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AUTHOR Mathews, Bonnie, Ed. TITLE Indian Tribes: A Continuing Quest for Survival. A Report of the United States Commission on Civil Rights. INSTITUTION Commission on Civil Rights, Washington, D.C. PUIPDATE Jun 81 NOTE 203p.; Footnotes may not reproduce well due to small print size. AVAILABLE FROMSuperintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.
EDRS PRICE MF01/PC09 Plus Postage. DESCRIPTORS American Indian Reservations; *American Indians; *Civil Rights; Court Litigation; Culture Conflict; Equal Protection; Federal Government;. *Federal Indian Relationship; Government Role; *Land Settlement; *Law Enforcement; Self Determination; State Government; Trust Responsibility (Government) _ _ IDENTIFIERS Akwesasne Mohawk (Tribe); *American Indian History; Catawba (Tribe); Cayuga (Tribe); *Fishing Rights; Land Claims; Mashpee (Tribe); Narragansett (Tribe); Oneida-(Tribe); Passamaquoddy (Tribe); Tribal" -Government; United States (East) ABSTRACT
. Based on Commission public hearings held in 1977 through 1979 and on research conducted since 1977, this report examines state, federal, and tribal governments' role in major conflicts concerning fishing rights, reservation criminal law enforcement, and Eastern Indian land claims existing between Indian tribes and non-Indians. Chapter 1 discusses the public awareness of Indians and Indian issues during the late 1970s. Chapter 2 traces the major events in Federal-Indian relations from the precolonial period to the present, briefly summarizes the major concepts of Federal Indian law, describes the historical developments of the concept of Indian rights,'and discusses the relations betOeen tribal governments and state, local, and federal governments. In the next chapters, detailed case studies (i.e., Passamaquoddy Tribe v. Morton, Oneida v. County of Oneida, the Mashpee Jury,Trial, claims by the Cayuga Indian Nation, St. Regis Mohawk Indians, and Catawba Tribe) trace the hidtorical origins of the conflicts, focusing on the governments' role, particularly the federal government, throughout the crises. JGenerally, the report concludes that the present system for protecting Indian rights has significant limitations, that coherent mechanAsms for determining and implementing Indian policy are lacking, and that conflicts over Indian rights exacerbate preexisting problems Indians face concerning denials of equal protection of the lawo (NQA)
*********************************************************************** * Reproductions supplied by EDRS are the best that can be made * * from the original document. * *********************************************************************** INDIAN TRIBES e
A Continuing Quest for Survival
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DEPA/MPAENT OF EDUCATION NATIONAL INSTITUTfe EDUCATION EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC) !Ms document has been repicduced as BEST AVA teemed from the person or Ofganizatoon priginatin it 3,1Minot changes have been made to improve rewoductoon quality
Points of view 01 opinions stated In this docu ment do not necessarily represent official NIE Position or policy. 2 U.S. -COMMISSION ON CIVIL RIGHTS The U.S. Commission on Civil Rights is a temporary, independent, bipartisan agency established by Congress in 1957 and directed to: Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, handicap, or national origin, or by reason of fraudulent practices; Study and collect information concerning legal developments constituting discrimination or a denial of equal protection of the laws under the Constitution because. of race, color, religion, sex, age, handicap, or national origin, or in the administration of justice; Appraise Federal, laws and policies with respect to discrimination or denial of equalyrotection of the laws because of race, color, religion, sex, age, handicap, or national origin, or in the administration of justice; Serve as a national clearinghouse for information in respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, handicap, or national origin; ' Submit reports; findings, and recommendations to the President and the Congress. .
MEMBERS OF THE COMMISSION Arthur S. Flemming,Chairman Mary F. Berry,Vice Chairman Stepnen Horn Blandina Cardenas Rami:zz Jill S. Ruckelshaus Murray Saltzman
Louis Nunez,Staff Director 3 Letter of Transmittal
June 1981
THE PRESIDENT .. THE PRESIDENT OF THE SENATE THE SPEAKER OF THE HOUSE` REPRESENTATIVES
Sirs:
The United States Commissionon Civil Rights transmits this report to you pursuant to Public Law 85-315, as amended. Indian Tribes: A Continuing Quest forSurvival is based on a series of Commission public hearings held in Washington State,South Dakota, and Washington, D.C, 1977 through 1979, as well as research conductedduring and since this period. The Commission also held hearings in Arizona andNew Mexico in 1972 and on the Nivajo Reservation in 1973. Thereport examines the role of State, tribal, and Federal governments in some of the majorconflictsfishing rights, reservation criminal law7enfoiament, andeastern Indian land claimsthat exist between Indian tribes and non- Indians. These conflicts and the manner in which they are resolVed haveiorofoundiiiif3licationsforlfie-CiViliigliffititY.ts of A'ican Indians. In all the crisi\s or conflict situationsexplored, the role of the Federal Government has been crucial. Throughout thesometimes long term development of these complex situations, critical actionswere occasionally taken without any government recognition of their significance. Inaction andmissed opportunities characterize the seeming inability of the UnitedStates to implement effectively the promises and commitments it has historically madeto the tribes. Generally, the report concludes that thepresent system for protecting Indian rights has significant limitations, that coherent mechanisMsfor determining and implementing Indian policyare lacking, and that conflicts over Indian rights exacerbate preexisting problems Indians faceconcerning denials of equal protec- tion of the laws. Some of the problems discussed in thereport will require legislative remedies, and others may be solved more readily byadministrative action. It is our hope that this report will serve as a basis toremove impediments and to create mechanisms that will aid the first Americans in their continuingquest for cultural and political survival in our diverse society.
Respectfully,
Arthur S. Flemming, Chairman Mary F. Berry, Vice Chairman Stephen Horn Blandina Cardenas Ramirez Jill S. Ruckelshaus Murray Saltzman"
Louis Nunez, Staff Director ii Preface
During the decade of, the 1950s, the Federal Governmgnt began one of the major, abrupt swings in direction that has characterized its Indian policy. The development of the policy of termination, designed to remove the Federal Government from its protectorate role in Indian affairs, closely followed a 20-year period-of sustained Federal efforts to stop the erosion of tribal powers Sand land bases. Felix Cohen, Associate Solicitoi of Indian Affairs in the Department of the Interior during the tenure of Franklin D. Roosevelt and the leading scholar of Indian law of this century, vigorously opposed the developments of the 1950s. - Cohen, -in -an- article written shortly before his death, searched for an analogy that would bring home to all Americans the importance of the Government's keeping its promises to Indians, whose role in America he compared to that of Jews in 20th century Germany:
______Liice_theininer'scanary, tke-Indian marks the shift from fresh air to poison air in our political atmosphere.. .our treatment of-Indians, even more than our treatment of tither minorities, reflects the rise and fall of our democratic faith.' Cohen and others failed in their efforts to halt the onslaught of terminationist policies, and Indian tribes paid a heavy price. More than a hundred tribeswere legally terminated, land and assets were lost, thousands of Indians were relocated by Federal programs to the culture shock of urban slums, States were given a broader role on many surviving reservations (a development that would exacerbate jurisdictional conflicts for years to come), and tribal governments were generally weakened. This was a period in American history when civil liberties generally were under substantial attack. In late 1977, the U.S. Commission on Civil Rights began a study of the civil rights implications of several highly charged conflicts involving Indian rights and 4- the interests of nonIndians. This study was prompted by complaints received by the Commission and by requests for an investigation from Indian groups, State Advisory Committees, and regional offices, and based in part on the Commission's early hearings in New Mexico and Arizona. During the Commission's hearing in Washington State in 1978 concerning the fishing rights controversy, the testimony of several high Federal officials prompted Commissioner Frankie M. Freeman to comment:
a probleM that troubles me. ..is the perception...that one can negotiate away basic.. .treaty rights....If rights will not be respected and laws will
i Felix S. Cohen, The Erosion of Indian Rights, 1950-1953, A Case Study in Bureaucracy," Yale Law Journal vol. 62 (1953), p. 390.
c III not be obeyia by the Federal and State governments we are establishing a dangerous precedents Twenty-five years and several shifts in Federal policy separate the Cohen and Freeman statements. The point is the same, howeverif this society through its government does not live up to its promises and commitments to Indian people, then no rights are secure. A society is not judged by how well it treats its rich or politically powerful members but by how well it treats its less powerful groups. Incluticalfeliefhaiis the powerful group in ktiferiain society. Since they are so few in number, there is no way they can be a political force. They will not determine national elections or even most state or local elections by their numbers. -Although -Indians possess substantial resource wealthcoal, gas, uranium, water this potential wealth has not been translated into _permanent economic or political power. In fact, wealth or the potential for wealth has often made Indians the victims of more powerful interests greedy. for the assets under Indian control. Without wealth or political power, Indian tribes have had to rely upon the constitutional-legal system and the moral conscience of society for their survival. Tritialsurvival was an issue at the time the United States was established, and it hat continued to be an issue throughout our history:A key factor in this issue is the status of Indian people as governmental entities, as tribes with land bases and power over those land bases. This factor distinguishes them from any other group in American society. "Indian people relate to the Federal Government as nations and tribes and citizens of nations and tribes, and on that basis first and in other ways only incidentally." Their relationship with the Federal Government is in fact crucial to the whole fabric of Indian affairs. From the beginning of the. Federal relationship, the tribes have been treated as nation-states. Our legal system, in interpreting international law, so recognized the tribes. Two other extremely important concepts have been grafted onto the legal status of tribes in the American political system. One is the trust relationship in which the tribes are viewed as political entities dependent on the stronger United States for support and protection. The other major concept is the important and controversial "plenary powers" doctrine, which literally means that the Congress of the United States is vested with extraordinary powers with respect to Indian tribes. It can, without regard to most constitutional safeguards, do whatever it wants in Indian affairs. Since no
IHearing Before the U.S. Commission on Civil Rights. Seattle. Washington. Aug. 25. 1978. vol. III. p. 40. U.S., Department of the Interior, Bureau of Indiin Affair. Report on the Implementation of the Helsinki Final Act as Applied to Native Americans (1979). P. i. iv 0
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international forum or court has yet been able to enforce treatiesor hold the United States accountable for the violation of any of its pledges to Indians, and since the United States court system will only review congressional actionto a limited extent, it ultiniately remains a moral issueto what extent does the United States live up to its obligations? The relationship of the Federal Government to Indian tribes, therefore, has been and continues to be a crucial and complex one. Indians are a race separate andapart from other Americans. This fact permeates past and current relationsand is woven through the entire fabric of Federal Indian policy. The dominant societyhas generally characterized Indians with stylized romanticismor blatant stereotypes, and different and separate all too often have translatedas "inferior" and "unequal." Notions of racial superiority or inferiority would playno role if the trust were _purely_a.political.relationship,.in.the.international lawsense_ofthe,weaker nation to the stronger nation, or if it were a contractual ielationship; providing that in return for Indian land the United States would protect and promote tribal interests. The trust concept as it evolved, however, has all too often portrayed Indians as minor or incompetent children who were not to be allowed a deferminative voice in their
Another factor prevalent throughout the history of United States and Indian __relations has been economic greed. Indians have-poWaiii land and otherresources that non-Indians have wanted. Non-Indians usually haye prevailed. Often racism, expressed as white cultural superiority (whites would use the resourcemore appropiiately), has been the justification for taking Indian land. In the last three decades, the Nation has focused increased attention on addressing the civil rights its-different minority-groups. Various studies of the Federal Government document that Indians have faced and continue to face pervasive discrimination in voting rights, educational opportunities, the administra- tion of justice, the provision of social servicesin short, the whole spectrum of civil rights problems. Ther. 's, however, some ambivalence among Indians about pursuing their civil rights, because they fear that in the process their separate tribal rights will be sacrificed. This report of the United States Commission on Civil Rights explores situations during the last decade that have exacerbated existing civil rights problems for Indians. These "conflict" settings have not occurred in a vacuum. The first chapter, "The Apparent Backlash," traces developments of the seventies in which congressional and judicial victories achieved by the tribes appeared to be eclipsed
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by the reaction of non-Indians against Indians and their interests. Chapter two, "Context For Evaluation," is divided into four sections: historical overview, concepts in Federal Indian law, traditional civil rights problems, and State-tribal government relations. The historical overview traces the major events in Federal-Indian relations and provides a brief description of their significance. The legalsection is a compendium of the major concepts and premises of Federal Indian law. The civil rights section describes how conflicts between tribal interests and non-Indianinterests have_produced a_significant number of allegations of racial discrimination against Indians. This chapter ends with a consideration of the relations between tribal governments and State and local governments. In a very real sense, these entities have been classic adversaries. Much of this relationship is institutional and perhaps will always be present to some extent. Chapters 3, 4, and 5 contain detailed case studies of the most publicized and controversial conflicts to occur in the seventies. The case studies concern fishing rights, eastern land claims, and law enforcement. None of these conflicts have been fully resolved, and it is most likely that all will continue in perhaps more muted versions for some time to come. The case studies trace the historical origins of the conflicts and focus on the role played by the various governments, particularly the Federal Government, throughout different stages of the crises. Chapter 6 summarizes the report and contains the Commission's findings and recommenda- tions.
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Acknowledgments
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: . The Commission is indebted to the following staff members who workedon the
Indian pioject and this report: Paul Alexander. who directed and supervised the IT project, games. Arisman, Joseph Brooks, Sylvia Eastman, Jack Hartog, Ruth Harthoorn, Ide lle Howitt;* Linda Huber,* Stephen P. O'Rourke, William Levis,* Luis Roger,* Marvin Schwartz,* Ricki Seidman, Thelma Stiffann,* Michael Walker,* Shirley Hill Witt, and.Patriciaell.* Editorial assistance Was provided by Bonnie Mathews. Secretarial assistance With provided by Ana Beitia Dew, Treola Grooms, Lorraine Jackson, Jeanette Johnson, Frances C. Lee, De Borah Marks,*Orenda Morris,* and Phyllis Santangelo. Final preparation for publication was handled by Vivian Hauser and Vivian Washington. Eileen M. Stein,* General Counsel, had overall supervisory responsibilityfor the products,of the Office of the General Counsel. 4 '
* No longer a member of the Commission staff.
vii j J CONTENTS
I: The Apparent BacIdas§...; z I ' Public Awareness of nthans and Indian Issues 2 Resurgence of Indian Activisin 3 The Backlash 7 Political Effects of the Backlash . 10
The Return to Normal ,, , 12
2. Context for Evaluation 15 Historical Perspective 15 Precolonial The Colonial Period: 1494-1776 Early United States-Indian Relations: 1776-1830 The Removal Era: 1830-1850 Mid-Century-LReservations and Wars: 1850-1880 Assiinilation and Allotment: 1890-1930 The Indian Reorganization Act: 1930-1945 The Termination Period: 1945-1965 Self-Determination: Post-1965 Legal Concepts of Federal Indian Law 23 'Overview Indians and Civil Rights Classification The Nature of the Right Government Purpose Indian Tribes and Equal ProtectiOn Special Treatment for Indians and Equal Protection Traditional Civil Rights Problems 32 Introduction The Racial Factor Civil RightsA Dichotomy for Indians Backlash and Traditional Civil Rights Problems State and Tribal Relations 41 Introduction A Sampling of Conflict Hunting and Fishing Taxation Resources The Nonlitigative Setting viii 10 1'
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Local Conditions National 'Initiatives Findings,and Recommendations 58
3. Fishing in Western Washingtona Treaty Right, a Clash of Cultures 61 Introduction 61 History 62 Migration and State Regulation 63 Early Litigation 65 The Bo ldt Decision 70 The Reaction 71 75 Federal Task Force 9 Regional Team Process 78 The Settlement Plan 81 Fundamental Premises Provisions Management Analysis of Management Provisions Compliance Protection The Tribal Commission ResourCe Distribution and Allocation Steelhead License and Fleet Size Adjustments Enhancement General Analysis 89- Battling Back to Court 91 The Supreme Court Hears the Case 97 Epilogue 98 Findings and Recommendations 100
4. Eastern Land Claims 103 Colonial History and Status of Eastern Tribes 103 Neglect and Disuse of the Nonintercourse Act 105 Statute of Limitations for Indian Claims 106 Eastern Land Claims in Progress 107 Passamaquoddy Tribe v. Morton, the Foundation Case 107 Judicial Affirmation of the Trust Responsibility 108 Oneida v. Cqunty of Oneida 109
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Narragansett Tribe v. Southern Rhode Island Land Development Corp 111 The Case that Failed Mashpee 112 The Mashpee Jury Trial Other Asserted Claims 115 Gay Head, Massachusetts Two Connecticut Cases New York Claims Cayuga Indian Nation St. Regis (Akwesasne) Mohawk Indians "South.Carblina's Catawba Tribe Reaction to the Claims 118 Actual Economic Effect 120 Attempts to Cut Off Claims 123 Maine Extinguishment Bills Legislation and the Mashpee Claim New York Legislative Attempts to Curtail Claims The Search for a Negotiated.Settlement in Maine 127 The Gunter Appointment and Preceding Events Judge Gunter's Attempt The White House Task Force Other Claiins Negotiation 133 'Findings and Recommendations 134
S. Law Enforcement 137 Historical Perspective. 137 The Direct Federal Role 144 Participants in theLaw Enforcement Role 145 Tribal Police The Federal Bureau of Investigation The United States Attorneys The MA and Tribal Police and Investigators The Department of the Interior The Department of Justin The States , - The Performance of Enforcement Responsibilities 146 Statistics
X 12 Investigation Delay and Duplication Availability of FBI Resources FBI Credibility in the Indian Community Cultural Barriers and FBI Impartiality 'Tribal Autonomy Proset 154` Geographical and Cultural Barriers Declinations of Prosecution Possible Directions for Change 156 The National Coordinating Role: A Vacuum The Current Lack of Cooidination Jurisdiction Over Non-IndiansFederal Inaction The Aftermath of Oliphant Pine Ridge Rosebud Sisseton Implications for Future Jurisdictional Issues Findings and Recommendations 175
6. Findings and Recommendations 179
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1/ ein,/,1,,i)));.1 yr,% 1 "IPP ')/ 1 e 4, 11/ , ,,,,,I, 7,, / Chapter 1 The Apparent. Backlash
During the second half of the seventies, a backlash Many reasons have been given to explain and to -arose, against Indians and Indian interests. Anti- justify the backlash. One explanation argues that, Indian editorials-and-articles appeared in both the although there is a significant reservoir of sympathy local and the national media.1 Non-Indians, and even for their situation, excessive political and material a few Indians as well, living on or near Indian demands by Indians have soured the basically reservations organized to oppose tribal interests. .favorable disposition of the American people. From t_ _said These local groups eventually coalesced into a backlash is not racial or even political but is, rather, opposition to national organization, the Interstate Congress for the excesses of the activists. An "equal rights" Equal Rights and Responsibilities, a group whose theory is often advanced to argue that Indian existence and viewpoints received substantial atten- political power and control over Indian destiny is tion. antithetical to the American system of equality and Senator Mark Hatfield (R-Ore.), during Senate that Indian interests must give way to those of the hearings in 1977, said, "We have found a very larger society. significant backlash that by any other name comes Many individuals in the Indian world have placed out as racism in all its ugly manifestations."2 Local a different construction on the backlash. They, argue and national legislators introduced bills that would, that the non-Indian interests, both governmental and if` passed, have, been extremely detrimental to Indi- private, that have been unfairly profiting at Indian ans. These included the abrogation of treaties be- expense- have found their individual advantages tween the United States and the various Indian\--..disrupted by Indian legal and political victories and tribes, the removal of tribal jurisdictional powers, have organized to recapture their preferential posi- the overturning of favorable judicial determinations tion. In this view, the backlash is identified as a of Indian rights, the restriction of Indian rights to vocal minority of vested interests. water and other natural resources, and the elimina- A major difficulty in evaluating what has ap- tion of the several eastern Indian land claims. The peared to be a backlash against Indians is that most executive branch of the national government, after a Americans do not have any frame of reference for decade of highly visible activity in Indian affairs, distinguishing normality from change. Mel Tonask- appeared ominously silent. Even the Federal judicia- et, of the Confederated Tribes of the Colville ry, viewed as the most consistent ally of Indian Reservation in Washington, has stated: rights and interests since the days of Chief Justice I think a lot of the backlash coming from the John Marshall, began to be perceived as showing common citizens is mainly out of ignorance, signs of a reaction or backlash against Indians' because of the lack of educational systems to interests. teach anything aboutIndians, abouttrea-
, See, e.g., W.R. Hearst, Jr., "Goodies for Minorities," Hearst Newspapers. ,Mashpee Lan Hearing Before the Senate Select Committee on Indian .. 1976; Kevin Phillips, "Too Obsessed With Minorities," The Boston Herald. Affairs on S.J.. Res. 86. 95th Cong. 1st sess. 38 (1977). Dec. 8,1976.
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15 ties... .When the population really doesn't home and serve their tribes, only to find that the know what the rights are and what the laws say, returning lawyers had learned no Indian law because they have to make judgment decisions based on what the media puts out to them or what a none was taught.' Most other education, whether politician [saysj.5 directly relevant to daily Indian life or not, has evidenced the same problem. Public Awareness of Indians and The congressionally chartered American Indian Indian Issues Policy Review Commission has said: Chairman Arthur Flemming of the U.S. Commis- sion on Civil Rights observed after listening to One of the greatest obstacles faced by the several days of testimony on Indian issues from a Indian today in his drive for self-determination range of citizens in Washington State: and a place in this Nation is- -the. American public's ignorance of the historical relationship itis clear to me, from the testimony we've of the United States with Indian tribes and the listened to, that there are a great many adults lack of general awareness of the status of the who do not have any understanding of the American Indian in our society today! treaties, of tribal government, and the implica- tions of it, and so on, and they are reacting from Where information concerning American Indians a position of no knowledge! is available in textbooks and curriculum, it tends to be historical. Indians are generally portrayed as The absence of fundamental information and ancillary to the progress of Western Europeans on understanding about Indians in the public schools the North American Continent. Information about can be similarly illustrated by the curricula in law Eastern Indians often relates to colonial times in ; ; -an subject in contemporary Indian affairs. Practically Western Indians are usually portrayed in the context every interaction in Indian affairs, and certainly of Indian wars as the "settlers" moved westward. every controversial issue, must be dealt with in the These problems of perspective are not easily context of a unique body of laws and concepts solved. In Washington State and in other parts of the known as Federal Indian law. An entire volume of country, tribes have made a concerted effort to the United States Code is devoted to Indian law.5 influence the curriculum, of the school systems that Several of the initial acts of the first Congress in educate their children. While the lack of information 1789 were laws pertaining to Indians." Numerous and erroneous information reinforce the biases and U.S. Supreme Court decisions, lower Federal court preconceptions of non-Indians, many Indian parents decisions, and State court decisions exist that have believe thatthis flawed process has substantial direct application to the daily lives of Indian people. negative effect on Indian students.9 Joan La France, In fact, for their numbers in the pOpulation Indians an expert in this field oeIndian curriculum develop- are the most regulated, litigated, and legislated ment, has said, "[Wje are treated as a people of the group in the United States. Yet until the past decade, past... .There is a gross lack of information about any treatment of Indian law in law schools was the us being a contemporary people, a people.who still rare exception. live in this country. "10 While improvement exists today, the teaching of Coupled with the general unavailability of data, Indian law is still relatively rare. One Indian leader particularly contemporary data, concerning Ameri- made reference to the irony of sending Indian can Indians is the persistence of stereotypes in the students to become lawyers so they could return information provided by they, educational systems.
' Me! Tonasket. chairman. Colville Confederated Tribes Business Council. (establishing salary for superintendent of Indian affairs in the northern testimony. Hearing Before the United States Commission on Civil Righ district). Seattle. Washington. Oct 19-20. 1977, vol I. pp 38-39 (hereafter cited as Tonasket Testimony, Seattle Hearing. vol. I. p 38. Seattle Hearing). ' U S, Congress. American Indian Policy Review Commission, Final ' Arthur S. Flemming. Chairman. U.S Commission on Civij Rights. statement. Seattle Hearing. vol. I. p. 232. Report Submitted to Congress, vol. 1. 1977, p. 3 (hereafter cited as Final Title 25 of the United States Code. Report). Four of the first 13 statutes enacted by Congress concerned Indian affairs. ' Ramona Bennett. chairwoman. Puyallup Tribe, testimony. Seattle Hear- Act of Aug. 7, 1789. I Stat 49 (establishing the Department of War with ing. vol. I. pp 161-65 responsibility. inter alio. for Indian affairs), Act pf Aug 7. 1789, 1 Stat 50 ''' Joan La France, director. Curriculum Development Department, United (the Northwest Ordinance). Act of Aug 20. 1789. 1 Stat 54 (appropriations Indians of All Tribes Foundation, testimony. Seattle Hearing. vol. I. pp. to support treaty negotiations), and Act of SeptII, 1789. 1 Stat. 67 216-17. 2 1' From the earliest days of the republic, two stereo- The latter part of the 19th century saw the revival types have vied for prominence: thewarlike savage of the Ghost Dance religion among the plains tribes. and the childlike creature of nature (Rousseau's This event apparently was so terrifying to military "Noble Savage"). Both are racist in approach and authorities that the -massacre of some 200 Sioux at both reflect the cultural elitism that has permeated Wounded Knee was a direct consequence." Ameiican Indian policy from the earliest days." In a The activism of the 1930s, which in large part survey in Washington State schools concerning revolved around policies of the Roosevelt adminis- images of Indians, non-Indian children responded tration, primarily the Indian Reorganization Act of that "they (Indians) were things to be afraid of or 1934," was followed in the late 1940s and the 1950s frightened of or else novelties." by the termination era." The Federal Government The mass media play a significant role in the completely reversed its earlier course. Instead of continuation and reinforcement of these stereotypes continuing a policy of fostering tribal government and myths. The Commission has on several occa- and consolidating tribal land bases, it now embarked sions noted the role of television and radio in upon a policy of ending the Federal Indian trust prograMming and in news with respect to stereo- relationship; transfering Federal responsibility and types." Veteran newspaper reporter Richard La jurisdiction to the States with respect to Indian Course, a Yakima Indian and former director of the affairs; taking Indian assets from protected status American Indian Press Association, commented on and, in effect, placing them in the marketplace; and the problem of Indians and the media: relocating vast numbers of Indians from reservation areas to urban areas." Much of the Indian activity in I think it originates in school systems. There is this period was a response to these Federal policies. what amounts to a cultural filter which makes It was a period in which non-Indians could well this individual TV reporter, that individual have viewed Indian affairs as a dormant issue. writer, per aps a news oirector of a radio snow incapable of actually perceiving what this day In the 1960s, a multiplicity of events coalesced to means. .. what its inferences are, what issues create a new era of Indian activism. Indian historian need to be investigated...I think all of us D'Arcy McNichols has attributed major significance have these cultural filters." to the development of Indian programs by the Office of Economic Opportunity during the Johnson ad- Resurgence of Indian Activism ministration: "The outstanding innovation of the Although Indian activism has been viewed as a period was the establishment of Indian Community new occurrence, the perception is not accurate. In Action Programs (ICAP), which brought reserva- fact, there have been frequent eras of activism. This tion communities technical services and financial activism has taken many forms, but itis chiefly assistance."" characterized by efforts to enhance tribalism and The effect of OEO programs was complex. They traditional Indian values with subsequently a nega- not only loosened the administrative grip of the tive reaction from the dominant society. Department of the Interior's Bureau of Indian For example, at the turn of the 20th century, the Affairs by providing the tribes with other resources, Five Civilized Tribes," w!io were removed in the but OEO could and did contract with tribes and 1830s from the eastern United States to the Oklaho- tribal organizations to be providers of direct ser- ma Territory, through activist tribal government vices. The initial effect of this contracting effort was had developed significant governmental, education, in the area of Indian education, notably the demon- and economic systems in Oklahoma. But in the early stration project at the Rough Rock School on the 1900s, Congress stripped away most of the tribes' Navajo Reservation.22' The practice of tribes and governmental powers." tribal organizations replacing the Bureau of Indian
" See chapter 2, "Traditional Civil Rights." " Dee Brown. Bug My Heart at Wounded Knee (New York: HA " La France Testimony, Seattle Hearing vol. I. p. 218. Reinhart and Winston, 1970). pp. 432-48. " See. e.g., U.S. Commission on Civil Rights, Window Dressing on the Set " 1 Pub.L. No. 73- 383.48 Stat. 984. (1978). " See chapter 2, "Historical Perspective." " Richard La Course. testimony. Seattle Hearing. vol. I. p. 222. " Final Report. pp. 150-53. " The Cherokees. Chickasaws. Choctaws. Creeks, and Seminoles are universally referred to u the Five Civilized Tribes " Ibid., pp 70-72. " 4 Felix Cohen, Handbook of Federal Indian Law (Albuquerque. University " U S. Commission on Civil Rights. The Navajo Nation. An American of New Mexico Press. 1948). pp. 425-55. Colony (1975). pp. 70-72
3
17 Affairs as service providers eventually spread into "Longest Walk" caravan, again topetitionthe all areas of tribal government operations. A decade United States to live up to its treaty obligations. later it would be codified as national Indian policy These events were vocal, dramatic, and extensively by both the executive and legislative branches." covered by the media. They presented tothe Other events and influences occurred before the American public the issues and concerns of many Federal codification, and these gave credence to a American Indians, but at the same time presented an perception that a new era in Indian affairs was in the image of American Indians as aggressive and, at making. times, hostile and violent. Partially as an outgrowth of the disastrous Federal A wide range of professional support organiza- policies of the fiftiesparticularly relocationmany tions were also developed during this period, and urban ghettos became the homes for thousands of they would begin to address the disequilibrium American Indians." These ghettos were and are between Indian interests and non-Indian interests in places where Indians faced, among other problems, terms of technical resources and expertise. This massive unemployment and underemployment," so- development included the reorientation and expan- cial service systems that would not or could not sion of preexisting entities such as the National respond to their needs',26 and sustained assaults on Congress of American Indians (NCAI) and the Indian cultural and family ties." These ghettos were creation of completely new groups such as the also the breeding grounds for activism. Indian clubs, Council of Energy Resources Tribes (CERT),,the and centers were established and expanded to AmericanIndianLawyersTrainingProiram address the problems faced by the relocated Indians (AILTP), the Institute for the Development of One significant development was the creation of the Indian Law, the Native American Rights Fund American Indian Movement (AIM) out of the (NARF), the Coalition of Indian Controlled School Minneapolis Indian Center; it was, in effect, an urban Boards. and American Indian Opportunity (AI0)." ritdiair t7TOVeTiraT71 would return RYTne reserva- Duruigth-MpeiOZt o er evetTore In e tion. Other national Indian organizations were also Indian world that would have profound implications formed around this time, including the Survival of but were generally less spectacular and hence less the American Indian Association and the National newsworthy. These included a dramatic increase in Indian Youth Council. These and other activist college and graduate work by Indian students, an groups, whose tactics echoed those of the activists increase that would produce several hundred Indian of the civil rights movement, gained widespread lawyers by the 1970s. attention and publicity. Of particular importance in these developments One of the earliest sparks of activism was, the was the fairly widescale provision of lawyers to occupation of Alcatraz Island in San Francisco Bay. represent the range of Indian issues. Attorneys, Other,widely publicized events occurred in the same whether members of the private bar paid for by period and included: the Trail of Broken Treaties, a tribal funds or public interest lawyers supported by 1972 cross-country caravan to present grievances the legal services of 0E0 or, by foundations, were in and demand action of the American government and this period frequently and aggressively representing people; the 1972 takeover and occupation of the their tribal-and individual Indkan clients. The results Bureau of Indian Affairs headquarters building in were dramatic. From 'the late 1950s through the Washington, D.C.; the 1973 occupation and siege of middle part of the 1970s, albeit with specific and Wounded Knee in South Dakota (site of the infa- important exceptions, it appeared that Indians and mous' massacre by the United States cavalry a their dvocates had won the important legal battles. century earlier); the fish-ins and fishing camps along Although it is the rare court decision that attracts the Puyallup and Nisqually Rivers in Washington substantial press co%erage, these cases, particularly State to vindicate "treaty rights"; and the 1978 in reservation areas, were major news events and
" See. e g.President Nixon's July 8,1970. Message to Congress. " Faye La Pointe. representative, Tacoma Indian Center, testimony, Recommendations for Indian Polley. H Doc No 91-363, 91st Cong. 2d Seattle Hearing. vol I. pp 138-39. secs (1970). and Indian Self-Determination and Education Assistance Act. " U S . Congress. American Indian Policy Review COMmISilOn, Task codified at 25 U S C §§450-950n. 455-458e (1976) " U.S. Congress. American Indian Policy Review Commission. Task Force Four. Report on Federal. State and Tribal Jurisdictions 09761 pp. 78- Force Eight. Report on Urban and Rural NonResenotton Indians (1976), 87, 177-242 pp 23-43. See. eARTH. American Indian Reference Book (Portage. eARTH. nIbid.. pp 57-80 1976). pp 123-33, for a listing of Indian organizations.
