid, to local authorities and unofficial organizations,
but not to jettison the bilateral Federal-Indian relationship in the process
of development.)
The IRA directed that the yearly Appropriation Requests of the Indian
Bureau be submitted beforehand to the organized tribes, for their criticism
and suggestion.
It provided for Indian preference in employment in Indian Service; the
possibility of an autonomous Indian Civil Service was thus created; and by
implication, the establishment with Indian Service of a job-classification
system, making possible a career service within tribal or ecological areas.
Finally, the Act authorized the funds requisite for the advanced
education of Indians—for their technical and professional training, whether
toward careers in their own peoples' service or in the general community.
With this summary of the IRA, I concluded; others will discuss the
effects produced by the Act through the years. I would give this final,
as it were "mountain-tip" view of the intention of the Act and of the Acts
and policies complementing it.
That intention was that the grpuphogd of Indians, twenty thousand years
old in our Hemisphere, should be acknowledged as being the human and socially
dynamic essential, the eternal essential, now and into the future as of old.
It should be grouphood culturally, as rooted in the past as the group at
issue—each group among the hundreds—might desire, and as modern, American-
oriented and implemented as the group at issue might desire. Definitely,
finally, cultural determination for Indians was not to be a function of
governmental authority from this point forth. Cultural determination, by
American public philosophy, has been and is the function of all our many
thousands of human groups; the IRA only restored this fundamental of mental
and moral health to the only groups which official or governmental!y had
been denied it, the Indians.
-------
I add: this affirmation of cultural diversity and cultural autonomy
did not imply a doctrine or practice of laissez-fajre either within the
Indian group or in Government or the surrounding Commonwealth. It implied
rather, the attractive and permissive way in place of the authoritarian way
of swaying the human process. It implied leadership—within and without
the Indian group—of the democratic and integrative type, not the regiment-
ing, commanding and "bossing" type. I illustrate by the Indian Arts and
Crafts Board, whose authority is only the negligible one of certifying the
genuiness of Indian handicraft products. That Board has served, with an
extremely minimal budget, as a creative power in the Dakotas, the Inter-
mountain country, Alaska, the Southwest, and Oklahoma. I refer to a mere
massive case, but one equally as relevant to the Indian situation, and the
purposes of the IRA. That case is the modern soil conservation work, at
this writing threatened with demolition from Washington, whose first
demonstrations and "try outs" were among the Indians after 1933; soil con-
servation work whose problem-areas are whole watersheds or sub-watersheds,
whose dynamic is principally social-economic and esthetic and ecological
and only subordinately engineering, and whose employment of authority is
almost zero; and whose reliance is voluntary effort illumined by science—
voluntary yet patterned effort. Of this sort, is the principle of action
embodied in the Indian Reorganization Act.
-------
8
SUMMARY OF THE PROVISIONS OF
THE INDIAN REORGANIZATION ACT
Present programs and policies of the Indian Service are largely guided
by the provisions of the Indian Reorganization Act (Wheeler-Howard Act) of
June 18, 1934. Following is a summary of its provisions:
1. The policy of alloting tribal lands to individual Indians was
abolished.
2. Existing periods of trust placed upon any Indian lands and any
restriction on alienation of land were extended and continued
until otherwise directed by Congress.
3. The Secretary of the Interior was authorized to restore to tribal
ownership any lands that had been declared surplus and opened for
sale or other fora of disposal.
4. The sale or other transfer of restricted Indian lands or shares
in the assets of any Indian tribe or corporation was forbidden
except to the tribe concerned or to heirs of members.
5. The Secretary of the Interior was authorized to purchase, or
otherwise acquire, land water rights, and surface rights for
the purpose of providing land for Indians. $2,000,000 in any
one fiscal year was authorized to be appropriated for this
purpose.
6. The Secretary of the Interior was directed to make rules and
regulations for the operation and management of Indian forestry
units on the principle of sustained-yield management and to
restrict the number of livestock grazed on Indian range units
so as to protect the range from deterioration and to prevent
soil erosion.
7. The Secretary of the Interior is authorized to proclaim new
Indian reservations on lands acquired pursuant to any authority
conferred by the Act, or to add such lands to existing reser-
vations are to be designated for the use of Indians entitled by
enrollment or tribal membership to residence at such reservations.
8. Nothing contained in the Act shall be construed to relate to
Indian holdings of allotments or homesteads upon the public
domain outside of the geographic boundaries of anv Indian reser-
vation now existing or established hereafter.
9. A sum, not to exceed $250,000 in any one year, was authorized
to be appropriated to defray the expenses of organizing Indian
chartered corporations or other organizations.
10. The sum of $10,000,000 was authorized to be appropriated for
the establishment of a revolving fund from which the Secretary
of the Interior could make loans to Indian chartered corporations
for the purpose of promoting the economic development of tribes
and their members.
11. A sum, not to exceed $250,000 .annually was authorized to be
appropriated for loans to Indians for the payment of tuition
and other expenses in recognized vocational and trade schools.
-------
12. The Secretary of the Interior was directed to establish standards
of abilities and qualifications of Indians for positions in the
Indian Service without regard to civil-service laws, and to give
qualified Indians preference in employment.
13. Any Indian tribe or tribes, residing on the same reservation,
received the right to organize for their common welfare and to adopt
an appropriate constitution and by-laws.
In addition to all powers vested in any Indian tribe or tribal
council by existing law, the constitution adopted by a tribe gave
the tribe or its tribal council the following rights and powers:
to employ legal counsel, the choice of counsel and fixing of fees
to be subject to the approval of the Secretary of the Interior;
to prevent the sale, disposition, lease, or encumbrance of tribal
lands, interests in lands, or other tribal assets without the
consent of the tribe; and to negotiate with the federal, state, and
local governments. The Secretary of the Interior was also directed
to advise such tribes or its tribal councils of all appropriation
estimates or federal projects for the benefit of the tribe prior
to the submission of such estimates to the Bureau of the Budget and
the Congress.
14. The Secretary of the Interior was authorized, upon petition, to issue
a charter of incorporation to organized tribes. Such charter could
convey to the incorporated tribe the power to purchase, take by
gift, or bequest, or otherwise, own, hold, manage, operate, and
dispose of property of every description, real and personal, in-
cluding the power to purchase restricted Indian lands and to issue
in exchange interests in corporate porperty, and such further
powers as may be incidental to the conduct of corporate business,
not inconsitent with law, but no authority was granted to sell,
mortagage, or lease for a period exceeding ten years any of the land
included in the limits of the reservation. Any charter so issued
could not be revoked or surrendered except by Act of Congress.
15. The Act (as amended, June 15, 1935) shall not apply to any reserva-
tion wherein a majority of the adult Indians actually voting at a
special election duly called by the Secretary of the Interior, shall
vote against its application, provided that the total vote cast
shall not be less than 30 oer centum of those entitled to vote.
-------
analysis by which it decided Mancari and later Fisher. Finally, the
Mancari rule is applied to a situation where Indians are clearly preju-
diced. In Fisher, although the plaintiffs were denied access to the state
courts, they were not denied a forum.12" Furthermore, any detriment
suffered by the plaintiffs in Fisher was balanced by the benefit real-
ized by the tribe through the enhancement of the integrity of the tribal
court. The counterbalancing benefits in Antelope are much more
speculative and are left unexamined by the Court.
The purpose of legislation which singles oul Indians should be
viewed in the context of the trust relationship which was designed to
protect Indians. The logic of Mancari, based on the federal guardian-
ship of Indian tribes,121 is weakened when utilized to uphold prejudi-
cial rather than beneficial treatment of Indians. At some point the
prejudice \o Indians must be g,real enough lo raise ihe i^ue whelkec
the challenged federal action indeed furthers Congress' fiduciary obli-
gation to Indians.122 Legislation which operates to the disadvantage
of Indians should be examined to determine if it is closely related to
furthering this obligation. The Court in Antelope did not so examine
the Major Crimes Act, choosing instead the use of broad generaliza-
tions which indicate that any legislation directed toward Indians is not
based upon impermissible racial classification and is therefore pre-
sumptively valid. This is scrutiny at its most minimal. Indians were
accorded the status of wards of the federal government because Con-
gress, not local government, was thought belter able to protect
Ihem.123 This justifies the quasi-racial classification. If such is the
case, only statutes which benefit and protect Indians ought to be sus-
tained. Laws which place an individual at a disadvantage because he
is an Indian are antithetical to the trust relationship.
Before discussing the equal protection analysis that should be ap-
plied \o sia\e laws concerning Indians, U wiU be useful to suwmvirixt
the doctrine that has emerged from Mancari, Fisher, Weeks, and An-
telope. Read together, Mancari, Fisher, and Weeks may be said to
Indians. This raises the spectre of racial classification, which was disavowed in Mumari
on the logic that the legislation was directed toward tribal members.
120. The tribal court had jurisdiction to handle child custody matters. 424 U.S. at
384 n.5.
121. Srr Part V-/4 \uprt>.
122. Srr United Stales v. Big Crow. 523 F.2d 955 (8th Cir. 1975). rrn. drnirtl. 42<<
U.S. 920 (1976); United States v. Cleveland. 503 F.2d 1067 (9ih fir. 1974). Srr note
100 supra.
U3. United States v. Kajama, t «8 U.S. 375. 381-84 (I8RS\. S'ff «''«' Note, Indiun
Civil Rights Talk Forcr. Drvrl"pmrnl of tripartite Jurisdiction in Indian Country. 22
KAN. L. REV. 351. 353-55 (1974).
606
express a unique equal protection analysis applicable to Indians.
First, the legislation is not characterized as a racial classification but
is instead intended to further the federal government's trust responsi-
bility toward Indians who are presently members of tribes subject to
the United Slates' trust relationship or who have ancestral ties to such
members. .Second, legislation is to be tested with a standard of review
requiring it lo be tied "rationally" to the fulfillment of Congress'
"unique" obligation toward the Indians. The examination of the
means chosen to achieve this purpose is somewhat greater than that
under minimal scrutiny. The standard, however, appears to be one
closer to the rational basis lest than (o strict scrutiny, especially in
light of the results—i.e., (he statutes generally withstand constitu-
tional challenge.
The Anic\ope decision is troublesome because of the minima} level
of scrutiny employed and hccau.se of the questions left unanswered,
although the principles of Mancari and Fisher were reaffirmed.
VI. STATE ACTION, INDIANS, AND EQUAL
PROTECTION
The federal trust responsibility toward Indian tribes is the domi-
nant factor that shapes equal protection analysis of federal laws about
Indians. Although stales do not share this same relationship toward
Indians.1" state laws that are enacted under the explicit authority of
federal legislation, such as Public Law 280,l25 are deemed to be ex-
pressions of the federal trust responsibility and are judged by the same
equal protection standards used in determining the validity of federal
laws.1215
124. "It is settled ihat 'the unique legal status of Indian tribes under.federal law'
permits the Federal Government lo enact legislation singling out tribal Indians, legisla-
tion that might otherwise he constitutionally offensive States do not «njoy this same
unique relationship to Indians . . . ." Washington v. Confederated Bands A Tribes of
Yakima Indian Nation. 99 S C't. 740. 761 11979).
125. IK USC 5 1162 11976); 2H U.S.C 5 1360(1976).
llfc. Wv&vntUm v. VonVtdtraud Wands & Tribes of YaVima Indian Nation. 99 S.
Ci. 740 (1979). The Court said that a Washington stale law enacted pursuant to Public
Law 280 was aulhori/ed under a federal law enacted in the exercise of Congress-
plenary power over Indians. /,/. at 746. The slate law imposed slate jurisdiction over (I)
non-Indians on all lands of Indian reservations within Ihe stale. (2) Indians on fee pat-
ent lands on reservations, and (3) Indians on trust lands on reservations for eight sub-
ject-matter areas. The Ninth Circuit Court of Appeals had struck down this law as a vio-
\wk>n vrt rtie Innfleenm amendment equal prelection ctause. Confederated Bands A
Tribes of the Yakima Indian Nation v. Washington. 552 F.2d 1332 (1977). It had found
that the statutory classification was not on its face racially discrimina^jlfend was not
-------
The lWRa\ government has, through statutes and treaties,
preempted most of the field of Indian affairs, li is not surprising.
therefore, lo find very few cases raising Indian equal prelection issues
in connection with state laws or administrative actions that arc not
derivative from federal laws.127
It is clear that states can enact legislation and take administrative
action to implement Indian treaty rights and that such action does not
violate the fourteenth amendment equal protection clause.I2H Going
one step further, the Minnesota Supreme Court held that a settlement
between an Indian tribe and the state did not violate the equal protec-
tion clause.129 The settlement, which was ratified by state law, re-
solved an issue in litigation between the tribe and the state and gave to
the Indians fishing rights not shared by non-Indians. The court used
the standard rational basis test to determine the validity of the stale
law. Because the settlement agreement and ratifying law were de-
signed to preserve the fishery resource for the people of the state and
adopted lo mask racial discrimination, hi. at 1)34. However, the court found thai the
litlt-based assumption of slate jurisdiction could not meet even the ration*! basis test.
The Washington Attorney General hail identified (he purp°se of the legislation as pro-
viding criminal jursidiclion over areas where the slate "has the most fundamental con-
cern for the welfare of those least able to care for themselves." /,/. ai 1.134. The Ninth
Circuit, however, could not detect any rational connection hetween this or any other
valid purpose, and the imposition of state jurisdiction based on land title within the res-
ervation. The court said the slate's interest in enforcing criminal law was no less "funda-
mental" or "overriding" on rtonfee lands than on fee lands, and held that this checker-
boarding of jurisdiction on reservation* was "the very kind of arbitrary legislative choice
forbidden by the Equal Protection Clause." hi- at 13.16. The Supreme Court rejected
this reasoning and ruled that a rational basis existed for tht slate law and thai it did not
violate fourteenth amendment equal protection principles. 99 S. Ct. at 762.
127. Only two such cases have been found. Livingston v. l-wing. 455 F. Supp. 825
(D.N.M. 1978): State v. Forge. 262 N.W.Zd 341 (Minn, 1977). In Washington Stale
Commercial Passenger Kishing Vessel Ass'n v. Tollcfson. X9 Wash. 2d lib. M P.ld
1173 11977). rrrf. unmirJ. 99 S. Ct. 276 (1978). the Washington court erroneously char-
acterized the issue as one involving state action involving the fourteenth amendment,
when, in fact, it involved federal action and raised a fifth amendment question. .Vcr
notes 150-51 and accompanying text infra,
128. Puyallup Tribe v. Department of Gam*. 433 U.S. 165(1977).
129. Slate v. Forge, 262 N.W,2d J4( (Minn. (2 N.W.2d 341. .148 (Minn. 1977).
131. l maintain, as best they can. its purity." Id. it 829.
The court rejected (he argument (hat this preference was racial in nature, concluding
instead that it was political and cultural, and saying that the stale, as well as the federal
government, had an obligation to insure the political, economic, and cultural survival
of Indian tribes, lit. ill K3 I.
1.1.'. There is nothing in the history of tribal-stale relations to suggest any consistent
altruistic altitude of most stales toward Indians. Indeed, the opposite has ofttn been tht
case. See United Stales v. Kagama. 118 U.S. 375 (1886). Set genrrally W. RROPIIY & S.
AneniF.. THE INDIAN: AMERICA'S UNI-INIMIF.D BUSINESS—RF.POHT OF THE COMMISSION
ON IMV, KlCMI.S. LlRERTIt..S. AND RtSPONSiml ITIF.S OF 1MB AMF.dlCAN INDIAN ( 1966).
The historic attitude of some states toward Indians is perhaps adequately demon-
strated by the following quote:
The premise of Indian sovereignty we reject. The treaty is not to be interpeted in
that light. At no lime did our ancestors in getting title to this continent ever regard
the aborigines as other than mere occupants, and incompetent occupants, of the
soil. •.. Only (hat title was esteemed which came from whit* mm •"-•< "• - ' '
-------
Indians in the context of federal action. Preferential state policy
should ordinarily be sustained, if at all, on the basis of its relationship
to other valid state interests, without putting the state in the same rela-
tionship to Indians as the federal government.134
VII. EQUAL PROTECTION AND TREATY RIGHTS
In addition to federal law, treaties are a source of many rights guar-
anteed to Indians. Treaties are analogous to contracts, inasmuch as
the treaty is an exchange of promises that then operates as the law by
which the parties agree to be bound.135 Rights established in treaties
are, by definition, not guaranteed to those who are not parties.
Members of treaty-signing Indian tribes are guaranteed rights and
benefits not shared by nonmembers. The existence of special Indian
treaty rights, especially rights to limited resources such as water or
fish, has at times had a significant impact on non-Indians wishing to
use the same resource.138 Several recent cases have questioned
these have always been ascribed by the highest authority to lawful discovery of
lands, occupied, to be sure, but not owned by anyone before. . . .
The Indian wms a child, and a dangerous child, or nature, to he both protected
and restrained, in his nomadic life he was to be left, so long as civilization did not
demand his region. When it did demand that region, he was to be allotted a more
confined area with permanent subsistence....
These arrangements (Tor treaties and reservations! were but the announcement
of our benevolence which, notwithstanding our frequent frailties, has been continu-
ously displayed. Neither Rome nor sagacious Britain ever dealt more liberally with
their subject races than we with these savage tribes, whom it was generally tempting
and always easy to destroy and whom we have so often permitted to squander vast
areas of fertile land before our eyes.
State v. Towessnute. 89 Wash. 478. 481-82. 154 P. 805. 807 11916). A recent example
of a state court's hostility toward Indian sovereignty can be found in Brough v. Ap-
pawora.553 P.2d934(Utah 1976). vacated and remanded, mem.. 43 I US. 901 (1977).
134. It should be noted that, even if insuring the survival of Indian culture may he
articulated as a valid state interest, the stale action cannot conflict with federal law
which would preempt stale law. See itenerally McClanahan v. Arizona Slate Tax
CemirTn. 411 U.S. 164(1973).
13S. Srr D. GETCHRS. D. ROSF.NFELT. & C. WILKINSON. CASKS AND MATERIALS ON
FEDERAL INDIAN LAW 30-32 (1972V. WilKinson & Volkman. Judicial Review of Indian
Treaty Abrogation: "As Lung as Water Flaws or Crass Crows Upon the Karlh"—How-
Long a rime is That?, 63 CALIF. L. REV. 601, 608-19(1975). At the risk of over-extend-
ing the analogy, it might be noted that contracts between a government and its citizens
or corporations have never been thought to raise equal protection issues with respect to
contracting and noncontracting citizens.
IJ6. Stt. e.g.. Winters v. United States, 207 U.S. 564 (1908) (water); United Stales
v. Wwhiniton. 384 F. Supp. 312 IW.D. W«sh. 1974), ajf'd. 520 F.2d 676 (9th Cir.
1975), ctrt. denied, 423 U.S. 1086 (1976). err«. granted, 99 S. Ct. 277 (1978) (fishing).
610
whether either (he treaties themselves.137 or state classifications re
quired by the treaties,138 are a denial of equal protection to non-Indi
ans.
