^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

-------