4 their implications were speculated about with regu- situation concerning a particular tribe would not larity in both the print and electronic media. necessarily be applicable to another situation or to A sampling of these cases provides an indication different tribes. of their importance to tribes and their non-Indian The issue of tribal powers over non-Indians, neighbors. One of the first significant cases in this particularly in the area of criminal law, has been one 20-year period was Williams v. Lee 21 in which the of the most controversial and emotional issues of the Supreme Court of the United States held that a non- last decade." The initial decisions in a case arising Indian doing business on an Indian reservation. on the Port Madison Reservation in Washington absent a congressional statute authorizing otherwise, State created a furor. A Federal district court in had to use tribal and not State courts to litigate a Oliphant v. Schlie 35 held that the arrest by tribal debt owed by Indians arising from a transaction on police of a non-Indian who had assaulted a tribal the reservation. The court relied on the early 19th officer during a tribal ceremony on the reservation century decisions of Chief Justice John Marshall and was sustainable, based on inherent tribal jurisdiction- acknowledged tribal sovereignty as a concept that al powers that had not been lost. still had some vitality." In Menominee v.United The uniqueness of the Federal-Indian relationship States, 31 the court held that certain treaty rights, and the special status of Indians vis-a-vis other specifically the right to hunt and fish, had survived Americans of any race, color, or national origin has Congress' termination of the Menominee Tribe. This been a frequent topic in the literature that developed decision gave credence to the vitality of treaty rights during this period. In 1974 the Supreme Court and strengthened the hopes of many in the Indian directly faced a popularly held view that the special world that other treaty rights could be vindicated. status of Indians denied the equal protection rights In McClanahan v. Arizona Tax Commission, 32 the of other Americans." The case, Morton v. Mancari,37 Supreme Court struck down an Arizona State tax on involved a challenge by non-Indian employees of income earned by Indians on reservation. Taxation the Bureau of Indian Attairs to an Indian preference would become a frequent arena of dispute between policy. The challenge asserted that such a prefer- the States and local governments and Indians. States, ence was unconstitutional racial discrimination vio- pressed for funding sources, aggressively sought to lating the equal protection clause of the14th tap Indian assets on reservations that under Federal amendment and the due process clause of the 5th law were to be proteCted from State incursions. The amendment. Not so, said the Supreme Cciust. Treat- State of Montana was particularly aggressive in this ing Indians differently from other classes of citizens arena, frequently asserting that tribes were not is permissible when that treatment is tied to the governmental entities but rather something akin to unique trust relationship and obligations of the property owners associations. This argument was Federal Government to Indian tribes. rejected by the Supreme Court in United States v. Another area of substantial court activity has Mazurie, 33 which clearly recognized the govern- involved the conflict between State wildlife interests mental status of tribes. and the treaty-protected hunting and fishing rights Although the governmental status of tribes was of the tribes. Perhaps no single decision of the clear in the courts, the exact perimeters of that status Federal judiciary has been more associated with were not, and they would be frequently litigated on tribal activism and the apparent "backlash" than the an issue-by-issue, tribe-by-tribe basis. Different tribes decision of Federal District Court Judge George have different treaties with the U.S. Governnient. Boldt inUnited Statesv. Washington, " which Congress has treated tribes individually for some became popularly known by the judge's namethe purposes and similarly for other purposes and has Boldt decision. This case recognized Le treaty right treated States and tribes within those States differ- of several Washington State tribes to one-half of the ently from each other. Therefore, a decision in one salmon harvest, the right to catch it, and the right as
" 358 U.S. 217, 7'1(1959) " No 51I-73C2 (W.D. Wash. 1974), a/id. 544 F.2d 1007 (9th Cir. 1975), " See chapter 2. "Legal Concepts of Federal Indian Law." rev 'd sub nom.. Oliphant v. Suquatnish Indian Tribe. 435 U S 191 (1978). " 391 U.S. 404. 412-413 (1968), see also Kimbal s. Callahan. 493 F 2d 564 " Sec chapter 2. "Legal Concepts of Federal Indian Lassand"Tradition- (9th Cir. 1974), cen. denied. 419 U.S. 1019 (1974). al Civil Rights Problems." " 411 U.S. 164 (1973). " 417 U.S. 535 (1974) " 419 U.S. 544 (1975). " 384 F Supp 312 (W.D. Wash 1974). affd. 520 F 2d 676 (9th Cir. 1975). " See chapter 5. cert. dented. 423 U S. 1086 (1976).
5 governments to be involved in the regulation of the The policy of Indian self-determinationwas trans- resource." lated into practical application by Congress ina Within the array of controversial cases thatare series of legislative acts. Two actions thatwere perceived as pro-Indian, the one with themost specific to the individual tribes involved had wide- substantial ramifications in the eastern part of the spread implications. QThese were the restoration of United States appears to be Joint Tribal Council of the Menominee Tribe in Wisconsin" and thereturn Passamaquoddy and Penobscot v. Morton, 40 whichset of Blue Lake to the Taos Pueblo in New Mexico." the stage for the Eastern Indian land claims. Al- The restoration of the Menominee Tribewas the though it is not a decision on the merits of the land culmination of extensive efforts by Indians and their claim, the Court made clear that the United States allies directly attacking the policy of tribal termina- had an obligation to the tribes making the claims and tion that had been followed for the previoustwo that the claims themselves could not be dismissed decades. This policy was debated and, in effect, summarily or treated as frivolous,as was the initial repudiated by the restoration of the Menominee disposition of some State and Federal lfficials." Tribe. The return of Blue Lake, a sacredarea for the Taos Indians that had become part of Significant developments were also occurring in a national the other branches of the Federal Government. At park, was of symbolic importance beyond itssub- stantial meaning for the Taos Indians. It reflected, in the executive level, a dramatic shift in policy was direct contravention to two centuries of cultural announced by President Lyndon Johnson in 1968: elitism, a recognition of Indian cultural and religious '"We-musraffirm the right of the First Americansto rights. Other legislative acts of broad application remain Indians while exercising their rightsas followed: the Indian Finance Act," the Alaskan Americans. We must affirm their rights to freedom Native Claims Act," the Indian Health Care and of choice and self-determination."" Improvement Act," and the Indian Self-Determina- "Self-determination" was destined to become the tion and Education Assistance Act. 1 T v .T.me crea ion policy, which had its beginnings in the latterpart of Congress in 1975 of the American Indian...Policy the- 1960s. In 1970 President Richard Nixongave Review Commission (AIPRC) to: impetus to the policy of self-determination ina special message to Congress on Indian affairs." He Conduct a comprehensive review of the histori- specifically repudiated the paternalistic policies cal and legal developments undesiying the of Indian's unique relationship with the Federal the Roosevelt administration and the terminationist Government in order to determine the nature of policies of the Eisenhower administration andmade and scope of necessary revisions in the formula- a public commitment to a pew era in Federal Indian tion of policies and programs for the benefit of policy. The Nixon administration, infact, gave Indians." Indian issues a high profile. Vice PresidentSpiro The Commission was made up of legislatorsfrom Agnew chaired a White House Councilon Indian areas of significant Indian population and key Affairs, and Presidential Counsel Leonard Garment members of pertinent legislative committees,as well was a visible and active contact point within the as Indians themselves." Utilizing extensive Indian administration for Indian issues. participation, the AIPRC produced 11 task force,"
" See chapter 3. " 388 F. Supp. 649 (N.D. Ma. 1975). affd. 528 F 2d 370 (1st Cir. 1975) " Pub. L No. 93-638. 88 Stat 2203 (1975) codified at 25 U.S.C. 0450, " See chapter 4. 450n, 455.458c (1976). '° Pub " President Johnson's Special Message to Congress on the Probler.s of the L No 93 -58.88 Stat 1910 (1975) codified at 25 U.S.C. §174note American Indian. -The Forgotten American.- Mar. 6, 1968.1 Pubac Papers (1976). of the Presidents §113 (1968-1969). " The AIPRC was chaired by Senator James Abrourezk (D-S.Dak.), President Nixon's July 8. 1970. Message to Congreis. Recommendation with Representative Lloyd Meeds (D-Wash.) servingas vice chair. The for Indian Policy, H. Doc. No 91-363. 91st Cong. 2d secs (1970) " 25 U.S.C. §§903-903(f)(1976) other congressional members were: Senator Le.. Metcalf (D-Mont.), " Pub.L. No. 91-550.84 Stat. 1437 (1970). Senator Mark Hatfield (R-Ore.), Representative Sidney Yates(0-111.), " Pub.L. No. 93-262, 88 Stat 77 (1976), codified at 25 U.S C §1451- Representative Sam Steiger (R -Ariz ). and Representative Don Young (R- 145 In (1970. Alaska). The Indian meml-crs were John Borbndgc. Tlingit-Haida from " Pub.L No. 92- 203.85 Stat 688 (1971). codified generally as amended Alaska, Louis RBruce. Mqhawk.Sioux of New York, Ada Deer. at 43 U.S.C. §§1601-1651 (1976). Menominee of Wisconsin; Adolpi. Dial. Lumbee of North Carolina;and " Pub. No, 94- 437.90 Stat 140 (1976). codified at 25 U S C. § §1601- Jake W hitecrow. QuapawSenecaCayuga of Oklahoma. 1675 and 42 U.S.C. 0234. 1395f. 1395n, I 396d (1976) " Task force studies were unlertaken in the followingareas:I. Trust 6 or subject area, reports and a final statutory report diverse, ranging from wildlifetotaxation, but to Congress. The final report, which contained some several generalizati about this organizational 206 recommendations for Federal action, -adopted a activity are appareer The most extensive activity strong stance favoring the sovereignty of the tribes took place where reservation lands were checker- and a trust relationship, asserting that: bearded, that is, many different land ownership 1. Indian tribes are sovereign political bodies, patterns and legal statuses were commingled, and having the power to determine their own mem- where non-Indians resided or had significant finan- bership and power to enact lawn and enforce them cial interests, such as grazing leases, within the within the boundaries of their reservations; and reservation boundaries. 2.The relationship which exists between the Another common factor was the existence of a tribes and the United States is premised on a controversial issue involving tribal powers. It also special trust that must govern the conduct of the _seems clear that much of the organizational. activity -stronger toward the weaker." of non-Indians resulted from their fear of having any A strong dissent was issued by Vice Chair Lloyd aspect of their lives or property regulated or Meeds, who fundamentally disagreed with the ma- controlled by Indian governments, which, by defini- jority definition of tribalism and sovereignty." In tion, were not responsive to or controlled by non- Mr. Meeds' view, tribes are Federal creatures for the Indians. An underlying assumption was that if the purpose of administering Federal Indian affairs that tribes exercised more power, non-Indian interests no longer possess any powers derived froWttiir would be adversely affected. During a Commission own sovereignty. Mr. Meeds' view would al 't hearing, the following exchange occurred during the the trust relationship to property interests. testimony of a non-Indian who had a business on the Although many interested parties and advOcates reservation: for and against the tribes thought that neither the COUNSEL. ..assuming that the court chose to majority nor the minority report went far enough or of the tribal tax and said was a strong Anou-gh-tell-ection of their positions, the that it was a proper exercise of tribal jurisdic- difference between the 10-person majority and the 1- tion,. ,.Is that a matter of concern to you? person minority view of the AIPRC report was crucial. Under the majority view, tribal efforts to MR. SNOW. Yes, I would assume that before too recapture the reins of government sad to operate in long we would be out of business. day-to-day governmental arenas, such as water and COUNSEL. Why do you say that?' sewer, zoning, taxation, building codes, and the like, were applauded and encouraged. MR. SNOW. Well, because, ,without being able to regdlate any government by any people, they Much of what has been labeled "backlash" oc- can do away with you any time they wish. By curred well before the AIPRC reports were issued. being able to tax us, being able to have the say The issuance of the final report and the attention over any of the services that we receive, that it received in areas of laige Indian population, inspections, any time that they wanted to get rid however, was perhaps a turning point in the consoli- of us, they could. And it is their aim to claiin dation of various forces in the conflict over Indian back every bit of reservation that was originally issues. . theirs before it was sold off as tax-fee land." In 1974 Montanans Opposed to Discrimination The Backlash was organized around the Flathead Reservation of Non - Indians living on and near Indian reserva- the Salish and Kotenai Tribes. Jurisdiction over non- tions organized into fairly small, localized groups Indians was a key issue in its formation." There was during the early to middle part of the 1970s. The similar activity on other reservations; for example, substantive issues involved in each reservation set- the Quinault Property Owners Association was ting nad specific local significance. They were organized in response to the Quinault Tribe's effort
Responsibilities and the Federal-Indian Relationship; 2. Tnbal Govern. Ibid, p.4. men% 3. Federal Administration and the Structure of Indian Affairs; 4. " Ibid.. p. 567. Federal. State, and Tribal Junsdiction; 5. Indian Education; 6. Indian " Kenneth Snow, testimony, Seattle Hearing. vol. I, p. 191. Health; 7, Reservation and Resource Development and Protection; 8 " Blair K. Ricendefer. chairman of the board, Interstate Congress for Urban and Rural NonreservationAndians; 9. Irdian Law Consolidation, Eq..11 Rights and Responsibilities, statement. Seattle Heating. vol 11, p. 599. Revision, and Codification; 10. Terminated and NonFederally Recognized Indians; 11. Alcohol and Drug Abuse. FitialReport, p. 9. to establish and apply sanitation and building Ma. SCHULZ. Well, we all went into Bennett codes;" the Lummi Property Owners Association" County tne day chat the 'Wounded Knee inci- and non-Indian landowners on the Port Madison dent occurietl. Mere was a roadblock and their Reservation- organized around -the arrest- and at- officer, at that particular point in time, said, tempted prosecution by the Suquamish tribalpo- "From-Ifere-bn -you're on yourown, you're out- lice' of one of their members for a drunken assault of our jurisdiction. You live there, you're on your own, fellows." We called in the Governor on a tribal officer during a tribal celebration. at tlfat particular point in time and he affirmed Perhaps the most well-known ,of these local that. So at that particular point, we formed an organizations was South Dakotans for Civil Liber- organization called Tri-County Protective As- ties, which was a moving force in the creation ofa sociation which was simply a defensive organi- national organization. The formation of this organi- zation which was there for one of our people, zrion _and_ the roleit came to play reflects in one of its members. And incidentally, there microcosm meh of the _cycle of the backlash were tribal members who were also members of movement. this organization. If they had a problem, they would call a neighbor and they would come South Dakotans for Civil Liberties is a successor and try to hold the situation together until you organization to the Tri-County Protective Associa- could get someone there." tion, which gre%., up primarily around the Pine Ridge Reservation of the Oglala Sioux. Thisarea is Essentially, the Tri-County Protective Associa- rural and generally very poor, and much of its tioh was a group of ranchers with citizens band economic resources, including most of the relatively radios and their own weapons who organized. The lucrative ranch operations, are controlled by non- vast majority were non- Indians and many leased__ Indians. The reservation was the site of several tribal land for their ranching operations. Thegroup, publicized events associated with Indian activismor however, was never actually required to functionas
radicalism of the 1970isiiln 9udlin7g3 occupation of a defenuunit of any sort." It joined forces with and the another similarly situated group ors the Cheyenne two FBI agents and,an Indian in a 1975 incident. River Sioux Reservation to form South Dakotans -.-ACE5iding to Marion Schulz,a local non-Indian for Civil Liberties. The individual sembers shared rancher, theTri-County organization waq formed to certain similarities in that they were mostly non- fill a perceived vacuum in law enforcement in Indian ranchers on or near a checkerboarded Indian Bennett County, a heavily checkerboarded," mixed reservation. The two reservations, however, had landownership portion of the Pine Ridge Reserva- distinctly different histories and reputations. tion:" Cheyenne River, unlike Pine Ridge, did not have a reputation for violence. It did have i long history MR SCHULZ. Weil, initially it was because of of stable, albeitaggressive, tribal government, which the problem at Wounded Knee. At a particular was nationally respected by both Indians and non- point in time,-our Governor said, "Good luck, Indians." This tribal government was in the process people, you're on your own." Our attorney of exercising and expanding its powers. An attempt- general had the same opinion. It was at that ed exercise of tribal jurisdiction over non-Indians at point in time that our deputy sheriff moved Cheyenne River" was identified as the focal point back out of the county into Fall River and there we sat. for organizinP non-Indians in the reservationarea. Although events such as the stabilization of the law enforcement situation, at least with respect to the COUNSEL. What do you mean, "Good luck, fears of non-Indians, and limitation on tribal criminal people, you're on your own"? jurisdiction with respect to non-Indians as deter- " Betty Morris, Quinault Property Owners Association, statement, Seattle " Marion Schultz. testimony.Hearing Before the United States Commission oHearing. volII. p. 619; and Kenneth Snow. testimony,Seattle Hearing. vol. I. p. 190. on Civil Rights. Rapid City.SOuth Dakota.July 27-28, 1978, p.125 " Doug Fuhs. president, Lummi Property Owners Association, testimony, (hereafter cited asSouth Dakota Hearing). Seattle (fearing. vol.!,P. 90. " Ibid.,p. 126. " Frank Ruano, testimony, ib,d. p. 275. " William Janklow, attorney general. State of South Dakota, testimony, " U.S.. Commis: -on on Civil Rights.South Dakota Staff Report(1976). p 31. table 6. South Dakota Hearing.p. 211-15. 41 Subsequent litigatioh wo..dd "diminish" the Pine Ridge Reservation to " Jack Freeman, testimony.South DakotaHearing. pp. 124-25. exclude Bennett County from reservation boundaries
8
22 mined by the U.S. Supreme Court, would reduce unto themselves and a role often dominated by sport many of the initial concerns of the organizers of or commercial groups. South Dakotans for Civil Liberties, the organization All user groups involved with salmon and steel- persisted. Concerns about jurisidiction or law en- head, a related species highly prized by sportfishers, forcement were quickly submerged, and the group' opposed the Indian rights recognized by the Federal Tocai-bedirne the -whole fabric of Indian and non- court system. These groups, and there are many Indian legal and politidal relationships: trollers, seiners, gillnetters, charter boat operators, canners, plus the various sport groupsmaintained COUNSEL. What you propose and what your that Indian rights threatened the resources, and they organization has proposed in its literature sug- coalesced with other groups such as South Dakotans gests as an appropriate remedy that Indian tribes be terminated and be at best a social forCivilLiberties and Montanans Opposed to collectionam I reflecting your view correct- Discrimination to form the Interstate Congress for ly? Equal Rights and Responsibilities (ICERR). Ho- ward Gray, founder and an activist in the natural MR. FREEMAN. I think you are right, inasmuch resources area, when asked why the ICERR was as you have eliminated the tribal vehicle that formed, said: provides them a shelter that is not available to the balance of United States citizens.... [m]y initial information and activity inthis respect was from the Boldt decision ( United The-freedom of choice must be made available States v. Washington)....1 was called to Mon- to those citizens of Indian ancestry whether tana to, give a discussion of the Boldt decision they want to belong to the tribe or whether on thd provision I would listen to the problems they want to depart from it." of the people....1 went to Poison, Mon- tana... .At thatmeeting, there was 2,000 Essentially local South Dakota figures, such as residents, and after- -my discussion of the Boldt Jack Freeman (quoted above), a large-scale rancher decision, listening to their problems, we came-iii from Cheyenne River, and Tom Tobin, a p .rt-time the conclusion that there was mutual problems and what we were to do about it... .After that State's attorney forTipp oun y astbuch-Sioux-- aided-there's-problems-in-So Reservation), would become leaders and speakers Dakota, there's problemsinMontana and . - for what would become a national organization. Washington, let's find out where the other Added to these local and statewide organizations, problems are. We spent 6 months investigating, which were concerned with issues that related writing letters, taking trips, and on February 2, primarily to Indian tribal existence and exercise of 1976, we met in Salt Lake City, Utah, in which power, was a distinctly different kind of local, and there was representatives from 10 Western States that we-..e vitally interested in the prob- sometimes national,lobbying forcesports and lems mostly of Indian jurisdiction. wildlife 9rganizationsDecisions in the States of Washington and Michigan affirming Indian treaty Theserepresentativeswereschoolteachers, rights to use or harvest natural resources such as they were attorneys, they were State represen- fish, game, and wild rice without being subject to tatives, they were mayors of small towns, they State regulation and control generated much emo- were a cross section of the population. We listened, we recorded, and from that grew the tional controversy. Probably the most controversial Interstate Congress: and since that time, we decision has been United States v.Washington, " now have 18 States." which recognized in the treaty tribes a collective right to 50 percent of the annual salmon catch free The ICERR became known as the major backlash from virtually all State regulation and interference." organization, andit was given substantial press This decision recognized within the tribes a role in coverage,particularlyinreservation areas." A the management of the resources, a role that State major publication of the organization presented its governments in the 20th century had largely taken view of Federal Indian relations:
" Ibid.. p. 130. Equal Rights anpesponsibilities. testimony. Seattle Hearing. vol. I. pp. )84 F. Supp 312 (W.D. Wash 1974). Ord. 520 F.2d 676 (9th Or 1975), 257-58 cert. denied. 423 U.S. 1086 (1976) " See. e.g. assorted clippiags from Roosevelt Standard (Utah) and Rapid " See chapter 3. City Journal (South Dakota) In Commission files " Howard Grey. National Board of Directors. Interstate Congress for
9 The constitutional rights of all Americans must A major issue between the Interstate Congress for supersede treaty rights of some Antericans. Equal Rights and Responsibilities and others in the Indian reservations shall not be enlarged by debate over national Indian policy tlas been the boundary changes, by grants, by the power of diametrically differing view of civil rights as postu- eminent domain, or by any other means. lated by the Federal judiciary and the one advanced The jurisdiction of tribal governments over by the leadership of the ICERR: nonmembers of the tribe, who have no vote or voice in tribal governments, should be prohibited. We seek just one thing, that is equal rights for all people living under the Constitution of the Members of Indian tribes should not have the United States and the 14th amendment... .the right to participate in nontribil -government unless 14th amendment gives equal rights for all they are subject to the laws and responsibilities. people; that's all we're requesting." Grants of public funds to any group of people based upon their race and denial of funds to any The Supreme Court of the United States. has other group because of their race must be prohi- specifically addressed the issue of whether special-. bited." ,ized treatment of Indians by the Federal Govern- The publication is largely a series of questions and ment is unconstitutional racial discrimination. The answers purporting to provide information concern- clear answer of the Court was that it is not. For the ing-.what is cnaracterized as "one of the most purpose of dealing with the Federal Government, misinformed and uninformed problems facing both Indian tribes are not racial groupings but rather Indians and non-Indians living in states having an political groupingsgovernments." Thisisthe Indian population."" The information provided is point that was misinterpreted in the question and advocacy information designed to support the prop- an, swer quoted from the ICERR publication. In this ositions listed above. For example, the first question reasoning, the way things have "always been done" and answer reads: is elevated to a constitutional right. No judgment is apparently made as to whether "always" was ever Q. How do you define an Indian-tribe? or is currently appropriate. The Constitution of the United States does not mandate identical treatment A.Itis a corporate entity run by a few of differently situated groups. It does require that nunvatuals:"---- government have. acceptable reasons for differing The answer is, limited and technically correct for nt;-the_more suspicious the difference or the many tribes as well as most States, counties, and treatinentthe Triaiffeation-required. Where any aspect of race is involved, the justification cities. But as applied to any unit of government the required is very great. answer simplymisses or avoids the point of govern- mental power. Regardless of where the debate leads Political Effects of the Backlash to on the extent of governmental power, whether it The civil rights vocabulary was misapplied with is inherent or delegated, whether it is over territory enthusiasm by local and national political figures. or only over certain categories of individuals, the Although the Federal Government has been treating fact is-that-tribes are governments, and any answer Indians differently from non-Indians since its incep- that ignores that is misleading at best. Although the tion, this fact, newly discovered in the decade of the information in the 'booklet varies considerably, from 1970s, fueled much of the debate. The attorney statistical data to political opinions, its basic Message general of Washington State, for example, termed is that tribes, dominated by a few individuals, are Indians "supercitizens" and said: relatively affluent entities nurtured by a welfare system that inhibits individualism. The American We are actually pondering a double soci- judicial system is opposed as being prone to emo- ety... .we must obtaiirjustice for the Indians tionalism, and the goals of the organization are but not at the risk of injuries to non-Indians. mainly to be pursued through the Congress, which is .. .we are concerned with what we consider to viewed as being more reasonable than the courts. be special rights, particularly those created by " Interstate Congress for Equal Rights and Responsibilities.Are We Giving " Ibid.. p. 3. Amefka Back to the Indians? (Winner.South Dakota. 1976). " Grey Testimony.Seattle Hearing. vol. I.p. 258. " Ibid.. p. I. " Morton v. Mancari. 417 U S. 535 (1974). 10 24 treaty, which bear no relationship whatsoever, fundamental components of Federal Indian policy now or in the future, to past discrimination and were in serious danger. The 1977 congressional which simply substitute one form of what we session was &high water mark for the introduction would consider to be invalid discrimination for another." of anti-Indian legislation. Representative \John E. Cunningham (R-Wash.) proposed the IndianEqual Although it is clear that State and local officials in Opportunity Act of 1977." The bill, whose title was reservation areas reacted strongly to these issues, it at odds with its contents, proposed abrogating all isnot possible to determine how much of the treaties between the United States and the various reaction is attributable to constituent pressure and tribes, terminating the Federal Indian relationship, how much resulted from a perceived threat to the and abandoning reservations.It was universally interests of State and local governments. It is clear opposed by Indians. Another and perhaps more that both factors were operative. The Western serious effort was introduceety Representative Conference of Governors, the Western Conference Lloyd Meeds (D-Wash.) the former vice chairman of State Attorney Generals, and the Western Con- of the American Indian Policy Review Commission. ference of State Tax Adnkistrators all began to turn His bill, the Omnibus Indian Jurisdiction' Act of considerable attention to fddian issues. Economics 1977, proposed restricting tribal jurisdiction to the were obviously ap issue that permeated much of the narrowest possible limits without altogether abolish- States' concern. Competion with tribes for grants ing such juriiction; State jurisdiction within the that States and localities used to receive unopposed boundaries ofrationsations would correspondingly created some strain, as did the increased competition have beer. 'significantly expanded. Another legisla- and need for tax revenues. Fred Mutch, mayor of tive proposal of Representative Meeds was H.J.R. 1, Toppenish, Washington, located on the Yakima an imposed fishing rights "settlement" whereby the Reservation, summed up the views of many: treatytribesinwestern Washington would be required to have their rights either bought out or hat I am saying is that the resentment among traded "for equivalent rights and values." Represen- [nn-Indian] people inland on the reservation is bui ding by leaps and bounds by these programs tative John D. Dingel (D-Mich.) proposed H.J.R. [funding to the tribe]. They see what they feel is 206 to recognize a primacy in State power -to enormous' preferential treatment to the tribes regulate fisheries vis-a-vis Indian treaty rights. At and maybe,this treatment is warranted and they the time, litigation concerning tribal fishing rights in have been wronged in the past. I don't know the Great Lakes; particularly Michigan, was occur- what the final price tag should be but the price ring and generating a good deal of local publicity tag is being paid today with enormous Federal and pressure. grants, and through, as I mentioned, this indi- rect State subsidy by allowing them to do The pressures felt by Congress were also brought __business without collecting a sales tax. The to bearon the executive branch, where much of the '`pint -of my remarks is this, I believe that this is operational authority in Indian affairs resides. The building a White backlash effect.... Washington State congressional delegation sought executive intervention from the Carter administra- What I am concerned about is the tremendous tion in the Washington State fisheries case." For a amount of pressure that these people will bear timeitalso appeared that the pressure on the on their legislators asking them to hastily pasS legislation to deny Indians of these sources of executive branch_would go beyond specific situa- income." tions and stimulate a negative review of the Federal Government's trust obligations. During this period The major result of this backlash would indeed be there was discussion of a review of the trust role by pressure on government at all levels to do something the Department of Justice, which was perceived as about the Indian problem. The major arena was to ominous by many Indians." Adding to the confusion be Congress, where it appeared for a time that even over the direction that the Department of Justice
Slade Gorton. attorney general. Stat,t of Washington, testimony. Seattle Cecil D Andrus. Aug 4, 1978, Seattle Hearing vol. IV. exhibit 4, p. 6. Hearing. vol. 1 p 25. James Waldo. Assistant U.S. Attorney, testimony, Seattle Hearing. vol. III. " Fred Mutch. testimony. Seattle Hearing. vol 1. p. 62. P 9. " H.R.9054.95th Cong . 2d secs (1977). " See. e.g.. Costo. Rupert. and Jeanette, Indian Treaties: Two Centuries of " H.R.9950.95th Cong.. 2d scss (1977). Dishonor Olin Francisco The Indian Historian Press. 1977), pp. 41-70 " Senator Warren G Magnuson (D-Wash ) to Secretary of the Interior (hereafter cited as Centuries of Dishonor).
11
25 4 Would take, which up to that point 'had been 'Members of Congress and with the executive branch considered to be the mote reliable Federal agency to deal with backlash issues. Perhaps the most concerned with Indian policy," there was substan- dramatic was the "Longest Walk" caravan across tial uncertainty about White 'House vile), toward the Nation to Washington, D.C., by a coalition of Indians. The Nixon administration, as noted previ- various Indian groups and individuals to dramatize ously,had giv n Indian issues high profile treatment. the various treaty abrogation hills then pending in 1977-78, owever, it was unclear what the Carter Congress. administra ion's Indian policy would-be, and there Non-Indian organizations that were traditional!,. appeared to be no specific person to deal with Indian favorably disposed toward Indians also joined the affairs at the White House level." .5 effort to counter the backlash. The American Civil Even on the judicial level, Indians perceived that Liberties ,Union made clear that it did not support the backlash forces had had an effect. In 1977 the the arguments against Indian rights predicated on Supreme Court decidedOliphant v. SuquamishTribe the ideathat such rights deny rights to other and heldthat Indian tribalcourts do not have Americans the"supercitizen" argument). Alvin inherent criminal jurisdiction to try and punish now. Ziontz, a Seattle attorney who specializes itjj,ndian Indians. This issue had been a highly emotional and law and is a member of the Indian Rights Committee controversial one on and near 'Indian reservations of the ACLU, said: and a significant factorin the development of organizations such as the South Dakotans for Civil [a]s a matter of principle, there is no conflict Liberties." The majority opinion, with its dicta whatever-between Indian treaty rights4nd the concerning. the rights of non-Indians, was greeted as 14th amendment, none whatevei. The 14th a major victory for the "backlash" point of view. amendment says simply that if you're going to
O have different treatment of different groups, 'there must be a rational basis for that difference. The Return to Normal There is obviously a rational basis for the The various "backlash" events came to a psycho- separate treatment of Indian groups, and that logical head during the 95th Congress in 1977-78. basis-is the transactions which they made with Indians and their allies perceived themselvc3 to be this nation. They have in effect entered into a under direct attack. Many believed that the back- contract, and it is no more a denial of my 14th lash, particularly the legislative component, posed a amendment rightsthatIndians continue to real danger to the continued existence of the tribes. receive the benefits of the agreemeht they made than it is a denial of my rights that any groups The rhetoric of the 'era reflected this view, one that sold land to the United States Government commentator :ating that "the new war against the gets paid fcr theirlatti. So that's simply, in my American Indian Vaking place."" A wide range of view, nonsense. The American Civil Liberties activities were undertaken by tribes, national Indian Union does not feel there is any 14th amend- organizations, individuals, ad hoc coalitions, and ment question whatever in upholding Indian non-Indian organizations generally sympathetic to .treaties.....The union has adopted, as a mattei Indians. Resoldtions, a traditional means of dealing of national policy, a commitment to support and uphold Indian treaties." with policy issues, were passed by many tribes and tribal organizations, opposing the backlash organiza- Similarly, the Aftierican Friends Sere ice Commit- tions and eyen requesting that they be investigated." tee publicly supported Indian treaty rights and' A variety of media efforts were-dndertaken, includ- undertook efforts to support its organizati5nal posi- ing exposes in Indian newspapers, informational tion. At the same time a new non-Indian organiza- films and media spots, leaflets, and books concerning tion,the National Coalition to $upport Indian issues ass6ciated with theebacklash. Trips to Wath- Treaties, was formed and began to function in the ington, always a state' in tribal-Federal relatt,ms, backlash debate. When the 95th Congress ended in were increased for tribal officials to meet wash '1978, none of the "backlash bills" had passed; in fact,
" Robert Pelcyger. Natise American Rights Fund. testimony.Hearin?, " Centuries of Dishonor.p. 41. Before the United Stares Commission on Civil Rights. Washington. D C.. Mar " See. e g . National Conference of American Indians. Litigation Confer. 19-20.1979. p 5 (hereafter cited as Washington. DC Hearing). ence Resolution to U S Commission on Civil Rights. Much 1977. " Peter MacDonald. chairman. Navajo Nation. interview. March 1979 " 438 U.S. 191 (1978) " Alvin Ziontz. attorney. testimony.Smirk Nearing. vol. I.pp. 258-59. " Freeman Testimony and Schuh! Testimony.South Dakota Hearing. pp 124-39 12 -26 none had ever left committee. The major sponsors of Antelope v.United States, 4 the Court held that this 'legislation,,, Representatives Cunningham and prosecutions by Federal and tribal governments Meeds, were nolonger Members of Congress. Lloyd were by separate governments and therefore inher- Meeds (D-Wash.) did not seek reelection, and John ent tribal 5.c vereignty was a significant element in its E. Cunningham (R-Mich.) was defeated. The 95th analyses. Neither case, 'however, involved the exer- Congress did, in fact, produce legislation sought by cise of tribal power with respect to non-Indians. and favorable to Indian interests: the Indian Child On the executive side, the Carter administration Welfare Act," 9 which addressed the serious problem created the position of Assistant Secretary for Indian -of involuntary separations through foster care, adop- Affairs in the Department of the Interior," elevating tion, and removal of Indian children from their the status of Indian affairs in the Department: This familial and tribal settings; and the Indian Religious office, along with Interior, generally, began to be Freedom Act," which mandated a policy of respect- re ognized as a positive development. Questions ing traditional Indian religions and required Federal about the Attorney General's positions concerning agencies to review their programs in order to avoid the trust responsibility were eventually settled with- Infringing oil. traditional 'Indians religious freedom. Although both acts and other Indian legislation, out any far-reaching consequences." On the other passed by ,yrhat had been seen as an unfriendly hand, the carter administration did aggressively Congress, i4 important pieces9of legislation, they attempt to negotiate away rights it had, as counsel, are not 'generally of the far-retching nature/thal won in court for the Washington) State fishing might have been produced by closely adhering to tribes." . .. the majority' report of the American Indian Policy Indians lost prominence in .thd media as the dire Review Commission. For example, Congress could predictions did not come to fruition. Other issues, a have legislatively overruled the Oliphani c ecision,91_ worsening economy and conflict with racial and expanded the jurisdiction of tribal courts by amend- linguistic minorities, would replace Indians as ob- ing the Indian Civil Rights tact of 1968,92 or jects of attention as the decade of the eighties began. developed new programs for returning allland Although Indians have receded once again from the within reservation boundaries to trust status. None immediatAmerican consciousness, none of the of these actions were taken. The 95th Congress, underlyingissues and disputes have changed with therefore, produced a recordthat was neither regard to Indians. There remains a conflict betWeen- overwhelmingly anti-India:h nor pro-Indian. Indian tribal interests and those of dr doniinant Similarly, the other branches of the Federal society. The conflict is sometimes minimal and easily Government, acted with mixed results. The Oliphant negoAiated or cured. It is sometimes substantial and decision of the Supreme Court was followed by can involve rights to land, water, mineral:resources, several decisions in the .very same term that havelimber, wildlife, or even the right to survive' as a been viewed as protribal. In Martinez v. Santa Clara tribe. These issues' are difficult to solve. They Can Pueblo, 93 the"Supreme Court held 4that sovereign and do have substantial effects on the traditional immunity, not waived by the tribe, barred a-Suit bytit civic rights* problems of Indians, such as police tribal metnber against the tribe. The case also harassment, denial of services, and denial of the right clarified the .very limited scope of review permitted to vote. They are dealt with in a legal-political the Federal courts over actions of tribal govern- system that is still little understood but in which the ments under the Indian Civil 1iights Act of 1968. In Federal Government plays a crucial role. -N. " 1 Pub.L. No. 95-608. 92 Stat. 3079 (1979):Codified at 25 U S C.A. " 430 U.S. 641 (1977). §§1901-1921 (Supp. 1980). ex* P - " Forest Gerard: Assts.-int Secretary of the had& for Indian Affairs. " Pub.L. NO. 951-341, 92 Stat. 469 (1979), codified ,t 42 U.S.OA §1966 testimony,Washington. D.0 Hearing p112. (Supp. 1980). ". Robert Pelcyger.testimony. andPhillip S DeLoria, testimony,Washing. " OLphant v. Suquarrnsh Indian Tribe, 435 U.S 491 (1978) ton D C. Hearing. pp. 5-26 " Codified at 25 U.S C. § §1301 - 1341(1976). " See chapter 3 !' 436 U.S. 49 (1978).