No treaty of any sort has ever been invalidated because it violated
equal protection principles.Uiv Treaties are normally made with for-
eign naiions, thus, equal protection of the laws is inapposite. Treaties
with Indian tribes, however, do involve the federal government and
groups of its own citizens.14" Nevertheless, there is little or no theoret-
ical basis for equal protection challenges to Indian treaties them-
selves. The Constitution provides for treaty-making power,141 and the
Supreme Court has repeatedly enforced Indian treaties as a valid ex-
ercise of that constitutional power. Indeed, treaty rights are part of
"Congress1 unique obligation toward the /ndians" that justifies special
federal legislation favoring Indians.112
In order lo fulfill Indian treaty rights, many statutes and regula-
tions necessarily treat Indians and non-Indians differently.'43 When
I.17. Set Washington Slate Commercial Passenger Fishing Vessel Ass'n v. Toller-
son. 89 Wn. 2cl 276, ^7l (Ud 137} 11977). cert, franlfd. 99 S Cl. 27611978).
1.18. See Slale v. Forge. 262 N.W.2d 341 (Minn. 1977). appeal dismissed. 435 U.S.
919 (1978); Department of Game v. I'uyallup Tribe. Inc.. 86 Wn. 2d 664. 548 P.2d 1058
(1976). vacated an<1 remanded. 4.13 U,S. 165 (1977).
139. Km n'e Washington Slale Commercial Passenger Fishing Vessel Ass'n v. Tol-
lefson. 89 Wn. 2d 276. 57 I P.2d 1373 (1977). cert, granted. 99 S. Ct. 276 (1978).
Hecause treaties are federal law. any equal protection analysis of them would be un-
der the fifth amendment rather than the fourteenth amendment. See note 39 supra.
Challenges to treaties may be nonjuMiciahle issues. Cf. Delaware Tribal Business Coun-
cil v.FWeeks. 430 U.S. 71 (1977) (challenge lo congressional settlement of an Indian
claim arising out of treaty rights held to be a justiciable issue).
140. All Indians are now United States citizens. 8 U.S.C. 5 I40l(a)(2) (1976).
There have been no new treaties with Indian tribes since 1871, when Congress pro-
scribed any additional treaties. Act of Mar. 3. 1871, ch. 120, { 3. 16 Slat. 566 (1871)
(codified at 25 U.S O 5 21 (I976)).
141. U.S. CONST, art. VI, §2.
142. Miinrari. 417 U.S. at 555. See notes 70-74 and accompanying text supra.
Some equal protection challenge* lo treaties are based on a false premise that the
treaty granted a special benefit lo tribal Indians. The Supreme Court has held that many
treaty rights, rather than being grams from Congress, are reserved rights that tribes have
always possessed. United Stales v. Winans. 198 U.S. 371 (1905). The Court has held that
the reserved rights of Indian tribes are valid against all but the federal government.
Oneida Indian Nation v. County of Oneida. 414 U.S. 661 (1974); Worcester v. Georgia,
31 U.S. (6 Pet.) 515 (1832); Johnson v. Mclmosh. 21 U.S. (8 Wheat.) 543 (1823). fiven
those treaty rights which might be said to be a grant of a benefit to Indians constitute
consideration lo Indians for the cancellation of Indian claims to vast areas of land. Set
United States v, Washington. 384 F. Supp. 312. 333 IW.D. Wash. i974).aff'd. 320 F.2d
676 (9th Cir. 1975). cert, denied, 423 U.S. 1086 (1976). ctrt. granted, 99 S. Ct. 277
(1978); F. PBUCHA. AMERICAN INDIAN POI.ICV IN THE FORMATIVE YEARS: INDIAN TRADE
AND INTERCOURSE ACTS. 1790-1834, at 43-30(1962).
N3. Srr cases cited in notes 136-39 supra, and notes 166-68 and^£companyin|
text infra.
-------
III mid-iiin ;]JSwinomish
S^tt'p>*»«.»^ ' ' ^»'^'~m'"" \ f:::,---"-
f JIJ4H Of'tyZT** 'x Stillaouamish
t> N>s
xs Elwha Porl % "CT-jTiilalip
s'.> tiwna Angdlc5 i ..^
NSN « I Evr^n
t ',
L, '* port Gamble -j '
i
xx Suqiiamish » -"''
luinault ,,j»*
fe/'" \ '-""\
Fysffv ' \ c ff x
a^w' / fa ,' \ „
waff ' ^ ..' v
^ / Skokomlsh S & x -"•
^' ' Squaxln Tacoma^j VVvjMuckleshoot
/ / 'Island Puyallup X »,,,«„
? X"N-,
'•"t^i \/ Oiymiiia (.Nisqually v "\
''- ^_^. *^ I
I
I
I
I
\
\
\
\
\
I
I
I
I
\-
\
Source: Norllnvrsl Indinn
Fisheries Cuininission
•-.y
ilf
\
I
._!
of tin; Iiulian si(>ii(!rs. It was problems of those kinds which eventually
led to flic U.S. Supreme Court doctrine lhal:
... in the interprelntinn of iigmeninnts and Ininlins willi Indians, ainlngiii-
ties should he resolved from the standpoint of (he Indians. (U'intors v. I/.S.
1908.)
The provisions of all five of the Slovens Iron lies wen; similar. Indi-
ans were to cede their rights to most of the land in exchange for which
(he U.S. Government would protect Ihoni from while- seniors if the: Indi-
ans clustered together on reservations designated hy Ihe government. In
addition, all of the I'uget Sound treaties included articles similar to Ar-
liclelllof the Medicine Creek Treaty of 10S4:
The right of taking fish at all usual and accuslemuMl grounds and sta-
tions is further secured lo said Indians in common with all c.iti/.Rns of the
Territory, and of ('reeling temporary houses for the purpose of c.urinj;. lo-
gether with the privilege; of hunting, gathering roots and herries, and pas-
turing their horses on open and ime:laime;d lands: J'rm-idod. /loin.'ve-r. that
they shall not lake shell fish from any beds slaked or euillivated hy citix.ens.
and that they shall alter all stallions not intended for breeding horses, and
shall keep up and confine the latter. (Reprinted in American Friends Ser-
vice Committee 1070. p. 25.)
Through these; articles. Indians reserved their rights te> fish at their tra-
ditional fishing sites and to hunt on unclaimed hind throughout the re;-
gieni, while granting to non-Indians the privilege; of fishing and hunting
in common with the Indians em non-reservation fishing sile;s and lands.
These treaties also provided that the U.S. Government exude! unila-
terally alter reservations in the future by compensating Indians only for
improvements that would have to be abandoned by such chnnges (see
Article; VI. Meidicim: Cre:e:k Tresaly as an example!). In recognition of the;
assimilation philosophy he:lel by the BIA. the Stevens treaties also pro-
vided for the allotment e>f reservations lands in small parcels le> indi-
vidual Indians who wished te> settle permanently on lhe:m.
Ne>l all lands originally selected for reservations were suitable fe>r
huhilatiem eir lor iigrie:ullural purpnsos. so some n;servallions won; Inter
moved. Other reservations were resiled for the convenience and well
being of non-Indians. For example, when land was needed for an army
base near Tacoma during World War I, the portion of the Nisqually Res-
ervation on the north side of the Nisqually River was vacated for the
establishment of Fort Lewis.
While the Stevens treaties established reservations, the subsequent
attempts to locate reservations where Indians might become farmers
was consistent with the emerging BIA thrust toward Indian assimila-
tion as an alternative to separation.
The assimilation philosophy of I3JA was given major impetus will)
the; passage of the General Allotment Ae:t of 1887 (Dawes Act). Under
-------
CHAPTER 7
Indian Reservations
And Tribal Governments
Little attention was paid to tribal governments in tin: Puge;l Sound
region until 1974 whnn conflicts over salmon fisheries resulted in judi-
cial confirmation and specification of trinity rights in |udge; Bnlell's
landmark decision—a decision stibse;(|ue:nlly uphold liy tin; ll.S. Courl
of Appeals and the U.S. Supremo Court [Lhiili'd Sfufrs v. \\'(isliin»lnn
1974; 1975: Washington v. W'eishinglon Slnle Ce>mmon:iinmrn.n with leiwign N'alimis.
anel among the; several stales, and wilh ihe; Indian Trilics ... (Art. I. SIM.. »)
Thus when treaties wore negotiates! anel signed, limy were enforceable
within the federal court system. One; woulel expee:| this tei result in a
reasonably coherent and well understood body of law and precedent
within the American legal system. I)e;spile; many court decisions, how-
ever, Indian law has not yol evolved to siu-.h a slate. One scholar has
observed: "The content of Indian law depends upon society's defini-
TribnJ (iorenunenfs
tion at any point in lime of the so-called Indian problem" {Strickland
1979. p. 475). This observation is supported by eleicumenteel changes in
federal policy, and judicial rointcrprolatie>n of eilel decisions from a
"new" perspective.
Initially, federal jurisdiction ove;r Indian mailers was the responsi-
bility of the Secretary of War. In 1925 the Bure-au of Indian Affairs (BIA)
was created in the War Department to administer these matters. In
those early yours, court decisions made it evident that stale laws did
not apply em Indian reservations (U'oireisler v. Georgia HM2) anel fur-
ther thai such re:sorvatie>ns anel their governments were "eleime;slie-de-
pendent nations in the e:are; eif the; U.S. Government." During ibis pe-
rienl feele;ral. polie:ie;s we;re oriented lenvarel .separation e)f Inelians freim
the rest of American society.
In 1H4J) the Durewti e»f Indian Affairs was transferred fremi the: War
Department te> the; Department e>f Interior, and federal policy began a
shift fmm separation lei assimilation. Assimilation was fostered primar-
ily by (he; allotment of reservation lanels !e> individual Inelians. This
proce;ss began on eastern reservations in Hi!i4. |irieir le> the; inon;gone;ral
Dawes Acl of 1HH7. in anlicipalion that Indian land holelers would bit-
come farmers like western home;sleaders. It was during this period that
Isaac Stevens was appointed Covorne>r anel Superinleiuinnl e>f Indian
Affairs fe>r the noxvly created Washington Territory.
The Puget Sound regie)n did not have a history e>f Indian war. but
now that tin; boundary disputes wilh Britain o\rer ihe; ('anadian-U.S.
boundary had been resolved in 184(5. Governor Stevens was concerned
that the greiwing population ol settlors would Ic.ul to bloodshed unless
agreements cenilcl be reached eiiiie:kly with loe:al Indian tribes. Toward
Ibis end he; ne;ge)liatod live major Iriiiilitis with "loaders" of nmnoreiiis
tribes of Indians in Western Washington and with the; Yakima. Uma-
lilla. anel No/. Perce tribes in Kasle;rn Washington. Three eif the; Western
Wushington treaties covered lands adjacent lei Pugel Sound (Medicine
Crook. Point Elliott, and Point No Point). The; Makah Treaty .covered
land on the; northwest lip e)f the; Olympic Peninsula, fronting on be>lh
the Strait of Juan do Fue:a and Ihe; Pacific Ocean, and Ihe Quinaull River
Treaty covered a western portion of the Olympic Peninsula.
The; tribes e>f Puget Sound wire; eliviele;el into lhre;e; treaty groups by
Governor Stevens and each group included tribes that were historically
unfriendly. In addition, it appears that the "loaders" of Ihesse throe
groeips were often arbitrarily designates! by the Governor anel wore; not
necessarily the leaders recognized by the Indians. To further compli-
cate the problem, treaty negotiations were conducted in Chinook jar-
gem—a trade "language;" of appmximateHy -KM) wemls thai was inaele-
quato to convoy precise terms of the agreements. The treaties
themselves were; written in English, a language unfamiliar to.nearlv all
-------
Governing Fugc.-l Sound/Dish
tliis Act, many Indians not only received individual allotments of reser-
vation land, but also the right after 25 years to sell individually owned
land to non-Indians. Where Indian land assigned in this manner had
particular value to non-Indians, supplementary laws were often (Kissed
to speed up the transfer process. Such a special law, for example, was
passed in 1893 to enable non-Indians to purchase Puyallup Indian Res-
ervation lands from Indian owners after only If) years. This law was
passed because of the importance of Puyallup Reservation lands which
encompassed nearly all of what is today the Port of Tacoma on Com-
mencement Bay (American Friends Service Committee 1970. p. 54). In
this instance, only 200 to 300 acres of the original 23.000-acre reserva-
tion remain under Indian ownership.
By 1932, the policy established by the Dawcs Act and the direct
sale to non-Indians of reservation lands judged by HIA not to be needed
by Indians had resulted-in the transfer of approximately two-thirds of
all Indian reservation lands in the United Stales to non-Indian owner-
ship.
Where non-Indians inhabited reservation land, such as on the Puy-
allup Reservation, state and local governments extended their control
despite the "legal" status of these lands as reservations under tribal ju-
risdiction regardless of whether Indians or non-Indians held title to in-
dividual lots. Ideally, at least from some perspectives, Indians were be-
ing merged into the larger society. If these policies and precedents had
continued unabated, there might not have been a "Boldt decision" in
1974.
Indian Reorganization
Major studies of the conditions of Indians during the 1920s pre-
sented a depressing picture. Indians were being submerged into the
lowest economic strata. Their natural resource-based culture was just
not being assimilated into the American society and economy (IVleriam
1928).
The federal remedy was to reverse the assimilationist philosophy
with the enactment of the Indian Reorgani/.ation Act in 1934. Under
this act. transfer of reservation lands to non-Indians was halted, tribal
rolls were updated, and tribal governments were reorganized. Tribal
governments were again to be "domestic dependent nations," in keep-
ing with original treaties. In 1946 the Indian Claims Commission was
established to hear and adjudicate claims that arose during the assimi-
lationist period against the government over mismanagement of Indian
lands and reservations. This commission is just now finishing its work.
In 1952, federal Indian policy shifted once again. At that time there
was a return to an assimilation philosophy (apparently with the aim of
simply reducing federal expenditures) through the early termination of
r>
Tribal (iorenunf.'/ils
reservations (although no reservations were terminated in Washington
Stale during this period as was the Klamath in Oregon) and through the
transfer of civil and criminal jurisdiction over Indians and reservation
lands to slate governments.
However. Public Law 2HU — which embodied this shift in philoso-
phy—recogni/.ed the importance of natural resources to Indian culture
and included specific language protecting trust land, and hunting and
fishing rights in accordance with prior treaties:
Nothing in Ihis section shall aulhori/.e alienation, encumbrance, or taxa-
lion of anv real or personal properly rights. belonging to any Indian tribe.
h,mil or coinmimilv that is held in Trust by the United Stales or is subject
ID M nislrii.lion against alienation imposed by tin; I mited Stales: . . . or shall
deprive any Indian or any Indian tribe, Innul or eomiminily of any right,
privilege or immimilv allorded under Kederal treaty, agreement or statute
will) respet I In hunting. trapping, lishin.u or (In- < onlrol, licensing or regu-
lalicm Iliereol.
The preliminary purpose of P1.-2HO, however, was to transfer civil
and criminal jurisdiction over Indians and Indian reservations to stale
governments. Tin; law. passed in 1953. provided three ways for slates
to assume .such jurisdiction:
Section 2 granted immediate jurisdiction to live states (California,
Minnesota. Nebraska, Oregon, and Wisconsin), but in these states
exempted several specific reservations thai had well-organized tri-
bal governments.
Section (i permitted slates with state constitutional clauses limit-
ing jurisdiction over Indians to assume civil and criminal jurisdic-
tion as soon as those clauses were repealed.
Section 7 permitted states without such constitutional disclaimers
to assume jurisdiction over Indians and reservations.
Washington is a Section (i state, and Article XXVI of the Washington
Stale Constitution still reads:
'I'liiit (hi! people inhabiting this slale do agree and declare that they forever
disclaim all right and title to the unappropriated public lands lying within
tin; boundaries ol this slain, and to all lands lying within said limits owned
or hold hy any Indian or Indian tribes; and that until the title thereto shall
have been extinguished by .the United Slates, the same shall be and remain
subject to tlu; disposition of the United States, and said Indian lands shall
remain under tfie absolute jurisdiction and control of (he Congress of the
United States.
One attempt was made to change the Washington State Constitu-
tion to enabli! assumption of civil and criminal jurisdiction over reser-
vations, but thai attempt failed—at least partially because of lobbying
by Indians. Nevertheless, the legislature did pass a law in 1957 permit-
ting assumption of slate jurisdiction by request of tribal governments,
T\
-------
Governing
and then in 1963 the legislature passed a law unilaterally assuming
civil jurisdiction on reservations over specific civil issues.
The consensus of legal scholars is that this legislative, action did
not meet the terms of the federal PL-280; however, the Washington
State Supreme Court upheld the state's action— and since the U.S. Su-
preme Court has recognized the Washington Stale Supreme Court as
the ultimate interpreter of the Washington Stale Constitution, this leg-
islation has been allowed to stand (Baris 1978: Bamberger 1979). Thus
under the present law, Washington State governs in such reservation
matters as compulsory school attendance, public assistance, domestic
relations, mental illness, juvenile delinquency, adoption proceedings.
dependent children, and operation of motor vehicles over public roads.
It must be noted that many Indians, especially those with well-
organized tribal governments, were and still are strongly opposed lo I he
imposition of state law on reservations. It is also clear that if Washing-
ton had been one of the mandatory stales under Section 2 of PL-280.
some reservations would have been excluded from stale jurisdiction
because of federal recognition of the adequacy of their tribal govern-
ance (Bamberger 1979, p. 149). Thus. Washington Stale's unilateral ex-
tension of authority through what many consider doubtful legal pro-
cesses did not reassure Indians that they could "tnisl" slate
government.
The 1960s Philosophy
The 1960s brought another change in federal policy toward Indi-
ans. The reservation termination policy was abandoned and PL-280
was amended in 1968 so that any further assumptions of stale authority
over reservations required consent of the Indians.
More importantly, however, Indian tribes began using legal chan-
nels to challenge violations of treaty rights, with their own lawyers in
addition to those of the federal government. These challenges, includ-
ing those on fisheries rights in Washington slate treaties, in turn forced
federal lawyers to join the Indian suits or risk suit themselves for failing
to represent Indian rights. This interest in protect ing treaty rights be-
came a North American movement, paralleling in lime the nation's
civil rights movement. The results for Indians, from Maine to Alaska.
were dramatic. A large number of challenges, including challenges to
Washington State government, were upheld by the U.S. Supreme Court
and now are recognized as the law through which future conflicts must
be resolved. On Puget Sound the most significant of these challenges on
Puget Sound has focused on fisheries.
Trilxil
I merits
Fisheries Cases
In the Stevens treaties, Indians granted rights to non-Indians to fish
in common at off-reservation locations, hi the 1850s Indian salmon
fisheries relied primarily on fixed site traps and nets, and very few
salmon were taken from boats.
There arc three major advantages to fixed site trap and net fish-
eries. First, location of fishing gear at river mouths means Inking
salmon at peak weight—just after they have reached full growth in the
ocean but before upstream migration when they do not feed and when
the flesh deteriorates. Second, fixed traps and nets on; Ihe most effi-
cient method of taking anadromous fish. Fewer resources and less Isibcir
are needed for Ibis kind of fishery, especially in comparison to Ihe re-
sources and labor needed for seiners and (rollers. And third, trap and
fixed site net fisheries arc biologically the most effective for maintain-
ing maximum fish runs. This is because at this point individual runs
an: sorted out. and escapement on each run can be controlled.