13 2 - *
o'
14
,.# 28 Chapter 2
Context for Evaluation
Major questions have always existed concerning religion generally support this view of the genesis of the role' and status of Indian tribes and Indian life. For example, Navajo legend providesthat peoples within the fabric of life in the United States. Dineh (meaning, the people) came to this continent But these questions have never consistentlyoccu- from beneath the earth, in an area bounded by the pied the forefront of public debate. They have often been ignored. sacred mountains of the Navajo, an area that today approximates the Navajo Reservation.' Even when issues involving Indians have become the focus of public scrutiny, most non-Indians and The archaeological record, to the extent thatone some Indian people have found their level of exists, indicates that Asian people migratedover the knowledge and experience insufficient to evaluate Bering Strait (between Alaska and Siberia) to this such issues in their legal and historical complexity. continent some 40,000 to 100,000 years ago? It is The purpose of this chapter is to contribute toa believed that the earliest migration broughtpre- broadened understanding of problems that have Mongoloid people who, through adaptation, became confronted this Nation's people and leadership for the Mongoloid group later knownas American centuries without resolution. Acquiringa frame- Indians.3 work to deal with Indian issues is-not simple, and Stereotypical views of Indians have often cast what follows will not provide immediate expertise. them in the role of uncivilized "savages." In reality, The chapter will, however, supplysome of the basic the early explorers found that the tribes, organized tools needed for evaluating issues of Federal Indian bands, and confederacies of Indians who inhabited policy that are of crucial importance to the relation- this continent were diverse and frequently proved __ship between- the United States and its original willing hosts to the European newcomers.' Over,500 peoples. language 'groupings existed. The economies of the tribes, generally reflecting local conditions, ranged Historical Perspective from subsistence hunting, fishing, and gatheringto intensive horticulture and trading.3 Althoughmost Precolonial tribal groupings were fairly small, about 100per- No explanation of the origins of humankind in the sons, a number of large tribes and bands were Americas isuniversally accepted. Many Indian organized in domplex political and military confed- tribes profess that their originswere on the North eracies. The total population of the continent before American continent. Indian legend, tradition, and European colonization is not known with exactness; Martin A. Link. Navajo: A Century of Progress 1868-1968 (Window Rock, ' Peter Farb.Man's Rise to Civilization: The Cultural Ascent of the Indians of Arizona: The Navajo Tribe. 1968), introduction. North America(New York: E.P. Dutton, 1978), pp. 249-50. 2 Richard S. MacNeish. "Early Man in the Andes,"Scientific American. vol. 224. no. 4 (1971), pp. 36,46. ' Ibid., p. 8 * Eskimos or Innuits, also of Mongoloid stock, are believed to have arrived on this continent in later migrations.
15 estimates range from less than a million persons to 12 with corn-and flesh. The supplies brought from million people.' England had been nearly exhausted; the colon- ists had been too sick to attend to their gardens The Colonial Period: 1494-1776 properly, and this act of the Indians was Although much discussion centers on who "dis- regardedasadivineprovidenceatthat time. .. .What was the real motive for the covered" America, it is clear that the voyages of kindly acts - of the Indians may not be certainly Christopher Columbus marked a turning point. known; but-it probably boded the little colony a Whatever earlier explorations or landings may hive future harm." -- occurred, they failed, to provoke the burning interest European powers that the expeditions of The two centuries following the voyages of Columbus produced.' A century of adventurism Columbus saw the emergence of three distinct forms followed: of European exploitation in-North America: The Spanish gained an early foothold in North 1)the extraction of local products and resources America in the area now known as New Mexico. for which there was an immediate market in They instituted the "encomienda," a feudal lord and Europe; serf -system of colonization. Spanish land grants 2)forced labor through local economic reorgan- included the perpetual service of the natives who ization, usually through the institution of slavery, lived on the land.' For the "encomienda" to work, to procure products for the world market; and the natives were a necessary,albeit semislave, 3)the transplantation of Europeanlifeinto ingredient. In this aspect Spanish colonization re- America.'1 sembled practices of the French, who.made Indians By the mid-18th century the British and their a necessary element in an extensive supply and colonial system were the dominant European influ- trading system.' ence in North America. The British (as other Colonization by the British was different. The European nations) legitimized their acquisition of British came to North America to settle, and they land through the "doctrine of discovery" and other did not view the native population as necessary to legal theories, alien European theories that were colonial life. Neilter Indian labor nor trade goods imposed on the native population. The cornerstone were mainstays of a colonial economy that was to of colonization "rights," the doctrine of discovery depend ultimately on large numbers of transplanted gave the "discoverer" of "unoccupied" lands the Europeans. Nonetheless, Indians were important right to acquire these lands in the face of_the and useful to the early British settlers, who at first competing claims of other European nations. "U- were relatively inept at coping with the environment noccupied" meant "unoccupied by Europeans." of North America. "Aboriginaltitle" was acknowledged by the Indians almost universally chose to greet the colonizers as areas that natives considered their British with friendship apd assistance. ,The early home prior to European dominion. The aboriginal colonies, never far from the brink of disaster, were Indian title involved an exclusive right of occupan- provided with lifesaving' aid by neighboring tribes. cy, a basic concept that would be shaped and o The overt friendliness of I dians was viewed by the reshaped throughout the next several hundred colonists with inexplicable uspicion. On the edge of years." An individual European, in this view of land starvation, the Virginia Colony accepted relief from rights, could only obtain land through the action of a Indians with an ambivalen e reflected in a contem- colonial nation that had already acquired the land porary recounting: through discovery. The doctrine of discovery has All accounts agree that for some reason the had a succession of interpreters over timeVattel, Indians did daily relimke them for some weeks Victorio, Las Casas, Sepulveda, Loae, Montes-
J Nixon Hadley. -The Demography of Amencan Indians. Annals of NAlexander Brown. The First Republic in America (Boston, 1898), pp. 41- the American Academy of Pohtical and Social Science. vol. 31 (May 1957). 42 Cited in Wilcomb E. Washburn. Red Mani Land/White Mani Law pp. 23-24; Alvin W. Josephy. Jr.. ThelIndian Heritage of America (New York: Alfred A. Knopf, 1968). pp. 50-51 (New York: Charles Scnbner's Sons, 1971), pp. 34-35. ' Ronald Sanders, Lost Tribes and Promised Lands. The Origins of American 1' vine Delona, Jr., Behind the Trail of Broken Treaties (New York Dell Racism (Boston: Little Brown and Co., 178). p 200. Publishing, 1974). p. 91. !bid , p. 129. " See Felix S. Cohen. Handbook of Federal Indian Law (Albuquerque:. Ibid.. p. 203. See also Thomas Forsyth. "The French, British and Spanish Methods of Treating Indians." 1818 manuscript reprinted in Ethnohatory. University of New Mexico Press. 1942 ed ). sec. 4, pp. 291-94 See also vol. Iv. no. 2 (Spring 195,7). pp. 210-16. chapter 4 of this report.
16 30 quieu, More, and Blackstonebut basically it has definite borders, and the removal ofnon-Indians been a rationale for the taking of land: from their lands." In 1768 the Crown establisheda so-called containment line beyond which no Euro- The white Europeans were to have the Indian pean settlements were to occur. But these protec- lands because the Indians were infidels rather than Christians, hunters rather than farmers, tions were routinely breached, and thousands of monsters rather than men, or by reason of the white settlers moved beoyond the "containment" generous gifts of European civilization and line." technology, or by reason of conquest, or by reason of the fact that the king owned every- Early United States-Indian Relations: 1776- thing." 1830 Conflict regarding relations with Indian tribes Another significant practice with substantial legal was not resolved by the outcome of the Revolutionary consequences was the use of formal treaties for real estate and other transactions between,' European War. The United States replaced the Crown, and the sovereigns (and their colonial instrumentalities) and States replaced the colonies, but the issue of local Indian tribes. The British colonies were the legal versus national interest and control was not settled. The newly formed Continental Congress reserved instrumentalities for effectuating Crown policies in to North America. itself the power of "managing all affairs with the Indians not members of any of the StateF " but also Relations between individual colonies and neigh- provided that the "legislative right of boring Indian tribes were diverse. Each colony, after any State, its initial need for friendly'relations with indigenous within its own limits, be not infringed."" This essentially codified a dichotomy between national tribes, followed its own course. Some colonies were and local views on Indian affairs. openly hostile to tribes and aggressively attempted , Both the emerging central government and the to eliminate Indians from their territory. Others sent missionaries and teachers to States agreed that the Indians were neededas allies "train" Indians in in the Revolutionary War. As a military imperative farming and European attire, religion, customs, and they sought to maintain friendly relations with culture. Europeans, although recognizing certain as rights in the tribes, clearly considered themselves many tribes as possible. By 1778 the American government had negcTtiated its first treaty, with the superior. . The Crown had no coordinated policy toward Delawares.19 The role of the central government with respect North-American Indians beyond the bare outlines of to the tribes and the 'Alley it would follow toward treaties and a few operative legal concepts. Thisgap became but one of the many unresolved issues them was a much debated issue in revolutionary between the British Crown and the American times. George Washington played an important role colonies. The British organized the 1754 Albany in formulating policy and made clear in his writings Conference to develop a scheme for managing .that the Federal Government would need to inter- North American Indian affairs." The colonist's, cede on behalf of the tribes: Iniwever, had a broader agenda.. and turned the To suffer a wide extended Country to beover conference to the drafting of the Albany Plan of run with Land Jobbers, Speculators, and Mono- Union." In this instance and others in the long series polisers or even with scattered settlers, is, inmy of events leading to the Revolutionary War, Indians opinion, inconsistent with that wisdom and became factors in a growing conflict. policy which our true interest dictates,or that The Crown took several actions that soughtto an enlightened People ought to adopt and, preserve the military allegiance of some tribes. The besiaes, is pregnant of disputes both with the Savages, and among ourselves, the evils of Royal Proclamation of 1763 established that the which are easier, to be conceived than de- tribes had a right to the protection of their lands, scribed; and for what? but to aggrandizea few " Deloria. Behind the Trail of Broken Treaties. p 89 " D'Arcy McNickle. "Indian and European IndianWhite Relations from " George Beer. British Colonial Policy 1754-1765 (Gloucester. Mass.Peter Smith. 1958). pp. 18-23 (reprint of 1907 edition) Discovery to 1887." Annals of the American Academy of Political and Social " Albany Plan of Union (1754), reprinted in Henry Steele ComMager. ed.. Science. vol 311 (May 1957). p. 6. Documents of American history (New York AppletonCenturyCrofts. 1958). p. 43. " Articles of Confederation (ratified and in force. Mar. I. 1781). Art. IX. I " The Proclamation of 1763. reprinted in Commager. Documents of Stat. 4.7 (1845) American Iltstory, p 47 " Treaty with the Delaware Nation. 7 Stat 13 (1778)
17 3 1 avaricious Men to the prejudice of many, and ments in return. It was believed to be in the clear the embarrassment of Goverrunent." interest of both the United States Government and The policy that General Washington would ulti- the Indian nations, under the military circumstances mately recommend was pragmatic: of the era, to live without war and by contract. Between the end of the French and Indian War I am clear in my opinion, that policy and (1763) and the end of the War of 1812, the Indian economy point very strongly to the expediency nations were secure in the use and occupancy of of being upon good terms with the Indians, and their lands. 'T'hey "in effect parlayed their claims to the propriety of purchasing their Lands in land into claims for services from the new American preference to attempting to drive them by force governmtnt."") The treaty process would continue of arms out of their Country. .. .In ,a word for almost a hundred years and would acquire there is nothing to be obtained by an Indian War but the Soil they live on and this can be millions of acres of land for the U.S. Government to had by purchase at less expence [sic], and provide to non-Indian settlers. The treaties also built Without that bloodshed. ...21 a reservoir of material and political promises to the tribes. Washington's advice, accepted by a Nation that The quest for land for the use of non-Indian was exhausted and weak, was codified as a procla- settlers took on new impetus at the turn of the 19th mation of the Continental Congress on September century. The Louisiana Purchase in 1803" and the 22, 1783. The Ordinance for the Regulation of acquisition of Florida in 1812-19 doubled the United Indian Affairs followed in 1786 and in 1787, the States in size. With this expansion, coupled with the Northwest Ordinance. This often quoted and much consolidation of military and political strength by violated document expresses the following: the new govt nment and the development of the philosophy of "manifest destiny,"" Indian tribes The utmost good faith shall always be observed towards the Indians; their lands and property faced a dramatic and damaging change in Federal shall never be taken from them without their Indian policy. consent;- and, in their property, rights, and liberty, they shall never be invaded or dis- The Removal Era: 1830-1850 turbed, unless in just and lawful wars autho- The eastern tribes, particularly those in Georgia, rized by Congress; but laws founded in justice faced continuing pressures from State and local and humanity shall from time to time be made authorities to give up their lands and political status. for preventing wrongs being done to them, and Major court battles were fought." Influential leaders forpreservingpeace andfriendship. with them." of the day proposed moving the eastern tribes to the western territories. Thomas Jefferson proposed a When the Revolutionary War ended in 1783,23 the constitutional amendment to exchange the Indian United States embarked on a round of treaties with land east of the Mississippi for land west of that its former allies as well as with the tribes that had boundary. This amendment failed, but subsequently aligned themselves with the British." The United congressional authorization was obtained on the States Constitution, ratified in 1789, confirmed the same question." The western area to which Indians Federal role in Indian policy by assigning Congress were to be moved was then considered uninhabita- the authority to involve itself in Indian affairs." ble by white people. Through the treaty process the United States would The political-military realities between the tribes acquire both lands and legal responsibilities; the and the United States had shifted by this period, and tribes would cede lands and obtain Federal commit- the tribes were unable toresist removal. The
" George Wishington, letter to lames Duane, Sept. 7, 1783, excerpted in " Treaty with France, Apr. 30, 1803, 8 Stat. 200(1846). Francis Paul Prucha. ed.,Documents of United States Indian Policy " Manifest destiny has been characterized as "expansion, prearranged by (Lincoln: University of Nebraska Press, 1975), p. 1. " Ibid., p. 2. Heaven, ovet an area not clearly defined." Frederick Merk,Manifest n The Northwest Ordinance, July 13,1787, reprinted in Commager, Destiny andMission inAmerican HistoryA Reinterpretation(New York: Documents ofAmerican History.p. 131. Vintage Books, 1963), p. 24. " Definitive Treaty of Peace with Great Bntain, Sept. 3,1783, Great " See discussion of Worcester v. Georgia and Cherokee Nation v. BritainUnited States. Georgia. in following section, "Legal Concepts of Federal Indian Law." " See, e.g. numerous treaties in vol. 7 of Statutes at Large. at U.S.Const. art. 1, §8, cl. 3. " Act of Mar. 26, 1804, 2 Stat. 283, 289;seeS. Lyman Tyler,A History of " Kirke Kick:ngbird and Karen Ducheneaux,One Hundred Million Acres Indian Policy(Washington, D.0 : U.S. Department of the Interior, 1973), p. (New York: Macmillan, 1973), p. 7. 54.
18 32 euphemistic "exchange of lands" began in 1817 and massive movement' of missionary stations towest of continued until mid-century. Thousands of Indian the Mississippi. From. this vantage the missionaries people, almost the entire Indian population that had "directed their attention to Indians indigenousto the existedin the southeastern United States,were Indian territory as Well as to regaining the confi- moved west. The first removal treaty, following dence of their former eastern charges."" soon after the Indian Removal Act of 1830," was the Treaty of Dancing Rabbit Creek with the Indians were seen as being "historically anterior Choctaw Nation." Although removal was theoreti- and morally inferior" to Protestant Christian settlers, cally based on the consent of those removed, it is and with expectations of their demise asa people, clear that the eastern tribes were coerced. Theideal there was pressure to civilize and Christianize them of "progress" was invoked to rationalize the forced before it was too late." Large and small missions migrations as inevitable and to obscure the material were strung out across America. They were to greed of American expansionism." This periodhas provide the Indians with European concepts of been described as "one of the blackest chapters in work, time, savings, and Christian orthodoxyto the American history": end that "as tribes. and nations the Indians°must perish and life only as men!"" Tens of thousands of helpless Indians, many of whom had white blood, were whollyor partly civilized, and owned homes, livestock, and Mid-Century--Reservations and Wars: 1850- farms, suffered incredible hardships....All 1880 their efforts to halt or reverse the government's policy failed, and in the end almost all the Although1.. nd reservations had existed since members of each of the tribes were removed to colonial times, they did not becomea primary different areas in the present State of Oklahoma. ingredient in Federal Indian policy until thz mid- Some of them went reluctantly but without 19th century. Reservations were defined defiance; others went in chains. Most of them as areas of steamed westward under the watchful eyes of land, usually within former Indian land holdings, troops who made sure that they kept moving." that were setaside for the exclusive use and occupancy of individual tribes or groupings of Some tribes did remain in the East. The Nation for tribes. Government policy had beento move the the most part, however, acted from this time on as if tribes westward from areas of white settlement into no Indians existed east of the Mississippi. unsettled territories denoted Indian country. Areas The assimilationist movement grew in tandem with the policy of removal. Thomas Jefferson without white occupation and trade were to become was scarce one of the major supporters of the view that with afterthemid-19thcentury.Expansion adequate resources and coaxing Indians could be brought newcomers to all parts of tne continent. "civilized" and live in harmony with their white Wagon trains trekked to Oregon and Californiaas neighbors." The responsibility of civilizing Indians early as 1841. Texas joined the Union in 1846, and fell to the various benevolent societies and mission- the Treaty of Guadalupe Hidalgo in 1848 extended ary organizations. Until the end of the War of 1812 the the United States dominion to the Pacific." the missionary effort had been hampered bya lack of The western tribes and the relocated eastern tribes funding and a clear sense of direction. The change in were challenged for land, and resources, such as national mood accompanying removal ledto the Black Hills gold, by the new white settlers. The establishment in 1819 of a Civilization Fund," which United States embarked on an aggressive policy of provided an annual appropriation from Congress to establishing Indian reservations by treaty. Thetrea- these organizations and gave impetus to the assimila- ties would secure land for the settlers, set aside tionist movement. The removal periodsaw the preserves for the tribes, and once again promise 3, 4 Stat 411 (1830). " Act of :star13. 1819. 3 Slat 516 (1846) 33 7 Stat. 333 (1830) 3' Robert 1:Berkhofer, Jr ,Salvation and the Savage. An Analysts of 33 Arthur A Elorch. Jr , The Idea of Progress in America. 1813-1860 (Ness Protestant Missions and American Indian Response. 1787-1862 (Louisville. York: Columbia University Press. 1944), p 12 Ky University of Kentucky Press. 1967), p 2 3. Josephy. The Indian Heritage of America. p 323 " Roy Harvey Pearce. Savagism and Civilization A Study of the Indian and 33 Bernard W Sheehan, Seeds of Extinction Jeffersontan Phtlanthrops and the American blind (Baltimore Johns Hopkins Press,rev ed . 1965), p, 74 the American Indian (New York W W Norton & Company. 1974).pp 5. Berkhofer. Salvation and the Savage. p 7 42-44 " Treaty %A the Republic of Mexico. Feb 2. 1848.9 Stat 922 (1851)
19 material and political assistance to the tribes. Be- ities on reservations." The direct result manifested tween 1853 and 1856, 52 treaties were negotiated, itself in later years: sometimes peacefully, sometimes not. The desperate saga of the Indian tribes of the Great Plains, the [M]any reservations had come under the au- thority of what had amounted to stern mission- Northwest, and the Southwest has been told in detail ary dictatorships whose fanatic zealousness had elsewhere. It is clear that in the taking of Indian crushed Indian culture and institutions, sup- lands any device that was deemed effective was pressed religious and other liberties, and pun- used, including theft, fraud, deceit, and military ished Indians for the least show of indepen- force. Even those tribes that had been friendly dence. toward the United States were unable to protect Assimilation and Allotment 1890-1930 their lands. Throughout the first half of the 19th century The drive to assimilate Indians into the main- Indian tribes, individuals, and their allies had used stream of American life by changing their customs, the political and legal system of the United States to dress, occupations, language, religion, and philoso- redress grievances. Sometimes this path proved phy has always been an element in Federal-Indian effective. But even in the face of setbacks, the tribes relations. In the latter part of the 19th century and continued to pursue constitutional mechanisms for the early part of the 20th century, this assimilationist policy became dominant.. grievances. A major thrust of assimilation efforts was to Congress established in 1855 a Court of Claims educate Indians in American ways. In 1879 the that allowed private parties to sue the United States Carlisle Indian Training School was established by a" for violations of contracts. A number of Indian former military officer. Its philos6P-hy of separating tribes and individuals subsequently filed suits for Indian children totally from their Indian environ- treaty violations involving the taking of land. As the ment and forcing them to adopt white ways became suits progressed, Congress perceived the danger of the basis for a widescale boarding school movement potential Indian claims and amended the Court of that eventually removed thousands of Indian- chil- Claims statute to exclude those deriving frbm trea- dren from their cultural settings and families. In ties.Another century would pass before any addition, traditional tribal governing systems, partic- systematic process would be available for hearing ularly justice systems, came under strong attack claims of illegil land taking. during this period." The Bureau_ofinclian-Affairs- Nothing ultimately prevented the taking of Indian established tribal police forces and courts under the lands. Their holdings were reduced, and the tribes administrative control of its agents, the reservation were placed firmly in the reservation system. Indians superintendents." These and other efforts were refusing to stay in reservation boundaries were dealt designed to erode the power and influence of Indian with by military measures. Reservation occupants leaders and traditions. Everything "Indian" cal were placed under total control of a Federal agent- under attack. Indian feasts, languages, certain ma.- in-Charge whose duty was to acculturate and foster nage practices, dances, and any practices by medi- the assimilation of the natives. Christian churches cine or religious persons were all banned by the also played a major role on reservations. President Bureau of Indian Affairs. Ulysses Grant delegated to the churches the right to The Great Sioux Nation was a focus of much of nominate Indian agents and direct educational activ- the assimilation activity, and Black Hills gold pro-
" Laurence F. Sehineckbier. The Office of Indian Affairs: Its history. Josephy. The Indian Hentage of America. p. 340 Activities. and Organization (New York. AMS Press, 1972), p 44 (reliant of " For works on assimilation, see Henry Fritz. The Movement for Indian 1927 edition) Au:met:don. 1860-1890 (Philadelphia: University of Pennsylvania Press. " See. e.g., Dee Brown. Bury My Heart at Wounded Knee. An Indian 1963), Milton Gordon, Assimilation in American Life: The Role of Race. History of the America!! West (New York Holt, Rinehart. and Winston, Religion and National Origins (New York: Oxford Press. 1964); and Francis 1970). Paul Prucha, comp., Americanizing the American Indians (Cambridge: " At of Feb. 24,1855.10 Stat. 612 (1855) Harvard University Press, 1973). " Act of Mar:3.1863. §9. 12 Stat 765 (1859-63). " Nancy Oestreich Lune. The Indian Claims Commission Act." Annals of " U.S., Congress, American Indian Policy Review Commission, Task the Ameri :an Academy of Political and Social Science. vol. 31 (May 1957). Force Four, Report on Federal. State and Tribal Jurisdiction: Final Report pp. 56-57. (Washington. D.C.: U.S. Government Printing Office, 1976), pp. 122-23 " President Grant's Peace Policy. Extract from Grant's Second Annual (hereafter cited as Task Force Four Report). Message to Congress. Dec5. 1870. reprinted in Prucha. Documents of 0 William T. Hagan, IndianPolice and Judges (New HavenYale United Stares Indian Policy, p. 135 University Press. 1966).
. 20 34 vided much- impetus for reducing the size of the Allotment was advocated as a means Of further Sioux Reservation as non - Indians flocked by the civilizing Indians by converting them froma com- thousands into South Dakota. The defeat of Custer munal land system to a system of individualowner-, and his troops at Little Big Horn in 1876 wasa ship. It was argued that ownership would make direct outgrowth of the discovery of gold in the farmers out of the "savages." In 1887 Congress Black Hills and tribal resistance to the miners who passed the General Allotment Act, also knownas came seeking it. The Sioux were ultimately forced to the Dawes Act.55 Although many other acts of cede the Black Hills in 1886. Pressureon the Sioux Congress would follow, the general formula of the to give up more land continued up to the time of the Dawes Act set the pattern for allotting Indian allotment legislation, and even then it did not end. In reservations. Each family head was to receive 160 1889 the Great Sioux Nation was divided into six acres, and a sing.- person was to receive 80 acres. generally reservations." At Title to the land was to be held in trust for at least 25 the same time, the Bureau of Indian Affairs banned years. Civilized Indians could end the trust period. ,the practice of the Ghost Dank e, a religion promis-- ing an Indian messiah that had gained prominence. and receive United States citizenship and fee simple title to their land. Citizenship wbuld be unilaterally The 1890 WOunded Knee massacre isnow clearly understood as a tragic overreaction on the part of granted all Indians in 1924.56 Surplus land§ within the United States in its efforts to suppress Indian the reservation boundaries, lands not allottedor otherwise set aside, were to-be-sold-to-the-Uri-ad religious practices. Those participatingin themassa- cre, -however, were awarded medals, at the time." States and then opened for homesteading. The The latter part of the 19th centurywas also a proceeds from the sales were also to be placed in period when the traditional Indianmeans of eco- trust and used by the United States as an account for nomic support were no longer viable. Subsistence supplies provided to the Indians. hunting and gathering, which had supportedmany Allotment and other assimilationist practicesre- nomadic tribes, were precluded by the advent of ceived strong support from "friends" of the Indians. reservations and the mass destruction of wildlife, Many believed that these policies represented the particularly buffalo, that had accompanied white_only alternative to Indian extinction. Noteveryone westward expansion. Many tribes were forced into defended the Government's policies, however. Dis- economic dependency and-a dole system of goods senters in -Congress and elsewhere pointed out the and supplies, operated by the Bureau of Indian underlying reality of the period: whiteswere secur- Affairs. This period of economic hardshipwas ing vast quantities of Indian land. accompanied by widespread and severe health prob- Toward the end of the allotment period, the lenis. Federal Government commissioned a major study of Even those tribes whose economieswere strong conditions on Indian reservations. The study, known were unable to escape efforts to subjugate them. The as the Meriam Report,57 enumerated the disastrous Five Civiliied Tribes, removed from Georgia in the conditions afflicting Indians at that time: high infant 1830s, had organized themselves economically and death rates, high mortality rates for the entire politically in a manner similar to the American population, appalling housing conditions, low in- States and territories." By the latter part of the 19th comes, poor health, and inadequate education. The century, these tribes were at least as self-sufficientas policy of forced assimilation was judgeda failure. the States and territories, but they were nevertheless The failure was that it had not worked: "It has stripped of m,ost of their governmentalpowers in resulted in much loss of land and anenormous 1898." increase in the details of administration withouta All of these factors played critical roles in under- compensating advance in the economic ability of the mining tribal self-sufficiency, but the single most Indians."" But such criticism did not challenge devastating development was the allotmentsystem. ultimate assimilationist goals.
" The agreement was ratified by Carves% in 1877,19 Slat 254 (1887). "Citizenship Act of 1924,43 Slat 253 (1923 -25) " US, Congress, American Indian Policy Review Commission, Final " Brookings Institution. Institute for Government Research. Lewis Mer- Report (1977), vol 1, pp. 67-68 (hereafter cited as Final Report). " Cohen, Handbook of Federal Indian La*: pp 128-29, UM. Technical Director. the Problem of htart Admottstratum (Washing. s' The Curtis Act, 30 Stat. 495 (1898) ton. D C . 1928) (New York Johnson Reprint Corp. 1971) " 24 Slat 188 (1887) " !bidis 41
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35 In tne wake of the damaging results of the Another major development during this period reservation allotments and assimilation efforts, some was the passage by Congress of the Johnson- Indians moved to use the American 1;ga1 system on O'Malley Act" as a means to promote Federal and behalf of their people. By 1910 a small group of State cooperation in the provision of services to Indian lawyers had emerged to do battle in the Indians, particularly in education. This development courts over the questions of Indian lands, citizen- involved States more aggressively in Indian affairs ship, allotment procedures, and the enforcement of and was a natural outgrowth of the Meriam Report's treaty rights." Even though reservations were orgi- view that the Federal government had performed nally conceived of as a means to deprive Indians of poorly as a service provider and that the States had a their lands, they represented the last remnants of better record. Indian land and, as such, were held sacred by the Finally, during the Great Depression, the_Depart- tribes. Despite the prison-like aspects of life on many ment of the Interior assisted hundreds of tribes in reservations, Indian advocates moved to protect this drafting new constitutions, codes, and governmental land base. structures. These efforts produced essentially stand- ardized approaches promoted by Department of the The Indian Reorganization Act: 1930-1945 Interior lawyers. Some land was purchased, and eport-and -several other investiga- returned to tribal, control during this time, but the tions" produced major changes in Federal Indian Indian land base remained essentially unaltered. This practices. Federal policy would ultimately favor period for reviving tribal governments was a rela- restoration of some measure of tribal self-govern- tively short one. ment and tribal resources. The strategy was to use tribal culture and institutions as transitional devices for the complete assimilation of Indian life into the The Termination Period: 1945-1965 dominant white society." The major instrument for Probing examination of the living conditions of this policy was the Indian' Reorganization Act of Indians has periodically served as a stimulus to 1934,12 which, with companion legislation affecting promote change in the manner in which the Federal the Oklahoma tribes," essentially provided for an Government deals with tribes. The United States end to allotment, for measures to restore Indian land Senate in 1943 conducted a survey of Indian condi- bases, and for establishment of a revolving credit tions" and found 'serious, and troubling problems. fund to promote economic development. Also in- The Bureau of Indian Affairs and Federal bureau- cluded were the regulation of resources, mechanis.ns cracy were held culpable for these conditions. The for chartering and reorganizing tribal governments, administrative and financial costs of achieving slow and the establishment of an employment preference progresi toward assimilation were viewed as exces- policy for Indians within the Federal Government. sive. The Indian Reorganizaticn Act, however, did not Criteria were developed by the Commissioner of go as far as its advocates would have liked, and Indian Affairs to identify Indian tribal groups that several key features were not in the legislation as it could be removed from Federal aegis." The theory finally was passed. The elements lost included an was that some tribes were sufficiently acculturated appellate Indian court system, mechanisms to assure and that the Federal protective role was no longer tribal independence from bureaucratic control, and a necessary. But another development of the same national policy to promote and support the study period suggestsa less benign interpretation of and understanding of Indian cultures." eventssome 133 separate bills were introduced in
" Hazel W. Hertzberg. The Search for An American Indian Identity-- " 48 Stat. 396 (1933-34). Modern PanInclian Movements (Sycracuse. N Y Syracuse University " U S. Congress. Senate Committee on Indian Affairs, Survey of Condi. Press, 1971). p. 24. tions,Among the Indians of the United States. Partial Report. Document No. " See Final Report. p 71. for a more detailed account of the investigations 310. 78th Cong. 1st sess.. 1943; Supplemental Report. Document No. 310, pt. and events related to Federal policy change on Indian affairs 2, 78th Cong., 2nd scss . 1944. " William Brophy and Sophie Aberle. comp. The Indian. America's " For a discussion of the development of these criteria by the Commission- Unfinished Business: Report of the Commission on the Rights. Liberties and Responsibilities of the American Indian (Norman: University of Oklahoma er of Indian Affairs and the Senate Civil Service Committee. see Task Press, 1966). p 20. Force Ten. Report on Terminated and Nonfedemlly Recognized Indians " 48 Stat. 984 (1933-34) Final Report go the American Indian Policy Review Commission (Washington. " Act of June 26. 1936.49 Slat 1967 (1933-36) DC US Government Printing Office. 1976). pp. 1632-33 (hereafter cited " Final Report. pp 72-73 as Task Force Ten Report).