At Ihe time Ihe treaties were negotiated. Indian fisheries manage-
ment was very much decentralized and was focused on individual riv-
ers and streams. Many of the best trap and net sites were owned
through inheritance by the same families generation after generation.
Thus there was considerable self-inlcrcsl in maintaining future runs
since the beneficiaries were the families doing the fishing as well as
oilier members of the tribe fishing the same river. In some cases Indians
were known to go so far as lo regulate escapement between males and
females, rccogni/.ing that fewer males than females are needed for
spawning processes. With these advantages. Indians developed both an
effective fishery and a fisheries management strategy prior lo While sel-
llement.
When settlers arrived in the Puget Sound region, many of the bettor
fishing sites were already occupied by Indians: however, over time
non-Indians joined Indians in Ihe (rap and fixed nel salmon fishery. Hy
common agreement, proprietary rights over trap and net sites were rec-
ogni/ed and often sold by the current occupier to someone else—jusl as
reef net sites off Lumtni Island are today recognized by tradition as be-
longing to particular fishermen who can "sell" the site along with Ihe
gear lo fish it. This trap and fixed net fishery, .however, was a limited
one, in that to obtain a highly productive site one had lo purchase it
from the current holder, and this practice was opposed by others who
wished to become fishermen.
In the late 1800s, when the value of salmon increased as a result of
the introduction of canneries, many Northwest immigrants, familiar
with European net and troll fishing, obtained boats and equipment and
began fishing for salmon before they entered the rivers. The result was
that the number of fish available lo traditional (rap and net fishermen
was reduced.
-------
Governing Pugul Sound/Uish
and tlicn in 19(53 the legislature passed a law unilaterally assuming
civil jurisdiction on reservations over specific civil issues.
The consensus of legal scholars is that this legislative; action did
not meet the terms of the federal FL-280; however, the Washington
State Supreme Court upheld the state's action—and since the U.S. Su-
preme Court has recognized the Washington State Supreme Court as
the ultimate interpreter of the Washington Slate Constitution, this leg-
islation has boon allowed to stand (I3aris 1978: Bamberger 1979). Thus
under the present law, Washington State governs in such reservation
matters as compulsory school attendance, public assistance, domestic
relations, mental illness, juvenile delinquency, adoption proceedings.
dependent children, and operation of motor vehicles over public roads.
It must be noted that many Indians, especially those with \vell-
organi/.ed tribal governments, wen; and still are strongly opposed to the
imposition of state law on reservations. It is also clear that if Washing-
ton had been one of the mandatory stales under Section 2 of PL-2HO.
some reservations would have been excluded from stale jurisdiction
because of federal recognition of the adequacy of their tribal govern-
ance (Hamburger 1979. p. 149). Thus, Washington Slate's unilateral ex-
tension of authority through what many consider doubtful legal pro-
cesses did not reassure Indians that they could "trust" slate
government.
The 1960s Philosophy
The 1960s brought another change in federal policy toward Indi-
ans. The reservation termination policy was abandoned and PL-280
was amended in 1968 so that any further assumptions of state authority
over reservations required consent of the Indians.
More importantly, however, Indian tribes began using legal chan-
nels to challenge violations of treaty rights, with their own lawyers in
addition to those of the federal government. These challenges, includ-
ing those on fisheries rights in Washington slate treaties, in turn forced
federal lawyers to join the Indian suits or risk suit themselves for failing
to represent Indian rights. This interest in protecting treaty rights be-
came a North American movement, paralleling in lime the nation's
civil rights movement. The results for Indians, from Maine to Alaska.
were dramatic. A large number of challenges, including challenges to
Washington State government, were upheld by the U.S. Supreme Court
and now are recognized as the law through which future conflicts must
be resolved. On Pugcl Sound the most significant of these challenges on
Pugct Sound has focused on fisheries.
Tribal (jover
Fisheries Cases
in the Stevens treaties, Indians granted rights lo non-Indians to tish
in common at oil-reservation locations. In the 1850s Indian salmon
fisheries relied primarily on fixed site traps and nets, and very few
salmon were taken from boats.
There are three major advantages to fixed site trap and not fish-
eries. First, location of fishing gear at river mouths means taking
Siilmon at peak weight—just after they have reached full growth in the
ocean but before upstream migration whim they do not feed and when
the flesh deteriorates. Second, fixed traps and nets aro the most effi-
cient method of taking iinadromous fish. Fewer resources and less labor
.•ire needed lor this kind of fishery, especially in comparison lo the re-
sources and labor needed for seiners and (rollers. And third, trap and
fixed site net fisheries are biologically Ihe most effective for maintain-
ing maximum fish runs. This is because at this point individual runs
are sorted mil. ;in
-------
Goven
duel Sound/His/
When .salt-water gill-netting or seining became crowded. (In: ne\l
step was In sail farther from shore in order to intercept fish sooner.
Eventually the point was reached where-fishermen were trolling tor
fish in the North Pacific Ocean.
These offshore fisheries for unadrumous fish were and are ineffi-
cient, and they greatly increase the difficulty of managing the resource.
The management problem arises because it is not possible (o titnii
offshore fishing to a single identifiable run indigenous to a specific
stream or river; instead fish are caught from several runs mixed to-
gether. Even if the number (or proportion of fish) from different runs
once caught could be identified, it is still impossible to take different
proportions of fish from different runs to achieve optimal escapement
to maintain stocks. Instead a crude average is attempted, which means
that loo lew fish escape It) maintain some rims while surplus fish es-
cape in others.
The dilemma is especially acute when hatchery fish arts mixed
with native salmon. Far fe\ver (from one-half to one-tenth as many)
halchery fish need escape to perpetuate a run since hatchery smolt
have a higher survival rate in infancy in (lie hatchery than do native
smolt in the natural environment. Thus managers are frequently faced
with the possibility of risking the virtual elimination of natural runs or
an unnecessary surplus of halchery fish if natural runs aro protected.
Puge! Sound Indians did not move into offshore boat fishing on the
scale that non-Indian fishermen did. One reason was they lacked re-
sources to purchase boats and equipment. While traps can he con-
structed with very little dollar outlay, or small nets used in rivers with
or without small boats, offshore boats and equipment usually require
outside financing from fish companies or banks. Neither has a history
of extending such credit to Indian fishermen, partially because reserva-
tion Indians may have very little properly that could be used for collat-
eral. (Allotments of land cannot be used as security for loans because
they cannot be passed to non-Indian owners.)
Because Indians could not engage in boat fishing on the same scale
as non-Indians and because of regulations that ignored Indian rights to
fish anywhere except on reservations, Indians were virtually excluded
from the commercial salmon fishery on Puget Sound (United Sidles v.
Washington Phase II 1980, p. 4). From 19(50-1974. Indians averaged (J
percent of the statewide salmon harvest (Barsh 11J79, p. 91). and in
1974 the Indian share was 2.4 percent of the commercial catch.
During the 1960s and 1970s, while the proportion of fish taken by
Indians—as well as the total catch—was declining, the two state man-
agement agencies—Fisheries and Game—became increasingly in-
volved in allocating fish among commercial and sports fishermen, as
well as trying to control fishing pressure on declining fish stocks. Other
Tribal Governments
in;iJ);)^f'ini;i)l agencies—the Pacific Fisheries Management
Council and international treaty organixalions—also become involved
in allocating salmon among fishermen with different gear types. In
these management systems Indians were neither represented nor their
treaty rights recogni/.ed, so it was not surprising that few fish were left
by the time the runs reached traditional Indian fishing sites or waters. It
was also not surprising that state agencies declared that those few es-
caping fish were needed to perpetuate the stocks and that Indian
catches on the rivers could therefore destroy the runs. This was the sit-
uation that Indians began fighting both through legal means and
through illegal "fish-ins" in the 1950s and 1960s.
Individual fisheries disputes and court cases were numerous dur-
ing the 19SOs and 1900s and in these cases Indians defended their own
rights without federal assistance. At the same time many enforcement
practices of stale agencies, especially those of the Department of Game,
violated individual Indian rights to due process and involved illegal
confiscation of Indian property. In one 19G7 dispute, a Tacoma judge
went so far as to resolve a fisheries problem on the Puyallup by simply
declaring that the Puyallup Reservation ceased to exist—all law to the
contrary (The Deportment ol Gome v. The Puyallup Indian Tribe 19(57).
Although this decision was later overturned, such decisions did not
contribute to Indian faith in the state court system. Finally in 1974, on
behalf of treaty Indians, the United States initialed Unilvd Slates v.
Washington in the federal District Court in Tacoma. It was this case
over which judge Holdl presided.
Judge Uoldt's decision combined segments of anthropology, his-
tory, law and fisheries science (United Stales v. Washing/on 1974). Its
most important rulings, however, were (1) that treaty Indians are enti-
tled to the opportunity to catch up to 50 percent of the treaty area har-
voslable.salmon under Washington Slate jurisdiction and (2) that when
Indian tribal governments are organized to regulate tribal fisheries and
fishermen they, rather than the state, will undertake that regulation
within all usual and accustomed places and grounds. In addition, judge
Holdt ruled that the salmon catch on reservations for ceremonial pur-
poses and subsistence was not to be counted in the Indian's share. Post-
poned for a later ruling were questions concerning whether Indians
were to be permitted to catch one-half of the hatchnry fish (which in the
interim they wen; permitted to do) and whether Indians had a legal
right to protect fish runs from destruction by govcrninonlaiiy sanc-
tioned activities such as dams, logging, or streambed alteration. While
Judge Boldt's decision would force major changes in fisheries manage-
ment, it should not have been unexpected as it simply followed the
more recent legal precedents of recognizing and protecting Indian
treaty rights by the federal court system (Suluippy v. Smith 1969).
-------
Governing Pugel Soumi/Uish
Reactions to (lie IJoldl decision look three directions: slate fishery
management agencies and fishermen's organizations appealed; soini!
non-Indian fishermen continued fishing in open defiance of new re-
strictions; ami Indians began to d(!vel(i|) and expand tlie district court. This
responsibility should neither escape notice nor IK; fiii-gntti'ii. |p. li'i:))
The U.S. Sii|)reme Court denied hearing further appeal of this decision.
When Judge Boldl's decision was upheld. non-Indian fishermen's
organizations brought suit in state court to enjoin the stale directors ol
Fisheries and Game from implementing the Judge's ordered division ol
the fishery between Indians and non-Indians. Stale courts, ultimately
upheld by the Washington State Supreme Court, ruled that the state
departments could not divide the fishery between Indians and non-
Indians because that would involve violation of equal protection (the
14th Amendment) for all citizens. This series of slate court decisions
was contrary to all previous case law involving Indian treaty rights—
and was simply wrong according to both legal scholars, and the U.S.
Supreme Court (Johnson and Crystal 1
-------
Tribal Hatcheries in Western Washington
CANADA
UNITED STATES
VANCOUVER ISLAND
Lummi
. Nooksack
ikah
. Quileule
**
\
Upper Skagil
Sauk-Suiattle
v , ,",'•«„••
Sllllaguamish
uTulalip
9
Erereii
. Hoh
Port Gamble'|«
Suquamisti y?
Quinault
Seallle
Skokomish
ClfIC OCEAN
Squaxln ftesraig V,Muckleshoot
•»»< Island puyallup „„*»„.
\
Oiympia ^Nisqually
v"
'"' V, *•«•„,,
*>*
Sutiri.i!: N'orlliu'iisl liulian l-'isliciics (.'iininiissiiin
'J'ribai srnnienls
fish if Ilii; fish me destroyed? It is this latter ruling, if upheld, that has
tlu: potential to alter radically tho role of tribal governments in deci-
sions on tile use of Pugel Sound's resources.
The Holdt decisions returned to Indians a voice in managing the
fishery resource, and judge Orrick's decision gave tribes ths right to
protect thai resource from any government approved activity—which,
given current permit systems, includes any significant activity—that
would harm fish runs. Furthermore. theOrrick decision indicated that
as Irustee for Indians, the federal government is obligated to share the
duty to protect the environment to preserve fish runs.
As a result of these decisions tribal governments arc becoming in-
volved in decisions on real estah; projects, logging practices, highway
construction, port developments (such as Northern Tier Pipeline) or
pesticide use- -within the treaty iireu—which includes all of the Pugot
Sound region and most of Western Washington. Although not all legal
battles are concluded, tribal governments have acquired legal status to
play a major role in luture decisions on the use of Puget Sound and its
resources.
Future Directions
Responses to (he Indian fisheries decisions have been what one
would expect from traditional fisheries management agencies: Obtain
federal funds to buy out some non-Indian fishermen, make it easier for
Indians to obtain boats, mid increase hatchery production. Serious
questions can be raised, however, as to whether these approaches will
provide net benefits tor either Indians or non-Indians.
Studies of salmon fisheries have concluded that open entry per-
mits too many fishermen, and that each fisherman spends almost as
much on his boat and equipment as he gets from selling the fish he
catches. Since government also spends large sums on fisheries en-
hancement, it is quite likely that the total cost of running the fishery
(hatcheries and enhancement costs plus boat and equipment costs) ex-
ceeds the total value of the salmon caught—and hence a valuable fish-
ery results in net losses for society instead of net gains (e.g. Crutchfield
andPontecorvo 1'Hi'), ch. 9).
It is difficult to find a rationale why Indians should replicate the
errors of the non-Indian fishery by investing large sums in boats to
chase salmon around tlu; North Pacific when they could wait for them
to return to the mouths of nearby rivers and streams to be caught in
traps or fixed site nets. Fisheries could be managed so that non-Indians
would no longer intercept the fish offshore before (hey reach the Indi-
ans' fishing facilities. This approach becomes even more appropriate if
)udge Orrick's ruling—that Indians can prevent destruction of the fish-
ery environment from other government-sanctioned activities—is
upheld.
-------
(ioveniing Pugc'l Sound/
If Indians adopted such an approach, however. i:ould nun-Indian
fisheries continue to be fished and managed as they currently are and
still moot the 50 percent catch limit—while Indians manage on a
stroam-by-stream basis? Probably not unless a way can be devised to
manage mixed stock offshore fisheries that include runs destined for
many streams to assure proper escapement lor each individual run. Un-
til that way can be found, Indians probably will rely relatively more on
native fish and insist on taking their share from these stocks, and exces-
sive escapement of hatchery fish will be required until hatchery and
native runs separate—which occurs in the river system rather than
offshore.
II would appear sensible lor sluli: agencies lo manage salmon mi a
slreiim-by-stream basis ami eliminate open water fisheries. While in the
past (his may not have been possible because of offshore foreign fishing
on Pugct Sound stocks, emerging international agreements, recogni/.ing
that anadromous fish are the resource and responsibility of the country
within which they spawn, could make a radical return to the Indians'
method of fishing feasible. It is clearly not the approach that non-In-
dian fishermen would prefer—but some people believe that if the re-
sults of past fisheries management in Washington are an indication,
perhaps salmon management is too important to be left to fishermen,
especially if the result is a net economic loss for everyone.
Tribal Governments and Coastal Resource Use
Tribal governments hold a unique place in the American federal
system. Within their reservations, they may exercise authority similar
to that exercised by local governments. Tribal governments may also
incorporate lo undertake profit-making businesses—a power that local
governments in Washington State lack. Thus tribal governments may
engage in resource use enhancement by constructing and operating fa-
cilities such as marinas, sewage disposal plants, parks, docks, and lish
hatcheries. They may also develop facilities such as resorts or canner-
ies, or combine local government activities with business activities.
In addition to the authority to use and enhance shoreline re-
sources, tribal governments also have the authority to undertake taxing,
general land use planning, and x.oning within their reservation bounda-
ries. When one remembers that many tribal reservations are occupied
by non-Indian landowners (such as the Puyallup Reservation), this can
pose a real dilemma because non-Indian owners cannot participate in
tribal governance. This area of law, however, is somewhat like fisheries
law of the 1960s, and it is not clear whether judges in subsequent litiga-
tion will follow Judge Boldt by enforcing Indian treaty rights, or find
some way around the implementation of tribal authority in reservation
areas such as the Port of Tacoma (Slagle 1979). Tribal authority, com-
Tribu/ G'
bined with the shoreline location of most reservations, has the poten-
tial of being an important factor in the future.
Summary
Indians and Indian reservations occupy a unique situation in the
American federal system. Historically they have been subject to ex-
treme changes in federal policy, and Indian treaty rights have not al-
ways been respected by federal and state governments.
Since the 1970s, however. Pugct Sound tribes have won major
court victories, assuring respect for their treaties not only in terms of
the right tci fish, but also assuring them of the right to participate in
lislieries niiiiijigeiiiriil decisions and decisions on any other activity re-
quiring government approval lliiil could have a negative impact upon
the fishery environment. Recent decisions go far beyond fisheries and
provide the basis for tribal governments to play a major role in deciding
future uses of I'ugcl Sound's resources.
Notes
Two major pre-Holdt sources of information on Indian issues are Price's
(l!)7:i) collection of readings, notes and cases [Law mid l/ie Amnncnn Indian),
and Ihi! American Friends Service Committee, (/ii), liaris (1078). and Uamberger (1979), and attempts
to apply mth Amendment equal protection rights to treaty issues are analyzed
in Johnson and Crystal (1979) and McConaiighy (1978). Additional references
are cited in the text and listed in the bibliography.
-------
THE STATES VERSUS INDIAN OFF-RESERVATION
FISHING: A UNITED STATES SUPREME COURT ERROR
By Ralph W. Johnson
WASHINGTON LAW REVIEW
Volume 47, Number 2, 1972
ARTICLES
THE STATES VERSUS INDIAN
OFF-RESERVATION FISHING: A UNITED
STATES SUPREME COURT ERROR*
Ralph W. Johnson*
Pacific Northwest Indian tribes signed treaties with the United
States in the mid-1850's which guaranteed them the permanent right
to fish at their usual and accustomed fishing sites off the reservations.
The Indians believe these treaties mean that those states which did not
exist in 1855 have no power to regulate Indian off-reservation fishing
under any circumstances. State officials, on the other hand, have con-
sistently argued that Indian off-reservation fishing is subject to the
same state regulation as non-Indian fishing. The United States Su-
preme Court has basically accepted the states' position, holding that
states can regulate off-reservation fishing when "necessary for conser-
vation." In 1896, 1905 and again in 1942 the Court, in dictum,
adopted that proposition.1 The error was compounded in 1968 in
Puyallup Tribe v. Department of Came?- The question of whether the
states have power to regulate off-reservation fishing was relevant in
t I urn indebted to ihc following persons for reading and commenting upon drafts of
this study: Mr. Edward Weinberg, former solicitor for the Department of the Interior;
Professors Charles E. Corker and Arval Morris of the School of Law; Dr. Gardner
Brown (economic aspects) and Dr. Donald Bevan (fisheries aspects). I am also indebted
to former law students Joel Bcnolicl, I.eo LeClair and Woodrow Wallen, who prepared
research papers on different aspects of the Indian fishing rights question in my Indian
Legal Problems Seminar during 1969-71.
* Professor of Law, University of Washington. B.S. in Law, 1947, LL.B., 1949, Uni-
versity of Oregon.
I. Ward v. Race Horse. 163 U.S. 504 (1896); United States v. Winans, 198 U.S. 371
(1905);Tulee v. Washington. 315 U.S. 681 (1942).
2. 391 U.S. 392(1968).
207
-------
WashinfWT Law Review
Vol. 47: 207, 1972
Puyallup, but the Court, as in previous cases, simply reiterated its ear-
lier assumption without analysis of why the states have such power.3
No valid basis for the existence of such state power can be found.
The Constitution of the United States provides that treaties are the
"supreme law of the land." Because agreements with the Indians are
treaties,4 the Indians are not subject to state regulation unless the
treaty so provides or unless Congress so legislates. The treaties with
the Indians do not provide for state regulation and Congress has never
authorized such regulation. Therefore, the Supreme Court should
clearly hold that the states have no power to regulate Indian
off-reservation fishing unless and until Congress expressly delegates
the power to do so. This problem will be examined in detail.
If the Court nevertheless continues to hold that the states have the
power to regulate off-reservation fishing, it will have started down a
precarious and trouble-strewn path which must be followed to its end.
The Court must create standards to guide the states in the exercise of
their power. Some constraints have already been imposed by the
courts. However, these standards are notoriously vague,5 and the
states have capitalized on this vagueness to create regulatory patterns
for salmon fishing which consistently deny the Indians substantial
fishing opportunities. Moreover, the vagueness of the case law stan-
dards portends a continuing series of clashes between the Indians and
3. In State v. Moses. 79 Wn.2d 104. 483 P.2d 832 (1971), Ihe Washington Supreme
Court was confronted again with off-reservation fishing rights and noted the lack of judi-
cial analysis of the critical "in common" phrase in the treaties. Id. at 108, 483 P.2d at
834. The "in common" language is discussed in text accompanying notes 22-29, infra.
4. That the agreements with the Indians are treaties is too well supported by Su-
preme Court decisions to be questioned. It is sometimes said, however, that these agree-
ments are over 100 years old and are now so ancient they can legitimately be ignored. If
this is true one might argue for the discarding of the United States Constitution, the
Oregon Treaty of 1846 (setting the boundary between the United States and Canada) or
the land grants to the railroads in the mid-1800's.
5. Vagueness poses difficult problems for Indian fishermen who are, under our legal
system, presumed to know the law. That is an awesome task, as will be demonstrated
below. It is attested to by Washington Governor Daniel J. Evans' support of H.B. 1004,
IstSess. [Wash. 1971] and H.B. 1005, 1st Sess.jWash. 1971). These bills were designed
to stop further arrests of Indians and confiscation of fishing gear where the fisherman
contends, in good faith, that he is fishing under a treaty right. A moratorium would have
been declared, presumably until such time as the courts or Congress clarified the law.
The bills died in committee.
In State v, Moses, 79 Wn.2d 104, 483 P,2d 832 (1971), Justice Hale, writing for the
majority, noted the legal confusion concerning Indian treaties, especially concerning
fishing rights:
Evanescent as the morning mists on the shimmering waters of Puget Sound is the
law of Indian treaties. One moment it is there, soon to vanish in a swirl of conflict-
208
Indian Fishing Rights
the states, each seeking to carve out the broadest possible claim in this
legal thicket. But the creation of adequate standards will not be an
easy task. It is not too late for the Court to correct its earlier errors
and remove itself from a field better left to Congress.
Before examining the treaties, the relevant treaty law, the states'
power to regulate, and the lack of adequate regulatory standards, it is
important to understand the factual background of the problem. The
origin of the Indians' right to fish off the reservation does not rest in
the treaties. Its basis is the Indian practice, running from time imme-
morial, of fishing in these locations as a means of livelihood. As "man-
ifest destiny" brought waves of white settlers westward, the Indians
were forced to give up much of the land they had formerly occupied,
hunted, and fished. In the late 1850's the United States signed treaties
with the tribes of the Pacific Northwest in order to define the rights of
this country and its citizens and the rights of the Indians. These
treaties were "not a grant of right to the Indians, but a grant of a right
from them—a reservation of those not granted."6 One oft-forgotten
aspect of these treaties is that they define the rights and obligations of
the United States and its citizens vis-a-vis the Indians, as well as the
rights of the Indians themselves.
Indians, insisting on recognition of their rights, have been chal-
lenging present interpretations of the treaties.7 Until the late 1950's,
ing, diverging and incomprehensible precedents. Decisions intended to declare the
meaning and 10 describe Ihe effect and operation of Indian treaties tend in time to
generate a system of judicial vapor trails which obscure more often than elucidate
the treaties under consideration. This is another Indian fishing case that leaves un-
answered more questions than it resolves.
/(/. at 104, 483 P.2d at 832. Justice Finley, although dissenting, agreed that "the law of
Indian treaties has suffered from a most disjointed and enigmatic development in pub-
lished opinions of the courts." Id. at 119, 483 P.2d at 840.
6. United States v. Winans, 198 U.S. 371, 381 (1905).
7. It is true that much has happened in the field of Indian related law in the years
since Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) I (1831). Therein Chief Justice Mar-
shall described the Indian tribes as "domestic dependent nations." Id. at 17. Some of the
highlights of this history provide an important background to the fishing rights issues.
In 1835 President Jackson ordered the Indians to move to the West because he felt
that they could not survive living near non-Indians. In ordering them west, he said:
A country west of Missouri and Arkansas has been assigned to them, into which the
white settlements are not to be pushed. No political communities can be formed in
that extensive region, except those which are established by the Indians themselves
or by the United Slates for them and with their concurrence. A barrier has thus
been raised for their protection against the encroachment of our citizens, and
guarding the Indians as far as possible from those evils which have brought them to
their present condition....
H. COMMAGER. DOCUMENTS OK AMERICAN HISTORY 260-61 (7th ed. 1963). In 1871 Con-
209
-------
Washington Law Review
Vol.47: 207, 1972
Indians tried only occasionally to fish at their off-reservation treaty
fishing sites, since the personal and financial costs of arrest, trial, con-
fiscation of fishing gear, and jail confinement were too high. However,
in recent years their insistence on both cultural and legal independ-
ence has resulted in a series of demonstrations and lawsuits designed
to put an end to the gradual erosion of their way of life. One con-
sequence is that Indians are now fishing in a variety of renewed,
off-reservation locations where they had not fished since the last cen-
tury, and the states, after reexainining the treaties, are consenting to,
or acquiescing in, this action.
Perhaps one cause of the trouble can be attributed to the many
years of relative acceptance by the Indians of state regulation of their
off-reservation fishing rights. During this time the states, rightly or
wrongly, have developed an integrated system of fishery management
which must now be modified if the Indians' claims are to be accom-
modated. But defenses of laches and estoppel are not very persuasive
in light of the economic plight of the Indians and the cost of compe-
tent legal counsel to protect Indian rights.
gress provided (hal no mure treaties should be signed with Indian tribes. Then, in 1881,
President Arthur formally announced a termination policy by proposing the General
Allotment Act (Dawes Act), 25 U.S,C. § 331-32, 348 (1970), by which Indian reserva-
tions would be divided up and deeded to individual Indians, so (hey "would be per-
suaded to sever their tribal relations and engage at once in agricultural pursuits." Sec H.
COMMAGER, supra at 556. The Allotment Act system, enacted in 1887, failed miserably.
Sec Comment, Too Little Land, Too Many Heirs—The Indian Heirship Land Problem.
46 WASH. L. REV. 709 (1971). The Indians were not instructed in agriculture and were
not interested in farming. Indian landholdings were reduced from 138,000,000 acres in
1887 to 48,000,000 by 1934. Hearings on S. 2755 Refure the Si-nriie Committee on In-
dian Affairs, 73d Cong., 2d Sess., Ser. 2, pt. I, at 17 (1934). The Indian Reorganization
Act of 1934 recognized this failure and stopped further allotments; it also provided for
Indian self-government by empowering tribes, if they wished, to form corporate
self-governments to deal with the white man's banks, corporations and state and local
governments. This Act resulted in a partial revival of Indian sovereignty and independ-
ence. Then in 1953 House Concurrent Resolution 108 was adopted by Congress, again
formally declaring a termination policy. The Resolution was followed in the same year
by Public Law 280, I8U.S.C. § 1162; 28 U.S.C. § 1360(1970). Public Law 280 author-
ized various slates to assume jurisdiction over certain reservations. The Klamath and
Menominee reservations were terminated within the next few years and various other
reservations are still being considered for dissolution. The termination policy came under
increasing criticism in the I960's. Federal policy again changed in the late 1960's, culmi-
nating in the formal announcement by President Nixon in July, 1970. opposing the ter-
mination policy, and the introduction in Congress by Senator Jackson and others of
Senate Concurrent Resolution 26 designed to expressly repeal the 1953 termination res-
olution. In the meantime Congress enacted, in 1968, the Indian Civil Rights Act, 25
U.S.C.A. § 1302-03 (1970), which attempted to extend the protections of the Bill of
Rights to Indians in their tribal affairs. The 1968 Act also authorizes the states and the
Indian tribes to agree on "retrocession," i.e., the removing of state jurisdiction over Indian
reservations. Many reservations are now negotiating with the stales for retrocession.
210
Indian Fishing Rights
Accommodating the states' fishery management programs with In-
dian claims will be especially difficult due to the changes in conditions
affecting the fisheries which have taken place during the 120 years
since the treaties were signed. Dams have been built, rivers have been
polluted, and the number of commercial and sports fishermen has
drastically increased.8 These activities have substantially reduced, and
in some cases have destroyed, the salmon runs which the Indians ear-
lier had fished. Moreover, the number of salmon today is considerably
less than it was 120 years ago,9 although precise comparative data is
unavailable since no one kept accurate records in 1855. At present
Indians only catch approximately five percent of the salmon harvested
in Oregon and Washington.1" The non-Indian harvest in 1855 prob-
ably did not exceed three to five percent of the harvestable fish.
Even more important than size is the location of today's non-Indian
fishery. Both commercial and sports fishing occurs in the ocean, the
Straits of Juan dc Fuca, and Puget Sound, before the fish get to the
traditional Indian fishing sites on their way to their spawning grounds.
When the salmon arrive at the Indian fishing locations along the
streams and rivers, few are left, and they are needed for spawning.
Claims that the Indians can go elsewhere and fish with non-Indians
fail to recognize that the Indians' economic plight denies them the
technological capacity to compete with non-Indian fishermen at other
locations.
Against this general background, it is now necessary to examine the
treaties guaranteeing Indian fishing rights and the way in which those
treaties have been interpreted by the courts.
8. In 1855 no records were kept of the number of fishermen. General history rec-
ords suggest that the number of non-Indian fishermen was no more than a few dozen.
Recent data shows the following increase in commercial fishing licenses in Washington
and the Puget Sound area:
Tvpe i>f Fishing Gear 1935 1969
Purse Seine 215 384
Reef Net 20 63
Gill Net 1014 1466
WASHINGTON DEPAKTMI:NI oi: Fisiif.Kits, 1969 FISHERIES STATISTICAL REPORT 87
(1969). The sports fishery was also insignificant in 1855. Between 1946 and 1969 the
sports fishing harvest of Chinook salmon increased from 84,400 fish to 267,100 fish. The
harvest of Coho (Silver) salmon increased from 109.700 to 497,500. Id. at 91.
9. The Washington canned salmon pack for the period 1900 to 1915 averaged close
to 1,000,000 forty-eight pound cans. For the period 1955 through 1969, the average was
approximately 300,000 cans. Id. at 13.
10. Id. at 13, 22, 71.
211
-------
Washir
| Law Review
Vol.47: 207, 1972
Indian Fishing Rights
I. THE TREATIES
The validity of the Indians' claims of exemption from state regula-
tion depends initially on the interpretation of the language of the
fishing rights treaties. Do these treaties, by their own terms, provide
for eventual state regulation of off-reservation fishing? The answer
can be found only through a careful examination of the treaties them-
selves and the circumstances surrounding their signing.
The basic question concerns what the signers of the treaty meant
when they wrote: "The right of taking fish, at all usual and accus-
tomed grounds and stations, is further secured to said Indians, in
common with all citizens of the Territory."11 This language appeared
in the Medicine Creek Treaty,12 ceding to the United States the terri-
tory of the Nisquallys and Puyallups. Virtually identical language was
included in the Treaty of Point Elliot,13 the Yakima Treaty,14 and
other 1855 treaties.15 The critical phrase is "in common with all citi-
zens of the territory," It is remarkable that, as important as this lan-
guage is to the Indians' claim, no legal scholar has yet attempted to
explain the Indians' position.
The "in common" language is often cited as the source of the states'
right to regulate Indian fishing. One popular version is that it guaran-
teed to the Indians a right to fish which they otherwise would not have
had; that is, it somehow raised them to a status of equality with the
settlers, giving them the same rights as the settlers had and no more.16
Unfortunately the "in common" language has never been given the
11. Treaty with the Nisquallys (Medicine Creek Treaty), December 26, 1854, art.
Ill, lOStat. 1132(1855).
12. Id.
13. Treaty with the Duwamish Indians, January 22, 1855, art. V, 12 Slat. 927
(1863). The Indians now living on the Muckleshoot Reservation were also party to these
treaties and are entitled to the fishing rights defined in them, although the Muckleshoot
Reservation was created by Executive Order rather than Treaty.
14. Treaty with the Yakimas, June 9, 1855, art. Ill, para. 2, !2Stat. 951 (1863).
15. Treaty with Tribes of the Middle Oregon, June 25, 1855, art. I, 12 Slat. 963
(1863); Treaty with the Walla Walla, June 9, 1855, art. I. 12 Stat. 945 (1855); Treaty with
the Nez Perces, June II, 1855, art. Ill, 12 Stat. 957(1863).
16. In United States v. Oregon (SoHappy v. Smith), 302 F. Supp. 899 (D. Ore.
1969), the state of Oregon contended that this language meant that the state must deny
the Indians the right to fish at a given location unless it also allowed non-Indians to fish
there with the same gear, on the ground that the equal protection clause of the Constitu-
tion prohibited special treatment for Indians. The trial court rejected the theory as "fan-
tastic." Id. (oral opinion of Judge Belloni). The court said that the treaties clearly per-
mitted the Indians to fish at different locations and with different gear than the
non-Indians, and that such provisions are clearly constitutional. In other words, the
careful consideration by the courts that it deserves.17 It cannot be ra-
tionally interpreted merely to put Indians on an equal basis with set-
tlers.
It must be remembered that these treaties were not grants from the
United States to the Indians. They were mutual agreements between
two parties, in which the Indians granted certain rights to the settlers
and the settlers guaranteed certain rights to the Indians. Read in this
light, and in light of the circumstances of the time, the meaning of the
"in common" language becomes clear. By this phrase the Indians
granted to the non-Indians the right to fish with them at the tradi-
tional sites. Therefore, "in common with" means "as well as to." Al-
though this language does not prevent non-Indians through their own
government from prohibiting themselves from fishing at the tradi-
tional sites,18 it does prohibit the Indians from thereafter denying
non-Indians the right to fish there. As the Washington Supreme Court
said in State v. Satiacum: "[W]e believe that the phrase 'in common
with [all] citizens to the Territory' merely granted the white settlers
and their heirs and/or grantees a right to fish at these places with the
Indians."1"
This construction is reinforced by recalling the situation that ex-
isted in 1855 when the treaties were signed. At that time it was
thought that timber, fish, clean water, and even land existed in such
abundance that no one need be concerned about eventual depletion.
The salmon runs were so large, and the number of fishermen so small,
that only a small fraction of the harvestable fish were taken by anyone
—Indians or otherwise. The state of Washington was not created until
1889. The creation of a state, and the ensuing population explosion,
states have power to regulate non-Indians differently than Indians because non-Indians
have no treaty rights vis-a-vis their own government. The constitutionality of such spe-
cial regulations is carefully analyzed in Comment, Suite Power and the Indian Treaty
Kifi/tt to /-Y.V/J, 59 CALIF. I.. RKV. 485, 498 (1971).
17. The Washington Supreme Court in State v. Moses, 79 Wn.2d 104, 108, 483 P.2d
832. 834 (1971), still felt constrained to say: "Surprisingly little judicial attention ...
hns been given to this rather slandard treaty language."
18. Non-Indians sometimes argue that if Jihe Indians can rely on the treaties to
avoid state regulation then so can the non-Indians, because the United States signed the
treaties on their behalf. .SVt- note 16, xupra. But this does not follow. The non-Indians
have empowered their governments to requisite their fishing, and those governments are
restrained in that regulation only by their own constitutions and laws. A state regulation
prohibiting non-Indian fishing at a given location, whether an Indian fishing site or not,
does not violate the treaty rights of the non-Indians. It has nothing to do with those treaty
rights.
19. 50 Wn.2d 513, 523, 3 14 P.2d 400, 406(1957).
212
213
-------
Washington Law Review
Vol.47: 207, 1972
technological development, dam construction, river pollution, and
extensive non-Indian fishing requiring comprehensive salmon manage-
ment were certainly not foreseen. Hydroelectric power had not been
conceived of. No salmon canning occurred anywhere on the West Coast
in 1855 or for many years thereafter.20 As the Washington court said
in Satiacum, there is no reason to believe the Indians "anticipated the
future sovereign to limit them."21
These circumstances have an obvious bearing upon the construc-
tion of the treaty language. They also aid in an understanding of the
purpose of the treaties, and in Winters v. United States'1- and Arizona
v. California23 the Court made it clear that Indian treaties should be
construed to effect the purposes for which they were signed. Winters
arose out of an Indian claim to water rights on a reservation in Mon-
tana, where the treaty establishing the reservation made no mention of
water at all. When the Indians agreed to settle on a specific arid desert
tract and give up their roaming, hunting, and foraging, they under-
standably assumed that water would be available for irrigation. If they
got only desert land without water then the treaty was a fraud. The
Court held that the Indians were entitled to all the water necessary to
irrigate the reservation, state laws a»d state-created water rights to
the contrary notwithstanding. Such a right was construed to be an
implied term of the treaty. This doctrine was affirmed in Arizona v.
California, where the Court held that the Indians were entitled to an
amount of water measured not by the number of Indians living on the
reservation, but by the amount of irrigable reservation land.
What, then, was the purpose of the 1855 treaties? Both Indians and
settlers realized that the Indians' freedom to move about across the
land was coming to an end. The pressures of "civilization" from the
immigrating settlers and from the Anglo-Saxon system of land owner-
ship required that the Indians live on specific tracts of land. The In-
dians knew this. Both sides realized, too, that in order to provide the
Indians with a continuing means of livelihood—clearly one of the
main purposes of the treaties—the land reserved to the Indians had to
be so located that they could continue their principal means of liveli-
20. R. VAN CLEVE & R. JOHNSON, MANAGEMENT OF i ME HIGH SEAS FISHERIES OF THE
NORTHEASTERN PACIFIC 15(1963).
21. Satiacum. 50Wn.2d513, 522, 314 P.2d 400, 405 (1957)
22. 207 U.S. 564 (1908).
23. 373 U.S. 546(1963).
214
Indian Fishing Rights
hood, fishing. The United States Supreme Court, at a time much
closer to the treaty date than the present, recognized that " [t] he 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."24 Be-
cause the reservations set aside were not large enough to include all of
the Indians' traditional fishing sites, the treaties guaranteed the In-
dians the right to continue taking fish off their newly established reser-
vations.
Winters requires that this purpose of providing the Indians a con-
tinuing means of livelihood by guaranteeing their off-reservation
fishing rights must be given effect in the construction of the treaties.