36. Congress to permit the transfer of trust land from crucial .areas of local government. Many recent Indian ownership to non-Indian ownership." There developments are discussed in chapter 1 and are not was also pressure to terminate particular tribes, such repeated here. Since 1965 support for tribes, finan- as the Klamaths, who had valuable timber resources, cially and technically, has shown progress. and the Agua Caliente, owners of much of the Palm
Sprinis, California, area. In 1949 the Hoover Com- Legal Concepts of Federal Indian --- fnission (although not established to deal with Indian Law issues) recommended the full and complete integra- tion of Indians into American society." Overview During the 1950s Federal Indian policy was a There is a relatively consistent body of law whose three-pronged program involving the termination of originsflow from precolonial America tothe tribes over which Federal responsibility was thought present day. This body of law is neither well-known unnecessary, the transfer of Federal responsibility nor well-understood by the American- public. Feder- and jurisdictiontoState governments, and the al Indian lawor, more accurately, United States physical relocation of Indian people from reserva- constitutional law concerning Indiantribes 'and tions to urbah areas. The cornerstone of the termina- individualsis unique and separate from the rest of tion era was House Conburrent Resolution J08, American jurisprudence. Analogies to general con- which declared, "Indian tribes and individual mem- stitutional law, civil rights law, public land law, and bers thereof...should be freed from Federal super- the like are misleading and often erroneous. Indian vision and control and from all disabilities and law is distinctit encompasses Western European limitations specially applicable to Indians." international law, specific provisions of the United The three-pronged policy was aggressively car- States Constitution, precolonial treaties, treaties. of ried out by Dillon Myer, former director of deten- the United States, an entire volume of the United tion camps for Japanese Americans, who became the States Code, and numerous decisions of the United Cothmissioner of Indian Affairs in 1950. The Bureau States Supreme Court and lower Federal courts. of Indian Affairs, which had been a target of Although the precise origins for many operative congressional criticism in 1943, grew in budget and concepts in Indian law are murky and the perimeters staff as it administered terminationist policies. Be- are not measurable with ultimate precision, they can tween 1954 and 1962, statutes were passed authoriz- be broadly identified. Knowledge of some of these ing the termination of more than 100 tribes, bands, concepts is a basic prerequisite to an understanding or Indian rancherias. Most of those affected were of Indian affairs. small bands on the West Coast, but two sizable Indian tribes are goVernmental units that have a tribes, the Klamaths and Menominees, were also "special" political (trust) relationship with the govern- terminated. In all, approximately 12,000 individual ment of the United States. Indians lost tribal affiliations that included political In the 1830s the Supreme Court of the United relationships with the United States. Approximately States decided a series of cases that form the 2.5 million acres of Indian land were removed from analytical framework upon which Indian law rests protected status. today. The cases arose in a situation that has been repeated many times in this nation's history, and one that has its current-day counterparts. The State of Self-Determination: Post-1965 Georgia and the Cherokee Nation, Iodated within Beginning with the Johnson administration, the the geographic boundaries of Georgia," were in Federal Government began to reject termination. conflict. Although all of the original 13 colonies had The policy that subsequently emerged in the Nixon explicitly transferred whatever authority they Once administration has been labeled"self-determina- had with respect to Indian tribes and claims on tribal tion." Itis a policy that favors maintaining the land to the Federal Government in the Constitution, Federal protective role, but providing at the same the State of Georgia was attempting-to dominate and time increased tribal participation and functioning in destroy the Cherokee Nation by imposing its laws
" Ibid. '° H R Con Res. 108. 83rd Cong. 1st sess . 67 Stat 11132 (1953). " Commission on Organization of the Executive Branch of the Govern. " Tag Force Ten Report.p. 1640 meet,Indian Affa.rs. A Report to Congreu(Washington. DC US " Also %Ain the geographic boundaries of the States of North Carolina. Government Printing Office. 1949). p. 65 Alabama. and Tennessee
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3 on the Cherokees. The Cherokees filed suit with the An application of this philosophy is found in the U.S. Supreme Court under ArticleIIIof the advice given by Secretary of War Henry Knox to Constitution, which gives the Court original juris- President George Wa4tington in a report on July 7, diction in cases and controversies involving States 1789. Knox reviewed the options available to the and foreign nations. The key issue facing the Court new republic in dealing with the various tribes and in Z Cherokee Nation v. Georgia " was whether the recommended continuation of the policy of treaty " heroketis constitute a foreign nation in thesense making. The benefits for the United States were: (1) of the constitution" and hence could maintain the the political and military loyalty of the tribes to the suit. Chief Justice John Marshall's opinion in She U.S. against the European powers, (2) the legal case held that the Cherokees, and other tribes, were acquisition of lands for white, settlers, and (3) amore not foreign nations but rather "domestic dependent peaceful frontier with defined boundaries. The tribes nations."" would receive recognition of their exclusive right to - The concept of "domestic dependent nations" is use and occupy defined geographic areas and the crucial, forit encompasses two major elements: ______protection of the United States. iti government, or nation-state, status of tribes and a These policies, reflected in \numerous treaties special tribal relationship with the United States. In between the United States and the various tribes, Cherokee Nation Marshall discussed in some detail the political relationship of tribes with the Federal were codified by the fii Congtess in the Indian Government. The decision characterizes this special Trade and Intercourse Act of '1790." The act . relationship, known as the trust relationship,as one prohibited any land transactions with any "Indian tilt "resembles that ofa ward to his guardian." This nation or tribe of Indians" withotirthe participation "fiduciary" relationship has been consistentlyrecog- of the United States. This statute was recently held nized by the Federal courts ever since and has been to form a basis of the trust relationship in Joint Tribal variously described as "special," "unique," "moral," Council of the Passamaquoddy Tribe v. Morton. 79 and "solemn." In the treaty relationship, tribes commonly divest- ., Although the decision of the Marshall Court was edthemselves of external sovereigntythe right to .not popular with the citizens of Georgia and others go to war with or make treaties with other foreign who wanted tribal assets," the decision and others powersin return for the protection of the United that folloWed were consistent not only with the States. Not all tribes have treaties with the United policy the United States had been following since its States. This, however, does not bar the trust rela- establishment, but also with the policies of the tionship. The Supreme Court has made it clear that European colonizers who predated the United the trust relationship extends to all tribes with whom States. Marshall's opinions in the early cases relied the United States has had relations. The court in heavily, albeit selectively, on the writings of Emer- United States v. Kagama 79 spoke of a "duty of ick Vattel. Vattel's Law of Nations, published in protection" owed to tribe:, by the United States that 1760, was viewed as the authoritative text in interna- came about from treaties and "the course of dealings tional law and morality by many in the colonial of the federal government with them," leaving the period. Vattel's thesis in simplified terms is: All tribes in "a condition of weakness/ and helpless- people who govern themselves are sovereignna- ness."s° tions; no nation has a right to more land than its Today, it is generally recognized that the United people may settle and cultivate; where a nation hasa States has a trust relationship with Indian tribes. The need for land, it has a right to the excess lands of exact limits of the relationship, however, are not another; weaker nations that submit themselves to entirely clear and perhaps never will be. One alliances with more powerful nations are stillsover- commentator has likened the trust relationship to the eign; and, quoting Aristotle, "the more powerful Bill of Rights in the Constitution: It "cannot be [nation] is given more honor, and to the weaker, defined with precision inallrespects.Itis an more assistance."" evolving, dynamic doctrine white 1 has been expand-
" 30 U.S..(5 Pet.) 1 (1831). " Sections 4-6 and 206 " Ict at 17. " 1 Stat 137 (1790) Current version at 25 U.S C §177. " Georgia would ultimately win the battle against the Cherokees when the " 528 F 2d 370 (1st Cir. 1975) national legislature and Andrew Jackson arranged for the removal of most " 118 US. 375 (1886). east coast tnbes to the western territories '',/d. at 384.
24 , -, 38
A O
ed over the years as changing times have brought The Commission has found that I\dianpeople changing issues." are Unanimous and con'sistent in their own view There are three components to the trust relation- of the scope of the trust responsibility. Invari- ship: land, tribal self ably they perceive the concept to symbolize the - government, and social ser- honor and good faith, which historically the vices. The firstland--is the clearest and theone United States has always professec4in their about which there is most agreement. Title to Indian dealing with the Indian tribes. Ind' people land, both tribal and individual, is generally held \in have not drawn sharp legal distinctions between trust by the United States. The United States holds services andcu of physical assets is their technical legal title, while equitable title or the right' understanding of the application of they trust to use the land is herd by the beneficiarythe relationship. Consequently, at its core, the trust - relationship has meant to them the guarantee of Indians. Trust lands are to be managed for the the U.S. that solemmpromises of federal protec- benefit of the equitable, or Indian, owners: Damages lion for lands and people ivould be kept." can be assessed against the U.S. for violations of the trustee's responsibilities. The Secretary of the LUieri- indlan tribes retain domestically most powers of ...... _p_or_hasb_sen designatedas the, prime agent of the government. United States for'mantgement of the- trust7-It-is, One year after Cherokee -Nation, Chief Justice however, evident that the trust relationship extends rfurther-detailed-themeaning of "domestic to the entire Federal Government and is not limited dependent nation." In the context of to the Department of the Interior. tid status of tribes, thecase Worceiter v. Georgiaas 1S Some observers argue that land and other physical still the single most important decision in Federal assets are the only cognizable components of the Indian law. It arose as part of the continuing conflict\ t1Ust relationship. The Department of the Interior between the State. of Georgia and the Cherokees. Georgia by legislation had attempted to, abolish the -,. and the Department of Justice have at Limes taken this vie. A broader view is found in the recent Cherokee government and impose its own laws report of the American Indian Policy. Review within tribal boundaries. One such law forbadeany Comm ion of the Congress of the United States non-Indian to live on Cherokee land withouta permit from the Georgia Governor. Worcester whichgues: was one of several . non-Indian missionaries living with Cherokee permission on Cherokee land. Georgia e purpose behind the trust is and always has prosecuted and convicted the missionaries under n to insure the survival and welfare of State law; they appealed to the U.S. Supreme Court. dian tribes and people. This includesan The Court, with the Chief Justice writing, reversed bligation to provide those services required to the convictions, holding that Worcester and other rotect and enhance Indian lands, resources, non-Indians were properly subject to tribal law d self-government, and also includes those because tribes were "distinct, independent, political onomic and social programs which are neces- to raise the standard of living and social communities having territorial boundaries within ell-being of the Indiati people to a level which their authority is exclusive."" mparable to the non-Indian society. This duty This doctrineof inherent sovereign powers of haslongbeenrecognizedimpiicitl; tribesbarred the operation of State law within the Congress in numerous acts, including the shy.- boundaries of the Cherokee Nation. It was as if New der Act of 1921, the Indian Reorganization Act York had attempted to impose its laws within the of 1934, the Johnson-O'Malley Act of 1934, the boundaries of Pennsylvania. The opinion again drew Native American Programs Act of 1974, the on international law (primarily Vattel's treatise), Indian Self-Determination and Education Assis- treaties, the Constitution, and the Trade and Inter- tance Act of 1975, and the Indian Health Care ' Improvement Act of 1976. In fact, as early as course Act. [1819] Congress established a general civiliza- The doctrine of domestic tribal sovereignty recog- tion fund to aid Indians in achieving self-suffi- nized in Worcester is perhaps best described by Felix ciency within the non-Indian social and eco- Cohen in his classic, often quoted work on Indian nomic structure. (Footnotes omitted.) law:
" Final Report. p. 130, " Federal law. however. is operative. " 31 U.S. (6-Pet.) 515 (1832).
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I. The whole course of judicial decision on the eignty over both their members and their territo- nature of Indian tribal powers is marked by ries."". adherence to three fundamental principles: (1) As with any government whose povjer is inherent An Indian tribe possesses, in the first instance, all the powers of any sdvereign, state. (2) rather than specifically delegated, it is not possible Conquest renders the tribe subject to the legisla- to catalog precisely all the powers that the tribts. tive power of the United States and, in sub- retain. Some powers may not have been exercised in stanct, terminates the external powers of sover- recent years, and others may become apparent only eignty of the tribe, e.g., its power tc enter into in the context of changing needs and circumstances. treaties with foreign nations, tit does not itself affect the internal sovereignty of the tribe, i.e., It is, however, see to say that tribal postirs inchide its powers of local self-government. (3) These most normal powers incidental to internal govern- a powers are subject to qualification by treaties mental functioning, for example, the power to define - and by express legislation of Congress, but, save and enforce criminal laws, /he power to determine as thus expresslyqualified,full powers of matters of family law, the power to regulate hunting internal sovereignty are vested in the, Indian tribes and in their duly constituted organs of and fishing, the power to tax, the power..to zone and government." otherwise determine land use,' and the power to determine the form of the tribe's governmental This doctrine, although not intact in its entirety, is institutions. stillviable law. In McClanahan v.Arizona Tax Stafes do not have inherent power (jurisdiction) within Commission, $3 the Supreme Court viewed tribal Indian reserviktions. sovereignty as the starting point from which inter- In affirming the existence of inherent governmen- pretive analysis begins: r tal powers of tribes in Worcester v. Georgia, Chief Justice John Marshall recognized an additional The Indian sovereignty doctrine is. relevant, fundamental point in Federal Indian law: "The then, not because it provides a definitive resoluz Cherokee Nation, ',then,is a distinct community, tion. ...but because it provides a backdrop occupying iis-ovin territory, with boundaries accu- against which the applicable treaties and Feder- rately described, in which the laws of Georgia can have al statutes must be read." no force." (emphasis adoc.:!) - The case involved an attempt by Arizona to tax the This concept that States do not possess jurisdic- personal income'of a, Navajo on the reservation. The tion in Indian country was premised on the Court's Court found that Arizona had no such taxing understanding, pursuant to international law, trzof- jurisdiction and pointed out that the reservation vitas tribal status and of the constitutional fact that tribal subject i. the "exclusive sovereignty of the Navajos relations were a matter of Federal jurisdiction, to the under general Federal supervision."' exclusion of the States. Prior to' the Revolutionary In United -States v. Mazurie, the Supreme Court War, the power to deal with Indian tribes resided in was again squarely faced with the question of the' British Crown; such power wat transferred to whether tribes are governments. This case involved the Federal Government, first in the Articles of a tribal regulation that required tribal liquor licenses Confederation and then in the Constitution. In fact, of any persons seelling alcoholic beverages on the efany of the States admitted to the Union, after the reservation. A nontIndian who was refused a liquor original 13 colonies, came into the Union with the license by the tribe continued to operate. A prosecu- express understanding, contained either in their tion followed. The Tenth Circuit held that the tribe had no power to regulate liquor licenses because it enabling legislation or in their constitution, that they was not a government. The Supreme Court unani- had no jurisdiction over tribal lands. States and their mously reversed the decision of the circuit court. non-Indian citizens have been viewed as represent- Citing Worcester v. Georgia, the Court stated: "[I]t is ing interests that were in direct conflict with tribal an important aspect of this case that Indian tribes are survival; the Federal Government was viewed as unique 'aggregations possessing attributes of sover- being responsible for protectiAg tribes from States:
" Cohen. Handbook of Federal Indian Law. p. 123. " Id, at 175. 411 U S. 164 (1973). " 419 U.S. 544 (1975). "' Id. at 172. " Id at 557.
26 4 0 .
They [tribes] owe no allegiance to the States, Congress is viewed in American jurisprudenceas and receive from them no protection. Because possessing .plenary power with respect to Indian of the local ill feeling, the people of the states affairs. where they are found are often their deadliest 'enemies. From their very weakness and help- Although Indian tribes were not parties to the .. lessness, so largely due to the course of dealing United States Constitution, much of Federal Indian of the Federal Government with them and the law is controlled by a single clause in the, Constitu- treaties in which it has been promised, there tion giving Congress the power to "regulate Com- arises the duty of protection...." merce with Foreign Nations, and among several states, and with the Indian Tribes." This single The original and total proscription against any clause, coupled with other implicit bases, provides State jurisdiction has been eroded. in several distinct Congress with extraordinary power to legislate, free ways in the century and a half since Worcester v. from most judicial scrutiny, in the area of Indian Georgia. The foremost manner in which States have affairs: obtained Jurisdiction with respect to Indian country is through express grants of such jurisdiction from Congress. These_ grants have occurred in several Not only does the Conititution expressly autho- different ways, including transfer of jurisdiction in rize:origress to regulate commerce with the Indian tribes, but long continued legislative and particular subject areas to all States" and transfers to executive usage and an unbroken current of individual States with respect to specific subject judicial decisions have attributed to the United areas and/or tribes." These statutes, and others,93 States. . .the power and duty, of exercising a haie permitted States to exercise jurisdictionover fostering care and protection over all dependent tribal members in reservation areas. Absent siiCh Indian communities within its bord- specific congressional authorization, however, it is ers.. .whether within or without the limits of a clear that States have no jurisdiction with respect to state." Indians and their property within reservation boun- This power belongs to Congress and not theexecu- darit '." tive branch; executive branch agencies have only The issue of what jurisdiction States 'have over that power that Congress authorizes.'" non-Indians within reservation boundaries isrless, The language of the commerce clause has been clear. In the area of criminal jurisdiction, a line of broadly construed to recognize congressional au- cases has recognized State j1sdiction over crimes thority in most areas not normally denoted as committed on Indian reservations :that .exclusively commerce. This has been accomplished in part by involve non-Indians." Similarly, the civil activities reference to other collateral sources of Tower. of non-Indians can be subject to State jurisdiction." Included in these are the power of Congress legisla- In the criminal area, the Supreme Court recently tively to implement treaties, the political function of held that tribal courts do not possess jurisdiction the Federal Government as trIstee for Indian over non-Indians...97 interests,, the power of Congress to spend for the The theory of State jurisdiction cases has been general welfare, and the war powers of Congress. that State jurisdiction can operate where Federal Although the fact of such congressional power action has not preempted_the State or where no appears to be universally recognized by the courts, Federal Indian interest conflicts with State jurisdic- knowledgeable commentators, both Indian and non- tion The Federal courts have recently been utilizing Indian, have questionzd the legitimacy of such whet is known as the "infringement' jest" to deter- sweeping powers. Many Indian leaders have stated mine whether or not "state action infringed on the their belief that plenary powef is premised on right of reservation Indians to make their own laws military-political fact rather than on natural right or and be ruled by them. "" law. Felix Cohen indicated that Congressionalpower " United States v. Kagama. 118 U.S 375. 384 (1886). " United States v. McBratney. 104 U.S .621 (1881), Draper v. United " E g. enforcement of sanitation and quarantine regulations and compul- States, 164 U.S 240 (1896). and N Y. ex Id Ray v. Martin. 326 U S. 496 sory school attendance. (1946). " E.g , Act of June 8. 1940. ch 276. 54 Stat 249 (cnminal jurisdiction to " E.g . Thomas v. Gay, 169 U.S 264 (1898). Kansas). " Oliphant v. Suquamish Indian Tnbe. 435 U.S. 191 (1978) " PubL. No. 83-280 is perhaps the most pervasive transfer of Federal " Williams v Lee. 358 U.S. 217 (1959): Junsdiction to States outside of the Oklahoma acts " United States v. Sandoval. 231 U S. 28 (1913) " Bryan v. Itasca County. 426 U S 373 (1976) l" Morton v Ruiz. 415 U.S. 199 (1973)
27 ma din fact, be more limited than is generally usages of civilized nations, yet, if it be indispens- acknowledged: able to that system by which this country has been settled, and be adapted to the actual Reference to the so-called "plenary" power of condition of the two peoples, it may, perhaps, Congress over the Indians, or, more qualifiedly, be supported by reason, and certainly cannot be over "Indian tribes or tribal Indians," becomes rejected by Cburts of justice.(591-92) so frequent in recent cases that it may seem captious to point out that there is excellent The classic case on plenary power is Lone Wolf v. authority for the view that Congress has no Hitchcock 10 This case involved the 1867 Treaty of constitutional power over .Indians except what Medicine Lodge between the Kiowas and Coman- is conferred by the commerce clause and other ches and the United States. The treaty provided a clauses of the Constitution.10' specific mechanism whereby "excess" Indian lands The plenary power of Congress has both positive could be sold- Congress 'Subsequently enacted an and negative consequences for Indian people. °tihe agreement for the sale of Indian lands in direct positive side, pursuant to its trust and treaty obliga- contradiction of the treaty. The tribes sued to have tions, Congress has legislatively created special the sale set aside as violating the treaty and also as protections and benefits102 for Indian tribes and tribal having been fraudulently obtained. The Supreme Indians. Some of this legislation, such as employ- Court specifically refused to look beyond the con- ment preferences, if designed for any other group or gressional enactment, which it held abrogated the class of person, might be deemed unconstitutional Medicine Lodge treaty. discrimination. On the negative side, Congress has In the long history of congressional legislation concerning Indian tribes and individualsQnow en- usedits power unilaterallyto abrogate Indian treaties,'" to restrict the governmental powers of compassing an entire volume of the United States Code, there is only one example of a congressional tribes,10' to subject tribes to State jurisdiction,1°5 and III The to terminate tribal political existence.'" enactment that failed to pass judicial scrutiny. The plenary power of_Congress is subject to few usual response of the courts to possible abuses of restrictions. Most notably, where tribal or individual congressional power has been hortatory: "Great Indian rights are taken that can be economically nations, like great men, should keep their word. "112 calculated (such as land or fishing rights), the tribe Indians and Civil Rights or the individual has a right to just compensation. 107 There is alsn some authority for the proposition that The phrase "civil rights"as commonly used the Bill of Rights generally applies to congressional covers a range of rights and privileges that people authority to legislate in Indian affairs.'" perceive as belonging to them as citizens of the The Supreme Court has been the main source United States or perhaps as a matter of Jatural law both for recognition of plenary power and for or riglit.113 Some characterizations of civil rights, narrowly defining the judiciary's role in reviewing however, may be broader than the actual constitu- congressional enactments. One of the earliest state- tional status of these rights. ments on jtidicial restraint is found in Johnson v. In this country, the United States Constitution M'Intosh 109 where the Supreme Court resolved (and statutes passed pursuant to it) is the source for conflicting claims to Indian land in accordance with deurmining the nature of civil rights. The Constitu- Federal law. The Court stated: tion does not contain a definitive listing of all rights and privileges retained by the people. The fact that However, this restriction [on judicial review] such a listingisnot there, however,is not a may be opposed to natural right, and to the limitation of rights. What the Constitution does
'« Cohen. IlandbooA of Federal Indian Law. p 90 involved amendments to 18 U S C §1153 which made State law applicable "2 E g . 25 U S C §45 (1976) (employment preference) in a Feueral prosecution to assaults by an Indian against an Indian. State '" Lone Wolf v Hitchcock. 187 U S 553 (1903) penalties were more severe than Federal penalties would be. The Court E g . 25 U S C §1 301 -41( 1976) (Indian Civil Rights Act of 1968) held that such a scheme. without any government Jurisdiction. violated '" E g Pub I. No 83-280 equal protection standards '" E g 25 U S C §564 (termination of the Klamath Tribe) "' F PC v Tuscarora Indian Nation. 362 U S 99. 142 (1960) (Justice "' United States v Creek Nation. 295 U S 103 (1935) Black dissenting) '" Cohen. IlandbooA of Federal Indian Law. p 91 '" This section deals only with governmental actions and the Constitution "4 21 U S Wheat) 543(1823) It does not treat the range of Federal and State civil rights statutes or some "I 187 U S 553(1903) of the more complex current issues of controversy. such as the intent to ". United States v Cleseland. 503 F 2d 1067 (91k Car 1974) The case discriminate
28 42 4.3
provide are restraints on Federal and State govern- Generally, equal protection issues arise when ment action in certain areas or in particular ways. some Federal or State action, often legislative but For example, nowhere in the Constitution is there not limited to legislation, treats one class of persons language that reads "the people have the right to be differently from other persons. Three basic parts are free from a racially segregated education." How- inv ved in an equal protection analysis: the nature ever, interpretation of the equal protection clause of of thclassification that is used, the natifielf the the 14th amendment has made public school de- right privilege that is being affected, and the segregation a constitutional fact of the last two governmental interest or purpose thatisto be decades. achieved. The courts, in a sense, balance these three The equal protection clause of the 14th amend-. elements in determining the constitutionality of any ment is the primary source for determining what governmental action that affects one class of persons constitutesunconstitutionaldiscrimination.The differently from another. word "discrimination" is connotatively used to refer to differing treatment of groups of people; however, not all discrimination is unconstitutional or necessar- Classification ily evil. The provision of special education benefits The right of the government to classify persons for veterans,for example, discriminates against within its jurisdiction into different classes is well nonveterans, but it is not unconstitutional. Similarly, settled. "The Constitution does not require thidgs the provision of special benefits for Indians discrimi- which are different in fact.. .to be treated in law as nates againstnon-Indians, but, again,itisnot though they were the same.""5 The Constitution, unconstitutional. however, does require "some relevance to the To determine what is unconstitutional discrimina- purpose for which the classification is made. "116 tion, it is necessary to examine the scope of the equal There must be "some rationality in the nature of the protection clause and the standard used by the class singled out.""' Any distinction that is arbitrary courts in interpreting it: or invidious is viewed as unconstitutional.'" This standard of review is known as the "rational basis" All persons born or naturalized in the United standard. States, and subject to the jurisdiction thereof, Certain classifications by their inherent nature are are citizens of the United States and of the State deemed by the courts to be constitutionally suspect. wherein they reside. No State shall make or These "suspect classifications" include alienage,"9 enforce any law which shall abridge the privi- ancestry,'" and race.' Where the classification is leges or immunities of citizens of the United suspect, courts utilize the "strict scrutiny" standard States; nor shall any State deprive any person of life, liberty, or property, without due process of"of review." Most times such classifications fail to law; nor deny to any person within its jurisdic- pass constitutional muster. Suspect classifications are tion the equal protection of the laws. "in most circumstances irrelevant" to any constitu- tionally acceptable legislative purpose."a By its terms, the 14th amendment applies only to actions of the States. The Supreme Court has, however, incorporated to some extent the equal The Nature of the Right protection guarantees of the 14th amendment into The nature of the right that the government is the 5th amendment as a proscription against the seeking to regulate or vindicate affects the standard Federiil Government: "While the Fifth Amendment of review that will be used by the courts. The contains no equal protection clause, it -does forbid inquiry is whether the right involved is fundamental. discriminationthatis sounjustifiable asto be Currently, fundamental rights include: rights guar- violative of due process...114 anteed by thefirst amendment,'" the right to "' Frontier° v. Richardson. 411 U S 677 - 680(1973) m McLaughlin v Flora& 379 U S 184 (1964) m Tsgner v. Texas. 310 U S 141.147 (1910) '" Id '9' Baxstrom v Herold. 383 U S 107. I I I (19661 '"Id at 192. quoting in part from Hirabayashi s United States. 320 U S "9 Rinalch v Yeager. 384 U S 305.303-09 (1966) 81.100(1943) m Avery v. Midland County. 390 U S 474 (1967) "' Graham v Richardson.403 U S 365 (1971) 1" Williams s Rhodes. 393 U S 23 (1968) 1" Oyarna v. California. 332 U S 633 (1948)
29 43 interstate travel,"s the right to vote,' the right to controlled by the fifth amendment. No specific procreate,'" and the right of privacy.'" If a funda- provision of the Constitution is written to regulate mental right is involved, the strict scrutiny standard the conduct of tribal governments. The courts have of review will be utilized. If the right or privilege is held that the constitutional protections people are not fundamental, then the courts only require that given against the Federal and State governments do the government action be "rationally related" to the not apply to tribal governments."0 Although many effectuation of a legitimate governmental interest. tribes had provisions''' in their own constitutions Government Purpose similar to the Bill of Rights, Congress in 1968, under its plenary power, passed the Indian Civil Rights Governments, of course, have no authority to act Act.'" This act applies to tribes similar constitution- in any manner beyond their respective constitutions, al standards to those contained in the Bill of Rights Within their constitutional authority, governments and the 14th amendment. The pertinent provision may seek to achieve a range of objectives, some of with respect to "discriminatory" action by a tribal which are clearly more important than others. The government is courts, in a sense, define the status of the govern- that tribes may not: "Deny any mental interest or purpose when undertaking an person within its jurisdiction the equal protection of equal protection analysis. When the government its law or deprive any person of liberty or property without due process of law."133 seeks to regulate a fundamental right, it must show a "compelling interest," and the regulation scheme It is clear From the legislative history that,Aven utilized must be the least restrictive one available.'" though in places the language may be identical to Simply put, whenever a governmental scheme constitutional language, the act is to be interpreted involves a suspect class or a fundamental right, or in the tribal context. As originally proposed, the both, the courts will require the government to Indian Civil Rights Act would have made tribal justify its action at the highest levelsuch justifica- governments subject tothe same constitutional tion is frequently impossible and the action may be prohibitions applicable to the Federal Govern- found to be unconstitutional discrimination. Where ment.'" The act as passed was not identical, but neither a suspect class nor a fundamental right is rather a modification of constitutional principles. involved, the justification requiredisless, and For example, tribes are prohibited from interfering frequently can be substantiated. There is, of course, with the free exercise of religion. However, there is gray area between these levels of review. For no prohibition against the establishment of religion. example, classifications based on sex are not viewed Moreover, the act provides the right of counsel only '" Shapiro v Thompson, 394 U S 618(1969) '3' One hundred and seventeen tribes had constitutional provisions LI'S, ." Harper v Va Rd of Elections. 383 U S 6631 (1966) Conress. Hearings on Constitutional Rights of American Indians Before the ." Skinner v Oklahoma. 316 U S 535 (1942) Subcommittee on Constitutional Rights of the Committee on the Judiciary. ". Roe v Wade. 410 U S 113 (1973) 87th Cong . 1st sess . pt1 (1961). p 121 '" Id at 155 '" 25 U S C §1301 a seq. (1976) '" See. e g.. Native American Church v Navajo Tribal Council, 272 F 2d "3 25 USC §1302(8)(1976) 131 (10th Cir 1959) "4 S 961-968. 89th Cong . 1st sess (1965/. I 1 1 Cong Rec 1799 30 4,1 Indian Civil Rights Act. In the criminal area, the Third, is it consistent with the underlying pur- language of the act specified the availability of a writ poses of the legislative scheme to imply such a of habeas corpus; however, in the civil area the act remedy? The Court noted that there are: was silent. In Santa Clara Pueblo v. Martinez in the Court decided that the Indian Civil Rights Act does Two distinct and competing purpos- not subject tribes to the jurisdiction of Federal es.. .manifest inthe provisions of the Indian courts in civil actions for injunctive or remedial Civil Rights Act: In addition to its objective of relief. strengthening the position of individual tribal members vis-a-vis the tribe, Congress also in- The Martinez case arose on the Santa Clara tended to promote the well established federal Pueblo in northern New Mexico and involved a "policy of furthering Indian self- government." PueblO woman married to a Navajo. The tribal ordinance made eligible for tribal membership the Conceding that creating a Federal cause of action childr male tribal members married to nonmem- would be "useful in securing compliance," the Court rs, but not the children of female tribal members nevertheless decided that it would unduly interfere married to nonmembers. Mrs. Martinez and her with tribal self-government. children sued the Pueblo and its governor in Federal Fourth, is the cause of action one traditionally district court, contending that the Pueblo's member- relegated to tribal law, in an area basically of ship ordinance violated the equal protection and due concern to tribes, so that it would be inappropriate process provisions of the Indian Civil Rights Act. to infer a cause of action based solely on Federal The Supreme Court's opinion began by reaffirming law? The Court concluded that "Tribal Courts have the theory that Indian tribes possess the immunity repeatedly been recognized as. appropriate forums to from suit traditionally enjoyed by sovereigns and for the exclusive adjudication of disputes affecting that a "waiver of sovereign immunity 'cannot be important personal and property interests of both implied but must be unequivocally expressed'. "'" Indians and non-Indians" and that "Tribal forums are available."' Since Congress did not provide an express waiver of sovereign immunity in the Indian Civil Rights Act, or anywhere else, "suits against tribes under the Special Treatment for Indiana and Equal Indian Civil Rights Act are barred."'" Suit against Protection the Governor of the Pueblo, however, was not It might seem that government schemes that barred by the doctrine of sovereign immunity, and provide benefits to Indians to the disadvantage of therefore the Court addressed the jurisdiction of the non-Indians would involve a suspect racial classifi- Federal courts under the act. To determine "wheth- cation requiring the strictscrutiny standard of er a cause of action is implicit in a statute not judicial review and probably would not be sustained expressly providing one,"iss the Court utilized a as constitutional. four-part test. This, however, is not the state of the law. This First, is the plaintiff one of a class for whose issue was squarely faced in Morton v. Mancari. 142 benefit the statute was enacted? The Court noted Non-Indian employees of the Bureau of Indian that there was no doubt that plaintiffs, "American Affairs challenged the statutory policy of Indian Indians living on the Santa Clara Reservation,"19 employment preference as constituting invidious are among those to be benefited by the act. discrimination based on race. The Court found that Indian preference was not racial: Second,is there any indication of legislative intent, explicit or implicit, either to create or deny such a remedy? The Court concluded that the The preference, as applied, is granted to Indians legislative history of the act suggests "that Congress' not as a discrete racial group, but rather as members ofquasi-sovereigntribalentities failure to provide remedies other than habeas corpus whose lives and activities are governed by the was a deliberate one."° BIA in a unique fashion."a I" 436 U.S. 49 (1978) HoId. IN Id. ''Id. "' Idat 59 10 417 U S 535(1974) ." Id. at60 Id at554 '"Id. at61 31 4 5 Since the classification-was-not racially based, but Manynon-Indians in San Diego_County live rather, in the unique legal and historical context, a upon tax exempt property belonging to federal or local government agencie?. or to religious political classification, the Court utilized die rationala basii standard of review. The govenmental purpose institutions, but in no such case has this fact been considered a justification for,the withhold- to he accomplished in the classification was the ing of any public services.... fulfillment of the Federal Government's trust re- sponsibility. The Court noted that all special Indian In no case has the enjoyment of such special legislation Was similarly situated: rights or privileges served as a justification for the exclusion of any such favored group fibril participation in the ordinary rights of citiz If these laws, derived from historical relation- ship, including the right to equal treatm ships and explicitly designed to help only under state welfare laws.' Indians, were deemed invidious racial discrimi- nation, an entire volume of the United States Traditional Civil Rights Problems Code [25 USC] would be effectively erased and the solemn commitment of the government Introduction toward the Indians would be jeopardized. 