The case for the Indians is even stronger here than in Winters because
the Indian fishing rights, unlike the water rights, were explicitly pre-
served in the treaties. It is unrealistic to argue that these off-reservation
sites were somehow to be less secure than the on-reservation sites, the
latter being concededly beyond state regulation. The treaties neither
stated nor implied such a rule.25
Under this construction of the treaties, a clear conflict exists be-
tween the states' regulatory schemes and the Indians' treaty rights.
The Constitution requires the state regulations to yield.
II. TREATY LAW
Under the United States Constitution the states should have no
power to regulate Indian off-reservation, treaty-protected fishing.
That document provides that the "Constitution ... of the United
States . . . and all Treaties . . . made, under the Authority of the
24. United States v. Winans. 198 U.S. 37 1. 381 (1905).
25. it is importune to remember that the treaties with the Pacific Northwest Indians
were written in the English language, a language unfamiliar to the Indians. The treaties
were explained lo the Indians in the Chinook jargon, a limited trade language of some
300 words which in no sense could be considered adequate to explain the precise
meaning of the agreements to the Indians. Thus the Indians had to rely upon the good
faith of the white treaty drafters to write into the treaties the rights the Indians were told,
and assumed, they were getting. The courts have often recognized the need to construe
treaties with the Indians as the Indians fairly understood them. Sec AMERICAN FRIENDS
SLRVICI-. COMMIT ii-iu UNCOMMON CONTHOVI-KSY: FISHING RIGHTS OF THE MUCKI.ESIIOOT,
PuYAU.ui', AND NISOUAI.I.Y INDIANS 23 (1970); United States v. Winans, 198 U.S. 371,
380-81 (1905), Menominee Tribe v. United States, 391 U.S. 404, 406(1968).
215
-------
Washiil
Law Review
Vol. 47:207, 1972
United States, shall be the supreme Law of the Land; and the Judges
in every State shall be bound thereby, any thing in the Constitution or
Laws of any State to the Contrary notwithstanding."26 A state has no
power to amend the United States Constitution, nor can it amend or
abrogate a treaty entered into between this nation and some other na-
tion,27 or with an Indian tribe.28 Where state law comes into conflict
with a treaty, the state law must give way,29 The treaties establishing
Indian off-reservation fishing rights are self-executing, requiring no im-
plementation by federal legislation.30 Treaties can be renegotiated by
the original parties.31 Also/Congress may unilaterally abrogate either
part or all of a treaty without the consent of the other party.32 Con-
gress has not done so, however, with regard to Indian off-reservation
Ashing rights.
The basic doctrine with respect to the conflict between state laws
and treaties was established in Missouri v. Holland.33 In 1916 the
United States entered into a treaty with Great Britain34 for the pro-
tection and management of migratory waterfowl. The State of Mis-
souri challenged a federal statute designed to implement that treaty.
The Supreme Court rejected the state's challenge, saying that the
treaty overrode state law; "Valid treaties of course are as binding
within the territorial limits of the States as they are elsewhere
throughout the dominion of the United States."35 Underlying the
Court's rationale was the premise that: "To allow the legislation of the
subordinate political entities [states] to negate treaties would contra-
26. U.S. CONST, art. VI.
27. Missouri v. Holland, 252 U.S. 416 (1920).
28. In Worcester v. Georgia, 31 U.S. 515 (1832) the Supreme Court declared void a
Georgia statute that attempted to change a treaty right of the Cherokee Nation. Chief
Justice Marshall held that the state was powerless to enact laws affecting the
treaty-created reservation, saying: "The whole intercourse between the United States
and this nation, is, by our Constitution and' laws, vested in the government of the United
States." Id. at 560-61.
29. Missouri v. Holland, 252 U.S. 416 (1920).
30. Puyallup Tribe v. Department of Game, 391 U.S. 392 (1968).
31. Ste Cherokee Nation v. Hitchcock. 187 U.S. 294 (1902); Lone Wolf v. Hitch-
cock, 187 U.S. 553(1903).
32. It is generally conceded that the United States has plenary power to abrogate
Indian treaties. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). But this says no more
than is true of treaties with France, Great Britain, or any other nation. The Supreme
Court has, however, recognized the important status of treaties and has said that if Con-
gress wishes to abrogate one it must do so explicitly; a treaty right will not be affected
by implication. Menominee v. United States, 391 U.S. 404 (1968).
33. 252 U.S. 416(1920).
34. Convention with Great Britain, August 16, 1916, 39 Slat. 1702, T. S. No. 628.
35. Missouri v, Holland, 252 U.S. at 434 (1920).
216
Indian Fishing Rights
diet the idea of national sovereignty expressive of the purposes of
union."36
In Menominee v. United States,31 the Menominee Indians sued in
the Court of Claims for the loss of their hunting and fishing rights,
which the Wisconsin Supreme Court, in an earlier case,38 had held
had been abrogated by the Menominee Termination Act of 1954.39
The Termination Act had not mentioned these rights. Public Law
280, of 1953, which the Wisconsin court said should be read in pan
materia with the Termination Act, had provided that: "Nothing in
this . . . [Act] shall deprive any Indian or Indian tribe, band, or
community of any right, privilege, or immunity afforded under federal
treaty, agreement, or statute with respect to hunting, trapping, or
fishing or the control, licensing, or regulation thereof."40 The Court
rejected the rationale of the Wisconsin Supreme Court decision: "We
decline to construe the Termination Act as a backhanded way of ab-
rogating the hunting and fishing rights of these Indians. While the
power to abrogate these rights exists ... 'the intention to abrogate or
modify a treaty is not to be lightly imputed to Congress.' "41 If the
Court meant what it said, then neither Oregon nor Washington can
regulate Indian fishing rights unless Congress clearly empowers them
to do so. It has not done that. In fact, the principal statement by Con-
gress on the question of fishing rights, Public Law 280, has just the
opposite effect.42
The recent Michigan Supreme Court decision in People v. Jon-
dreau43 affirms this principle. The court held that Michigan fishing
regulations do not apply to a Chippewa Indian fishing in Keweenaw
Bay on Lake Superior and that it was immaterial whether the waters
36. W. GOULD, AN INTRODUCTION TO INTERNATIONAL LAW 331 (1957).
37. 391 U.S. 404(1968).
38. State v. Sanapaw. 21 Wis.2d 377, 124 N.W.2d 41 (1963). Wisconsin prosecuted
three Menominees for violating state fishing regulations and the Wisconsin Supreme
Court held that the State regulations were valid, as the hunting and fishing rights had
been abrogated by the Menominee Termination Act.
39. 25 U.S.C. §§ 891-902(1970).
40. 18U.S.C. § 1162(1970).
41. Menominee, 391 U.S. at 412-13, citing Pigeon River v. Cox, 291 U.S. 138, 160
42. The Senate also considered the question of off-reservation fishing rights in 1964,
in S.J. Res. 170, 88th Cong., 2d Sess. (1964). That resolution would have explicitly rec-
ognized the existence of such rights and made them subject to state regulation. S.J. Res.
171, 88th Cong., 2d Sess. (1964), introduced at the same time, would have extinguished
those rights by purchase. After hearings, both resolutions died in Committee.
43. 384 Mich. 539, 185 N.W.Zd 375 (1971).
217
-------
Washington Law Review
Vol. 47:207, 1972
in question were on the reservation or off. The right to fish was ex-
pressly reserved in the Chippewa treaty. The, court rejected the argu-
ment that state regulation was justified because of the necessity of
managing the fishery, quoting with approval from an Idaho opinion:44
We are not here concerned with the wisdom of the provisions of the
treaty under present conditions nor with the advisability of imposing
upon the Indians certain regulatory obligations in the interest of con-
serving wild life; that is for the Federal Government, the affected
tribe, and perhaps the State of Idaho to resolve under appropriate
negotiations; our concern here is only with reference to protecting the
rights of the Indians which they reserved under the Treaty of 1855 to
hunt upon open and unclaimed land without limitation, restriction or
burden.
The Washington Supreme Court came to the same conclusion in State
v. Satiacum, saying that the off-reservation fishing right of the Indians
was not subject to "state regulation, so long as the right shall not have
been abrogated by the United States."45
Under these well-established rules, the view of the United States
Supreme Court that states can regulate Indian off-reservation fishing
because of the necessity for conservation is not tenable. First, the
treaties cannot be rationally interpreted to contain such an exception.
But even if such an exception is held to exist, state regulation is not
necessary for conservation. The argument to the contrary rests upon
the fallacy that if the states cannot regulate the Indians then no one
can, and the salmon will be overfished and wiped out. The fact is that
if Indian fishing does pose a real threat to the salmon then Congress
has authority to regulate this fishing. Federal legislation could estab-
lish appropriate standards and encourage cooperation between the
Indians and the states. The National Marine Fisheries Service is a fed-
eral agency with sufficient expertise in the field of salmon manage-
ment to implement any federal legislation. The Bureau of Indian Af-
fairs might also assist in such an enterprise. This solution not only
would be consistent with the treaties and the law of the land but also
would have an important practical advantage. One can reasonably
assume that both the states and the Indians would like some clear
44. Jondreau, 185 N.W.2d at 380, citing State v. Arthur, 74 Idaho 251, 264, 261
P.2d 135, 142(1953).
45. 50Wn.2d513,524, 314 P.2d 400, 406 (1957).
218
Indian Fishing Rights
definition of their rights in this area. Rational negotiations between
the groups are not feasible now because of the uncertainty of the
rights involved and the fear of conceding-too much. Once these rights
are known more productive negotiation should be possible.
Nevertheless, the Court has permitted the states to regulate
off-reservation fishing when "necessary for conservation." The next
part of this article traces the development of this doctrine.
III. HOW TO CREATE A BODY OF LAW BY ACCIDENT
The legal relation of off-reservation Indian fishing rights to state
regulation is contained in four United States Supreme Court cases,46
two Ninth Circuit decisions,47 one federal district court case,48 and
five state supreme court decisions.49 The four Supreme Court cases
present a tragic tale of a court that has accidentally, while deciding
other issues, created a body of law authorizing state regulation of In-
dian fishing rights. None of the opinions has ever explored the basis or
implications of this dicta-based rule. Contributing to this state of af-
fairs is the fact that the United States, as guardian and trustee of the
Indians' rights, conceded the Indians' best position without argument
in the one recent case where the issue might have been directly pre-
sented.50 The discussion of these cases is organized chronologically to
demonstrate the accidental approach by which the Court has arrived
at a rule that the states could regulate Indian off-reservation fishing
rights, a rule which has generated confusion among lower federal and
state courts.
The earliest case is Ward v. Race Horse.51 Race Horse, a Bannock
Indian living on a reservation in Idaho, sought a writ of habeas corpus
in a federal court after his arrest in Wyoming for killing seven elk in that
46. Ward v. Race Horse, 163 U.S. 504 (1896); United States v. Winans, 198 U.S.
371 (1905); Tulee v. Washington. 315 U.S. 681 (1942); and Puyallup Tribe v. Depart-
ment of Game, 391 U.S. 392(1968).
47. Makah Tribe v. Schoettler, 192 F.2d 224 (9thCir. 1951); and Maison v. Confed-
erated Tribes, 3 14 F.2d !69(9.thCir. 1963).
48. United States v. Oregon (SoHappy v. Smith), 302 F.Supp. 899 (D. Ore. 1969).
49. State v. Arthur, 74 Idaho 251, 261 P.2d 135 (1953); State v. Satiacum, 50 Wn.2d
513.314 P.2d 400 (1957); State v. McCoy, 63 Wn.2d42l,387 P.2d 942 (1963); People
v. Jondreau, 384 Mich. 539, 185 N.W.2d 375 (1971); State v. Moses, 79 Wn.2d 104,483
P.2d832(l971).
50. Puyallup Tribe v. Department of Game, 391 U.S. 392 (1968). See notes 76-78
and accompanying text, infra.
51. 163 U.S. 504(1896).
219
-------
Washinl
'Law Review
Vol.47: 207, 1972
state in violation of Wyoming game laws. He claimed he was hunting
under an 1869 treaty which provided that "[the Indians] shall have
the right to hunt on the unoccupied lands of the United States so long
as game may be found thereon, and so long as peace subsists among
the Whites and Indians on the borders of the hunting districts."52
Wyoming was admitted to the Union in 1890. The Court reversed a
lower court decision that had granted habeas corpus, on the ground
that the treaty right had expired and that Race Horse was subject to
the Wyoming game laws. The Court stated that the treaty clause was
intended, by its own terms, to create only a temporary right, existing
only so long as hunting districts were maintained on unoccupied fed-
eral lands. The hunting districts were terminated when Wyoming be-
came a state, and this automatically ended the treaty right.
The Race Horse case is often cited for the proposition that state
game laws apply to treaty-based off-reservation Indian hunting and
fishing rights. It does not stand for that principle, however, because
according to the Court, the treaty hunting right terminated upon state-
hood. Since it no longer existed, the state was not regulating a treaty
right and the Indians were subject to the same state regulations as
others.
United States v. Winans53 was a suit by the United States on behalf
of certain Yakima Indians, and by the Indians themselves, to enjoin
Winans and other white landowners from obstructing Indians fishing at
their usual and accustomed fishing sites. Defendants claimed that the
Indians* right continued only so long as the land was owned by the fed-
eral government. This argument was rejected. TheCourt held the Indians
had an easement, even over land patented earlier by the United States
to private owners, if this land included the Indians' usual and accus-
tomed fishing site. State regulation of Indian fishing was not involved
in the case. It was, however, mentioned somewhat casually where the
court said:54
[SJurely it was within the competency of the Nation to secure to the
Indians such a remnant of the great rights they possessed as "taking
fish at all usual and accustomed places." Nor does it restrain the State
52. Treaty with the Shoshonees and Bannocks, July 3, 1868, art. IV, 15 Stat. 673
(1868).
53. 198U.S. 371 (1905).
54. Id. at 384.
220
Indian Fishing Rights
unreasonably, if at all, in the regulation of the right. It only fixes in the
land such easements as enables the right to be exercised.
Since Winans did not involve an attempt by the state to regulate
Indian fishing rights, no question of the effect of a treaty on the states'
regulatory power was presented. The solitary sentence alluding to the
state's "regulation of the right" was made without benefit of argument
and without any indication that the Court had considered the impli-
cations of such a rule.
In Tulee v. Washington™ the Court held that the state could not
require an Indian exercising his off-reservation treaty fishing rights to
purchase a license. In dicta, the Court volunteered:56
[WJhile the treaty leaves the state with power to impose on Indians
equally with others such restrictions of a purely regulatory nature con-
cerning the time and manner of fishing outside the reservation as are
necessary for the conservation of fish, it forecloses the state from
charging the Indians a fee of the kind in question here.
The states have argued that this controversial language put the Indians
under state regulation on an equal basis with other citizens. Indians
have argued that the language was dicta at best, that the Court held
the state licensing requirement invalid as to the Indians, and that a
careful reading of the entire opinion suggests the conclusion that the
Indians cannot be regulated as other citizens. The Tulee decision, the
Indians argue, must be limited to its facts. The Idaho Supreme Court
in 1953 took this position in concluding that Idaho could not regulate
the Indian fishing right.57 Four of eight justices of the Washington
Supreme Court interpreted Tulee the same way in 1957.58
One thing is clear. The statement in Tulee that Indian fishing can
be regulated by the state "as . . . necessary for the conservation of
fish" was dictum. Furthermore, this statement was not founded upon
a careful examination of the law governing treaty interpretation, nor
upon an analysis of the meaning of the "in common" language.59 Al-
55. 315 U.S. 681 (1942).
56. Id. at 684.
57. State v. Arthur, 74 Idaho 251, 26) P.2d 135 (1953). See notes 63-67 and accom-
panying text, infra.
58. State v. Satiacum, 50 Wn.2d 513, 314 P.2d 400 (1957). See notes 68-69 and
accompanying text, infra.
59. See notes 27-29 and accompanying text, supra.
221
-------
Washington Law Review
Vol.47: 207, 1972
though the language cannot be lightly dismissed, it cannot be said to
be determinative of the issue.
Between Tulee, in 1942, and Puyallup Tribe v. Department of
Game, in 1968,6° the Court did not address itself to the question of
off-reservation Indian fishing rights. Other courts did. The Idaho
Supreme Court, in State v. Arthur,^ carefully analyzed the law and held
that an Indian who hunted under an off-reservation treaty right was
not subject to Idaho hunting laws. The court said the hunting right
could not be abrogated except by "the consent of ... [the] Indians or
by positive act on the part of the federal government extinguishing the
right. . . ,"62 It noted that under Tulee the State of Washington could
not charge the Indians a license fee for the exercise of off-reservation
fishing rights and stated that a $2.00 license fee would be "less
onerous upon the affected Indian tribes than the enactment of legisla-
tion under the claimed police power limiting the killing of game or
prohibiting fishing in certain areas or doing either during certain times
of the year."63 To allow the state to exercise such power "would mean
that at certain times of the year his otherwise ancient right recognized
by the treaty and never extinguished would for all practical purposes
be extinguished. If the position of the State is sustained the assurance
given by Governor Stevens ... is no right at all. . . . This was never
intended under the broad, fair, and liberal construction of the treaty.""4
In State v. Satiacum65 four justices of the Washington Supreme
Court accepted the reasoning of the Arthur court and held that the
criminal charges of fishing in violation of state law which had been
filed against Robert Satiacum, a Puyallup Indian, were properly dis-
missed because the Treaty of Medicine Creek of 1855 is the supreme
law of the land and cannot be modified or abrogated by state law. The
court held that the treaty rights can only be changed by act of Con-
gress or by voluntary abandonment by the Puyallup Indians.66
60. 391 U.S. 392(1968).
61. State v. Arthur, 74 Idaho 251,261 P.2d 135(1953).
62. Id., 261 P.2d at 142.
63. Id.
64. Id.. 261 P.2dat 143.
65. 50 Wn.2d5l3, 314 P,2d 400 (1957).
66. The court discussed at length prior decisions such as Tiilre, Wituins, and Arthur,
and noted that the state's argument to the effect that the "in common" phrase made the
Indians subject to state regulations like other citizens had been "rejected by the courts."
Saiiacitm, 50 Wn.2d at 522, 314 P.2d at 405.
Justice Donworth, in three opinions, consistently argued against the power of the state
222
Indian Fishing Rights
The Court of Appeals for the Ninth Circuit has twice dealt with the
question of Indian off-reservation fishing rights. In Makah Tribe v.
Schpettler,67 the Makah tribe brought suit to enjoin the Director of
the Washington State Department of Fisheries from enforcing regula-
tions against the Makahs which would prevent fishing at their accus-
tomed grounds on the Hoko River. The Court of Appeals reversed a
federal district court decision dismissing the suit. Citing Tulee, the
court held that the state could regulate the Indian fishery as necessary
for conservation, but that the state had not sustained its burden of
proving that the regulations in question were necessary for conserva-
tion."8 In Maison v. Confederated Tribes,™ the Indians brought suit
against the Oregon Game Commission and state law enforcement
officials seeking an injunction and a declaratory judgment that Ore-
gon laws regulating salmon and steelhead fishing violated their treaty
rights. The Court of Appeals affirmed a trial court decision which had
issued the injunction after the state failed to carry the burden of
proving that its regulations were necessary for conservation. The court
said that such regulations had to be "indispensable" and not merely
"reasonable" for conservation, pointing out that although reasonable-
ness was all that was required when the state established regulations
for non-Indians the test for regulating Indians was more stringent.70
Neither Schoeltler nor Maison gave any consideration to whether the
Indians' treaty right was completely beyond state regulation.
to regulate Indian fishing, maintaining that under the federal constitution, the treaty was
the supreme law of the land and would continue to be "until: (I) the treaty is modified
or abrogated by Congress, or (2) the treaty is voluntarily abandoned by the Puyallup
tribe, or (3) the supreme court of the United States reverses or modifies our decision in
this case." Slate v. Satiacum, 50 Wn.2d 513, 529, 314 P.2d 400, 410 (1957) (with the
majority); State v. McCoy, 63 Wn.2d 421, 441, 387 P.2d 942, 954 (1963) (dissenting);
and Department of Game v. Puyallup Tribe. Inc., 70 Wn.2d 245, 263, 422 P.2d 754,
765 (1967) (dissenting).