144 Traditional civil rights, as the phrase is used here, includes those rights that are secured to individuals The Court had no problem finding that the and are basic to the United States system of governmental purpose was rationally related to the government. They include the right to vote and the separate treatment: "As long as the special treatment right to equal treatment without discrimination on can be tied rationally to the fulfillment of Congress' the basis of race, religion, or national origin, among unique obligation toward the Indians, such legisla- others, in such areas as education, housing, employ- tive judgments will not be disturbed."'" ment, public accommodations, and the administra- The Court noted that Congress retained the tion of justice. authority to provide Federal remedies for violations In order to understand where American Indians of the Indian Civil Rights Act, if it so chose. The stand today with respect to these rights,itis effect of the decision was to invalidate the case law important to look at historical developments of the that had developed in the lower Federal courts concept of Indian rights along with the civil rights concerning the substantive meaning of the act's movement in this country. The consideration given provisions and make clear that for civil matters to these factors here will not be exhaustive, but tribal courts are the exclusive forum for resolving rather a brief look at some of the events that are complaints against the operations of tribal govern- most necessary to a background understanding of ments and their officials. this area.'" Where Congress is not acting to further its trust A basic and essential factor concerning American obligations, a different analysis is required. Where Indians is that the development of civil rights issues Indians are denied benefits made generally available for them is in reverse order from other minorities in to similarly situated persons, the classic equal pro- this country. Politically, other minorities started tection analysis is pertEnent. In that setting, Indians with nothing and attempted to obtain a voice in the will be considered a suspect classification and the existing economic and political structure. Indians government responsible bears a heavy burden in started with everything and have gradually lost justifying its classification. For example, the fact that much of what they had to an advancing alien Indians were in some sense "wards" of the Federal civilization.,Other minorities have had no separate Government did not justify a county in Arizona governmental institutions. Their goal primarily has denying the right to vote to members of the Mojave- been and continues to be to make the existing system Apache Tribe.'" Similarly, San Diego County, involve them and work for them. Indian tribes have California, could not justifyits denial of public always been separate political entities interested in assistance to indigent Indians because they were maintaining their own institutions and beliefs. Their reservation residents and entitled to special services: goal has been to prevent the dismantling of their '"hi. at 552. '" This section does not co% er rights of Indians with respect to tribal '"Id. at 555. governments 1" Harrison v. Laveen. 67 A riz 117. 196 P 2d 456 (1948) 1" Acosta v. San Diego County. 126 Cal. App. 2d 455. 272 P.2d 92. 98 (1954) 32 46 own systems. So while other minorities have sought other cases, the racism has been coupled with greed; integration_into the larger society, much of Indian Indians were "removed" to distant locations to societyismotivated toretainitspolitical and prevent therif fram -sTanding-in -the-way-of-the cultural separateness. development of the new Western civilization. At Although at the beginning of the colonization one extreme the concept of inferior status of Indians process Indian nations were more numerous and was used to justify genocide; at the other, apparently better adapted to survival on this continent than the benevolent side, the attempt was to assimilate them European settlers, these advantages were quickly into the dominant society. Whptever the rationale or lost. The colonization period saw the rapid expan- motive, whether rooted in voluntary efforts or sion of non-Indian communities in numbers and coercion, the common denominator has been the territory covered and a shiftin the balance of belief that Indian society is an inferior lifestyle. strength from Indian to non-Indian communities and governments. The extent to which Im Mans intermin- It sprang from a conviction that native people gled with non-Indian society varied by time period, were a lower grade of humanity for whom the accepted cannons of respect need not apply; one geographical location, and the ability of natives and did not debase oneself by ruining a native newcomers to get along with one another. As a person. At times, this conviction was stated general matter, however, Indians were viewed and explicitly by men in public office, but whether treated as members of political entities that were not expressed or not,it generated decision and part of the United States. The Constitution acknowl- action."' edges this by its separate provision regarding trade with the Indian tribes.'Indian tribes today that Early assimilationists like Thomas Jefferson .pro- have not been forcibly assimilated, extinguished, or ceeded from this assumption with benevolent de- legally terminated still consider themselves to be, signs. and are viewed in American law, as separate Thus, even as they acknowledged a degreeor political units.'" political autonomy in the tribes, their convic- tion of the natives' cultural inferiority led them to interfere in their social, religious, and eco- The Racial Factor nomic practices. Federal agents to the tribes not An important element in the development of civil only negotiated treaties and tendered payments; . rights for American Indians today goes beyond their they pressured husbands to take up the plow legal and political status to include the way they and wives to learn to spin. The more conscien- have been viewed racially. Since colonial times tious agents offered gratuitous lectures on the virtues of monogamy, industry, and temper- Indians have been 'viewed as an "inferior race"; ance.'52 sometimes this view is condescendingly positive the romanticized noble savageat other times this The same underlying assumption provided the view is hostilethe vicious savageat all times the basis for Andrew Jackson's attitude. "I have long view isracist. All things Indian are viewed as viewed treaties with the Indians an absurdity not to inherently inferior to their counterparts in the white be reconciled to the principles of our government," European tradition. Strong racist statements have he said.'" As President he refused to enforce the appeared in congressional debates, Presidental poli- decisions of the U.S. Supreme Court upholding cy announcements, court decisions, and other au- Cherokee tribal autonomy, and he had a prominent thoritative public utterances. This racism has served role in the forced removal of the Cherokees from to justify a view now repudiated, but which still Georgia and the appropriation of their land by white lingers in the public mind, that Indians are not settlers.'" Other eastern tribes met a similar fate entitled to the same legal rights as others in this under the Indian Removal Act of 1830.'55 country. In some cases, racism has been coupled Another Federal Indian land policy, enacted at with apparently benevolent motives, to "civilize" the end of the 19th century and followed unts; 1934, the "savages," to teach them Christia,. principles. In that shows the virulent effect of racist assumptions "" U S Const. art. I. §8 "' Final Report. pp 52-53 See legal section at beginning of this chapter "' McNickle, .Vattre American Tribahsm. p 56 ". D'Arcy McNickel, Native American Tribahtm (New York Oxford " Final Report. p 54 University Press. 1973). p 56 '" .pct of May 28. 1830. ch 148, 4 Stat all 33 4/ was the allotment of land parcels to individual civilization and Christianization of the Indians."'" Indians as a replacement fortribal,ownership. Many Officials of the Federal Indian Service were sup- proponents of the policy were considered "friends of posed to cooperate with this Board. the Indians," and they argued that the attributes of The benevolent support of Christian missionary' individual land ownership would have a great efforts stood in stark contrast to the Federal policy civilizing and assimilating effect on American Indi- of suppressing tribal religions. Indian ceremonial ans.'54 This action, undertaken for the benefit of the behavior was misunderstood and suppressed by Indians, was accomplished without consulting them. Indian agents. In 1892 the Commissioner of Indian Had Congress heeded the views of the purported Affairs established a regulation making it a criminal beneficiaries of this policy, allotment might not have offense to engage in such ceremonies as the sun been adopted. Representatives of 19 tribes met in dance.'" The spread of the Ghost Dance religion, Oklahoma and unanimously opposed the legislation, recognizing the destructive effectit would have which promised salvation from the white man, was upon Indian culture" and the land base itself, which so frightening to the Federal Government that was reduced by 90 million acres in 45 years.'" troops were called in to prevent it, even though the An important principle established by the allot- practice posed no threat to white settlers.'" ment policy was that the Indian form' of land The judiciary of the United States, though it has ownership was not "civilized," and so it was the in many instances forthrightly interpreted the law to right of the Government to invalidate that form. It is support Indian legal claims in the face of strong, curious thatthe principle of the right to own sometimes violent opposition, has also lent support property in conglomerate form for the benefit of to the myth of Indian inferiority. For example,, the those with a shareholder's undivided interest in the United States Supreme Court in 1883, in recognising whole was a baseil)* the American corporate the right of tribes to govern themselves, held that system, then developing in strength. Yet a similar they had the exclusive authority to try Indians for form of ownership when practiced 'by Indians was criminaloffenses committed against Indians. In viewed as a hallmark of savagery. Whatever the describing its reasons for refusing to find jurisdiction explanation for this double standard, the allotment in a non-Indian court in such cases, the Supreme policyreinforced the notion thatIndians were Court said: somehow inferior, that non-Indians in power knew what was best for them, and that these suppositions justified theassertionthat non-Indians had the It [the non-Indian court] tries them, not by their power and authority to interfere with the basic right peers, nor by the customs of their people, nor to own property. the law of their land, but bysuperiorsof a Religion is another area in which non-Indians different race, according to the law of a social state of which they have an imperfect concep- have felt justified in interfering with Indian beliefs. tion, and which is opposed to the traditions of The intent to civilize the natives of this continent their history, to the habits of their lives, to the included a determined effort to Christiiyize them. strongest prejudices of theirsavage nature ;one Despite the constitutional prohibition, Congress, which measures the red man's revenge by the beginning in 1819, regularly appropriated funds for maxims of the white man's morality.'" (empha- Christian missionary efforts.'" Christian goals were sis added) visibly aligned with Federal Indian policy'in 1869 when a Board of Indian Commissioners was estab- In recognizing the power of the United States lished by Congress under President Grant's adminis- Government to determine the right of Indians to tration. Representative of the spectrum of Christian occupy their lands, the Supreme Court expressed the denominations, the independently wealthy members good faith of the country in such matters with these of the Board were charged by the Commissioner of words: "the United States will be governed b: such IndianAffairs to work for the "humanization, considerations of justice as will control a Christian '" kle. Aratite.lmerican I ribalisin. pp 80-81 Federal Agencies rack Force. American Indian Religious Freedom Act "' Ibidp 85 Report (Department of the Interior. 1979). pp 5-6 ' p 83 '"Final Report. pp 67-68 '" Final Report. p 53 " Parte Crow Dog. HP U S 556. 571 (1883) '" Francis PPrucha.liner:canIndian Policy (Norman. Oklahoma University of Oklahoma Nev.. 1964), pp 33-38 34 people in their treatment of an ignorant and depen- systems.'" The ability of the tribal school to educate dent race."'" was not revelant, given that the overriding goal was Another example of racist stereotyping to be assimilation rather than education. found in the courts is this example from the Supreme Racism in Indian affairs has not been sanctioned Court of' Washington State: recently by political or religious leaders or other leaders in American society. In ',ct, public pro- The Indian was a child, and a dangerous child, of nature,i to be both protected and nouncements over the last several decades have re- lamented past evils and poor treatment of Indians.'" strained... .True, arrangements took the form of treaty.tuid of terms like "cede," "relinquish," The virulent public expressions of other eras charac- "reserve." But never were these agreements terizing Indians as "children" or "savages" are not between equals. . Ibut rather] that "between a now acceptable modes of public expression. Public superior and an inferior."" policy today 4 a commitment to Indian self-determi- nation. Numerous actions of Congress and the This reasoning, based on racism, has supported executive branch give evidence of a more positive the view that Indians are wards of the Government era for Indian policy."' Beneath the surface, how- who need the protection and assistance of Federal ever, the 'effects of centuries of racism still persist. agencies and it is the Government's obligation to The attitudes of the public, of State and local recreate their governments, conforming them to a officials; and of Federal policymakers do not always, non-Indian model, to establish their priorities, ihd to live. up to the positive pronouncements of official make or approve their decisions for them. policy. Some decisions today are perceived as being Indian education policies have often bee., exam' made on the bisis of precedents mired in the racism pies of the `Federal Government having determined and greed of another era.'," Perhaps more important, what is "best" for Indians. Having judged that the legacy of racism permeates behavior and that assimilation could be promoted through the indoctri- behavior creates classic civil rights violations. nation process of 'white schools, the Federal Gov- ,/erpment began investing in Inditui education. Fol- lowing the model established by army officer Rich- Civil RightsA Dichotomy for Indians aid Pratt in 1879, boarding schools were established 7.'wenty-five years ago a new consciousness about where Indian children were separated from the civil rights in this country began to take hold. Black influences of tribal and home life." The boarding Americans asserted their right to be free from schools tried to teach Indians skills and trades that discriminatory treatment. Constitutional rights to would be useftil in white society, utilizing stern lesegregated education were recognized by Federal disciplinary measures to force assimilation."' The courts, aid there soon followed an era in which tactics used are within memory of today's generation Federal statutes were passed to secure the rights of of tribal leaders who recall the policy of deterring minority individuals to be free of racial discrimina- communication in native languages. "I remember tion in voting, housing, public facilities, employ- being punished many times for...singing one Nava- ment, and in the operation of Federal programs. jo song, or a Navajo word slipping out of.my tongue These statutes protected other minority groups as just in an unplanned way, but I was punished for well as bl2cks, including American Indians. it."'" The attention of American Indians, however, was Federal education was made compulsory, and the riveted on a more basic civil rights problem, 'al- policy was applied to tribes that had sophisticated though it is rarely characterized as such. In 1953 school systems of their own as well as to tribes that House Concurrent Resolution 108 was passed by the really needed assistance to establish educational Congress calling for the termination of the special 1" Missouri. Kansas. and Texas Railway Co v Roberts. 152 U S 114. 117 1 See. e.g., President Nsxo,'s July 8. 1970, Message to the Congress. (1894). Recommendations for Indian Polic). H. Doc. No 91-363. 91st Cong.. 2d 1" State v. Towessnute, 154 P 805. 807 (Wash Sup Ct1916). quoting sess. (I.:A-after cited as Recommendarons for Indian Policy). Choctaw Nation v United States, 119 U.S 1.27 (1886) '" Ibid, Indian SelfDeterminatio and Education Assistance Act. Pub. L 1" Final Report. pp. 63-64. No 93- 638.88 Stat. 2203 (1975), dian Child Welfare Act of 1978. Pub. L "' Ibid. No 95-608. 92 Stat. 3096; Department of the Interior. Report on the 1" Peter MacDonald. chairman, Navajo Tribe, testimony. Hearing Before Implementation of the Helsinki Find Act (1979) the U.S. Commission on Civil Rights. Window Rock, Arizona. Oct 22-24. 1" Robert T Coulter, testimony. Hearing Before the U.S. Commission on 1973. vol. i, p 18. Civil Rights.Washington. D C, Mar 19-20. 1979. volI, pp. 205-07 100 Final Report. p. 64. (hereafter cited as Washington. D C. Bearing). 35 4 relationship between the Federal Oovernment and diction, indicate serious problems exist in the Indian tribes."' It was also at this point that the administration of justice. While no definitive Federal Government chose to hand much of its civil investigation was made ins the areas of housing and criminal jurisdiction over to State govern- and employment, such information as was re- ments." This policy of unloading Federal responsi- ceived revealed that in both areas Indians run into barriers similar to those confronting the bility for tribes came at a time when tribal econo- American Negro.'" mics were not strong and tribal governments not well established. Given previous interference with During the1960s the battlesfor civilrights tribal government structures,'" and destruction of occurred in the streets as well as in the courtrooms much of the tribal land base,'" terminating Federal of this country. Toward the end of the decade, the recognition of tribal governments was tantamount to American Indian Movement was formed, and it destruction of tribes as political entities. began to utilize some of the confrontation tactics The battles being fought by and for black Ameri- employed by other minority groups at that time."' cans at this time, including the right to vote, to go to As some Indians were becoming a part of the school, to be employed,, to participate in the court national civil rights movement, their status received system, to acquire housing, arid to be served by State some attention within the Federal Government. In and local governments on an 'equal basis with other 1970 President Nixon said: Americans were important matters to Indians, but they were secondary. The primary consideration was the right to exist as separate politica! units, and The first Americansthe Indians are the most this most basic right for Indians has no application to de 'ved and most isolated minority group in the other minority groups in this country, who have ou stion. On virtually every scale of measure- no claim to such political status. mentemployment, income, education, Indians clearly were subject to the types of healththe condition ofthe Indian people discrimination suffered by other minority groups in ranks at the bottom.," this country, but the attention of Indians and the In 1972 a Department of Justice Task Force was Federal Government was not drawn to Indian civil established to assess the civil rights problems of rights issues. At the beginning of the 1960s, the U.S. American Indians, "and after six months, that study Commission on Civil Rights conducted an exhaus- group found full-scale and widespread racial dis- tive study of the state of civil rights throughout the crimination against Indians."'" As a result of this country. A part of the effort was directed to the finding and the unique nature of Indian civil rights traditional civil rights of American Indians. The issues,it was suggested that a separate unit be report concluded as follows: established within the Civil Rights Division of the Justice DepartmenttodealwithIndiancivil Limited as was the Commission's study of rights.-" The Office of Indian Rights was estab- American Indians, it disclosed sufficient- evi- dence of unequal treatment under law to war- lished in 1973, and since that time it has found rant action in certain areas and more searching significant violations of Indian civil rights and has investigation in others. It showed, for example; filed lawsuits. Some Justice Department investiga- that some Indians are segregated in schools, and tions have followed studies of this Commission. that in some instances needy Indians are denied There is ample evidence to indicate that American welfare benefits in programs administered and Indians have in the past and still do suffer discrimi- financed by State and local government. Re- peated complaints of unfair treatment by police nation in a variety of settings. The Office of Indian and courts, and complaints of inadequate law Rights has channeled much of its resources toward enforcement en reservations in States to which attacking barriers to Indian participation in the the Federal Government has relinquished juris- political process. Voting rights actions have been H R Con Res 108.83d Cong , 1st sess 67 Slat 8:32 (1953) Recommendations for Indian Policy. 0, ISUSC 0162 and 28 U S C §1360(1976) Vilicelerflossard Act (1934). 25 U S C § §46I- 479(1976) ames Sehermerhorn. Director, Office of Indian Rights, Civil Rights alKt. Apt (Indian General Allotment Asti. shI 1" 24 Slat 388 t 1887) Department of Justise. testimony, Washington. DC. Hearing, p (codified in scattered sect:am of 25 U S C ) (1976) U S , Commission on Civil Rights, !twice (1961). p pp 54-55 E g "Alcatraz Island Occupation." New York Iinir`.:ov 21.1969, p 49 36 brought in Arizona, Wisconsin, Nevada, South same basis as noa-Indian law enforcement offi- Dakota, Nebraska, and New Mexico.'" In the case 'cials.'" brought in Apache County, Arizona, a court-or- This Commission received allegations of abuse of dered reapportionment enabled Indians not only to Indian prisoners in Martin, South Dakota," and in exercise their voting rights on an equal basis with southern Arizona where prisoners had allegedly non-Indians, but also to gain control of the county died from beatings they received in jail.'" There due to their greater numbers at the polls.'" Other have also been allegations that in some places cases have cited techniques used against Indians Indians were routinely arrested to provide some similar to those used' elsewhere in the country to towns with a cheap labor source as they work off keep Other minority groups from gaining propor- their sentences.'" tional representation through the electoral process. In addition to individual incidents, there are These include switching from a district to an at-large practices in the criminal justice system that work to system of voting, a method that tends to reduce or the disadvantage of Indian defendants. In the Dako- eliminate the possibility of electing a minority tas, fir example, Indians are not as likely to become candidate; failing to provide language assistance to jurors because jurors are selected from voter regis- non - English- speaking Indians; and misinforming In- tration lists in South Dakota and from lists of voters dians seeking to register, to vote, which has thceffect and licensed drivers in North Dakota, practices of preventing theft from voting in the following tending to exclude the many Indians who do not election.'" . participate in the non-Indian system.'" Opinions of \ Administration of justice issues constitute a large lawyers and judges operating within that system subject area within which Indians encounter signifi- vary, but some believe .that the routine exclusion of cant civil rights problems. Some of these involve the Indians from juries negatively affects the ability of way\law enforcement officers carry out their duties. Indian defendants to receive a fair trial.' The bail For example, the South Dakota Advisory Commit- system in the Dakotas poses a problem for the many tee, tote U.S. Commission on Civil Rights found Indians arrested in cities, where they have no close evidence of selective law enforcement, harassment, relatives in whose custody they might be placed and searches Without cause, and just general discourtesy own no property as individuals to satisfy bail bond toward Indis by some police officers. "' requirements.'" Recently t Justice Department brought suit Similar systemic problems with the administration against Roberts unty, South Dakota, alleging that of justice are indicated by a statistical study in its practice of resing to cross-deputize tribal law Oklahoma that caused the Commission's Oklahoma enforcement officers was racially based. As a result Advisory Committee to conclude that two distinct of the county's action, many n-Indians who systems of justice seem to be operating in Oklahoma, violated State law an Indian res tions went one for Indians and another for non-Indians: unapprehended. The suits which is nopending in Federal court, seeks an order requiring county This double standard is reflected in the large officials to cross-deputize Indian officers op the number of American Indians incarcerated in "2 John E Huerta. statement. Washington. C. Hearing. vol. IL pp. 133- Attorney General of the United States the authority to initiate action on 36. and United States v San Juan County. New Mexico. Civ Act Nos 79- behalf of civilly ana criminally institutionalized persons. including Indians. 507313.79-508JB (D. N.M 1980). where "egregious or flagrant" conditions violate federally.protected rights. '" Schermerhorn Testimony. Washington. D.0 . Hearin& vol 1, p. 59 The Civil Rights Division is responsible for implementation of the act The ," Huerta Statement, Washington TAD.. Heanng, vol act authorizes the United States to initiate actions against State and other '" South Dakota Advisory Committee to the U S. Commission on Civil officiate operating facilities where Indians may constitute part of the Rights. Liberty and Justice For All (1977), p 39 (hereafter cited as Liberty population, i.e.. prisons, jails, juvenile facilities, mental health and mental and Justice). retardation facilities. and nursing homes Prior to the enactment of the '" Mary Lynn Walker. Acting Deputy Assistant Attorney General, Civil statute, the Division participated in some existing suits. In Battle and United U S. Department of Justice. letter to Louis Nunez. StafftRights Dacca/01S. Commission on Civil Rights. Jan. 13,1981. States v Anderson, 376 F Supp. 402 (E D Okla 1974), the United States 10 Lorelei Means. testimony. Hearing Before the U.S Commission on Civil participatedas plaintifT.intervenor.inBattle.the court enjoined the Rights Rapid City. South Dakota. July 27-28.1978, p 104 (hereafter cited interference with the rights of Native American inmates in an Oklahoma as South Dakota Hearing). prison Similar problems were found in Mississippi, North Carolina, and U S,. CGmmission on Civil Rights, The Southwest Indian Report (1973). New Mexico. p. 40 (hereafter cited as Southwest Indian Report). '"Liberty and Justice. pp 33-34. North Dakota Advisory Committee to 1 Ibid Robert Philbrick. testimony, Hearing Before the Subcommittee on the U S Commission on Civil' Rights. Native American Justice Issues in Constitutional Rights of the Senate Committee on the Judiciary, Washaigton. North Dakota (1978), pp 17-18 (hereafter i.sted as Aorth Dakota Report) D C . Mar 7.1963, p 898 A new statute, the Civil Rights of Institutional- 1"Liberty and Justice, pp 33 -34, Nor'h Dakota Report. p 18 ized Persons (Pub L No 96-247.42 U S C 1997). passed in 1980. gives the "Liberty and Justice. p 41, North Dakota Report. p, 23 37 / municipal aria county jails, and in State correc- of Indian women. A recent report of the Office of tional institutions. It is also reflected in the large number of Indians convicted of felonies in the Comptroller General showed thatover 3,000 comparison to the number of Indians arrested Indian women of childbearing age had been steri- for these crimes. Finally, it is reflected in the lized at four Indian Health Service (IHS) hospitals way Indians perceive the administration of between 1973 and 1976. The report did not prove justice.'" that these sterilizations were involuntary, but did criticize the procedures used to obtain Consent. The In Farmington, New Mexico, a bordertown of the IHS subsequentlymodifieditsconsent proce- Navajo Reservation, similar problems were found _,...- dures.19" ..- by the Commission's New Mexico Advisory Com- The Michigan Advisory Committee to the Com- mittee. There, data showed disparate patterns, in mission on Civil Rights received complaints that fines and sentencing to the detriment. of American caseworkers in a Michigan city were coercing Indians.'" Similar problems are alleged to exist in --"Indian women and others into consenting to steril- Alaska as well.'" . ization by threatening to deny their eligibility for Problems relating to Indian childrenare another welfare assistance. The women complaining of this major area-of alleged discriminatory treatment.A treatment refused to file formal written complaints recent study done for the American Indian Policy for- fear of retaliation, and_ the matterwas not Review Commission confirmed the existence and pursued.'" enormity of the child custodyproblem in Indian Another subject area in which Indians have faced country. In addition to boarding schools, State social discrimination is in the way State and localgovern- workers and court systems have removed large ments spend their money to distribute services to tne numbers of Indian children from their homes for public. A report of the Michigan Advisory Coritfrnit- placement in foster care or non-Indian adoptive tee to the Commission on Civil Rightsfound that the homes. Judgments whether childrenwere being City of Sault Ste. Marie failed to provide municipal neglected or insufficiently supported by their Indian services such as adequate drainage, pavedstreets, parents were made by non-Indians on the basis of street lighting, and fire protection to the predomi- non-Indian cultural standards. Similarly, non-Indian nantly Chippewa Indian section of the city."° These standards were applied to proposed foster careor are not problems of recent vintage but date back adoptive homes that many tribal homeswere too .over 44 least 70 years."01 More recently, the refusal poor to meet. The result was a stream of Indian bf tlje city to provide water andsewer services to a children being sent to foster homes at ratesas high as Federal housingproject to be located on Indian trust 20 times the rate for non-Indian children. Of these, land within city limits brought Justice Departm.an in States where records provided the information, 50 1intervention in the form of a lawsuit."' percent to over 95 percent of the children were A situation similar to Sault Ste. Mariewas pointed placed in non-Indian homes.'" 1 out in Winner, South Dakota, where Indian people, The problem has only recently been addressedity largely from the Rosebud Sioux Tribe,are concen- the Congress through passage of the Indian Child' trated in particular portions of town. Accordingto Welfare Act of 1978.'47 This act, it is hoped, will end sworn Testimony, it is very difficult for an Indian to the practice of taking Indian childrenironi their rent housing in predominantly while sections of families and reservations against their will in the town, and the Indian section suffers from a lack of future. .. municipal services.'" Currently, the Justice Depart- It has been alleged that another attackon indian ment and the Lummi Tribe are suing the State of families was made through involuntary sterilization Washington and several local defendants for inter- "3 Oklahoma Advisory Committee to the U S Commission on Civil ...Olive Beasley. testimony. Washington. D C.. Hearing. vol I. p. 47. Rights. Indian Civil Rights Issues in Oklahoma (1974). p 52. 2.. Michigan Advisory Committee to the U S Commission on Civil Rights, 1" New Mexico Advisory Committee to the u s Commission on Civil Civil Rights and the Housing and Community Development Act 7:11974. Vol Rights. The Farmington Report. A Conflict of Cultures (1975).app A II! The Chtppe l People of Sault Sp. Mane(1976). p 78 '" Complaints on file with the Justice Department's Civil Rights Diviaon "" Ibid . p 17 " US. Congress. American Indian Policy Review Commission. Task 14 Iluerta Statement. Washington. DC.. Hearing.volII. p.137 The Force Four. Federal. State. and Tribal Jurisdiction (1976). pp 78-88 statement notes that a settlement was reached and that similar circum I" 25 U.S C §1901 (Supp 1979) stances are at the investigation stage A " Comptroller General. letter to Scn James Aboureek. Nov 4. 1970. pp 2.. John King. esecutive secretary. Rosebud Sioux Tribe. 18-31 The IRS did eventually change the consent procedures testimony. South ( Dakota Hearing. pp 144. 145. 147. and eshihit 11 t 1 38 ... _ t t) 4,' .fering in the tribe's plan to construct a new sanitary Federal agencies have not been able to meet the sewer system to serve the entire reservation. Recent- needi\of the Indian community."' ly, a partial consentA order was entered freeing Employment is another area where Indians Shave several million dollar? previously withheld by the been the victims of discriminatory policies and State and earmarked for the sewer construction. The practices. The Justice Department is now litigating a suit continues, however, because the local non-Indi- case in Federal court where the Government alleges an jurisdictions insist they and not the tribe should that the city of Farmington, New Mexico, systemati- control the sewertsystetn's operation once com- cally discriminates against Indians (as well as women pleted.90' Another case, in which the city of Oneida, and Hispanics) in recruitment, hiring, assignment, New York, refused to provide fire and police and promotion in city jobs. Investigations of alleged protection to Indian trust land within the city, was unlawful employment practices against Indians are settled by a consent decree requiring the city to underway elsewhere in New Mexico and in Arizo- prcivide those services.'" Ila:21°Other significant discrimination against Indi- Indians encounter discrimination in the delivery ans can be found in areas as diverse as access to of heath .:are services. In addition to the inadequacy consumer credit"A and public places such as restau- of health care and unsafe conditions found to exist rants and bars.'" on some reservations in Indian Health Service As these examples demonstrate, Indians have been h3spitals,""non-Indian hospitals have in some areas discrilhinated against in some respects in much the refused to take Indian patients. An Indian leader same manner as blacks and other minority groups. whose tribe lives in an urban area in Washington The data also indicate that although not much has State said: been done to uncover civil rights violations against Indians and to attack the cause of discrimination, The local clinics would n& serve Indian people, wherever the surface has been scratched, civil rights because public assistance would always say, violations have been shown to exist. At this point, "Well, that is an Indian Health responsibili- --- American Indians are only at the beginning of what ty,".. .And so, you know, even if the Indian7 may become a major effort to assure protection of People had their own insurance or had dollars in their hands, the clinics had developed a American Indian right's. As expressed by the Deputy policy of just not seeing Indians because their Assistant Attorney General for civil rights: bills were such a problem."' It is probably accurate to say that the reserva- In a similar circumstance in New Mexico, a tion system has retarded Indian interest in civil lawsuit was brought to assure that the San Juan rights enforcement so that today this ority County Hoipitat would not turn away Indians group is in a position comparable at of needing medical help and direct them to distant other minorities in the late 1950s or ea 1960s. Indian Health Service hospitals. The Department of There is really no Indian civil rights movement comparable to that which blacks forged in the Justice joined in the lawsuit, and. the matter was 1960.s.213 settled before trial through an agreement by the hospital that it would provide emergency services to Yet if Indians do demand their civil rights, there is Indians.'" the danger that their separate tribal rights may be Similarproblegshave arisen in Oklahoma and overlooked in the process. Some legal remedies other States as well. Although the Department of developed in the last 25 years to redress the civil Justice has filed two lawsuits and taken other wrongs committed by governments and individuals nonlitigative actionsin'this area, other Federal against blacks and other minorities may be inappro- agencies with "evil rights responsibilities have done priate to the Indian Setting. Desegregation of the little.Generally, the civilrights staffs of most races, for example, is not a goal of Indian tribes on Lummi Tnbe and United States v Hanauer. Civ Act No. 79-682R Iluerta Statement. Washington. D.C. Hearing vol 11. pp 136-37 (W.D. Wash'.) ' Huerta's Statement and Testimony, ibid *" Huena Statement. Washington. D C. Hearing, vol 11. p. 137 United States v City of Farmington, N Mex Civ Act No 80-037-C "" U.S ..Commission on Civil Rights. The Navajo Nation An American (13 NM) Colony (1975). pp. 128-29, The Southwest Indian Report. p. 54 s" Ramona Bennett. chairwoman. Puyallup Indian Tribe, testimony, "' United States v Great Western Bank. Cis, At No (D Ariz ) Hearing Before the U.S. Commission on Civil Rights. Seattle, Washington. "1 United States v Z & E Enterprises, Cis Ast No (D N M ) Oct 19-20,1977, p. 165 (hereafter cited as Seai..e Hearing). ")Id. at 144-4S 39 53 reservations if it means the end of theseparate the tribe succeeded in obtaining a variety of Federal political rihts and sovereignty that tribes have grants and the amounts were reported in local fought so hard to maintain. Indians want the equal newspapers?" rights duetihem as citizens of the United States, but Marian Boushie, a tribal officer of the Suquamish not the assimilation that has been periodically forced Tribe in Washington, expresseda similar view: upon then as the price of the bargain. "When we became active, all of a sudden therewas Backlash and Traditional Civil Rights a great furor, 'My God, where did all these Indians Probleins come from?" She said she had seen her elders As indicated in the preceding section, civil rights .7-ated poorly when she was a child, but they .,anaged to survive by enduring rather than reject- violation's and discrimination are notnew experi- ences for American Indians. The historical develop- ing racist treatment. "pit was much easierto stay ment of the relationship between American society back in the background and not become noticeable, and American Indians has been one of advancing the then you could live there," she said.20 Now, in this interests of the former at the expense of the latter. era of tribal visibility, hostility toward tribal mem- Denying that American Indians had any rights in the bers is being more openly expressed. "We have had American political system was once justified by the our windows broken. We have been harassed. We have had our policemen harassed. We have been view of Indians as uncivilized orsavage beings who were not entitled to rights. harassed persoiially. Our ;children havebeen ha- rassed in school."n6 After 1924, however, there could be no doubt that Indians were entitled to all the rights, of citizens, Much of the "backlash" perceived in Washington because in that year Congress declared them to be, State is seen by Indians as tied to the fishing rights in fact, citizens.214 This sole act of Congress could controversy, described in detail in chapter 3 of this not be expected to change racial attitudes overnight, report. Tribes involved in the fishing rights dispute especially where racial and political differences have reported a "spillover" in a variety ofcontacts with non - Indians not involving fishing. For example, were useful to distinguish Iniclians as a group for the purpose of maintaining control over them. In 1938, at the Ferndale School District near the Lummi for example, seven States were still denying Indians Reservation, one high school student said she had noticed the right to vote, even though Congress had de-. change in the attitudes of students toward members of the Lummi Tribe after the Lummis and clired them to be citizens 14years earlier.235 New Mexico and Arizona, two States with relatively other tribes in western Washingtonwon recognition large Indian populations, continual their resistance of their treaty fishing rights in Federal court. for 10 more yettrs,until they were stopped by court She also observed that the negative attitudes decisions?" displayed toward Indian students by some teachers in :he school were notnew. They predated the A statutorily basedienial of voting rights isa violation of civil rights much more easily detected recent increase in tensions arising from the fishing r ;its dispute in her area of the State, she said. and cured than discrimination in most otherareas. That it could persist despite Federal law to the The attitude of the faculty,.of the teachers, has contrary is evidence that discrimination most likely always been there as far as I can remember, and existed in other settings at the same time. my parentsit seems to exist more with the Contemporary thinking among some Indian/tribal older teachers and, you know, like the ones that leaders equates recent anti-Indian posturing With the my grandparents have had troubles with are the new visibility of tribal governments and tlf'e recent same ones that my ptsents are having troubles success of some tribes in the non-Indian court with today."' system. For example, Melvin Youckton, Chairman In South Dakota, Indians have recently expressed of the Chehalis Tribe in Washington State, said his dissatisfaction with the way they have been treated tribe had expegnced an upsurge in .negativereac- by local non-Indian communities located onor near tion toward thiir members in the early 1970swhen their reservations? .The* ongoing and longstanding 2 Act ofJunc 2. 1924.6.133. 43 Stat 253. '" Munn Boushie. mtimony. Seattle Ileanng. p 160 U.S. Commission on Civil Rights. Juntee (1961). p. 136 "' Ibid "' Ibid r" p 16' Youkton Testimony. Seattle Ileanng p 156 1" Phare. testimony. Seattle Ileanng. p 120. 40 54 nature of today's treatm ent of Indians by non-Indi- fluctuations in Federal policy outlined elsewhere in ans in these areasisillustrated by the widely this report."° Similarly, national priorities and ap- disparate observations of Indians and non-Indians proache., to Indians and tribes have had a direct living side by side. In Martin,outh Dakota, on the affect on interactions at the State and local level."' Pine Ridge Reservation, and in Winner, South The relative positions of tribes and States as govern- Dakota, on the Rosebud Sioux Reservation, Indians mental structures \ competing to control land, re- have risen to protest what they perceive as unequal souices, andpolitic\aljurisdiction have provided the and second-class treatment by white cotiimunities. historical basis for conflict between them. Indians in Martin and Winner described being- The following, often quoted language of the U.S. treated poorly as customers in local stores where Supreme Court describes the political relationship they were followed or talked to in a condescending between State, tribal, and Federal governments as it manner. In Martin, Indians said the were being existed nearly a century ago. Although Federal treated abruptly and with undue suspicion by local legislation has changed the legal relationship be- law enforcement officers222 and that, as a general Matter, Indians were treated as second-class citizens tween States and their tribal citizens, the statement throughout the town."' In Winner, where the still retains significance in tribal-State relations: Indian population is concentrated in particular sec- tions of the town, Indians alleged that they suffer They [tribes] owe no allegiance to the States discrimination in the provision of municipal services. and receive from them no protection. Because Testimony also pointed out that it was very difficult of the local ill feeling, the people of the States for Indians to rent houses in the white sections of where they are found are often their deadliest town.222 In Winner, the perception of economic enemies. From their very weakness and help- discrimination in matters such as obtaining credit lessness, so largely due to the course of dealing and cashing checks induces Indians to take their of the Federal Government with them, and the business elsewhere."' Their feeling of discrimination treaties in which it has been promised, there arises the duty of protection.. ..232 was strong enough to support an Indian boycott of certain businesses in Martin.222 The patterns of interaction between Indian tribes Non-Indians living in these areas offered testimo- and States, which supported the need for Federal ny so contradictory that they appeared to be talking protection alluded to in this quotation, were estab- about different places. In Martin, a banker and a lished before the country was created. In colonial county' commissioner testified that they knew of no times, non-Indians pursued their quest for land and In discrimination against Indians in thatcity.2211 resources among many tribes, some of which pos- Winner, a retail businessman and the mayor were of sessed considerable military capability. Colonies, the opinion that Indians are treated equally with and later States, were admonished against allowing others and that they are welcome in town."' citizens to violate agreements or to take land from State and Tribal Relations -Indian tribes. At least part of the reasoning behind this Federal policy was that tribes had the ability to, Introduction and sometimes did, retaliate forcefully against acts of Relationships between the Indian tribes and the aggression or violations of agreements made with various levels of State, local, and Federal govern- them."' The inability of the colonies to control ments nave been both dynamic and interconnected. violations in part led to centralization of the authori- The desires of States and their non-Indian citizens ty to regulate commerce with the tribes in the have been directly responsible for many of the Articles of Confederation''' and later in the Consti- 1" Alice Flye and Lorelei Mcans. testimony. South Dakota Hearing. pp 96. '" Walter Schramm and Stan Smith. testimony. `oath DuAvla lleanng. 97. John King. executive secretary. Rosebid Sioux Tribe. testimony. South pp 153-54 Dakotarflleanng. p 146 ." See first section of this chapter "' Flyc and Means Testimony. South Dakota Hearing. pp 98.99 "' g .the Federal tirmination polictes of the 1950, placed tribes in a ." [bid . pp 96.97 tenuous position with regard to States as compared with the s.Mdetermitia m King Testimony. South Dakota Hearing. pp 144. 145 non tribal polictes of the 1971 , 1" Beatrice McLean. testimony. South Dakota Ikaring. pp 142-43 1" United States v Kagaina. 118 U S 375. 384 (1886) "' Flyc and Means Testimony. South Dakota Bearing, pp 101. 102 "' FlA a discussion of this topic we D'Arcy McNickle. %aim Ameritun 1" Bruce Hodson and Harold Larson. testimony. South Dakota Ileanng. p Inbaltim (Ness tiork Oxford Unisersity Press. 1973). pp 49-51 95 et seq "' Articles of Confederation, Art IX 41 JJ tution2" of the United States. After the Nation was jurisdiction over portions of tribal land. Principal created, Congress exercised its authority to control among these was the allotment policy of the late commerce with the tribes by regulating non-Indian 19th century. Under this policy the Federal Govern- business.234 Part of the purpose for the national ment divided tribally owned lands into individual legislation followed the theme of colonial times, parcels to be owned by individual Indians."' Many "No supervise trade with the Indian tribes, and to Indians owning land parcels, under a variety of discourageindividualavariceunder conditions circumstances, parted wit:. their land through sales which presented unlimited opportunites for corrup- for needed cash, foreclosures to meet debts, or tion and extortion. " "' Through the years, Congress sometimes trickery in which Indians who could not has exerted its authority to control trading with read English thought they were selling only mineral tribes through legislation." or timber rights when they signed papers selling Although the Federal Government has prevented, land. The ultimate result is that much land passed or attempted to prevent, individuals from dealing from Indian to non-Ineia hands."' This transfer unfairly with Indians, the historical development of affected nor only the individual Indian and non- the Federal role as protector of tribes and their Indian, but also the tribe that lost the land and properlyissounterbalanced by congressional enart- State that -gained it. Added to the actual land lo.4s ments and Presidential policies that at times have was considerable confusion whether tribal jurisdic- facilitated the taking of tribal property. The removal tion was lost as well. A similar situation illustrating period of the 1830s, during which tribes were taken this problem would be the sale of State-owned land from their eastern homes, forcibly when necessary, to a private individual. Although the individual and relocated on western lands, fostered the taking acquires private ownership rights through the pur- of tribal land for non-Indian settlement."6 chase, there is no question that for governmental Federal encouragement of homesteading24° led to purposes the land remains a part of the State and is rapid settlement of the West in the mid-1800s. As subject to State jurisdiction. territories and States were created, there were Much litigation has occurred over Indian-owned provisions in the laws creating some of them that land being sold to non-Indians, and in some of these removed Witt -set-aside for Indians by the Federal cases tribes have lost governmental authority over Government from territorial or State control."' land transferred to non-Indians."' Thorny conflicts The pattern did not operate simply, however. As over governmental right to tax and zone such land State governments were organized, they began to and to exercise civil and criminal judicial authority exert authority within their boundaries, including an over it are examples of problems generated by the assumed right to control the actions of Indians policy of allotment that pittedtribal and State within those boundaries. There were and are great governments against one another. variations in the extent to which different States The policy of allotment was ended with the have asserted rights to control matters relating to Indian Reorganization Act of 1934246 as part of a Indians. There have also been wide variations in the new series of Federal policies dealing with Indian extent to which the Federal Goverment has acted to matters. The Commissioner of Indian Affairs at that protect Indian rights.242 time, John Collier, instituted an era of recognition of Land 'reserved by tribes through treaties, agree- Indian_tribes as entities_to be_strengthened_(albeit on ments ratified by Congress, or Executive orders was an American model), not dismantled, as had been the supposed to be beyond the reach of State govern- case under previous policy. A decade earlier, Indi- mental authority, but subsequent Federal policies ans who had not already been declared citizens, by left the tribes vulnerable to State assertions of legislation directed at certain tribes, were declared "' U S Const artI. §8 so Compare the homesteading policies that resulted in the diminishment of 2" Act of July 22. 1790. ch 23. I Stat B7 reservation in Soutn Dakota. DeCoteau v District County Court. 420.,U S "' Cohen. Handbook of Federal Indian Law. p 348 425 (1975). with the role played by the executive branch in litigating 11s: 2" For a listing of these. see 'bid northwest fishing rights casts in the 1970c (chapter 3) US Indian Removal Act of 1830. ch 148.4 &at 411 (1830) "' Indian General Allotment Act, ch 119. 24 slat 388 (1887) (codified in ." Congress enacted a series of homemeading statutes during the second scattered sections of 25 U S C half of the 19th century. hrginning in 1862 with the Homesteading Au. 4.h "' Ninety million arcs were transferredAli of Indian hands in 40 years 75. 12 Sul 392 The current version of the act is codified in 42 U S C §161 McNickle. Natme American Tribchsm. p 83 (1976) "' DeCouteau v District County Court. 420 U S 425 (1975). Rosebud "' Seeg. An Act to Provide a Temporary Government for the Territory Sioux Tribe v Knew. 430 U S 584 (1977) of Idaho. c h 117. §1. 12 Slat 808, 809 (1863) 3" 2! U S C § §461- 479(1976) 42 5 i) to be citizens of the United States and the States in authority over Indian tribes under legislation enact- which they were found.' Recognizing the poor ed during the termination era were prevented from administration of Indian affairs by the Indian Service making further inroads intotribal authorityin of the Department of the Interior, Collier promoted 1968.253 As the 1970s began, tribes, with Federal a new policy making the new Indian citizens support, began to rebuild weakened governments beneficiaries of State and Federal social services and to strengthen healthy ones. As they did so, many programs."' A principal piece of legislation to reasserted tribal authority and rights that State and accomplish this result was the Johnson O'Malley local governments had taker over under earlier Act."' Among other things, the act created a Federal policies that had permitted or encouraged program in which States received funds for includ- greater State authority over tribes. Again, the stage ing Indian children in local school systems and for was set for conflict as State and tribal governments assisting Indians under State-operated welfarepro- confronted each other over their relative authority grams. to control, govern, and tax the land, resources, and By reason of these new policies, States and tribes people within their overlapping borders. Such con- that were at odds in some matters, andwere flicts exist today alongside former conflicting inter- historical opponents, entered the relationship of ests that have been adjudicated. service provider-beneficiary. Although States were There are also a number of potential conflicts that still representing non-Indian interests when incon- have been settled through cooperative intergovern- flict with Indians, more areas were developing mental arrangements worked out to terminate or to where interests coincided. The States had a statutory avoid costly litigation. Many cooperative relation- responsibility toward Indian citizens that added an ships have developed without the threat of court element of confusion to the adversary relationship action at all. Some States and tribes have found ways they once had and to some extent continued to have. to work out disagreements over some issues through Federal policy in the 1950s meant more authority arrangements that work to the advantage of both for States, but this time at the direct expense of governing entities. tribes. The Federal Government once again decided Thus, the positions of the Federal, State, and tribal that Indians should- be assimilated and set about governments are not fixed. Depending upon the terminating its special relationship with tribes.250 As issues and the governments involved, there are part of this process, some State governments were intergovermental cooperative efforts as well as given control over civil and criminal jurisdictionon complete opposition among tribal and non-Indian Indianreservations.25' The new State authority governments, and all gradations in between are quite made the tribes beholden to States government for possible. such basic services as police protection and judicial enforcement. The fact that the Federal Government was no longer supporting tribes and that States now A Sampling of Conflict held control over law enforcement as wellas Governments with common territorial boundaries provision of educational and social services signaled are likely to clash over the authority to govern a a shift in power so great that many tribes were resource of common interest.254 Conflicts of this politically deactivated. nature arenot confined to adjacent States or In the 1970s the Federal policy reversed again localities, however, but alsoarise between the toward strengthening tribes as the concept of Indian Federal Government and the States.255 Such con- self-determination was institutedatthe Federal flictscenter on issues of political authority or leve1.252States that had been assuming judicial jurisdiction to govern a particular area or to exercise 3" Act of June 2. 1924. ch 233.43 Stat 253 SelfDetermtnation and Education AsNstance.Act, Pub L No 93-638, 88 333 Wilcumb E Washburn. comp ,The American Indian and the Untied Stat 2203(1975) Slams. vol2. excerpts from reports of John Calker, Commissioner of "' Indian Civil R:ghts Act. 25 U S § §1321- 1322'(1976). Indian Affairs. vol 2 (New York Random House. 1973). pp 918-19. 926- 3" E g . Arizona v California. 373 U S 546 (1963). involving the rights of 27. 944- 45.951 these and other States as well as tribes to the water in the Colorado River "' 25 U S C §452-57. system 3" H Con Res 108, 81d Cong, 1st sess . 67 Stat 13132 (1953) 3" Conflicting authority of State and Federal governmen15,10 license "' Pub L No 83-280. 18 e S C §1162 and 28 U S C §1360 (1976) proje.ts affecting waterways has resulted in disputes involving private 3" "resident Nixon's Jul) 8 19'0. Message to the Congress. Recommenda- interests claiming rights through State or Federal licenses E g. United tion for Indian Polic), II Doc No 91-363, 91st Cong 2d sew, Indian States v Appalachian Power Co . 311 U S 377 (1940) 43 K control over the actions of individuals under certain The exclusive right of taking fish in allthe circumstances.2" streams where running through or bordering Tribal governments experience similar conflicts said reservationisfurther secured tosaid with State and local governments as wellas with the Indians; as also the right of taking fish at all Federal Government over what rights each has with usual and accustomed places incommon with [ respect to the others. Tribal citizens of the Territory; and of erecting.tempo- efforts have been rary buildings for curing, together with the directed toward retaining political and economic privilege of hunting, gathering roots and ber- control over their people, territories, andresources ries, and pasturing their horses and cattleupon against the eve-rowing pressure of non-Indian open and unclaimed land.259 civilization. In recent years, tribes have been trying to regain respect for their governmental authority and recognition of rights that have bee:', ignored The stipulations contained in the Treaty of or Greenville, relative to the right of the Indians to rendered less viable through the actions ofnon- hunt upon the land hereby ceded, while it Indian governments. The followingpages provide a continues the property of the United States, brief look at some of the important issuesover shall apply to this treaty; and the Indians shall, which tribes and States have experienced conflict. for the same term, enjoy the privilege of making sugar upon the same land, committing no Hunting and Fishing unnecessary waste upon the trees.2° When the Federal Government entered intotrea- Courts have also determined that tribes may retain ties with Indian tribes, land acquisition by the United hunting and fishing rights in lands ceded to the States was a central element of the bargain. Tribes United States in cases where no mention of such traded away vast amounts of territory while retain- rights is made in a treaty.'91 Despite theseassur- ing land bases of varying size for themselves. When ances, States enacted their own hunting and fishing tribes controlled the land, they sustained themselves regulations and attempted to apply them to tribes. from its bounty. Some tribes-were agricultural, but Battles in and out of Federal and State courts have many hunted and fished both for sustenance and for produced varying results. commercial purposes. The diminished land base that Early litigation in this area reached the United resulted from treaties created a dilemma for those States Supreme Court in 1896 as Wyoming applied tribes who relied on hunting and fishing for subsis- its own game laws to Indian hunting.262 The Indians tence. The land they reserved for themselves often involved contended that the treaty with the Sho- did not cover the areas they needed toassure their shone-Bannock Tribes"' protected the rights of survival. The problem was addressed inmany tribal members to hunt "unoccupied lands."264 Al- treaties by specifically recognizing Indian hunting though the lower Federal court agreed with the and fishing rights.251 The following are some exam- tribal view, the United States Supreme Courtre- ples of these provisions: versed the decision, determining that theterm "unoccupied lands" contemplated a temporary right ....the tribes who are parties to thisagree- which would expire as land became occupied. ment hereby stipulate that they will relinquish It all right to occupy permanently the territor, then looked to the State's argument, which pointed outside their reservation as herein defined, but out that the legislation creating the State of Wyom- yet reserve the right to hunt on any lands north ing had admitted that State to the Unionon an of North Platte, and on the Republican Fork of "equal footing" with the original 13 States andthat the Smoky Hill River, so long as the buffalo the regulatory authority over hunting which those may range thereon in such numbers as to justify States possessed was not subordinated toany Indian the chase.259 right. The Supreme Court agreed with Wyoming's "' E g. the Federal Government has preempted the power of Statesto 2 Ward v Race Horse. 163 U.S 504 (1896) enact patent bus that conflict with Federal patent statutes. e.g. Scars "2 15 Stat 675(1868) Roebuck and Co v StilTel Co . 376 U S 225 (19b4) 2" The full provision reads. "The Indians herein named agree, when "' See chapter 3 for J discussion of northwest treaty fishing provisions the agency house and other buildings shall be constructed on their reservations 22 Treaty with the Sioux Indians. Apr 29. 1868. 15 Stat 635.639 named, they will make said reservations their permanent home, and '" Treaty with the Net Perces. June 11. 1855. 12 Stat 957 they will make no permanent settlement elsewhere. but they shall have the 2" Treaty with Wyandot. Sept 29. ;817.7 Stat 160 right to hunt upon the unoccupied lands of tt.e. United States so long as game 2" E g . Menominee Tribe of Indians v United States. 379 0 CI 496. 488 may be found thereon, and so long as peace subsists among the whites and F 2d 998 (1967). eV 391 U S 404 ;19681 Indians on the borders of the hunting districts15 Stat at 674-75 44 5s conclusion that its regulatory rights should not be so In other cases arising in other States, there has limited." been respectful treatment of Indian hunting and Technically, this case has never been overruled, fishing rights, but even where this occurs, Indians but its prevedential value has been virtually eliminat- must go to the trouble and expense of defending ed by subsequent decisions that have looked in depth themselves in a criminal setting. Once a case is at the circumstances existing at treaty times, includ- litigated, there is no guarantee that at a later date the ing whether the Indians involved could even con- State might not again apply its laws to a case with a verse- inEnglish, let alone make fine distinctions in slightly different fact pattern, forcing the tribe or an the language. Although other States were also Indian to defend again."' admitted to the Union on an "equal footing," this An example of how change in Federal Indian general language has not been construed as an policy bears on State court litigation can be found in abrogation of treaty iguarantees to hunt and fish in the termination of the Menominee Reservation. subsequent decisions of the Court."' During the termination era of the 1950s, the Menom- The way that many of these cases get to court is inees of Wisconsin were included among the tribes either in the form of a challenge to a regulatory whose Federal trust relationship was to be terminat- scheme imposed by a State government or as a ed. Shortly after termination, the State sought to criminal matter. In the latter case, typically, a tribal enforce its game laws against a tribal member for member asserting rights to hunt or fish is confronted by a game officer who arrests him or her for hunting deer on the former reservation in violation violating State law. The case then proceeds through of State law. A State appellate court permitted the State criminal process with the treaty provision prosecution on the theory that termination of the being used as a defense to the prosecution. Federal trust relationship with the Menominees Courts in Washington State have set precedents terminated their hunting and fishing rights and establishing a State right to regulate off -reservation subjected them to State regulation.272 Indianfishing despiteconflictingtreatyprovi- A later Federal court ruling, however, established sions.267 Although that State has consistently enact- that the Menominees retained rights to hunt and fish ed and applied its laws without respect to treaty because those rights were not specifically terminated provisions until directed to do so by Federal courts, when the tribai-Federal relationshp was ended, and, other State court systems have held that treaty as a result, the State was prevented from applying its provisions do limit the application of State game game laws on the former reservation.273 laws. As examples, in three States, criminal prosecu- This case provides an interesting example of role tions have reached State appellate courts that have shifts among the governments involved. The case, recognized treaty rights as being above the State heard in the United States Supreme Court, was on regulations. A Michigan decision held that treaty appeal from a decision of the United States Court of Indians could not be required to purchase State Claims in which the Menominees sought compensa- fishinglicenses,sincetheir fishingrights were tion from the United States for terminating the attributable to a Federal, not a State, source.2" In tribe's fishing rights. The United States defended Idaho, a Nez Perce Indian was found not to be itself in the case and won, based on a decision which criminally liable for killing a deer out of a State said that terminating the tribal-Federal relationships season because of his right to hunt upon "open and did not automatically terminate fishing rights.274 The Unclaimed land," as guaranteed by treaty.269 A United States won-the case, but the tribe was the real Wisconsin decision held that Chippewas have the winner because its right to fish was held to survive right to fishin Lake Superior subject to State termination. This pla:.ed the United States and the regulation only to the extent necessary to prevent Menominees on the same side of the issue in the U.S. substantial depletion of the resource.27° Supreme Court, requiring the Court to request that '' 163 U S 514-15 People v Le Blanc, 399 Mich 31. 248 N 9v 2d 199 0976). "Indian Lay, '" United States ./ Winans. 198 U S 371 (1905) Treaty Fishing RightsThe Mulligan Position.- Wayne Law Rotor. p "' State v Alexis. 154 P 805 (1916). State v Towessenute. 154 P 180 1187 (1978), see discussion of Washington cases, Lhapter 3 (1916) Washington State fishing litigation is discussed in detail in chapter 3 "T State s Sanapass 21 %is 2d 377. 124 N 112d 41 (1961), rent dented. 1°' People v Jondreau. 384 Mich 539. 185 N W 2d 375 (1971) 177 U S 991(1964) '" State v Arthur. 261 P 2d 135(1953) T" Menominee tribe of Indians v United States, 391 U S 404 (1%8) "° State v Gurnoe. 53 Wis 2d 390. 192 N W 2d 892(1972) ;8N(11eq167)1Ince1 rihe of Indians v United States. 179 Ct CI 496. 588 F. 2d "'See. e g. State v Tinno. 94 Idaho 759 497 P 2d 1186 (Idaho 1972), 45 5' the State_ participate as a party in order to have its In the 1970s, the United States Supreme Court adverse interest represented. issued rulings on several taxation situations that have Though this particular shifting of litigation posi- been issues of jurisdictional conflict between Indian tions may be unique to the facts of the Menominee and non-Indian governments. The Arizona court case, itt is indicative of legal developments in Indian system upheld the application of State income tax matters throughout history. Depending on the situa- law to cover earnings of Navajo tribal members tion, the timing, the persbns invalvdd, and other from on-reservation sources.In McClanahan v. factors, tribes, States, and the Federal Government Arizona State Tax Commission, the United States can be found on the same side or on opposing sides Supreme Court unanimously held that income of a of any battle. While the United States is representing tribal member residing on reservation, earned on the interests of a tribe as its trustee, it may also be a reservation was beyond the taxing power of the defendant in a case before the court of claims, or State."' formerly, before the Indian Claims Commission on The case followed from an earlier U.S. Supreme another matter. Also, States may be locked in a Courtcasearising on the NavajoReservation struggle over some aspects of interrelationship with (Williams v. Lee)in which the State allowed a non- a tribal government, while at the same time operat- ing a cooperative effort in another area of contact. Indian to use its court system to collect a debt incurred 6y a Navajo on the reservation. The U.S. Supreme Court held that the tribal court was the Taxation appropriate forum for the case, because allowing "[T]he power to tax involves the power to such cases to be brought in State courts wot.id destroy."' So it is in Indian country as well as interfere with tribal self-government.?" The Arizona elsewhere in the world. There has been much court tried to distinguish the income tax case-from conflict throughout the years over taxing power, the earlier case by noting that an income tax is and States have expressed great concern over the personal and 'therefore would not interfere with relative taxing authority possessed by them and the tribal self- government.. The McClanahan case made tribes within their boundaries. it clear that Arizona had no more jurisdiction to tax In an early case, which reached the United States income derived from reservation land than it had to Supreme Court, a South Dakota county attempted tax the value of the land itself"' In fact, the U.S. to impose a personal property tax upon livestock, Supreme Court expressed the view that by 1973.thai wagons, and improvements made on Indian trust principle should have been clear, because in the land within the Lake Traverse Reservation; home of years between the Williams decision and the McCla- the Sisseton Wahpeton Sioux. The Supreme Court in nahan case the Supreme Court had invalidated this case held that the county had no right to impose another attempt by Arizona to impose an income tax such a tax as long as the land containing the personal property was 'Indian trust land."' on money earned on the Navajo Reservation."' In Oklahoma, the State imposed its inheritance tax In another important case, the United States on tribal members. The issue came before the United Supreme Court put to rest the theory that Public States Suprerne Court in 1926277 and again in the Law 280,2" which gave some States criminal and 1940s. In the later case, the Court decided that the civil jurisdiction over Indian tribes, also gave States State could impose its inheritance tax scheme on the power to impose taxes on the tribes. A Minneso- tribal members, but resteditsdecision on the ta county tried to impose a personal prOperty tax on peculiar situation of the Oklahoma tribes involved, personal property located on Indian trust land, who were considered to be without tribal sovereign- relying on Public Law 280 as the source of its ty ana therefore without immunity from State authority to do so. The Supreme Court struck down taxation."' this tax effort, holding that Public Law 280 could 2" McCulloch v. Maryland, 4 Wheat 316.429 (1819) "' 411 US at 181 "4 United States v Rickert, 188 U S 432 (1903) ", Id at ,180-81In Warren Trading Post v Tax Commission, 380 U S. 2" Childers v Beaver, 270 U S 555(1926) 685 (1965), the State tried to tax a trading post for income earned on 3 'Oklahoma Tax Commission v United States. 319 U S 598 (1943) reservation 3" McClanahan v Arizona State Tax Commission. 411 U S 164 (1973) See discussion of Public Law 280 in chapter 5. 2" Williams v Lee. 358 U S 217 (1959) 46 a. not be rad as authorizing the States and their local Project Agricultural Improvement and PowerDis- subdivisions to impose such taxes." trict on their possessory interest in landleased by Another issue of confrontation between State and them from the tribe. A Federal court upheldthis tribal taxation has beenover cigarette taxes. Several exercise of taxing authority, finding that interests are involved in this. The the project nature of the involved the function of power i,eneration,which commodity being taxed is that itis both easily was not a necessary government function, butone movable and quickly consumed. There is a motiva- often handled by private companies. This placedthe tion among consumers to cut the taxrate whenever governments involved in a position similar to private and to the extent possible. Some tribes haveutilized companies for taxingpurposes and rendered inap- thil opportunity, operating smokeshops both for propriatetheir claims of intergovernmentaltax their own people and for therevenue produced from immunity.?" non-Indians seeking cheaper tobacco. States have The Navajo tax case may be just the beginningof tried to prevent tribes from providingan alternative cases involving tribes exercising taxing authcrity tobacco source to State residents by requiringtribes over property located cn reservations or income to collect State taxes on cigarettes they sell. Many derived from reservation businesses. Tribalautono- -havi-refused-to-reeognize-anyauthorityirrthe my may trial ability to raise therevenue States to require such tax collectionon tribal trust necessary to function, and it is ,:,:ely that taxation land, and cases have been litigated to determine the will be an important source formany tribes. issue. Recently, the U.S. Supreme Court hearda case in which the State: of Montana attempted to Resources impose its cigarette tax requirementson Indian Control over natural resourcesmay be the next smokeshops. The Court decided that the smokesh- protracted battleground for tribes, States, theFeder- ops'involved had no responsibility to charge tribal al Government, and private interests. Over members a tax on cigarettes but the State a_ centu- - could ry ago, the demand for land gave major impetusto -- require tribes to collect the tax from non - Indians the westward push of non-Indian civilization,and The Court reasoned that this type of salestax was the quest for gold overcame whatever either paid or not paid by the obstacle consumer rather than stood in the way of eager prospectors.' "" Todaythe the smokeshop, and so merely requiring the tribes to demand for water and the quest fornew energy collect it was not an undue burdenon tribal self- resources could prove as devastating to tribes as the government.2 "5 resource conflicts of the 19th century. Such,eco- In Washington v. Confederate Tribes of theColville nomic demands might also be the basis for economic, Reservation, 226 the Supreme Court refused to recog- independence for tribes that have significantre nize a distinction drawn by lowerFederal courts sources located on their reservations.' "' when tribes were imposing theirown taxes on Water rights is a majorarea of conflict between cigarettes. The Court held thatno principle of law tribal, State, and Federal governments in permitted the tribes to market the water- an exemption from poor western United States. In the West, tne rightto State tax to persons who would normally maketheir use water in the future is recognized in those who purchases elsewhere. In Adition, the Court decided have made beneficial use of water in thepast. Nov that the_States' refusal to give credit on the amount known as the doctrine of prior appropriation,it has of tribal taxes paid did not infringeon the right of been defined in these terms: tribal self-government. The cases involving governmental authorityto tax To appropriate water means to take and diverta have not all revolved around the issue ofStates specified qusIntity thereof and put itto benefi- taxing tribes. There have been conflicts insome cial use in accordance with the.laws of thestate cases of tribes imposing taxes on individuals or State where such water is found, and, byso doing, to government entities. The Navajo Tribe imposed acquire under such laws, a vested rightto take a and divert from the samesource, and to use and tax on the city of Los Angeles and the Salt River consume the same quantity of water annually ," Bryan v Itasca County. 426 U S 373 (1976) "' Final Report. pp. 55-56 2" Moe v Confederated Salish and Kootenai Tribes. 425 U S 463 (1976) 2" 48 US LW 4668(1480) 2" Tribal timber reserves. excluding Alaska.are estimated at 40 billion board feet. ibid, p324, Indian oil and gas reserves are estimated at 3 "' Salt River Project Agricultural Improvement and Power Districtv percent of the national total. and 7 to 13 percent of the Nation's coalis on Navajo Tribe of Indians, Civ No 78-352 (D Ariz 1978) Indian land. 'bid . pp 338-39 47 forever, subject only to the right of prior cess. Such litigation is by no means confined to appropriations.'" opposing interests of a State and a tribe. In many cases, States oppose one another, and in larger river The fact that so many settlers were establishing systems several governmental entities may be in- homes and communities near Indian reservations volved. A major case of this nature, decided by the raised the issue of whether the lands of the tribes United States Supreme Court, is Arizona v. Califor- were subject to the doctrine of prior appropriation. nia. 2" That case involved the relative water rights This issue wai brought before the U.S. Supreme of five tribes and four States bordering the Colorado Court in a case involving the Fort Belknap Indian River system. With respect to the tribes involved, Reservation in Montana.'91 An agreement between the Court upheld the Winters doctrine, stating that the Iddians of several tribes and the United States'" the tribes had a right superior to that of the States that established the reservation did not mention- involved to an amount of water sufficient to irrigate what, if any, water rights were reserved by the all irrigable portions of their reservations. As noted Indians. Yet the land retained by the Indians was by the American Indian Policy Review Commission: -arid and valueless- for- agricultural- purposes without irrigation. Shortly after the reservation was estab- lished, non-Indians diverted the waters of a river Theas-yetundevelopedWintersDoctrine that formed the northern boundary of the reserva- Rights of the tribes are quite substantial in extent and in their potential adverse impact tion. upon non-Indian economies built on water use The non-Indians claimed a right to the water permits issued pursuant to state law "subject to based on the theory of prior appropriation."3 The their existing rights. 9222 Court, however, looked to the circumstances sur- rounding the creation of the reservation, noting that The manner in which those rights will be deter- the tribe had relinquished the large land areas mined, however, may result in minimal amounts of necessary to support its nomadic lifestyle and re- water being recognized as the right of tribes. In 1952 served land which, if irrigated, would sustain the the McCarran Water Rights Suit Act, commonly `tribe through agriculture. The Court refused to known asthe McCarranAct,225 was passed. accept the non-Indian claims to the water, finding Through this legislation, the United States consent- instead that the creation of the reservation implied a ed to be sued in State court in litigation involving right to an amount of water sufficient to support the water rights owned by the United States. purposes of the reservation, which in this case meant A major test of the McCarran Act occurred in to irrigate the land.22 This right was deemed to be Colorado in 1971 when the U.S. Department of superior to any contrary State water rights laws."5 Justice argued before the Colorado Supreme Court The right was also viewed as established by the that the McCarran At did not apply to water rights Federal Government for the benefit of the Indians, concerning land withdrawn from the public domain, and not affected or implicitly repealed by Montana's inthat case, a national forest. In the ,ligitation, admission into the Union, as argued by counsel for however, there was no distinction made, between the State...The_"Winters._ rights doctrine" established. forest land owned outright by the United States and in this case formed the basis for later litigation in land owned by the United States as trustee for, which Indian tribes and non-Indian governments Indian tribes. Thus, the State court ruled that the and individuals fought and are still fighting. over McCarran Act applied to "whatever rights the scarce water supplies. United States had to water."'" The Supreme Court Litigation over water rights tends to be complex, of the United States upheld the decision of the with a vast number of parties whose land borders the Colorado court in a decision known as the Eagle subject water systems having to be brought into the River case, which also did not distinguish between case through formal pleadings and service of pro- Federal water rights owned by and for the Federal Arizona v California. 283 U S 423 (1911) 3" 371 U S 340(1963) Z.' Winters v United States. 207 U S 564 (1908) 2"Task Force Four Report, p 160 "1 Act of May I. 1888. ch 211, 25 Stat 113 2" 43 U S C §666(1976) 207 U S at 572 "' United States v The District Court. 164 Col 555. 