Four additional justices concurred in the dismissal in Satiacum on the ground that
although the state could regulate Indian off-reservation fishing as "necessary for conser-
vation" it had failed to demonstrate such necessity. 50 Wn.2d at 530, 314 P.2d at 410.
67. !92F.2d224(9thCir. 1951).
68. The state's argument that "because the state of Washington has the regulatory
power lo close the Hoko to citizens of the United States having no treaty rights to fish
there, it has the same power to close the stream to the Makahs having such a treaty" was
explicitly rejected, Id. at 226. 5V? notes 16-18 and accompanying text, supra. The court
noted that "ft)he Supreme Court has repeatedly held that the Indian treaty fishing
provisions accord to them rights against state interference which do not exist for other
citizens." Id.
69. 3l4F.2d !69(9thCir. 1963).
70. /rf. at 174. This "indispensable" test was later rejected by the United States
Supreme Court in Puyallup Tribe v. Department of Game, 391 U.S. 392, 401 (1968).
223
-------
Washinl
FLaw Review
Vol. 47:207, 1972
In Stale v. McCoy,11 five justices of the Washington Supreme
Court held that a Swinomish Indian, fishing at a usual and accus-
tomed fishing ground, was subject to state regulations. The trial court
had applied the Arthur rule, saying that such Indian fishing was not
subject to state regulation. In reversing the trial court, the majority, in
an opinion astonishing for its misconceptions about treaty law, Indi-
ans, and history, said that the treaty with the Indians was simply a
"real estate transaction"72 where " [t]he United States was buying and
the Indians were selling the aboriginal right of use and occupancy to
the Washington Territory,"73 and that all the Indians reserved with
respect to off-reservation fishing rights was an easement to and from
their traditional sites. Because Washington was admitted to the Union
on "equal footing"74 with the original states, the court said the state
had the same inherent sovereign power as the original states to regu-
late fish and game harvesting unless there was a "clear and unequiv-
ocal expression of Congressional will by Congress," otherwise.75
Puyattup Tribe v. Department of Game16 was decided by the
United States Supreme Court in 1968.77 The Washington Department
of Game brought suit for declaratory relief and for an injunction
against Puyallup and Nisqually Indians to prevent them from fishing
in the Nisqually and Puyallup rivers in violation of state regulations.
Although many briefs were filed raising the question of the right of the
71. 63Wn.2d421.387 P,2d 942 (1963).
72. W. at 435, 387 P.2dat951.
73. W. at 436, 387 P.2dat951.
74. The "equal footing" doctrine played a small part in the Court's reasoning in
Ward v. Race Horse, 163 U.S. 504 (1896). it has been rejected by the Court in subse-
quent cases regarding Indians and is now considered a dead doctrine. See United States
v. Winans, 198 U.S. 371 (1905); Johnson v. Geralds, 234 U.S. 442 (1914); Donnelly v.
United States, 228 U.S. 243 (1913); Coyle v. Smith, 211 U.S. 559 (1911).
75. Two Justices, Hill and Ott, concurred separately on the ground that the Indian
fishing right extended only to the use of traditional fishing gear and the defendant had
used a modern 660-foot nylon gill net on the Skagit River. Otherwise these two justices
did not believe the Indian fishing right could be regulated by the state.
Judge Donworth dissented on the ground that the state could not regulate the treaty
right at all and that if regulation was needed "the solution of the problem lies with the
Congress." McCoy, 63 Wn.2d at 456, 387 P.2d at 964 (dissenting opinion). Judge Don-
worth debunked the majority's reliance on Metlakatla Community v. Egan, 369 U.S. 45
(1962), and Village of Kake v. Egan, 369 U.S. 60 (1962), both of which involved Indian
challenges to state fishing laws. Judge Donworth pointed out that no treaty was involved
in either case and that the issues there revolved around the construction of federal stat-
utes.
76. 391 U.S. 392(1968).
77. See text accompanying note 30, supra.
224
Indian Fishing Rights
state to regulate the Indians, they were for the most part concerned
with the degree rather than the right of regulation.78 In particular, the
brief of the Department of Justice, signed by the Solicitor General, the
Assistant Attorney General, and others,79 flatly rejected the position
that Indian off-reservation fishing is not subject to state regulation and
urged adoption of the Schoettler-Maison rule that state regulations are
proper where necessary for conservation.80 This brief is especially sig-
nificant because it expressed the position of the United States as
trustee for the Indians, a position that was reflected directly in the
opinion of the court. It presumably demonstrates the judgment of the
United States in its fiduciary capacity as trustee for the Indians on the
question of Indian fishing rights.-But no serious attention is given in
the brief or in the opinion to the argument that the Indian fishing right
is outside state regulation unless Congress explicitly so provides. The
brief simply assumed that the Indians can be regulated by the states.
The reason given was that making "accommodations" with the Indi-
ans' rights is "burdensome for some of the states involved." To assist
in carrying this burden the United States argued that the81
Secretary of Interior, by recent regulations, has undertaken to assume
a large part of the burden. Thus, it is contemplated that the Secretary,
in cooperation with the relevant State authorities and the tribal gov-
ernment, will promulgate appropriate restrictions on off-reservation
fishing by Indians and will furnish identification to those entitled to
exercise treaty rights.
It is unfortunate, indeed, that the United States, in this all impor-
tant brief conceded one of the Indians' most important points without
argument and misled the Court into thinking the Department of In-
terior would soon assume the "burden" of regulating Indian fishing
when very shortly thereafter that department dropped its proposed
regulations.
78. Briefs were filed not only by attorneys for the parties, but also by the states of
Oregon and Idaho (in support of the Washington Game Department position), and by
the Association on American Indian Affairs, the National Congress of American Indi-
ans, the Department of Justice of the United States, and the Confederated Bands and
Tribes of the Yakima Nation.
79. Brief for the United States as Amicus Curiae, Puyallup Tribe v. Department of
Game, 391 U.S. 392 (1968).
80. Id. at 18. See notes 71-75 and accompanying text, supra.
81. Id. at 10.
225
-------
Washington Law Review
Vol. 47:207, 1972
On the basis of these representations and arguments the Court af-
firmed the Washington Supreme Court decision holding that the states
could regulate the Indians, and sent the case back to the trial court to
determine the reasonableness of the particular regulations. The
opinion is short; the key paragraph is set out here;82
The treaty right is in terms the right to fish "at all usual and accus-
tomed places. We assume that fishing by nets was customary at the
time of the Treaty; and we also assume that there were commercial
aspects to that fishing as there are at present. But the manner in which
the fishing may be done and its purpose, whether or not commercial,
are not mentioned in the Treaty. We would have quite a different case
if the Treaty had preserved the right to fish at the "usual and accus-
tomed places" in the "usual and accustomed" manner. But the Treaty
is silent as to the mode or modes of fishing that are guaranteed. More-
over, the right to fish at those respective places is not an exclusive one.
Rather, it is one "in common with all citizens of the Territory." Cer-
tainly the right of the latter may be regulated. And we see no reason
why the right of the Indians may not also be regulated by an appro-
priate exercise of the police power of the State. The right to fish "at all
usual and accustomed" places may, of course, not be qualified by the
State, even though ail Indians born in the United States are now citi-
zens of the United States. Act of June 2, 1924, 43 Stat. 253, as su-
perseded by §201(b) of the Nationality Act of 1940, 8 U.S.C. §
140l(a)(2). But the manner of fishing, the size of the take, the restric-
tion of commercial fishing, and the like may be regulated by the State in
the interest of conservation, provided the regulation meets appropriate
standards and does not discriminate against the Indians.
In the above passage, as in the balance of the opinion, the Court gives
only passing notice to the argument that the Indian treaty right is be-
yond state regulation. In effect it backed into the opposite position by
asserting that it "saw no reason" why the states could not regulate the
Indians. But "no reason" is given for this view.
The decision in Puyallup nonetheless stands as a direct holding that
Indian off-reservation fishing is subject to state regulation. The ne-
cessity for either a reversal of this holding or the creation of adequate
standards to guide the states in the exercise of their power is made
clear by the controversies which have arisen since Puyallup.
82, Puyallup Tribe. 391 U.S. at 398.
226
Indian Fishing Rights
IV. RECENT CASES AND THE JUDICIAL QUAGMIRE
What has happened since the Puyallup decision is not surprising.
Confusion and anger among state officials and the Indians are the rule
of the day. The Court's decisions have put both sides in an impossible
position. The states are told that while they cannot charge Indians li-
cense fees for fishing at their usual and accustomed fishing sites they
can otherwise regulate the Indians, but only when "necessary for con-
servation," and only if the regulations meet appropriate standards and
do "not discriminate against the Indians."83 Neither the "appropriate
standards" nor the guides for non-discrimination are revealed. Nor is
the phrase "necessary for conservation" defined. The Indians, on the
other hand, believe they should not be regulated at all by the states
and, with the states, are equally confused by the other conflicting and
ambiguous rulings handed down by the courts. It is understandable
that the Indians and the states still fight. Neither side is sure of its
legal status. Neither wishes to give any ground under these circum-
stances.
United States v. Oregon (SoHappy v. Smithy4 is indicative of the
continuing confusion over Indian fishing rights. In separate actions,
the United States sued on behalf of several Indian tribes and several
individual Indians to enjoin enforcement of Oregon fishing laws which
allegedly violated Indian treaty rights on the Columbia River. The
complaints alleged that state regulations denied the Indians an effec-
tive fishery at their usual and accustomed fishing grounds and that,
although the regulations permitted non-Indians to make substantial
catches of salmon downstream, they denied the Indians a fair share of
the fish at their traditional upriver fishing sites.
The state of Oregon contended that Indian fishing rights were not
entitled to separate recognition or protection under state law and that
under the Puyallup decision the state could not, even if it wanted to,
allow Indians to fish at different times and places than non-Indians.85
83. If this standard were applied literally then virtually all non-Indian commercial
and sports fishing would be stopped in Puget Sound and the Straits of Juan de Fuca. The
goal of "conservation" could best be achieved by harvesting salmon at or near the
mouths of their spawning streams—where they are all sorted out. See notes 112-113 and
accompanying text, infra.
84. 302 F.Supp. 899 (D. Ore. 1969).
85. Id. at 907.
227
-------
Washi
Law Review
Vol.47: 207, 1972-
Judge Belloni rejected these contentions, holding that three limitations
constrained state regulation of Indian fishing: (1) the regulations must
be "necessary for the conservation of the fish,"86 (2) the state must
"not discriminate against the Indians,"87 and (3) the regulations must
meet appropriate standards.88
Judge Belloni noted that many state regulations were designed to
achieve goals other than conservation. He observed that while such
other goals were permissible under state and federal constitutional
law,89 when the state is "regulating the federal right of Indians to take
fish at their usual and accustomed places it does not have the same lat-
itude in prescribing the management objectives and the regulatory
means of achieving them."90 The only state objective that can be used
as a basis for regulating the Indians' right is that concerned with "con-
servation," i.e., the "continued existence of the fish resource,"91 This
limitation on state power applies to the gear used by the Indians, as
well as to the times when and places where they can fish. Judge Bel-
loni also rejected the state's contention that the Indians could not fish
at different times and with different gear than non-Indians, noting
that the source of the Indians' right was different than that of the
non-Indians.92
The Judge held that Oregon could no longer "discriminate against
the treaty Indians as it [had] been doing."93 He noted the institutional
discrimination in the state of Oregon, pointing out that:94
Oregon recognizes sports fishermen and commercial fishermen and
seems to attempt to make an equitable division between the two. But
the state seems to have ignored the rights of the Indians who acquired
a treaty right to fish at their historic off-reservation fishing stations. If
Oregon intends to maintain a separate status of commercial and sports
fisheries it is obvious a third must be added, the Indian fishery.
86. Id. at 908.
87. Id. at 910.
88. The court held that the state had failed to give the Indians adequate notice of
proposed state regulations under the Administrative Procedures Act and thus they had
no real opportunity to comment on those regulations.
89. SoHappy. 302 F.Supp. at 908.
90. Id.
91. Id. "It may use its police power only to the extent necessary to prevent the exer-
cise of that right in a manner that will imperil the continued existence of the fish re-
source."
92. Id. at 911-12.
93. Id. at 910.
94. Id. at 910-11.
228
Indian Fishing Rights
He also noted the "catch" discrimination that resulted from the Ore-
gon regulations, saying that in the future the Indians should be enti-
tled to a "fair share of the fish produced by the Columbia River
system." Under the Puyallup decision "the state cannot so manage the
fishery that little or no harvestable portion of the run remains to reach
the upper portions of the stream where the historic Indian places are
mostly located."!)5 Judge Belloni did not believe his rulings would re-
sult in fewer fish reaching their spawning grounds. Rather, he said:
"The only effect will be that sortie of the fish now taken by sportsmen
and commercial fishermen must be shared with the treaty Indians, as
our forefathers promised over a hundred years ago."96
The aftermath of SoHappy demonstrates the difficulty engendered
by the standards stated therein. The parties have been back in court
on numerous occasions since the decision, under the court's con-
tinuing jurisdiction, arguing over virtually each new set of regulations
for Columbia River fishing and over the methods and procedures by
which Oregon handles the fishing rights issue. One of the critical
points of disagreement concerns the meaning of a "fair share" of the
fish, to which the Indians are said to be entitled.97
Two recent state court decisions on Indian fishing rights further
demonstrate the judicial quagmire created by the United State Su-
preme Court decisions. In People v. Jondreau,9B the defendant, a
full-blooded Chippewa Indian living on the L'Anse Indian Reserva-
tion, was arrested in Michigan for illegal possession of four lake trout
taken from the Keweenaw Bay on Lake Superior. His conviction in
the Baraga Village J ustice Court was affirmed by the court of appeals."
The Supreme Court of Michigan reversed. The Chippewa Treaty of
1854 provided for the cession to the United States of certain territory
occupied by the Indians, and then provided that the Indians residing
on this territory "shall have the right to hunt and fish therein, until
otherwise ordered by the President."100 The court held that the Indians
95. lit. ;it9JI.
96, /
-------
Washington Law Review
Vol. 47:207, 1972
had a right to fish in Keweenaw Bay, although the bed of the bay was
not specifically included within the described ceded area, on the
ground that the Indians understood they retained such a right and the
treaty should therefore be so construed. The court discussed earlier
cases, especially People v. Chosa,101 (a Michigan case where the court
said the Indians were subject to the same regulations as non-Indians),
Race Horse, Tulee, Schoettler, and Puyallup, and concluded that the
decision of the Idaho Supreme Court in State v. Arthur stated the cor-
rect rule. Recognizing that Indian fishing might deplete the state's
fishery resources, the court pointed to the treaty clause which said that
"the President may issue an order limiting or extinguishing the hunting
and fishing rights,"102 and concluded that the President would take
action if necessary.
The other 1971 case, State v. Moses, arose in Washington.103
Moses and other Muckleshoot Indians caught eight steelhead trout,
gamefish under Washington law, in gill nets on the Green River. They
were arrested by State Game Protectors and convicted of illegally fishing
for steelhead with gill nets contrary to RCW 77.16.060, which prov-
ides that "It shall be unlawful for any person to lay, set, use ... any
... nets ... in any of the waters of this state with intent thereby to
catch . . . any game fish. . . ."I04 The justice court conviction was ap-
pealed de novo to superior court where defendants were again con-
victed. The Washington Supreme Court affirmed in a five to three de-
cision on the ground that the' regulation was shown to be "reasonably
necessary for the preservation of the state's fisheries in that river."105
The majority did not decide whether the Treaty existed, whether de-
fendants were beneficiaries of the Treaty, what was meant by the "in
common" language, the effect of Indian citizenship under 1924 fed-
eral legislation,106 whether treaty fishing rights inure to the benefit of
individual members of the Muckleshoot tribe or only to the tribe as a
101. 252 Mich. 154, 233 N.W. 205 (1930).
102. Jondrtau, 185 N.W.2d at 381.
103. 79Wn.2d 104, 483 P,2d 832 (1971).
104. WASH. Rt-v. CODE § 77.16.060(1962).
105. Moses. 79 Wn.2d at 115, 483 P.2d at 838.
106. Act of June 2, 1924. 43 Slat. 253. See 8 U.S.C. § 1401 (1970) which now de-
clares:
(a) The following shall be nationals and citizens of the United States at birth:...
(2) A person born in the United States to a member of an Indian, Eskimo, Aleu-
tian, or other aboriginal tribe
230
Indian Fishing Rights
unit, or whether easements over private property exist for the exercise
of those fishing rights. The majority answered only a single question:107
"Did the state have the power to prohibit totally net fishing for
steelhead trout in the Green River regardless of the Treaty of Point
Elliott of 1855?"108 That is, were the regulations in question reason-
ably necessary for conservation? The court said "Yes."
Justice Finley, joined by Justices Neill and Stafford, dissented on
the ground that the state had failed to sustain the burden of proof of
the reasonableness and necessity for the statute in question. He pointed
out that the question of whether the regulations were "reasonably nec-
essary" should not be decided in a "judicial vacuum," as the majority
seemed to do. He noted that many of Washington's so-called con-
|07. In Moxcx, the court did rely upon one other proposition which is patently
wrong, at least in (lie context of a discussion of a treaty right concerning anadro-
iiioiis fish. The twirl said iliai the "fish, while in a state of freedom, are the property
of the sovereign power in whose waters they may be. In the United States it is the
state and not the United States which is the sovereign power in whose waters the
fish arc, and the state owns the fish in its sovereign capacity as the representative of
and for the benefit of all people in common." Moses, 79 Wn. 2d at 113, 483 P.2d at
837- The court quotes from WASH. RLV. CODE § 77.12.010 (1959), which declares
that wild animals and wild birds and game fish are the "property of the state," and
says this statute is merely declaratory of the already existing law. The opinion relies
onGeer v. Connecticut, 161 U.S. 519(1896), for support of these propositions.
That this ownership theory is wrong, especially when applied to fish that spend most of
their lives outside Washington's jurisdiction and when considered in relation to a treaty
right, has been made abundantly clear by the United States Supreme Court. The lan-
guage in Geer v. Connecticut which is supportive of the Washington Supreme Court
statement above was soundly debunked in Toomer v. Witsell, 334 U.S. 385, 400 (1947).