458 P 2d 760, 773 "2Id at 564 ,(1969) 119 Id at 577 48 Government and those owned by the Federal alone protect, the prior and paramount rights of Government in trust for Indian tribes.300 the Indians.'" The presentation of the case by the Solicitor General of the United States to the United States The state of the Nation's water resources has been Supreme Court engendered acrimony among the recognized as a national priority. On June 6, 1978, tribes, who had urged the Federal Government to President Carter delivered a water policy message to distinguish between the two types of title it held."' the Congress containing initiatives designed to: The tribes pointed out that by failing to distinguish Improve planning and efficient management of between these varying types of Federal water rights, Federal water resource programs to prevent the precedent established in the case would be waste and to permit necessary water projects that applied to Indian cases as well, forcing the tribes to are cost effective, safe, and environmentally sound adjudicate their, water rights before historically to move forward expeditiously. unfavorable State tribunals. Provide a new, national emphasis oil water In 1976 Indian fears were realized as the United conservation. States Su .reme -Court applied the principle of the Enhance Federal-State cooperation and im- Eagle River case to a case directly involving Indian prove State water resources planning. water rights.'" The Supreme Court chose to follow Increase attention to environmental quality.'" the precedent established in Eagle River without Included in the message was an instruction to distinguishing between the purely Federal water Federal agencies to "inventory and quantify Federal fights, whichWere the subject_ of that-case,- and the- reserved and Indian water rights."303 Following a -Indian-rights owned by the United States as trustee Presidential directive of July 12, 1978, a Task Force for tribes. As a result, the complexion of water rights on Indian Reserve Water Rights was created. Its disputes has changed somewhat to the ditldvantage. members were designees of the Departments of the of tribes who, under present law, now know that the Interior, Agriculture, Housing and Urban Develop- final arbiter, of their water tights in disputes that ment, Army, Justice, and the Tennessee Valley reach a litigative level can often be State court Authority.'" This task force was one of 19 formed systems. to deal with water policy implementation."' The Many current disputes over water date back to tIe task force was required to "establish procedures to policies of the United States regarding settlement of be used in evaluating projects for the development the country by non-Indians. As stated by the of Indian water resources and to increase Indian American Indian Policy Review Commission: water development in conjunction with quantifica- tion of rights."'" It was the policy of the U.S. Government to This Federal policy of quantifying Indian water encourage settlement of its lands and to create rights a, ng with the establishment of procedures for family-sized farms with little or no regard to the development of Indian water resources will "1, Indian rights to the use of water. With the undoubtedly affect tribal-State conflicts over water encouragement, or at least the cooperation, of rights. States have expressed concern that they the Secretary of the interior, the principal agent__ cannotdevelop- water- rtsources- where-tribes-have the trustee United States charged with prior and paramount rights in uncertain amounts. protecting Indian rights and natural resources, many large irrigation projects were constructed Tribes have expressed fear that the present quantifi- on streams that flowed through or bordered cation of their rights, particularly on undeveloped Indian reservations. With few exceptions, these reservations, may result in a determination of a right projects were planned and built by the Federal to a quantity of water insufficient to meet future Government without any attempt to define, let needs. The pursuit of a Federal objective to quantify 7" United States v District Court of Eagle County. 401 U S 520(1971) 1O' President Jimmy Carter, to the Secretaries of the Interior. Agrculture. 7" Mel Tonasket, president of the National Congress of American Indians. Housing and Urban Development. Army. the Attorney General, and the statement to the American Indian Policy Review Commission,Tack Force Four Report.pp 166-71 Chairman of the Tennessee Valley Authority (July 12. 1978) (hereafter "7 Akin v. United States. 424 U S 800 (1976). cited as President's Directive) "" Task Force Four Report.pp 165-66 "7 U S . Department of the Interior. Water Policy ImplementationCoordi "4 President JimmyCarter,Federal WaterPolicyMessage to the nation Group, chart entitled "Water Policy Implementation Task Forces Congress. 14Weekly Comp ofPrez Doc, W44 (June 6, 1978) Lead AgenciesLead Individuals" (Oct 24. 1978) Ibid p 1050 President's Directive. p 3 49 C.') Indian water rights may thus be expected to result in The relationships between tribal, State, and local action between States and tribes either to agree on . governments, the frequency with whichthey have their respective water rights or to litigate them contact, the issues over which they have conflict, perhaps sooner than they might have. and those on which they act cooperatively are as Another major issue confronting the Task Force aried as the governments, the geographical areas, on Indian Water Rights is that its procedures for and the populations involved. evaluating Indian water development projects are to State governments have been centralinthe be consistent with those being developed by the determination or redetermination of Indian rights Water Resources Council. Presidential direction for and have played a variety of roles in disputes that establishing selection criteria "placed heavy empha- have ranged from the passage of legislation to sis on strict economic feasibility and emphasized administrative regulation to judicial determination of environmental protection."'" The task force noted disputed matters. Historical racist attitudes"' char- that this provision,if applied to Indian, water acterizing In-dim-is as- "inferior" beings or "uncivi- projects, "could exacerbate an already bad situation lized" or "savage" have been used to support State on Indian reservations. " "" Noting that the current assumptions of political authority over Indians and two planning objectives,, national economic develop- tribes. Sometimes the exercise of assumed State ment and environmental quality, "do not recognize authority has touched off a dispute. Examples of this some b .iefits_that are generateby water develop- may be found in attempts of States to assert taxing ment projects on Indian reservations,"3" the task authority over tribal members, governments, and force recommended a new planning objective to be property." The hunting and fishing cases discussed applied to 'Indian projects, a "Permanent Tribal earlier provide further examples of States trying to Homeland."'" impose their authority on tribes, with the ultimate Choices to be made by Federal officials in sup- result being confrontation or litigation or both."' porting Indian water devehpment and quantifying In some instances, States have used their authority Indian water right:: can play a central role in water and power to prevent differences of opinion about rights conflicts betwe.States and tribes. Just as legal rights from becoming confrontations or the previous Federal policies such as homesteading, land basis for lawsuits. In South Dakota, for example, a allotment, and tribal self-determination have had a task force on State-Indian relations was created to direct effect on how Indians and non-Indians ap- address differences between the State and the tribes. proach one another, a national water. policy can be a As Wayne Ducheneaux, tribal chairman of the vehicle for calming or inflaming Indian and non- Cheyenne River Sioux, described it Indian differences over water rights. There were nine legislators and nine tribal chairmen on the task force. We sat down and The Nonlitigative Setting met on a one-to-one basis and the task force was The preceding summary of conflict litigation_ authorizedto introduce legislation into the State legislature that they felt would help the focuses only on issues and specific cases in which the State Indian relations. And out of the nine parties involved chose to force a determination of proposed bills, seven of them passed "' their rights through the judicial system: This is, however, a very limited view of interactions be- One of those bills was an authorization for the tween tribes and State and local governments. Many State to enter into cooperative taxing agreements intergovernmental contacts do not occur between with tribes. Through thislegislation, the State lawyers representing litigants in courts. For the most agreed not to try to assert sales, use, or cigarette part, Indian tribes and non-Indian governments must taxing authority on reservations. The legislation deal with one another directly to address ongoing further provided authority for the State executive to problems of operating their respective governments. agree with each of the nine tribes-- desiring such an 3" Water Policy Implementation Interagency Task Force, Draft Report on ."See discussion of litigation over taxing authonty earlier in this section Planning Procedures for Indian Water Resources Development (Department 3 See discussion of litigation in hunting and fishing rights cases earlier in of the Interior,. June 1979). p 8 this section, for a description of the role played by Washington State fishing 3' Ibid regulatory agencies. see chapter 3 "' Ibid ,p 9 U. Hearing Before the US Commission on Civil Rights. Rapid City. South "I Ibid , p 10 'Dakota. fuly 27-28. 1978. p 243 (hereafter cited as South Dakota Hearing) "3 See previous section. "Traditional Civil Rights Problems " 50 . 64 arrangement to use the State tax collection machine- tribal governments. Resistance by Individualnon- ry to collect taxes imposed by the tribes in return fraL Indiam to the assertion of tribal judicial authority an administrative fee.'" over them is most naturally joined in by the State An essential aspect of this legislation is that it government, which will be the governmental au- treats tribes as individual governments. Indeed, it thority likely tofillthe voidin criminal law did not attempt to create a taxing scheme applicable enforcement created by a court ruling denying to to every reservation in the State, but only on those tribes criminal jurisdiction over non-Indians. that desire the arrangement. This approachwas Similarly, a dispute over land ownership between reflected in the remarks of Attorney General (now non-Indians and a tribe that results in loss of Indian Governor) William Janklow, "All tribes aren't the same. . .you have got to treat them like different control over land places that land under State authority to regulate its use and to tax it. Naturally, countries or States. You can't lump all-the tribes into a package."'".- the State, interested in increasing its tax base along Stile judicial systems have sometimes been at the with its general control, would tend to support the center of disputes in which there are conflicting non-Indianposition. Given the overwhelmingly claims about the authority of the judiciary to decide non-Indian composition of State governments and a matter. Water rights litigation is a prime example the direct benefits to the State from non-Indian of an area where the court in which relative rights victories over tribal claims to rights, resources, and are determined is viewed as a crucial factor.'" The authority, the constant pressure of States for reduc- Washington State fishing rights litigation also dem- tion in tribal rights and authority must be considered onstrates how the court system itself can become an a factor in Indian and nonAndian disputes. issue..Over the course of that litigation, the State supreme court has consistently upheld the regulato- Local Conditions ry authority of State agencies over tribal treaty rights. Parallel litigation in the Federal system has Counties and cities legally are subdivisions of ruled that the fishing tribes possess separate treaty State government."' The relationship of these gav,_ - rights that are superior to the State's general ernments to tribes varies as widely as the circum- authority to regulate fisheries, except for theexer- stances that exist between them. In some cases, for cise of resource conservation authority, and in example, an Indian reservation exists in onecorner several of these cases, the obstinancy of the State of a rural county."' In others, a reservationmay be judiciary has been noted."0 larger than the adjacent, non-Indian units of govern- Another aspect of any State's position in a dispute ment.'" between Indians and non-Indians is the desire of Local government functions typically include law States to expand their own control andpower. enforcement, fire protection, water and waste man- Tribes, though generally located within single States agement, land management, tax collection, and civil (some reservations cross State lines), are govern- and criminal court operations with associated re- ments whose rights are traceable to a status of cordkeeping. In Washington State,the Yakima sovereignty recognized by the Federal Government. Indian Nation and Yakima County have experienced Unlike counties or cities,their authority exists cooperative efforts concerning zoning, land Use, independently of State governments. It is not sur- solid waste management, and law enforcement.'" prising that State governments have traditionally With the non-Indian city of Toppenish, locatedon viewed themselves as representing non-Indian inter- the border of the Yakima Reservation, the relation- ests within the State. Disputes between individual ship between Indians and non-Indians had not been non - Indians and tribal governments will often con- good. As the mayor of Toppenish saw it, therewas tain another level of conflict between State and poor communication between tribal and city govern- "' S D Comp Laws Ann Ch 10-12A (Supp 1979) ", " South Dakota Hearing. p 222 The Navajo Reservation covers 13.989.222 acres. including entire "' See discussion of the McCarran Act earlier in this section counties of Arizona and portions of counties in Arizona. Utah. and New '" See chapter 3 on Washington State fishing nghts dispute Mexico. ibid . p 63 "' Rogers Locomotive Works v Emigrant Company. 164 U S 559 (1806) "4 Roger Jim. testimony. Bearing Before the 0 S Commission on Civil sn E g , the Hoh Reservation occupies only 443 acres on the western edge RightsSeattle. Washington. Oct of Jefferson County in western Washington U S Department of Cam. 19-20. km. p 53 (hereafter cited as merce. Federal and State Indian Reservation and Indian Trust Areas (1974), Seattle nearing, 01 I) p 535 51 65 A ment that could be (raced to "hard feelings" associ- neither trusted the other with the control of a sewer ated with poor treatment of Indians in the city. "' In system. The dispute over sewer system authority the early 1970s, when the city ?lose to construct a also interfered with tribal attempts to obtain Federal sewage treatment system, the tribe expressed no funding for the project.'" interest in the project. By 1977, however, communi- Many working arrangements between tribal and cation had improved sufficiently for the tribe to local governments can be found hroughont Indian involve itself with the project in lieu of building:a country. Cooperative law enforcement trrange- separate facility of its own. The two governments ments that include such elements as cross-deputiza- entered into a cooperative agreement by which costs tion of tribal and local officers, sharing of radio of providing a necessary service were reduced fOr frequencies, and supportive patr011ing arrangements both \s" exist, among other places, between the Yakima The situation existing elsewhe- t in Washington _County Police and Yakima Tribal Police,'" between State,',for example between Whatcom County and the Gr4is Harbor County Police and Quinault the Lummi Tribe, was very different. In response to Tribal Police,"1 and between the Colville Tribal the Lummi attempt to construct a sewer system, a Police and the city of Nespelem. In fact, in the case separate, non-Indian sewer district was formed. The of tbe Colvilles, the city of Nespelem contracted tribe saw the creation of the non-Indian sewer with the tribe for the provision of law enforcement district as one attempt among many by local non- services to the city.'" Elsewhere in Washington Indians to prevent tribal development: State, counties and tribes do not participate in cross- deputization agreements.'" when we announced our project, some of the In addition to law enforcement agreements, Grays people...took up arms and tried to stop that. Harbor County and/the Quinault Indian Nation have They just worked for several years to slOw down the Lummi progress. It cost us hundreds worked out cooperative arrangementsin the areas of and thousands of dollars to fight off the brush- solid waste disposal, ambulance services, easement fires that they create. ..like we're trying; to for road construction, and juvenile services.' develop a Sewer system, that is the cause for the On the reservations of South Dakota, the level of formatiop of Whatcom Sewer District Number cooperative efforts to enforce the law varies from 2. We laid claim to our water rights on the locality to locality. Even within an area, a tribe may reservation, so immediately we have a N't/ter District Number 15.327 have a different working relationship with one overlapping county than it has with other adjacent The non-Indians of Whatcom County saw their counties. The officers of the Crow Creek Reserva- actions quite differently. tion are cross-deputized with officers of Buffalo County, for example, but not with other adjacent We have endeavored to cooperate in every way counties.'" The Sisseton Wahpeton Tribal Police possible. The very fact that the Lummi Tribe are cross-deputized with Marshall County offi- absolutely refuses to recognize Whatcom Coun- cers,'" but not with those of Roberts County.'" ty Sewer District Number 2, in our opinion, Agreements have been reached between the there is just no way, [to create a mutually useful sewer system] because if we're not recognized, Cheyenne River Sioux Tribe and the South Dakota Game, Fish, and Parks Department for joint en- how can we even begin to cooperate?" , forcement efforts,'" and between the Crow Creek In any event, it is clear that in this case the Indian Sioux Tribe and that same State department with and non-Indian communities were at odds, and respect to hunting rights and game law enforcement '" Fred !dutch. testimony, ibid . p 57 - ".Roland Youmans. commissioner. Grays -Harbor County, testimony. "' Mutch Testinion) Jnd Roger Jim Testinion). ibid . pp 56-58 Seattle Hearing. vol I. p 209 "' Sam Cage). Lummi tribal ehauman. testonton). ibid p 127 9 '" Iktty Nesbit. commissioner. N hawom County Scoot District Number "6 William Shields, Jr . captain. Crow Creek tribal police. testimony. South 2. testimony. ibidpp 101-02 Dakota Hearing. p 69 '" DoLumentary Ilistors of du. Lummi Sew cr Project. Si auk /haring. "' Ralph Olauson. sheriff. Marshall Count). South Dakota, testimony. vol II. e'hibit 14. pp 174-81 ibid . p 19 6" Seattle lleartng. sot I. pp 72-73 r !bid . pp 207.08 '" Ned Long. sheriff. Roberts County. South Dakota. testimony. ibid p f" 1' S . Congress. Senate. Senate Select Con lllll ttee on Indian Affairs. 20 nearing on-S :50:. 95th Cong. , 2d sass1978. p 210 '" Wayne Dui.heneaux. chairman. Cheyenne Riser Sioux Tribe. testimo- ". E g . the Suquantish ['rase and Kitsap Counts. where the Oliphant case tn. ibid . p 238 originated.alo not fuse such JII agreement Seattle Hearing I. p 161 52 on a parcel of State land located within the reserva- how the rooms are decorated, just requirements tion boundary."' that all related to material things in a child's life. Some cooperative efforts between Indian and non- Emotional well-being of a child is much more Indian governments may be traced to Federal important than material things that surround that child... .This type of thing, you know, is statutory law. This is particularly true among stat- notinthe State standards....So,if you utes establishing Federal domestic assistance pro- contract with the State to provide these types of grams, which vary intheir, approach to tribal services, then you're going to have to be in governments. Some Tirograms set money aside spe- compliance with State standards. The Federal cificallyfor use by,tribal governments."' Other regulations have stipulated in the area of foster programs provide money for tribes through a combi- care, licensing on Indian reservations, day care nation of set-aside funds and funds directed to State standards that the States must work with Indian tribes and organizations. If they're not able to governments for which tribes may cOmpete as if meet the standards that the State sets up, then they were loCal governments within the State.' they're to help the Indian people and work Still other programs require ,tribes to go through toward making those standards lenient enough State funding processes in order to participate in so that they do meet the standards on Indian federally funded programs at all."' reservations, but no attempts have been made State governments hold a powerful position over by the State to do anything about this."' tribes with respect to Federal funds they control. There is also some question whether States are Under the Title XX programs, for example, States providing services to tribes. develop plans that determine the types of services to Conflicting testimony was received in Washing- be offered, -and States control the distribution of ton State on this point from the deputy director of funds made available by the Federal Government. the State social and health services department and a There is no guarantee that tribes will receive a fair tribal social services director. In response to the share of funds or services based on their needs or statement that tribes, on the basis of their relative based on their populations, although they are by law population, were getting more than their fair share entitled to share'" Even if they receive services to of Title XX funds based on number but less than which they are entitled, tribes are then placed in the their fair share based on need,342 the tribal social poibion of being indebted to the State for their services director offered this observation: inclusion in the service delivery system."' Even where States wish to include tribes in the services Mr. Thomas' statement that Indian people are offered,theirdeliverysystems are oftennot getting their share of the Title XX services is equipped to provide them because Of cultural differ- probably due to the fact that casework staff are ences or distances between reservations and State in contact with us in cases of adoption, foster care, and child protective services, so we go out social service offices."5 Another problem with and provide the services. passing funds through State agencies on their way to tribes is the fact that State standards will be applied They contact us primarily by telephone, and we to Indian tribes. As Goldie Denney, Quinault tribal do the work. We document it, send the material, social services director, said about State-imposed the case summaries, and this sort of thing, into child care fequirements under the Title XX pro- the local department of socia' and health ser- gram: vices, and then.they put it in their case record, and so it goes in their printouts every month that they have provided so many casesIndian The standards are based upon materalistic child protective services cases, so many foster things such as the number of rooms in the home, care cases, so many adoptions, etc. "' Lease Agreement Rem cen Crow Creek Stout Tribe and State of South Assistance Administration. IIUD-701 planning grants. Intergosernmentaf Dakota. Mar I. 1978 (Commission files) Personnel Act, %motional education programs. State-operated scholarship 34. F a, the Comprehensive Employment and Training Act of 1973 under programs. Rural De% elopment Act programs. historical grant), emptoy TitleIII allows tribes to fCCCMC money directlyfrom the Federal meat services-unemployment compensationJames R letter. Government for the operation of tribal programs, 29 U S C 872 (1976) Oversight on the Pniblems land Harriers Attendant to Indian I ribal and 3" F g, the Law Enforcement Assistance Act. 42 U S C 3731 (1976) Organizational Participation in Federal Domestic Assistance Programs. 3" E g". Title XX of the Social Secunty Act. 42 U s C 1397(1976) Hearing Retort the Senate select Committee on Indian Affairs. 95th Cong. . "' See Morton v Ruiz. 415 U S 199 (1974) 1st less, pp 46.48 (Sept 8. 1977) '" The fc,:lowing programs were listed by the director i if the Michigan '" Goldie Dennes. testimony, Seattle llcanng. sol I, p 211 Commission on Indian Affairs as not requiring the State to include Indian '" p 210 tlf,Title XXSocial SecurityAdministration, Law Enforcement 3" Gerald Thomas, testimony, Mid p 179 6 53 6 O Actually all of the services are provided by funds through State agencies place tribes at a Quinault people themselves and not provided disadvantage, because they place the States in a directly by the department of social and health position of power regarding the ultimate distribution service staff.'" . of assistance money. The inapplicability of State standards to Indian foster homes has been one factor among many National Initiatives contributing to a tremendous loss of Indian children . from the tribes. Indian homes have been judged Some of the disputes between State and local substandard as foster and adoptive honies by State governments and tribes, involving far-reaching jurjs- social services workers. Judging their actions to be dictional questions and relative rights to ownership in the "best interest of the -Indian children," State or control of land, water, and other natural re- agencies hive removed them from reservations and' sources, have been brought to court for final placed them in non-Indian homes. An Indian girl determination, There are several drawbacks to the who went through this process grew up to become a litigative process, -however, thatmakeirless than-an social services worker for the State, which took her ideal means for settling some of these disputed from her reservation. She later traced her records to issues. Them. is the simple fact that litigation takes learn about her background and to find her sister, timeyears in many of the disputesnvolving Indian who had been placed with another family elsewhere in the State."' As an adult she became tribal and non-Indian governments. Complex litigation is chairwoman of the Lower Elwhas. very expensive. Results are not predictable and they Situations like this often without sue, a happy are subject to reversal through the appellate process. ending, led to passage of the Indian Chilc. Welfare Often the issues decided do not completely settle the Act of 1978.3" This act recognizes that tribal courts' disputed matter.'" are the appropriate authority to determine Indian The subject of agreements between State and child placement. Though only recently enacted, the local governments and tribes rather than litigation act has the potential for reversing the, process that has been recently explored in the Congress and has for so many 'years has robbed reservai.lons of tneir been a topic of interest to some national Indian and most important resource, their offspring. non-Indian organizations. Agreements between Indi- Child welfare demonstrates the combination of an and non-Indian governments regarding\ the exer- funding and control problems in the interaction of cise of the jurisdictiotassessed by each contain an tribal and State governments. A range of coopera- element beyond a mere contractual relationship tive possibilities exist. between the two. An important concept of Federal One alternative followed with respect to..elderly Indian -law is that State§ are not free to exercise 'programs involves 1978 amendments to the Older jurisdiction over tribes. They are restricted from the Americans Aetwhich creates a direct grant pro -. exercise of such authority due to the preemption of gram to Indian tribes.'" Previously,'Indians were only eligible for funds through Title III programs that authority by the Federal Government. In 1959 administered bySlate and local agencies. Indian and the United States Supreme Court held that the State non-Indian governments have worked together to could not exercise its jurisdiction on an Indian varying degrees to iron out their differences con- reservation if to doSQwould infringe on the power cerning the administration of .Federal domestic of Indian people-to govern themselves,'" In 1971 the .assistance funds. The starting point for efforts at principle was further advanced when the Supreme cooperation has much to do with the relative Court determined that a State could not exercise strength of the tribes and State governmetits to civil court authority over a sales transaction be- pursue satisfactory solutions. Programs that channel tween an Indian and a non-Indian occurring on the "" Denney Testimony. ibld p 206. "' Older Aciencarls Act Amendments of r978. Pub. L. No. 95-478. Title 1 Patricia Elofson. testimony. Seattle Heartng. vol. 11. pp 82-84. 42 U.S C. 3057 (1978) 1" 25 U.S C 1901-63 (Supp. II 1978) The legislation was drafted by the Association on Amencan Indian Affairs, which supported the bill through "1 E g .the Washington treaty fishing rights litigation involving the a study of Indian child adoption snd foster care placements. In the worst Puyallup Tribe has bee.. to the United States Supreme Court three times States surveyed. Indian children were being prated in fostersare at a rate over a 10year trilad 20 times that of the nonIndian population Repnnted i,Task Force Four Report. p 177 "' Williams v Lee. 358 U S 217 (1939) 54 6 Blackfoot Reservation, despite a tribal ominance the nature and extent of existing agreements and authorizing the State to do $0.354 Then in 1977 a pc.sibilities for ates,2 if such an'act were passed.'" Federal district court ruled that the State cc South Philip Samuel Deloria, then director of the Amer- Dakota could not exercise jurisdiction over an ican Indian Law Center, recommended that a study Og lala Sioux child from the Pine Ridge Reservation, be initiated to reveal the types of agreements in despite the fact that a tribal court had adjudicated existence, with the possibility that the proposed act her mentally ill and had ordered her committed to a might be offered in amended form if necessary, State institution.'" based on a thorough understanding of the issue. The The central issue in each of these cases is that the idea of doing such a study was realized in the form Federal Government had not granted authority to of a Commission on State-Tribal Relations, cospon- the States involved in each of these instances to sored by the National Congress of American Indi- assert State authority over reservationIndians. ans, the National Tribal Chairmen's Association, and Although the principle being applied hereisa the National Conference of State Legislatures. Since protection to tribes and their members against the its founding in 1978, the commission has document- assertion of undesired State authority, it also pre- ed a number of formal and informal agreements cludes tribes and States from acting in concert on between States and tribes as well as many coopera- jurisdictional matters when itisin their mutual tive working relationships involving water pollution interest to do so. control and water management, forest management, To address this problem, Senate Bill 2502 was nutrition programs for the elderly, employment introduced and referred for consideration to the referrals, hunting and fishing rights and enforce- Senate Se ledt Committee on Indian Affairr The bill, ment, law enforcement training programs, and taxa- called the Tribal-State Compact Act of 1978, was tion agreements.'" the subject of hearings in March 1978 that disclosed The impetus for these agreements has varied as what appeared to be part of a large body of widely as the agreements themselves. The local law intergovernmental agreements between Indian and enforcement agreements between the Quinaults and non-Indian goverments. These included: Grays Harbor County and between the Yakima an understanding by which Arizona State civil Indian Nation and Yakima County, Washington, orders were upheld in the tribal court of the Gila resulted from a desir-among the communities River Reservation and vice versa;'" involved to utilize their resources more effectively an agreement between the Leech Lake Band to solve common problems.'"' Other arrangements of Chippewas and the State of Minnesota govern- were created to settle disputes being litigated or to. ing the enforcement of hunting, fishing, and rice avoid litigation. Examples of this include the hunting gathering regulations and a collectionrebate and fishing agreement between Minnesota and the system to return to the tribe its share of State- Leech Lake Chippewas,"2 mentioned previously, collected sales, motor vehicle, cigarette and liquor and an agreement with- the State of Colorado for_ tax revenues;'" cooperative control of hunting within an area of the agreements between the Warm Springs Reser- State in which tribal hunting rights exist."' vation and the State of Oregon and local govern- The involvement of the National Conference of ments invclving hunting and fishing, liquor sales, State Legislatures in this study of tribal-State coop- occupational safety, parole and probation, and erative agreements is indicative of recent interest environmental control.'" among, non-Indian governmental associationsin Although the testimony received at the Senate becoming involved on a national level with the hearing was overwhelmingly in favor of the com- resolution of Indian and non-Indian conflict. pact act concept, there was an expression of some The National Conference of State Legislatures skepticism, based on the lack of knowledge about was founded in 1975 "to help meet the challenges of " Kennerly v District Court. 400 U S 423 ( 1971) "4 Many of these Cimpermwe Arrangements are summarized to Comnns "' White v Callfano. 437 I- Stipp 543 0977) " U S . Congress. Senate., Select Committee on ,Indian Affairs. Hearing on ~ton on State-Tribal Relations. monthly reports. January. rebruar). and S. 250.'. 95th Com; .. 2d secs (1978). p 36 (het after cited ac urinal State March 1979 Compact Hearings) "'1 renal State Compact Hearings. p 305 '" 114 . pp. 303-59 "2 Ibid. pp ;03-"/ " Ibid , p 260 " Philip Samuel Deloria. testimony. I nbal State Compact Ilearinglpp "' Ute Mountain !rib,: %State of Colorado. Cis 'VA No 78 C 1'22(1 115 31-34 Colo 'illy 6. 1978) 6..onsenl decree) National Conference of Slate Legislatures. On Behalf of Our Aation's "` Gould Testimony. 15 aihington. 1)C. Hearing, sellI. p 101 State Legislatures (undated). p 3' National Conference of State Legislatures. State and Indian Water Sue Gould. testimony. //o..rotg fieJon theL Cummiseiun un ( Rights. Summary of remarks of Dee Hansen. Utah Department of National Rights. Washington. DC. 'stir 19-20.1979. s olI. p 1(X) (hereafter sited as Resourses. 'thy/mg Summary. pI May 31 and Jun.). 1979) Washington. DC. Manner "' Summary of remarks of Daniel Israel. attorney for Unitati and Ouray '' !bid Tribes. and . p 3 Ibidp 101 ' Summary of remarks of William Strickland. dud . p 4 National Conferense of Slate Legislatures. Goals fie State I ederal James V. aldo. testimony. Sr utlt Rearing. sol III. pp 13-14 At lion. POliti. the \Jingler" Confili nee of'State Legislator e 19'8- ' NationalAsso.. 'anon of Counties.lineman Count)Platform and /979. p 9b Resolutions 197*- /979 pI 56 the geographic boundaries of any Indian Reserva- going to be difficult to establish Federal legislation tion."'" This directly contradicted the recommenda- that's going to control and develop an aspect for all tion of the Ame 'can Indian Policy Review Com- tribes."" mission, which wasiewed by the NACO group as NACO did not adopt this policy statement but saying that "tribal govment should have authori- rather accepted the approach of the two-person ty to exercise jurisdictioover non-Indian people minority on the committee, one of whom was a and property within the r rvation boundaries."'" Navajo tribal member.'" The final policy does not The Indian Affairs Committee was set up to review attempt to abrogate existing rights, but merely poses the recommendations of the American Indian Policy questions to be resolved by Congress on issues that Review Commission."' are confused by historically conflicting Federal In May 1978 a majority of the Indian Affairs policies. Even in this version, however, there is a Committee adopted a policy calling on Congress to failure to recognize that questions over some issues enact legislation "which clearly defines the nature have been answered through litigation in specific and scope of tribal jurisdiction."'" The committee cases, settled by agreement in others, and addressed asked NACO to suggest legislation to Congress that legislatively in others. It is not clear whether this "makes it clear that governmental powers granted policy is asking Congress for across-the-board legis- tribes by the Congress are limited to the government of members and their affairs."'" The committee lation on such matters as hunting and fishing rights, criminal and civil jurisidiction, and control over recognized that the implementation of State jurisi- natural resources development's' diction would require the abrogation of some rights that courts had already adjudicated to exist in tribes. The process through which the policy was adopt- For example,. States would have jurisdiction on ed provides some understanding of the interests it reservations over all persons who are not tribal represents. The structure of NACO is such that only members, presumably forallpurposes. Another standing committees can propose resolutions to the recommendation would be to award States the board of directors, which then forwards them to the authority to regulate non-Indian hunting and fishing full membership. Since the Indian Affairs Committee on reservation land and the authority to regulate is not a standing committee,it must presentits tribal members exercising off -reservation hunting resolution to each standing committee that might be and fishing rights. The committee suggested a concerned with the resolution. That meant a full significant increase in State jurisdiction over crimes debate before each committee between the propo- committed on reservations and also quantification of nehts of the majority and minority positions. Fol- tribal rights to water only up to the levels currently lowing this full debate, the vote favored the posi- being utilized."0 All of these recommendations tions held by only 2 of the 20 members of the Indian would constitute reversals of existing law or policy Affairs committee. to the detriment of tribes. Although they were The point to be made here is that a relatively small _suggested as measures to clarify confusion, many of number of people can influence the policy_ of a large the tribal rights that would be removed by these national organization. Had there been no debate, suggestions have been established through litigation there might have been an adoption of an unopposed or statute in specitic cases o% er many years. majority position put together by representatives of The two-page proposal was directed to the pas- counties having a direct involvement in the matters sage of legislation governing all reservations across being considered due to their proximity to tribal the country, despite differences in rights recognized governments. Although the majority of the national by various treaties and other circumstances that organization might have little interest in Indian and differ among the tribes. The vice chairman of the non-Indian relationships, the weight of this large Indian Affairs Committee acknowledged that this organization can be placed behind the judgment of a approach would be unlikely to work. He observed very few who might not actually representa that "every Indian reservation is different, and it's majority view within the organization. Washington. DC. Hearing. vol II. exhibit 17. pp 13-14 "' Ibid '" Charlotte Williams. president. National Asxociation of Counties. testi- Ibid . p 337 mony. Washington. D C Hearing. vol I. p 103 "' Patterson fesomony. Washington. D C. Hearing. vol I, p 107 "' Charles Patterson. testimony. and p 104 "' 1 he only Indian NACO member ""Washington. DC. Hearing col II. exhibit no 17, p 307 "'Washington. D C. Hearing. v of II. exhibit 17. pp 311-35 57 Practically, the effect can be the appearance of 3. States and tribes have varied greatly in their wide-based demand for radical change generated by responses to situations of conflict and common a small gropp within an organization. The process problems. State actions run the gamut from actively could easily lead to legislative action in Congress pursuing cooperative agreements withtribesto based upon the views of a vocal but small group using physical force against Indians. appearing to be much larger than it actually is, a 4.Recently, some State and local governments factor that should be considered by national law- have taken a collective approach to conflicts with makers. various Indian tribes by working through established, national organizations of government. Although this Findings development is promising for the .iegotiation of many issues,it could also have the potential of Civil Rights Violations increasing State power at the expense of tribal rights I.Recent conflicts over Indianrights have and tribal governments. exacerbated the continuing equal protection prob- lems Indians face. 2. Non-Indians have erroneously attacked and Recommendations characterized Indian rights as unlawful discrimina- tion against non-Indians. Indians'civilrightshavebeenviolated Civil Rights Violations throughout history. 