In Missouri v. Holland, 252 U.S. 416. 434 (1920), the Court said:
The slate as we have intimated founds its claim of exclusive authority upon an as-
sertion of title to migratory birds, an assertion that is embodied in statute. No
doubt it is true that as between a State and its inhabitants the State may regulate
the killing and sale of such birds, but it does not follow that its authority is exclu-
sive of paramount powers. To put the claim of the State upon title is to lean upon a
slender reed. Wild birds are not in the possession of anyone; and possession is the
beginning of ownership.
As to the fish that spend only part of their time in a state's waters, the Court noted
in Tuomer that some authorities have argued that:
[F] ish and game are the common property of all citizens of the governmental unit
and that the government, as u sort of trustee, exercises this "ownership" for the ben-
efit of all citizens. In the case of fish, it has also been considered that each govern-
ment "owned" both the beds of its lakes, streams, and tidewaters and the waters
themselves: hence it must also "own" the fish within these waters. . . . The whole
ownership theory in fact, is now generally regarded as but a fiction expressive in
legal shorthand of the importance to its people that a Slate have power to preserve
and regulate the exploitation of an important resource.
Toomer. 334 U.S. at 399-400, 402. The Court then held that state regulation of such
fishery resources must bow to the higher authority of the Constitution. So too, they
must bow to the higher authority of treaty provisions.
108. Moses. 79 Wn.2d at 113, 483 P.2d at 837.
231
-------
Washinl
ILaw Review
Vol. 47: 207, 1972
servation laws were aimed at allocating the resource among various
user groups rather than at conservation. He then argued that the
state had failed to carry the burden of proof that these regulations
were necessary for conservation.109
Two critical points become clear from the above analysis of the
cases. First, neither the United States Supreme Court nor any federal
court has ever faced squarely, or analyzed carefully, the most critical
issue in the conflict; that is, whether the states have any power what-
soever to regulate Indian fishing rights. Second, the standards pro-
nounced to date by the federal and state courts to guide state regulation
of Indian fishing rights are woefully confused, uncertain, and inade-
quate.
V. FUNDAMENTAL DEFECTS IN EXISTING STATE
REGULATION
If the courts persist in holding that the states have power to regulate
Indian off-reservation fishing then they should be prepared to take the
next step and establish meaningful standards by which the states and
the Indians can determine their respective rights. This is a complex
and difficult task, and one that would be better left to Congress. It is,
however, imperative if accommodation is to be reached between the
parties. Certain fundamental issues deserve comment here because of
the way the courts have distorted or ignored them in the past.
One of the most widely misunderstood issues concerns the choice of
goals of the state salmon management programs and the impact that
this choice has on Indian fishery. The popular view, often used to
support state control of the Indians, is that state laws are designed for
the conservation of salmon. The United States Supreme Court seems
to have accepted this view, going so far as to say that the Indian
off-reservation fishery can be regulated by the states only "as .. . nec-
essary for conservation."110 We need not be too concerned at this
point with whether "conservation" seeks maximum sustainable phys-
ical yield or maximum economic yield, for in either case the state
109. Id. at 120, 483 P.2d at 840 (Finley, J., dissenting opinion).
110. See Tulee v. Washington, 315 U.S. 681, 684 (1942). This language was quoted
with approval in Puyallup Tribe v. Department of Game. 391 U.S. 392, 398 (1968). The
Court in Hiiyallnp also said thai ihe states can regulate "in Ihe interest of conservation."
391 U.S. at 398.
232
Indian Fishing Rights
programs are sorely deficient. They are actually designed to achieve
three goals, only one of which is conservation. The others are to
spread the catch among a large number of fishermen, and to allocate
the fish among various user groups (purse seiners, trollers, gill netters,
sportsmen and Indians).111 If state management programs were de-
signed primarily to achieve conservation goals the Indians' treaty
rights could easily be accommodated within them. But because of the
other-than-conservation goals discussed below, the rights of the In-
dians are difficult if not impossible to accommodate.
It is a widely known "secret" among fishery biologists (and it was
known to the Indians in the 1850's) that the most efficient method of
catching salmon, both economically and biologically, is to take them
by imps and weirs placed at or near the mouths of spawning streams.
Economically, the fish are best caught at that point because the fish
are tightly schooled up, are at maximum size, and are in prime condi-
tion. Fishing for salmon in the open water is more difficult and more
costly."2
For fishery management purposes the fish are best caught at or near
the mouths of spawning streams, because at that point the runs are
sorted out and the biologists know which fish are headed for which
river and can tell precisely how many fish should be caught from each
run. River by river management is important because one run may be
so small that all fish should escape for spawning whereas another
run may be so large that 85 percent or more can safely be harvested.113
When the fish are in the open waters of the ocean, the Straits of
III. Hoc comments on these different goals see W. ROYCE, D. BEVAN, J.
CRUTCIII IEI.D. G. PAUMK. & R. Fi I-TCHER, SALMON GEAR LIMITATION IN NORTHERN
WASHING ION WATERS (1963); Johnson, Regulation of Commercial Salmon Fishermen,
A Case of Confused Objectives. 55 PACIFIC NORTHWEST QUARTERLY 141 (1964).
Judge Belioni, in United States v. Oregon (SoHappy v. Smith), 302 F.Supp. 899 (D.
Ore. 1969), said "Oregon's conservation policies are concerned with allocation and use
of the state's fish resource as well as with their perpetuation." lit, at 909. In State v.
Moses, 79 Wn. 2d 104, 483 P. 2d 832 (1971), Justice Finley pointed out that the distribu-
tion of a scarce resource among competing users "must necessarily be achieved by some
system of allocation" and that "|s|i»le conservation laws are fundamentally laws of
atlm-uiiiin as well as prexen-atiiin." III. at 127, 483 P.2d at 844.
112. Interestingly, the super-efficient traps and weirs are banned by law, as are
sonar, monofilament gillncts, and spotter aircraft. And fishermen are frequently allowed
to fish only one or two days per week. The reason for such rules is to spread the catch
among a larger number of fishermen. WASH. AUMIN. Cone §§ 220-20-015 (1),
232-12-150( I) (1970); WASH. Ri-.v. Coon § 75.12.280 (1959).
113. See R. VAN Ci.i;vi- & R. JOHNSON, MANAGEMENT OF THE HIGH SEAS FISHERIES OF
Tun NOKTIII-ASTI-KN I'ACiMf 17(1963).
233
-------
Washington Law Review
Vol. 47:207, 1972
Indian Fishing Rights
Juan de Fuca, or Puget Sound, the various runs are mixed together. A
commercial fisherman who drops his nets in the Straits does not know
if he is catching salmon headed toward the Fraser River in Canada,
the Puyallup, NisquaJly, Skagit, or some other river in Washington. If
enough boats happen onto a school of fish they can easily overfish it,
taking too many of the run headed for the Nisqually, for example, and
missing entirely the run headed for the Skagit. It is virtually impos-
sible to distinguish the salmon of one run from another, even if the
fisherman wanted to. On the other hand, when the fish have arrived at
the mouths of their spawning streams they are all sorted out. The biol-
ogist, or the fisherman, knows that fish caught there are headed for
spawning grounds in that stream.
If salmon were harvested only at the mouths of their spawning
streams then the state could, easily assure that a certain, substantial
percent were allowed to proceed up the river to the Indians' fishing
sites.
State programs are also designed to allocate the salmon among var-
ious user groups. There are two principal means of accomplishing
this: by a "zoning" system under which the state determines where
fishing can take place, and by regulations determining the type of
fishing gear that can be used. As for the zoning system, unfortunately
the Indians find themselves in the worst possible zone. Under the zone
system, generally only sports fishermen and commercial trailers are
permitted to fish at sea, beyond the three-mile territorial limit. Gill net-
ters, reefnetters, and purse seiners are permitted in the Straits of Juan
de Fuca. Sportsmen and gill netters can fish in Puget Sound, with each
type of fisherman excluded from certain areas and all fishermen ex-
cluded from waters near the river mouths.114 Most of the Indians'
usual and accustomed fishing sites are on or very near the rivers. As
the fish move toward the river each of the non-Indian groups takes
part of the run. The zoning system permits the non-Indian commer-
cial and sports fishermen to get the first crack at the fish. By the time
the fish enter the rivers and move toward the Indian fishing sites, there
are few left to catch; those remaining are needed for spawning.
These factors are especially significant in view of the Court's pro-
nouncement that the Indian fishery can be regulated only "as . . . neces-
sary for conservation." If the Supreme Court means what it says then
substantial revamping of state regulatory programs may have to occur
to give proper recognition to Indian fishing rights. The courts have,
unfortunately, refused to accept the fact that fishery management pro-
grams serve other than conservation goals. So long as the courts refuse
to recognize the real objectives of these programs, their decisions will
remain on the perimeter of the problem and will not effect meaningful
standards or remedies.
One last aspect of state regulation must be noted. This concerns the
relative political power of the three principal user groups of salmon:
commercial fishermen, sports fishermen, and Indians. Washington has
long recognized the first two groups through the creation of a Fish-
eries Department"5 and a Game Department,110 as has Oregon by its
creation of the Fish Commission117 and the Game Commission.118
The political strength of these groups and their supporting coalitions
is well known. Indians do not have such strength, as evidenced by the
absence of state departments of Indian fisheries or any other state
governmental entities charged with the protection of the Indians' in-
terests. Nor is it reasonable to argue that the fisheries and game de-
partments adequately meet this responsibility. By training they are
biologists and by .education, professional contact, and peer group as-
sociation they reflect the views, altitudes and interests of the commer-
cial and sports fishermen. The record of their policies has consistently
been adverse to the Indians.119
CONCLUSION
Without reason or analysis, the United States Supreme Court has
held that the states have the power to regulate Indian off-reservation
114. This describes the general type of regulation, although the actual regulations
are much more detailed and contain a variety of complex exceptions. See WASHINGTON
DEP'T. OF FISHERIES, SUMMARY OF REGULATIONS PERTAINING TO ALL PUGET SOUND
SALMON NET FISHERIES (1971).
115. See WASH. Ricv. CODE §§ 75.08.080. 75.04.040 (1962); WASH. ADMIN CODE §
200-12-010(1969).
116. See WASH. RKV. Com- §§ 77.08.020.79.12.040(1962).
117. See OKF.. Ri-:v. STAT. § 506.036.040 (1969).
118. III. §496.160(1969).
119. See AMERICAN FRIENDS SERVICE COMMITTEE, UNCOMMON CONTROVERSY:
FISHING RIGHTS OF mi; MUCKLESIIOOT. PUVALI.UP, AND NISQUALI Y INDIANS 125
(1970).
234
235
-------
Law Review Vol. 47: 207, 1972
fishing when necessary for conservation. The result has been the con-
tinuation of state regulatory systems which consistently deny the In-
dians the opportunity on which their livelihood depends, the right to
fish at the usual and accustomed places off the reservation as guaran-
teed by treaty. There are two solutions to the problem.
First, the Court should apply well-established principles of constitu-
tional law and hold that off-reservation Indian fishing is not subject to
state control until Congress expressly delegates such power to the
states. When that rule is established, the states and the Indians should
negotiate a management program that will provide a fair distribution
of the catch among the various user groups. If a management pro-
gram cannot be established by cooperation between the states and the
Indians, Congress should create one, after full and careful consulta-
tion with Indians, sportsmen and commercial fishermen.
Second, if the Court persists in upholding state regulation, it should
take the next step and define rational and fair standards for the recog-
nition of the Indians' rights. This can only be accomplished by recog-
nizing that conservation is only one of three goals now served by state
management systems, that the conservation goal is not the principal
impediment to recognition of Indian rights, and that the main diffi-
culty comes from laws designed to spread the salmon among a large
number of fishermen and to allocate the catch among various user
groups. When the Court recognizes these facts, and only then, will it
be able to move toward a meaningful accommodation of the rights of
the parties.
236
-------
N
ORTHEAST .NDIAN
I
v^xuarterly
AKWE:KON Journal
Winter.1991
-------
Suicide and Homicide
The Other Costs of Development
Paul A. Kettl
As the northeast United States and southeast
Canada continue to grow in population, the
area has searched for new and alternative
methods of supplying its growing population
with energy. As events in the Middle East cause us to
look closer to home for sources of energy, James Bay,
with its potential for supplying hydroelectric power, is
being studied as a source to provide some of that energy.
Any industrial development has costs. It is easy to
measure the costs of establishing and maintaining a
hydroelectric plant, but it is much more difficult to
estimate the deeper costs of development. What would
be the cost to the Cree and Inuit, who have lived there
for centuries, of developing such a remote area? We can
measure the cost of electricity but not the cost on a
culture. These coststo indigenous peoples must be
taken into consideration with any new development.
While it is impossible to measure the total cultural costs
of the James Bay development, some evidence of
cultural disintegration is apparent.
Emil Durkheim in his 1897 treatise on suicide
proposed that, "Suicide varies inversely with the degree
of integration of domestic society."(l) According to this
theory, if one's culture is cohesive, offering a coherent
strategy for managing the world, suicide rates should be
reasonably low. However, if the "domestic society" does
not show a high degree of integration, suicide rates will
be higher. Durkheim explored his hypothesis from events
in the nineteenth century, but his work has borne fruit in
our century as well. For example, the lowest national
rates of suicide were at the times of the two World Wars
and the highest rates corresponded with times of
economic depression. During wartime, society is united
for a common goal, but during times of economic
hardship there is less social cohesion as individuals are
forced to struggle independently simply to survive.
—58 Northeast Indian Quarterly Winter 1991
Many factors lead to suicide. Virtually all individuals
who commit suicide suffer from a psychiatric disorder.
Half or more of suicide victims (when rates are fairly
constant) suffer from a major depression.(2,3,4) Another
thirty percent suffer from alcoholism (5) and another
substantial percentage—almost a quarter—suffer from
schizophrenia. (2) However, individuals not only are
affected by their own intrapsychic or biochemical make-up
but also by their culture, which provides standards, ethics,
and ideas. Culture helps to shape beliefs and behavior. Just
as psychologic or biologic factors can lead to suicide, so
too can cultural factors. Durkheim's hypothesis remains
the most central and useful hypothesis for predicting how
cultural change can lead to changes in suicide rates.
The Alaska Native Experience
In trying to predict the other costs of development
on the people of James Bay, we are able to draw on a
recent precedent. In the second half of the 20th century,
the Native people of Alaska also experienced rapid
development fueled by energy needs. This experience
will help us anticipate similar problems in James Bay.
The Alaska Natives are a culturally diverse group
that inhabits the great land mass of our 49th state. When
vast oil deposits were discovered in Prudhoe Bay their
lives were irreparably transformed. They present a case
example of what happens to indigenous people when
rapid cultural change takes place.
The Alaska Native peoples comprise three separate
groups. The Aleuts who inhabit the Aleutian chain of
islands, the Athabaskan Indians, Tlingit Indians, and
Haida Indians who populate the interior and southeast
of Alaska, and two groups of Eskimos—the Inupiat
Eskimos, who live in the north and northwest of Alaska,
and the Yupik Eskimos who live in the southwest of
Alaska. All of these Native groups are culturally
separate but are analyzed together in this study.
-------
Suicide always existed among Alaska Native
peoples. Anthropologists have described suicides by
older members of the community, especially during
times of famine. These "altruistic" suicides have been
described among several native groups. In the twentieth
century, suicide among Alaska Natives has continued.
By I960, the suicide rate for Alaska Natives was at
about the same rate as the rest of the United States
population^. However, in the mid 1960s suicide rates
began to increaseprogressiveJy and dramatically as
energy development began in Alaska.
Between 1961 and 1965 the suicide rate for Alaska
Natives was 13 per 100,000.(6) Kraus has documented
that in 1966 suicide rates rose and doubled by 1970 to a
total of 25 per 100,000.(6) Suicide rates continued to rise
throughout the 1970s and the Alaska Native Health
Board documents that during the mid 1970s the suicide
rates were approximately 43 per 100,000.(7) In 1985 they
were 62.4 per 100,000 (9) and 67.6 per 100,000 in 1986.
In prior work I examined the death certificates of
every Alaska Native who died between 1979 and 1984
and removed demographic data of suicide victims for
examination.(ll) Although death certificate data
notoriously underestimates true suicide rates, it
remains the best way of getting useful information
about suicide victims in large numbers. Death
certificates revealed 90 suicides between 1979 and 1984
for Alaska Natives. Males comprised 82% of the total
suicide rate (38.2 per 100,000)—four times the female
suicide rate (8.5 per 100,000). The study found that
young people were especially likely to commit suicide.
In the United States as a whole, suicide rates climb as
age climbs and the elderly—especially elderly white
males—are prone to suicide.(12) However, among
Alaska Natives the young were most likely to commit
suicide. Those between the age of 15 and 35 comprised
82% of all suicide victims in the early 1980s. More
remarkable was that no one over the age of 55
committed suicide. Suicide rates among women were
also higher in younger age groups but dropped closer
to national rates as age increased, more quickly than
did suicide rates for men. Other demographic data
showed that while 80% of the male suicides were single
only 44% of the female suicides were single. Female
victims were much more likely to be divorced: 31 %
compared to only 4% of the male victims.
Significantly more suicide victims died between
midnight and 4:00 A.M. than during any other period.
Among other American groups, for example among
Native people in Pennsylvania, suicide occurs far more
often during the daylight hours than at any other time.
The timing of Alaskan suicides suggests that alcohol
plays a prominent role. To investigate this hypothesis a
review of Alaska Native suicide victims who had charts
at the Alaska Native Medical Center was conducted.(13)
Thirty three suicide victims were compared to an age,
sex and race matched control group derived from the
same record keeping system. Fifty-four percent of the
suicides in this group had an alcohol abuse history
documented on their charts—significantly higher than
the control group. The only other factor besides alcohol
abuse that was significantly different from the two
groups was the documented history of a prior suicide
attempt. A wide variety of other factors including rates
of psychiatric diagnosis and psychiatric hospitalization
or even rates of physical illness did not separate the two
groups. Therefore, alcohol abuse remains an important
suspect in the genesis of suicide among Alaska Natives.
The study suggests that young, single males
comprise the high risk group for suicide. They were
more likely to have a diagnosis of alcohol abuse on their
charts, more likely to kill themselves between midnight
and 4:00 A.M., and more likely to die using firearms.
These young, single males were perhaps the most
susceptible to cultural change. The young are less
entrenched in their culture and single people are less
tied to social responsibilities than older, married people.
Males are far more likely than females to suffer from
alcohol abuse, and to think of alcohol as an antidote for
social confusion. The suicide rate for Alaska Natives
now hovers at five times the national rate. This increase
occurred in a group that had identical suicide rates as
the United States as a whole before the massive
economic development of the 1960s and 1970s. While
the correlation of the growth of suicide with the timing
of economic development does not prove there is a
cause or a link, one has to wonder if economic attacks
on the Alaska Native culture may well have fueled the
increase in suicide rates.
Alaska Native Homicide Data
The study of homicide rates in a culture is another
effective way to gauge costs of development. In order to
study homicide rates for Alaska Natives, death certificate
data was reviewed between the years of 1982 and 1984
and demographic data was extracted. (14) The three year
average of homicide rates was 24.9 for this period (three
times the national homicide rate of8.2 per 100,00 in 1983).
Within the general United States population,
homicide death is primarily a cause of mortality for
young adults. However, among Alaska Natives
homicide rates are elevated at roughly the same levels
from age 15 through age 74. This is in stark contrast to
the United States total population where homicide rates
drop to less than one-third of the highest rates by age 65
to 74. Among Alaska Natives, women are slightly more
likely than men to be homicide victims. The method of
homicide attack among Alaska Natives is virtually the
same as in the general United States population.
More than half of the homicides occurred between
midnight and 5:00 A.M., suggesting the role of alcohol
abuse in the genesis of homicides. Data about the
, Northeast Indian Quarterly Winter 1991 59
-------
alcohol history of homicide perpetrators or homicide
victims is not yet available for Alaska Natives. Single
Alaska Natives represented 58% of the homicide deaths.
While cultural effects on homicide have not been as
well studied, there is good reason to think that cultural
changes have an effect on homicide rates as well.
Wolfgang's studies of homicide rates in developing
countries suggest that to the extent that countries with
high homicide rates westernize without much turmoil,
homicide rates can be expected to decline. (15)
However, if the acculturation of the area leads to
disintegration of a culture or conflicts within the norms
of the existing culture, homicide rates will increase. His
data should apply to Alaska Natives and to Canada's
indigenous peoples. Moreover, his work is a corollary to
Durkheim's hypothesis that cultural disruption or
disintegration will lead to increases in violent deaths.
Cultural integration then would lead to less violence.
An examination of Alaska Native death certificates
shows that during the time of economic growth and
prosperity, suicide rates among Alaska Natives rose and
continues to rise. Homicide rates continue to be quite
high. Alaska Native homicide rates were 26.6/100,000 in
1985 (9), 20.8/100,000 in 1986 (10), and 22.9/100,000 in
1987 (10), giving a three-year average of 23.4/100,000—
three times the United States national rate.
Examining the Cultural Effects
When oil was discovered on the north slope of
Alaska in the mid 1960s an oil boom followed that
changed the course of Alaska's history. As with the gold
rush at the turn of the century, an influx of outsiders
burst into Alaska seeking wealth as well as economic
opportunity. Alaska Natives benefitted from this
economic growth as well, finding lucrative jobs working
on the north slope of Alaska. These jobs brought
economic prosperity as well as the money to buy other
goods western culture could offer.
However, the growth had a cost. The environment
was changed forever by the development of the Alaska
pipeline and oil drilling at Prudhoe Bay. The influx of
newcomers changed the concept of living in the bush.
Game scattered to more remote areas. International laws
put a limit on the number of whales that could be killed
per year. And the availability of jobs and money meant
that Alaska Natives did not have to depend on a
subsistence lifestyle. This meant that they drifted away
from traditional lifestyles and traditional teachings that
encouraged harmony with the environment and respect
for nature without any clear alternative.
Secondly, along with economic growth came the
influx of the media. The 1970s brought not only
economic growth but also satellite technology capable of
bringing television into homes virtually anywhere on
earth. In the mid 1980s, three of the twelve villages
surrounding Nome had running water, but all had
—60 Northeast Indian Quarterly Winter 2 991
televisions. In the Arctic, it is easier to have television
than running water so Alaska Natives could view the
world, as well as advertisements about "a better life,"
from their living rooms. Alaska Natives would hunt
whales and walrus in boats during the day and return
home to watch Johnny Carson on television at night. The
culture of television flooded the Alaska Native culture.
Alaska Natives are not the only group who have
been exposed to a sudden influx of media. In American
culture, where television also grew rapidly, youth
suicide grew as well. The suicide rates for those ages 15-
24 in the United States tripled during the television era.
Between 1950 and 1988, the growth of televisions in use
(r = 0.94) as well as the growth of television households
per 100,000 (r = 0.86) and the number of multiple-set TV
families per 100,000 (r = 0.95) all strongly correlated
with the rise in youth suicide since 1950 (p < 0.001) (16).
These correlations with television and youth suicide
were higher than the rise in drug use among our youth
as measured by six National Institute of Drug Abuse
surveys or fourteen senior high student surveys
between 1974 and 1988. (16)
Finally, the effects of alcohol in the midst of this
cultural confusion cannot be underestimated. Kelso and
DuBay (17) describe the history of alcohol use among
the Alaska Native peoples throughout the centuries. As
they point out, alcohol was prohibited for use by Alaska
Natives until 1953. A decade after this prohibition
ended suicide rates of Alaska Natives continued to
climb. As mentioned earlier, half of Alaska Native
suicide victims in one study had a history of alcohol
abuse documented on their charts. Hlady and ;
Middaugh (8) showed that 79% of Alaska Native
suicide victims between 1983 and 1984 had detectable ;
levels of alcohol in their blood and 54% of these victims i
had blood alcohol concentrations in the impaired range '!
(greater than 100 mg. per deciliter).
In the midst of rapid economic change and media
influx, and a weakened culture to rely on for support, ;
alcohol abuse may appear to be an attractive alternative, j
especially for the young. The confusion that comes with j
development raises questions that cannot be quickly or i
easily answered. Alcohol deadens this confusion, at j
least for a time, and is seductive as a quick fix to chronic ]
difficult personal and social problems. If cultural factors |
are the fuel of higher suicide and homicide rates,
alcohol may be the factor that ignites it.
How to Lessen the Costs of Development
Rapid development in James Bay can be expected to
have similar costs among the Native peoples there as it
has in Alaska. While the economic costs of development
can be easily measured, the cultural costs of development
are much more subjective. Suicide and homicide rates,
however, suggest that rapid economic growth can lead to
cultural confusion, costing young lives.
-------
Several strategies may help lessen the costs of
development. If cultural diffusion is responsible for
increases in suicide rates, then cultural cohesion may
help prevent these extra deaths from suicide and
homicide. Respect for the contemporary importance of
Native culture would help decrease additional lives lost
through suicide and homicide. Educators could show
respect for Cree and Inuit culture by including it in the
school curriculum. Aspects of the Native culture
including respect for the environment and the
importance of family should be held in high regard and
taught to children as important tenents to cling to during
times of economic change. The elders of the community
could serve as consultants for schools and for younger
people since they understand traditions more fully than
do the young. The elders have had the experience of the
present and the past and their wisdom can help direct
the feelings of the young as they prepare for the future.
Finally "Native Pride" programs organized by schools,
churches, or community groups can help to instill pride
in being Native and can help modern youth learn what
the traditional Cree and Inuit culture can teach.
Recognition and treatment of alcoholism would also
help to avoid some of the costs of development. In the
past the problem of alcohol in native cultures has been
prominent but a disciplined discussion of the subject
has often been difficult. Outsiders may not understand
the Cree and Inuit way of life and stereotypes of "the
drunk Indian" overshadow attempts to recognize the
problem of alcoholism in the culture. To save lives,
alcoholism must be recognized as a potentially treatable
and therefore reversible illness. The community might
consider "dry laws" restricting or prohibiting the sale or
1 use of alcohol. Such laws in Kotzebue (Alaska)
decreased suicide rates by almost fifty percent in one
year.(18) Treatment facilities should be made available
to those who need medical care for their addictions.
Finally, since among Alaska Natives 80% of suicide
victims and 46% of homicide victims died from gunshot
wounds, gun control must be considered as a public
health measure which could decrease death rates. While
banning guns would be practically impossible in the
Canadian bush, registration of guns and background
checks of individuals who own them might be possible
and even helpful in reducing suicide and homicide death.
The costs of development of James Bay may include
higher suicide and homicide rates. In Alaska, rises in
suicide and homicide deaths paralled economic growth.
The work of Durkheim as well as other sociologists and
psychologists who have studied the connection
between cultural disruption and increases in suicide
and homicide suggests that development in James Bay
will similarly cause the death of young Cree and Inuit
men. This cost of obtaining hydroelectric power could
be controlled by fostering a respect for Cree and Inuit
culture, the recognizing and treating alcoholism among
the Cree and Inuit, and supporting gun control and
education. Cultural programs and alcoholism treatment
facilities are costly, but the value of young Cree and
Inuit lives is far too great not to consider prevention.
Paul Kettl is Assistant Professor in the Department of Psychiatry
at Pennsylvania State University College of Medicine. Helms
worked with the Alaska Native Medical Center in Anchorage and
has served as Vicc-Presideni of the American Association of Indian
Health Scnnce Psychiatrists.
REFERENCES
1) Durkheim, E. (1951). Suicide: A study of sociology. Free Press.
2) Roy, A. (1982). Risk factors for suicide in [tsycltiatric patients.
Arch Gen Psychiatry, 39,1089-1095.
3) Robins, E., Murphy, G.E., Wilkinson, R.H., Gassner, S. &
Kayes, J. (1959). Some clinical consideration in the
prevention of suicide based on a study of 134 successful
suicides. Am ) Public Health. 49, 888-899.
4) Barraclough, B., Bunch, ]., Nelson, B., & Sainsburg, P. (1974).
A hundred cases of suicide: Clinical aspects. Br J
Psychiatry, 125,355-373.
5) Andreasen, N.C., & Black, D.W. (1991). Suicide, introductory
Textbook of Psychiatry. Washington, D.C.: American
Psychiatric Press, Inc.
6) Kraus, R.F. (1974). Suicidal behavior in Alaska Natives.
Alaska Med, 16,2-5.
7) Alaska Native Health Board, Inc. (1985). Rural health issues
study and statewide suicide evaluation project. Anchorage,
AK: Department of Health and Human Services.
8) Hlady, W., & Middaugh,). (1988). Suicides in Alaska:
Firearms and alcohol. Am ] Public Health, 78,179-180.
9) Division of Public Health, Vital Statistics Research, State of
Alaska. (1988). Alaska Vital Statistics Annual Rqiort 19S5.
Juneau, AK: State of Alaska.
10) Andereggen, D.L., Zangri, A., & Vigue, M. (1990). Alaska
Bureau of Vital Statistics Annual Rcjwl J9S6-19S7. Juneau,
AK: State of Alaska.
11) Kettl, P., & Bixler, E. (1991). Suicide in Alaska Natives,
1979-1984. Psychiatry, 54,55-63.
12) Bureau of the Census, U. S. Department of Commerce.
(1985). Statistical abstract of the United States.
Washington, D.C.: U.S. Government Printing Office.
13) Kettl, P., & Bixler, E. Alcolntland suicide in Alaska Natives.
American Indian and Alaska Native Mental Health
Research, in press.
14) Kettl, P. (199], October 22). Homicide in Alaska Natives.
Presented at the 43rd Institute on Hospital and
Community Psychiatry, Los Angeles, California.
15) Wolfgang, M.E. (1986). Homicide in other industrialized
countries. Bull NY Acad Med, 62,400-412.
16) Sredy, M., Kettl, P.A., & Bixler, E.O. (1991, May 13). The
increase of multiple television sets and rise in youth
suicide. Presented at the American Psychiatric
Association 144th Annual Meeting, New Orleans, LA.
17) Kelso, D., & DuBay, W. (1989). Alaska Natives and alcohol:
A sociocultural and epidemiological review. In D.
Spiegler, D. Tale, S. Aitken, et al. (Eds.), Alcohol use among
U.S. ethnic minorities (pp. 223-238). Rockville, MD: U.S.
Department of Health and Human Services,
18) USA Today, p. 7 (1988, October 13).
-Northeast Indian Quarterly Winter 1991 61
-------
CO
w
PQ
23
M
H
H
CO
S
W
Q
a
o
1492
1790
183O
189O
I860
-------
Some Estimates of Aboriginal American Population,
Kroeber Rosenblat Steward Sapper
(1939) (1954) (1949) (1924)
ca. 1492
Dobyns
(1966)
( in millions)
North America
Mexico
Central America
Caribbean
Andes
Lowland South
America
Hemisphere Total
0.9
3.2
0.1
0.2
3.0
1.0
8.4
1.0
4.5
0.8
0.3
4.8
2.0
13.4
1.0
4.5
0.7
0.2
6.1
2.9
15.5
2.0-3.5
12.0-15.0
5.0-6.0
3.0-4.0
12.0-15.0
3.0-5.0
37.0-48.5
9.8-12.3
30.0-37.5
10.8-13.5
0.4-0.6
30.0-37.5
9.0-11.2
90.0-112.6
-------
STATE
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New jersey
New Mexico
TOTAL
POPULATION
OF STATE
4,040,587
550,043
3,665,228
2,350,725
29,760,021
3,294,394
3,287,116
666,168
12,937,926
6,478,216
1,108,229
1,006,749
11,430,602
5,544,159
2,776,755
2,477,574
3,685,296
4,219,973
1,227,928
4,781,468
6,016,425
9,295,297
4,375,099
2,573,216
5,117,073
799,065
1,578,385
1,201,833
1,109,252
7,730,188
1,515,069
INDIAN &
ALASKA NATIVE
POPULATION
16,506
85,698
203,527
12,773
242,164
27,776
6,654
2,019
36,335
13,348
5,099
13,780
21,836
12,720
7,349
21,965
5,769
18,541
5,998
12,972
12,241
55,638
49,909
8,525
19,835
47,679
12,410
19,637
2,134
14,970
134,355
PERCENT
OF STATE'S
TOTAL
0.4
15.6
5.6
0.5
0.8
0.8
0.2
0.3
0.3
0.2
0.5
1.4
0.2
0.2
0.3
0.9
0.2
0.4
0.5
0.3
0.2
0.6
1.1
0.3
0.4
6.0
0.8
1.6
0.2
0.2
8.9
-------
Metropolitan Statistical Area Indian Population
(Includes
Albuquerque, NM
Anchorage, AK
Chicago, IL-into IN & WI
Dallas-Ft. Worth, TX
Denver, CO
Detroit, MI
Fort Smith, AR-into OK
Houston-Galveston, TX
Los Angeles-Anaheim-Riverside, CA
Milwaukee-Racine, WI
Minneapolis-St. Paul, MN-into WI
New York, NY-into Long Island, NJ & CT
Oklahoma City, OK
Philadelphia, PA-into NJ, DE, & MD
Phoenix, AZ
Portland, OR-into Vancouver, WA
Sacramento, CA
Salt Lake City-Ogden, UT
San Diego, CA
San Francisco-Oakland-San Jose, CA
Seattle-Tacoma, WA
Tucson, AZ
Tulsa, OK
Washington, DC-into VA & MD
Yakima, WA
Alaska Natives)
16,296
14,569
15,758
18,972
13,884
17,961
9,054
11,029
87,487
8,522
23,956
46,191
45,720
11,307
38,017
13,603
17,021
8;337
20,066
40,847
32,071
20,330
48,196
11,036
8,405
Ranking
14
16
15
11
17
12
22
21
1
23
8
3
4
19
6
18
13
25
10
5
7
9
2
20
24
-------
19
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
Washington, D.C.
West Virginia
Wisconsin
Wyoming
17,990,455
6,628,637
638,800
10,847,115
3,145,585
2,842,321
11,881,643
1,003,464
3,486,703
696,004
4,877,185
16,986,510
1,722,850
562,758
6,187,358
4,866,692
606,900
1,793,477
4,891,769
453,588
62,651
80,155
25,917
20,358
252,420
38,496
14,733
4,071
8,246
50,575
10,039
65,877
24,283
1,696
15,282
81,483
1,466
2,458
39,387
9,479
0.3
1.2
4.1
0.2
8.0
1.4
0.1
0.4
0.2
7.3
0.2
0.4
1.4
0.3
0.2
1.7
0.2
0.1
0.8
2.1
Totals
248,709,873
1,959,234
-------
CANADA
LUMMl RES
V \ tNOOKSACKRES
SW1NOM1SH RES
LOWER
ELWHA
RES.
PORT GAMBLE
RES.
PORT MADISON RES.
SEATTLE
MUCKLESHOOT
RES.
PUYALLUP RES.
OI.YMPIA • * NISQUAlLr
RES.
CHEHALIS
• RES.
SKOKOMISI
RES.
WASHINGTON
SQUAXIN IS.
RES.
COEUR D'ALENE
RESERVATION
SHOAIWATER
RES.
NEZ PERCE
RESERVATION
PORTLAND AREA
OFFICE
COLUMBIA RIVER
SILETZ
RES. c CHEMAVJA
INDIAN SCHOOL
WARM SPRINGS
OREGON
rORTIIALl
RESERVATION
-------
UNITED KEETOOWAH BAND
"" ALA8AFJIA/QUASSARTE
~-KIALEGEEXREEl
^-ASSENTEEAHAWNfJ
••SE MINGLE
SCFTIZEN BAND POTAWATOM
AMERICAN INDIAN TRIBES .\.ND COMMUNITIES
Thu map it HasrJ on a I9*M map prf prfrrd b\ ihr Bureau of Indian Alfairi and
Kat Wrn modilird. with u^t^lAncr (com l)r Ourf Mjrinot)! ihr SmifKvjni«n
InntnutKm. lo im lulh.
-------
-------
ESKIMO
ALEUT
ATHABAS
HA1DA
TStMSHIAN
9
400 MLS.
-------
rwANA
CHEHAIIS
KWAIHIOOUA
KLIKITAT
TILLAMOOX
CHINOOK
W/SHKAH
10 TLATSK4HAI
II TEH I NO
a VMATIUA
13 CAYUSe
14 WALLAWALLA
SPOKAH
18 XALISPSL
t7 COfUR OTALENE
}» SMUOUALMI
H MOLALA
10 XLAMATH
31 ACHOHAWI
31 fAHA
13 ALSEA
14 SIUSLAW
IS COOS
CHASTACOSTA
17 TAKflMA
19 SHASTA
It CHIMAHIKO
HUPA
JI KAROK
32 1JX.QWA
33 YUHOK
WIYOT
3S WAILAKI
as rum
37 WIHTUH
3» PQHO
3S WAPPO
40 OLAMeNTXE
41 COSTANO
42 SAUNA
43 TUBATULABAL
44 KAWAIISU
4S CHUHASH
5ft MOP/
57 ZUHI
59 MAHSO
sa team
tt> ItLCTA
et auenes
ft TAHO
-------
JUQUtMISH
»iwurt§t! .' iwwfrw/gSji'
i ifOfAHi^ f y/s«i t^J i
• 5rC*4rtf " n-V'jrtL
Itf^OOrJ A I ***^ .*"**'?'** O'ALtHEW ' jf'T
I
Mf6U[HOOOH\. r,T-
*ofue*iYC» KfMiun
Turuixi I ( ^rr.vwo
UHPQUAl
IFA"" '^ *^KOarfHti
~—^j\.'\W/!Cf
s;3Uf i
CHIPKWl
.«.-1tU,»
' ! CHIPF>ciV4
• .».WU ;. ^ .J
t- ?Sli)aJf
V"l ; «w
k»^ o ,'i, cj » wem;«*flfe
jl««8M [ r 'V-^S^-W, :^s—' -..»««,<»
"•• ••U-L—„•
Icrmry r, «.- |/ ""'% /. "• J *, " '
{', W/t/ff 4\+ ** *• * . * '
* • ,*^SHrt« v * . '^.
L^"'U'£ \. . ww^S.^1
S '
:^""«a-« c5^ cin0" -;'--fe-j
•f OC5^«>—^ ^M^ljvx-' J ru-
\ "* -^ ( ^V I
7\ - 4 . .Jo
~^Jp""to
£*«*
!„•]
•f C010*/fS'« H[ flOl
v HtHZHlRUi IH CILIfOMIA
100 200 300 400 t
MAP II PRESENT DAY LOCATION OF INDIAN TRIBES
-------
Page Not Available Digitally
------- |