1. An Office of Indian Rights should be reestabl- Civil rights violations are promoted by public ished, with an adequate staff, within the Civil Rights ignorance of Indian rights and by the failure of Division in the Department of Justice. appropriate parties to respond promptly to any 2. Community Relations Service personnel of infringement of Indian rights. the Department of Justice should be more available Although Indians face civil rights problems to help communities resolve conflicts involving similar to those of other minorities, the context in Indian tribes. which these occur is unique. State and Local Governments State and Local Governments I. Since they represent primarily non-Indian 1. Congress should support' efforts by tribal and constituencies, State governments may be expected non-Indian governmental leaders to negotiate con- to continue promoting non-Indian interests in mat- flicts and reach cooperative agreements. Any broad ters of conflict. jurisdictional waiver of rights by tribes to effect 2. Some States have played a direct role in such agreements should be accompanied by an fostering conflict and resistance when Indians assert administrative review process that protects tribal their rights. rights within the Department of the Interior. I- 4:: 58 Chapter 3 Fishing in Western Washington a Treaty Right, a Clash of Cultures Introduction tribesthat negotiatedtreaties recognizing these For most of this century, Indians and non-Indians rights with the Federal Government in the mid- in the Northwest-have differed over their relative 1850s. The non-Indians subdivide into two classes, rights and privileges to participate in and control a commercial and sport. Sport fishermen catch fish lucrative cropfish. The differences have often with a rod and reel for pleasure and personal use. reached the level of what has sometimes been Commercial fishermen use ,many types of nets, characterized as a "fish war." Although legal battles multiple hooked lines, and °flier gear to catch large in the controversy date back to the turn of the amounts of fish for sale. Somewhat between the two century, the conflict has intensified within the last 30 classes are the commercial charter boat operators years. Fighting has occurred on the water, in the who ferry sport fishermen to deep water areas courtroom, in the legislature, and between govern- where they catch fish using a rod and reel. ment agencies. Those who regulate fishcatchers include tribal The principal players in the fishing rights dispute governments; two agencies of Washington State, can be divided into two categories, those who catch namely, the Washington Department of Game and fish and those who regulate the catching. Although the treaties of the United States with the Indian the Washington Department of Fisheries; and sever- al agencies of the Federal Government, including tribes do not limit the species of fish or shellfish involved, the conflict thus far has centered around the Department of Commerce, the Department of severaLspecies &salmon. and-a species very similar the_ Interior,_ and the State Department-when inter- to salmon called steelhead trout, which pass through national matters are involved. A Federal body called the waters in and beyond Washington State.' A brief the Pacific Fishery Management Council regulates description of these fish and their migratory patterns fishing in the 3- to 200-mile zone off the Pacific will be given later, since a basic knowledge of the Coast, and the International Pacific Sockeye Fishery nature of these particular fish helps explain the Commission regulates the taking of certain species interrelationships of the people involved in the for 3 months each year by Canadian and U.S. dispute. fishcatchers in the Strait of Juan de Fuca, which The fishcatchers consist of two groups, Indians separates the two countries. Part of the complexity and non-Indians. The Indians involved are only of the fishing controversy stems from the fact that those in northwestern Washington who have specif- many of these agencies are regulating the same fish ic rights to catch fish because of their membership\ in at different places or different points in time.2 ' A significAnt portion of the conflict has occurred is Oregon fisheries For example. agencies that build or operate dams, such as the 2 There are fish regulators beyond the Washington State area, such as the Army Corps of Engineers and the Bonneville Power Administration. arc Northwest Pacific Fishery Management Council whose regulations have important indirect fish regulators as well, due to their control over stream an .fleet on these same fish There are also agencies that regulate things Bows, pollution levels. etc other than fish but whose exercise of authority can profoundly affect 61 7 ,1 Numerous enforcementagencieshavebeen standing of the conflict between Indian and non- charged with carrying out various laws controlling Indian. fishing in this part of the country. Among them are tribalfisheries police; Washington State officers History from each of the two departments; and Federal What is known today as Washington State was enforcement officers from the National Marine once the sole property of several Indian tribes. The Fisheries Service of the U.S. Department of Com- heavily forested western portion of the State was merce,the Coast Guard, and occasionallythe occupied by Indiantribes whose members had United States Marshals Service. Lawyers and tech- learned to exploit efficiently the natural bounty of nical experts employed by tribal, State, and Federal the region. Central to both their physical and _governments argue at times before tribal, State, and cultural existence was their understanding of the Federal judges to enforce regulations and, more natural fish resource. Although many species of fish important, to define the relative regulatory jurisdic- and other animals of the sea were important ele- tion of the governments involved. Since the matter_ments of Indian diet, salmon held and still holds a of relative fishing rights between treaty Indians and special place in Indian culture in this region. Salmon non-Indians in this geographical area was decided by were the mainstay of the diet and subjects of a U.S. district court in 1974, the judiciary has also religious ceremonies in tribal cultures. The religious been diectly involved in regulating the fishery. rite called the "first salmon ceremony" expresses the Among non-Indians, fishing advocates are in associ- reverence of the Indians for the resource that has ations named for the type of gear they use, e.g., sustained their numbers for centuries.' gillnetters, purse seiners, trollers, reef netters, char- Salmon were and still are a major component of ter boat operators, and various sportsmen's groups. tribal commerce. Indians have been catching salmon Although each tribe involved is a distinct political for trade with other tribes since before treaty times.3 Evidence also suggests that increased non-Indian unit,tribaladvocatescoordinatetheirefforts demand for salmon spurred the growth of Indian through the Northwest Indian Fisheries Commis- commercial salmon fishing in the decade before sion, which consists of one commissioner from each treaties were negotiated. Non-Indians relied on of the treaty areas in northwestern Washington.' Indian fishing to supply salmon until non-Indians The roots of the fishing conflict date back to the developed substantial commercial salmon fisheries mid-1850s when the Federal Government chose to of their own in the late 1870s, more than 20 years facilitate settlement of the State by non-Indians after the treaties were signed.' Indeed, itis the through treaties with the Indian tribes. Among other commercial value of this resource that has provided provisions, these treaties included cessions by the the basis for the continuing battle over who has the tribes of vast amounts of territory with guarantees of right to take them. continued rights_ to fish at the Indians' customary Before continuing the description of the contro- fishing areas on as well as off the newly created versy, a word must be said about the nature of Indian reservations. As the non-Indians learned the salmon in the Pacific Northwest. Salmon, an anadro- commercial and recreational value of this resource, mous fish, spawn in freshwater streams or lakes. The and as technology facilitated its transportation to young develop in freshwater and then travel down- distantmarket's, both the fish resource and the stream to the marine areas, which in this case are the guarantees of the treaties were strained to make Puget Sound, the Strait of Juan de Fuca, and on to room for commercial exploitat.on. the Pacific Ocean. After reaching maturity in ocean Throughout the late 19th century and all of the waters, the salmon follow instinct back upstream to 20th, there has been a conflictdormant at times, their point of origin, where they spawn a new violent at times--between Indians and non-Indians -generation, they die, and the cycle begins anew. over this valuable asset. The history of this struggle There are variations on this pattern for each of the provides important lessons necessary to an under- five species of salmon that inhabit these waters. 3 There is also a commission representing tubes along the Washington ' 384 F Supp at 351 Oregon border This fishery has a separate litigative history from the Joint Appendix 371-372, Washington v Washington State Commercial northwest Washington case area studied in this report and is included only Passenger Fishing Vessel Ass'n. U S 99 S Ct 3055 (1979) (hereafter tangentially cited as Joint Appendix) United States v Washington. 384 F Supp 312. 350. 351 (W D. Wash. 1974), ard, 520 F 2d 676 (9th Cir 1975), cen. denied. 423 U.S 1086 (1976) 62 '14 Different species spend varying amounts of time in salmon to recognizing them as a different variety of fresh and saltwater so that the life cycle may be fish, not due the reverence shown toward salmon."' completed in anywhere from 18 months to 7 years. way ay of life among the Indian fishitig tribes of At maturity they usually weigh from 2 to 60 pounds, the western portion of what became the Washington and the route covered by these migrants may extend Territory was to live off the land and water. They to thousands of miles.' An important variation subsisted through hunting, fishing, and gathering." among these fish dictates the methods used to catch There was also extensive trading among the Indian them. Some fish will bite a hook while others can groups in western Washington that enabled them to only be captured by net or other means designed for acquirefood, raw materials, and manufactured a nonbiting fish. The propensity of any species to goods. The trade, which involved both necessities bite a hook is also related to the portion of the life and luxuries of native life, existed because of the cycle the fish is in. It is common for salmon to refuse variation in available local resources." Generations to feed while heading upstream to spawn, and this of observation had resulted in an understanding of has implications for the appropriate location of a the ways of salmon and other sea life, and it was hook and line fishery.' tribal custom to take fish for food and commerce efficiently and without damaging the continued Another important fact of salmon life is that these existence of the species. Many of the tribes were fish, which intermingle in marine areas, separate into river fish catchers. They waited at the mouths of the distinct runs or groups for the swim upstream to rivers or farther upstream for mature fish to return, their spawning areas. Within a few days each year, chahneled for the final effort to reach the spawning these runs are fairly predictable as to course and areas." A barrier such as a fish trap or a net timing, and somewhat lessso with respectto stretched across the stream permitted fish to be number.' Thus, given the necessary fishing gear, easily caught and also allowed control over the most or all of a fish run can be intercepted within a number of fish permitted to escape upstream to few days or a few weeks at critical points along the spawn. migration route. Other tribes developed methods for taking fish by Similar to salmon in most respects is a species of boat in the marine areas. '1 he Makah Tribe, for trout commonly known as steelhead. Some impor- example, located at the northwestern tip of the tant differences are that steelhead will bite a hook in continental United States, was able to take fish freshwater and put up a great fight while doing so, returning to local streams and could cull a great making them a highly prized stream sport fish. They number of fish from the migrating runs passing by generally do not die immediately after spawning the tribal villages on their way to inland streams. The first time in the rivers, so their river life is longer and Makah fishing effort also extended to the use of the fish are generally in better condition than salmon boats in the Strait of Juan de Fuca, where, the in the upstream areas inland."' So important are inbound fish could be intercepted.16 these fish to the sportsmen in the area that a separate State agency, the Department of Game, which is Migration and State Regulation more directly aligned with sporting interests than Non-Indians came to settle this land in the great the Department of Fisheries, regulates them.11 The westward thrusts of the 19th century. By the mid- designation of steelhead as a "game fish" by the 1850s Washington, which had been part of the State, despite its similarity to salmon, is a salient Oregon Territory, became a separate territory ad- factor in the development of the controversy. The ministered by the Federal Government." At that Indian view of steelhead varies among tribes, from time, there was enough contact between Indians and treating theth as if they were another variety of non-Indians in the area to warrant meetings between Northwest 'Indian Fisheries Commission. Hot'. Lower Elwah, Lummi, " 384 F Supp at 327 The Washington Department of Game s actually akah. Muckeshoot. Nooksack. Port Gamble, Quileute, Quinault. Upper nearly autonomous governmental body xontrolled by sports persons kap. Sauk Suiattle. Skokonush. Squaxin. Suquarnish, Swinomish, and " 2 Christian l'enn, interview m Forks, Wash, Aug 10.1977. isTrick. Tulalip Indian Tribes. Tribal Report to the Presidential Task Force on Treaty Interview in Ilwaco. Wash . Aug 3,1977 Fishing Rights in the Northnest. vol I. Rp 4-6 (1Q77) (hereafter cited as " 384 F Supp a: 351 Tribal Report) (Commission tiles) " Joint Appendix. 364.370-72 ' 384 F Supp at 384 384 P Supp at 350-52 'Id at 385-87 " Id at 365 '°I ribal Report. vol I. p 5 " Act of Mar 2. 1851. ch 90.10 Stat 172 (1853) 63 73 the first appointed Territorial Governor, Isaac Ste- railroad was completed and major improvements in vens, and the Indian inhabitants of the area. Negotia- the technology of the canning industry provided tion's with the Indian tribes were conducted in access to distant markets needed to support a large, peacetime. No wars were fought with the Indian non-Indian commercial fishery. The reduction in the tribes in this territorial area of the country, and numbers of fishavailable,attributableto rapid treaties were not imposed upon conquered tribes to expansion in non-Indian fishing, was augmented by set the terms of coexistence. There were, instead, a seemingly unrelated factors that had a negative series of negotiations among sovereigns for the impact on water quality and spawning grounds. purpose of extinguishing Indian title to the lands of Suck factors included logging, industrial pollution, what wotild become the State of Washington in residential and commercial development of proper- return for promises of protection from the onslaught ty, and dam building." Between 1910 and 1915, for of non-Indian settlement in the land areas that tribes example, the number of canneries jumped from 23 to reserved for themselves. In the 6- or 7-month period 41.24 Average annual salmon catches dropped from that began in December 1854, five treaties were 10.7 million between 1914 and 1919 to 6.7 million negotiated and signed with the tribes of western between 1920 and 1929.26 To make up for depletion Washington and subsequently ratified by the United of the resource, the State began buildingfish States Senate." hatcheries in 1895.26 Since statehood, Washington In all these treaties there are two provisions has also regulated the industry to increase spawning concerning the taking of fish. One secures to the escapement in a way that has benefited non-Indians. tribes an exclusive right to take fish within the One method chosen to do this was to make it illegal boundaries of the reservations. 'The other, which has to fish commercially with nets for salmon in rivers. been at the center of the controversy, says in part In effect, tribal river fishermen were told that their with minor variations: "The right of taking fish, at Federal treaty right was functionally worthless all usual and accustomed grounds and stations, is because their efficient gear was no longer allowed further secured to said Indians, in common with all for commercial purposes, only for the subsistence of citizens of the Territory."19 the Indian fishcatcher and family." It was evident to non-Indian negotiators of the Throughout the 20th century, the State has used treaties that fishing was central to the existence of its regulatory authority to favor predominantly non- .these tribes and that the relatively small land areas Indian fishing methods, consisting of motor-pow- retained by the tribes did not contain fishing sites ered boa4 in marine waters for salmon and a hook sufficient to assure them an adequate supply of fish." and line fishery for steelhead in the rivers. The The treaty provision quoted above was designed to regulations, backed up with the police power of the alleviate the Indians' fear that their food- supply State, have left_ the Indians outmatched in marine would be lost with a Federal promise that tribal waters by the better equipped, non-Indian fleet and members could fish where they had always fished in closed out of the rivers by gear restrictions." areas outside the newly established reservations. In the case of steelhead trout, the gear restrictions Governor Stevens gave oral assurances that the came through Washington State's designation of Federal Government had no desire to interfere with steelhead as a "game fish" in 1925.29 Catching them Indian iishing.2' At that time, however, fish were with a net became a State crime as did selling them. plentiful and there was no competition with non- This was a major blow to some tribes that relied on Indian commercial fisheries.22 steelhead as a food source in the winter when The Indian fishing monopoly was ended by the salmon did not run the rivers." Yet regulations of <- beginning of this century. when the transcontinental the State Department of Game did not recognize the " Treat) of Medicine Creek. Dec 26, 1854. 10 Stat 1132. Drat), of Point Indian Salmon Gillnet and Troll Fishery (1979), volI, pp 1-7 (hereafter Elliott. Jan. 22, 1855. 12 Stal 927, Treaty of Point No Point. Jan 26. 1855. cited as Petry Report) 12 Stat 9131 Treaty of Neah Bay. Jan 31. 1855. 12 Stat 039, Treaty of " Tribal Report. vol I. pp 11-12 Olympia, Juls 1. 1855. 12 Siat 971 " State of Washington. Department of Fisheries. 1975 Fisheries Statistical " Treaty of Medicine Creek. Dec 26. 1854. Art III. 10 Stat 1132. 1133 Report; reprinted in Petry Report. vol I, p 21, table 6 . Joint appendix. p 382 . Tribal Report. volI, p 13 " 384 F Supp at 355 " {hid . p 15 33 Id at 352 " !bid "Id at 334. Glenn IIPeirs. Pacific Northwest Salmon and Steelhead " 184 F Supp at 383 Fishing Report the Economic Status of the Oregon and Washington Awl. 3° 1 rihal Report ol I, p 21 64 7 6 1 special rights or needs of tribes. The stated purpose State could not disregard the rights of the tribes in of the State Department of Game is to preserve, granting licenses to others and that Indian fishing protect, perpetuate, and enhance wildlife through rights included the right of passage, or easement, regulations and sound,continuing programs to through the private lands of others in order to get to provide the maximum amount of wildlife-oriented the usual and accustomed grounds and stations. The recreation for the people of tilt State.31 The State result of the case was confused, however, by the Department'of Game, with its separate police force, Court's recognition that the State did have some enforced regulations created to facilitate spbrt fish- regulatory authority with respect to the exercise of ing and disrupt Indian net fishing for steelhead.32 In Indian fishing rights. The nature and extent of that the early 1970s the view of the director of the game regulatory authority was left unclear and became the department was that it would be an abdication of his subject of future litigation. responsibilitiesto allow any off-reservationnet In 1916 the Washington State Supreme Court fishing for steelhead by Indians unless ordered to do handed down two decisions that were to set the basis so by a court." for consideration of Indian fishing rights over Cie next quarter of the century.36 In these cases, Indians Early Litigation had been arrested for fishing without State licenses The first case to reach the United States Supreme and inplaces or attimes prohibited by State Court dealing with Indian fishing rights in Washing- regulations. That the tribal members were exercising ton State was U.S. v. Winans. 34 This case involved a their Federal treaty tights was of no concern to the private 'fishing company that had taken over an State court since it determined, despite the Winans Indian fishing ground, claiming an exclusive right to decision, that the treaties had never "reserved" any hold itbased on a State license. The company greater fishing rights to tribal members fishing off asserted that upon becoming a State, Washington reservation than they had for anyone else. That became sovereign, and, as with other States, it had meant that Indians as well as non-Indians were the right to control fishing in its rivers, including the subject to the same State regulations. The State right to grant exclusive' fishing rights to a non- court also rejected the view that Indiantribes Indian, notwithstanding the treaty provision secur- possessed any sovereignty, ruling that they were ing to Indians the right to fish. The U.S. Supreme subject to the regulations of the State like any other Court held that the treaty guarantees survived group living within State borders. Washington's entry into statehood and that the Shortly after these cases were decided in Wash- treaties were clearly more than empty promises. The ington State, the U.S. Supreme Court decided a case Court applied an established principle of Indian law originating in New York State." This case involved to these treaties, concluding that they would be read criminal prosecutionsagainstSenecaIndians in the way the Indians would have understood charged with off -reservation fishing in violation of them.36_Taking note of the fact that the treaty was State conservation regulations. There were signifi- drafted by non-Indians whose language was foreign cant factual differences between this case and the to the Indians and whose power was greater than Washington State situation, including the fact that that of the Indians, the Court reasoned that ambigui- the conveyance of land from the tribe occurred after ties in the language should be resolved in favor of New York had become a State rather than before. the Indians. The Court held that technical language Thus, the power of the State to exercise appropriate with legal implications not apparent to the Indians conservation authority over fishing outside reserva- should be liberally viewed as conveying the com- tion areas was known before tl.° land in question mon meaning of what was being said as the Indians was transferred. In addition, the language of the land would have understood it. transfer retained a "privilege" for the tribe rather It was clear to the Court that the tribes would not than a "right." This language was critical because have traded away most of the land in Washington the exercise of a privilege is far more subject to for an empty right. The Court concluded that the regulation than the exercise of a "right." " RevCode Wash Ann 877 12 010 (Stipp 1079) "Womester s Georgia, 6 l'et 151, S82 (McLean. J , concurring) (1832) " 184 r Supp at 194-96 " State s1 ov,essnuie, 154 I' 805 (1916). State v Alms. 154 P 810(1916) " /d at 103 " Kennet!) s Becker. 241 U S 556 (1916) " IQ? U S 171(1905) 65 7? In any event, the facts in this casewere seen as Instead,itappearsthatStateregulations were sufficiently close to those in the Washington State assumed to be supportive of that purpose andwere cases to suggest to the Attorney General of the permitted to block the exercise of off -reservation United States, over the contrary urging of northwest treaty right fishing. In effect, the treaty fishing right tribes, that appeal of the Washington cases to the was rendered meaningless in 1916 and remainedso U.S. Supreme Court would be fruitless." Indeed, in for the next 26 years. a later criminal case brought against two Yakima Washington State continued to claimuntram- Indians fishing in violation of State regulations,at meled authority to regulate off -reservation Indian usual and accustomed places off reservation, the fishing until the next major challenge, whichcame in State supreme court again relied on the earlier State the1940s. A Yakima Indian named Tuleewas cases as well as the U.S. Supreme Court decision in arrested and convicted by Washington Statecourts the New York case to uphold the convictions.39 for fishing without a State license. The United States This case was also not pursued to the U.S. again played a reactive role as it defended Mr. Tulee Supreme court, rfiobably on the 'same theory that in Washington State courts by asserting that the the appeal would not succeed. At leastas late as Yakima treaty prevented Washington State from 1934, it was the opinion of the Solicitor of the applying its regulations to treaty fishcatchers.The Department of the Interior that these cases prevent- State supreme court judged that the licensing regula- ed Indians from constructing fishing devices in tion was not a treaty violation because itwas not violation of State regulations, as longas the State, discriminatory. It applied equally toeveryone in the regulations were "reasonably adapted to thepreser- State." vation of wild life in the waters of the State for the This time, however, the Federal Governmentdid common benefit, and notinitsintendment or not settle for tale judgment of the State high court operation a denial to the privileged Indian communi- and pursued the matter to the U.S. SupremeCourt. ty of its right to fish."4° This opinion also stated that In 1942, 37 years after Winans, the State sufferedthe Indians exercising off -reservation commercialtreaty second setback in its otherwise complete control fishing rights could be required to comply with State over the exercise of Indian fishing rights. The U.S. licensing laws and sales taxes as longas such laws Supreme Court decided that, although State regula- were not administered in a discriminatory manner." tion of Indian fishing could be permitted forconser- The effect of these litigative setbackswas devas- vation purposes, the State could not require Indians tating to some tribal economies, driving themem- to buy State licenses to exercise the federally-recog- bers into poverty." The Federal Government had nized Indian treaty right to fish." no real solutions to offer. No further challenges The judgment in Tulee, which required the State were- brought- against State authority ,thiiiugh the to refrain from regulating the exercise of Indian avenue of an original suit in Federal court or fishing rights except for resource conservation,was through any other effective means. followed in 1951 with the Makah Tribe challengeto The Federal Government at this time playedo.dy State regulations preventing off -reservation river'net a reactive role in these cases, responding to criminal fishing." In this case the Federal appellatecourt cases brought against Indians attempting to exercise supported the claim of the Makahs thata State treaty rights by asserting a defense against prosecu- regulation prohibiting net fishidg in riverswas not tion based on Federal treaty rights. The Federal necessary for conservation purposes, because a brief Government did not remove Indian fishing from closing of the river would have provided allthe State regulation by placing it under Federal control spawning escapement necessary. Fa'lingto prove exclusive of State interference. Nor did the Federal that the regulation was necessary, the Statehad no Government mount a factual attack on the State, rightt3close the river to Indian net fishing. forcing it to prove that State regulations, stated to be Following the Makah case,a Puyallup Indian for conservation purposes, actually were needed for openly exercised the tribal treaty rightto fish by net the preservation or conservation of theresource. in the Puyallup River, whichruns through the city "I rthal Report. 1. p 22 7 nbal Report. volI, p 22 " State v Menitioek. 197 I. b41 (Wash 1921) " State s Tulec.7 ()pinion or Wash 2d 124. 109 P 2d 280 (Wash 1941) Solicitor 's Allan R 'stirgold. Apr5. 1914.p4 " 7 Wee s Washington 315 U S 681 (1942) "Ibtdp " Makah IndianTribe v Schoettler. 192 F 2d 224 (9th Co 1951) 66 10 (The of Tacoma. charge of gillnetting in violation of The contest spawned a new case for U.S. Supreme State regulations was thrown out of the State. court Court review, consolidating legal actions by the and itsdismissal upheld on appeal at the State State against the 'Puyallup and Nisqually Tribes of supreme court level." Six years later, however, the south Puget Sound. The legal actions were initiated State supreme court acceded to a view that allowed by the State in the State court system for the the State to impose the brunt of its conservation purpose of obtaining a judgment declaring State measures on tribal fishermen. In this case, a member regulations to be necessary for resource conserva- of the Swinomish Tribe was prosecuted for fishing tion and therefore legally applicable to treaty Indi- in an area closed by the State for conservation ans under Federal case law. The lower State court purposes. The trial court acquitted the tribal mem- obliged and issued an injunction preventing mem- ber based on the defense that he was fishing under bers of the Puyallup Tribe from fishing in violation the treaty right. The State supreme court, however, of any State regulations." The trial court also reversed the trial court, ruling that periodic', losures concluded that members of the Puyallup Tribe could were reasonable and necessary to conservation of--no longer have any treaty fishing rights because, in the resource because without them, Indiani would its determination, the tribe no longer existed.3° be free to eliminate fish runs." An implicit assump- The State supreme court was not willing to tion made in reaching this decision was that the support its trial court completely, and it modified State was to be given great latitude to determine the result to recognize the existence of tribal treaty what was necessary for conservation, including the rights but upheld State regulation of tribal fishing as right to use a method of conservation protection that "reasonable and necessary" for conservation pur- would allow non-Indian fisheries to catch most of poses. There was a conflict of opinion among the State supreme court judges stemming from a case the fish not being protected. decided 4 years earlier, based on a similar off- The State once again assertedits power to reservation treaty fishing rights provision. In that regulate Indian fishing off reservation in late 1963 by case, a Federal court of appeals decided that the closing Indian fishing in south Puget Sound. Indians State of Oregon would have to show thatits responded with organized protest. The center of the regulations were more than "reasonable and neces- protest was a place known as Frank's Landing, an sary" for conservation of the resource. It _would off -reservation fishing site of the Nisqually Tribe in have to show that the regulations were "indispens- the south Puget Sound area. Protest fish-ins were able" to conservation." staged by the National Indian Youth-Council antr Although the State court in Puyallup ruled that the-newly fOrmed Survival of American Indians requiring the Department of Fisheries to show its Association, which gained national publicity with regulations to be "indispensable" to conservation the assistance of celebrities,_ including Marlon Bran- was not required under the treaties, a dissenting do and Dick Gregory. Some of these events became judge thought that the standard set by the Federal violentconfrontations when State officers used court of appeals was the appropriate law to follow." forcemore than required, according to Indian The United States Supreme Court went along with allegationsin order to stoptheprotests, and the State court on the standard to be used, saying Indians fought back. that State regulation must be "necessary for the Demonstrations were held at the Federal court- conservation of fish."33 The Supreme Court held house in Seattle and at the State capitol in Olympia that the State can regulate time and manner of as Indians demanded a halt to State interference Indian fishing provided its regulations meet appro- with tribal fishing rights. Tribal fishing sites of the priate standards and do not discriminate against the Muckleshoots and Yakimas also became demonstra- Indians." The opinion of the Court, however, tion sites as the controversy continued." offered no assistance in determining whether the " State v Satiacum. 314 P 2d 400 (Wash 1957) " Matson v Confederated Tribes of the Umatilla Indian Reservation. 314 " Washington v McCoy. 387 P 2d 942. 951 (Wash 1963) I' 2d 169. 174 (9th Cir 1963) " American Friends Service Committee. The Uncommon Controversy " Department of Game v Puyallup Tribe. Inc . 42/ P 2d 754. 766 (Wash (Seattle Unsversity of Washington Press. 1970). pp 108-12 1967) (Donworthy. J . dissenting) " Department of Game v Puyallup Tribe. Inc . 422 P 2d 754. 768 (Wash 1967) " Puyallup Tribe v Department of Game. 391 U S 392. 401-2 (1968) " Id at 756 " al 398 67 regulations at issue were, under the circumstances, department ban on net fishingwas thatit was reasonable and necessary for conservation. necessary to conserve the steelhead resource in the The case was remanded to the State trial court for river. The court reasoned that thesport fishery in a determination of what regulation would bereason- the_river_took a sufficient quantity able and necessary for the so that when conservation offish in the sport fishcatchers were finished, only enough steel- Puyallup River. In responseto the U.S. Supreme Court decision, the Washington Department of head were left to begin the next generation." The U.S. Supreme Court held this division Fisheries changed its salmon regulationsto recog- to be illegal because its effect was 'nize an Indian net fishery in thePuyallup River, to allocate the fish although the department restricted thearea in which resource to the hook and line fishery, whichwas the nets might be used. The Washington Department composed of non-Indian sportsmen. The Courtsaid of Game, however, continued its totalprohibition of that the allowable catch must be apportionedbe- net fisbing for steelhead '.out." tween the sports fishery and the Indian net fishery. Bob 5atiacum, the Puyallup Indian who thought The Court did not establish a formulaon its own but he had won hi3 case_before the Statesupreme court sent the case back for a further review by theState in 1957, \ wra-S back out on the rirer,among others, courts, which were to produce the appropriate protestingb, the U.S. Supreme Court rulingand the division of the resource." resulting State regulations that again interferedwith A problem that arose in thecase was the claim by the exercise of his tribe's treaty right. Therewere no... the Washington Department of Gamethat most of immediatconfrontations with State law enforce- \ the steelhead caught in the PuyallupRiver were Inert: officers, because therewere no fish to be actually hatchery fish produced bythe State and caught in tic Puyallup River this early inthe paid for mostly by the licensing season." fees of sport fishermen. The U.S. Supreme Court didnot decide Demonstrationsweft. held at the State capitol 3 whether and to what extent these fish months later along with a renewed and were to be determined divided." Three justices, however,expressed the protest fish-in \lt Frank's Landing. At this time, view that the treaty does not obligate however,lish4.rerunning the Puyallup River, and the State of Washington to subsidize Indian fishing. They confrontation ensued. Protestorswere arrested by would have decided that hatchery fish paid for by State enforcement officials amidst charges ofvio- sports fishermen should not be included in the total lence and improper use of force by botl.sides. Fish to be divided." Nothing was said, however, caught by the Indians were soldto individuals and about how local restaurants for cash thatwas used as bail hatchery fish planted by Indians andcaptured by money." sportsmen would be accounted for. The State trial court upheld departmentalregula- As the Puyallup case movedup and down, tions of the Washington fisheries andgame depart- through and between State and Federalcourts, a ments as reasonable tnd necessary forconservation, case was being heard in Oregon that was to havea even though the gam department's regulationcom- strong influence upon the Washington State fisher- pletely banned Indian net fishing forsteelhead, while ies. The Federal district court in Oregonwas faced permitting thousands of anglers to takethe fish for with State regulation of fishing thatresulted in no sport. fish for treaty Indians upstreamon the Columbia Once again, the case Indian treaty right fishing River. Originally brought by Richard Sohappyand was on Its way up the judicial ladder. The State 13 other Members of the Yakima IndianNation, the supreme court upheld the regulations of both depart- case expanded to include the Umatillas and Warm ments, and the tribe appealed the game department Springs Indians, who also hadtreaty fishing rights ban to the United States Supreme Court. The State on the Columbia River. These cases involvedtreaty supree court's rationale fer allowing the game rights to off-reservation fishing thatwere secured by " Depar ntent of Gantt.. Poallup Tribe. 414 L S 44. 46 (147.1111tereafter 5" 4141 S at46 cited asueallup " Seut e lone% June 17. p 4i " at Id " Pair ttleillgenCI(Se.ltlIC) Sept 6. 1901 p :').and Sept 10 1968.p P . la at 19 (opinion of Vv'llite. J .conLurrang.) Scald. ;gm. %. Sept 5. 10641 p 59 Sept11.19bs pp 11. 74. Oct 20 196x. P 68 /,'; essentially the same language as was used in the industry. In regulating Indian fishing, however, the Washington Indian treaties noted earlier." °Federal right possessed by Indian tribes had to be Thcpregon regulatory scheme banned fishing by considered separately and not made subject to the net by ?anyone, including Indians, above a certain economic or social policy preferences of State point in the river. As,traditional Indian fishing sites government. The Federal court held that the State were up river, the effect of this regulation was to "may useitspolite power only to the extent allocate almost all of the harvestable fish to non- necessary to prevent the exercise of that right in a Indians. 'The State argued that as .long asits manner which will imperil the continued existence regulations covered equally all those who fished, of the fish resource..." Thc. court went on to decide there could be no discrimination and the treaty that to assure the Indians a "fair share" of the guarantees were met. resource ufider the treaties, the State may adopt The Federal district court disagreed.It found regulations4permitting treaty Indians to fish at their instead that the failure of the State to view Indians as usual and accustomed places at times and in -a a separate fishing group discriminated against Indi- manner that it prohibits to non-Indians." ans by allowing other user groups to take the fish Thus, the Federal court invalidated the argument before they could return to usual and accustomed of the State of Oregon that regulations for Indians tribal fishing grounds." Although the State argued that are different from those imposed upon non- that the closure of upream fisheries, including Indians violate the rights of the non-Indians to equal Indianfisheries, was necessary to conserve the protection of the laws under the 14th amendment to. resource, the court found that the definition of the the U.S. , Constitution." In contradiction to the word "conserve" as used by the State included State's argument, the point of the case was to distribution of fish between competing user groups. recognize Indians as a separate political group with In reality, the prohibition of fishing at certain times treaty rights separate from the general population. and in certain places that the State called "conserva- A simple analogy would be a contract between, a tion" was a form of allocation of fish favoring those supplier of goods and the Federal Government. groups in a position to harvest at the earliest point in Once the supplier transfers the goods, the supplier is time and place a returning run of fish. Then also, by entitled to payment. It is not an act of discrimination allowing sports fishing at the same place and time for the Federal Government to pay the supplier that net fisheries were prohibited, the State discrimi- without paying a like amount to everyone else in the nated against Indians who traditionally used more country. Indian tribes of the Northwest supplied the efficient gear at these places. land base for the State. Part of the agreement was In order to correct what, in effect, was a denial of that they retain certain fishing rights, which were Indian fishing opportunity, the court required not guaranteed by Federalpromises. Honoring the only that the State consider Indians as a separate promise is no more an act of discrimination than group, but also thatitrestrict other groups, as rendering payment to a supply contrzctor. necessary, to assure that the Indians receive a "fair Despite the ruling by the Federal district court in share" of the fish produced by the Columbia River Oregon, the argument that separate regulation of system. Although the court did not attempt to spell Indian fishing in accordance with treaty provisions out what it meant by a "fair share," it did retain violates the "rights" of non-Indians is one that has jurisdiction to approach that problem as necessary in been made over and over again in subsequent cases specific instances." arising in Washington State. The Sohappy case also made clear that the State The history of legal maneuvering by two States must use a different standard in regulating Indian attempting to maintain the control over the fish rics fishing from that which it can apply to non-Indians. that they had successfully exerted for nearly a In controlling non-Indian fishing, the State is free to century provided the legal basis. for a new Federal pursue State objectives in management that, for case in Washington State. Though the Sohappy example, might include such considerations as the decision dealt with only Oregon State, the treaty effect of fishing regulations on the State's tourist provisions were the same as those governing Indian 3 Soh.tppy Smith. 302 F Surly tigq. 904 (D Or 196Q) " at Q08 910.11 " 1(1..1 9 id Ji Q11 fe,at 907 r 69 81 fishing rights in Washington The combined experi- negotiating sessions; biological informationon fish ence of tribes, States, and the Federal Government habits, migratory pauerns, and catch sizes; develop- wrestling with the meaning of treaty provisions is ment of the regulatory control exerted by the State essential to an understanding of the progresion of over time; fishing patterns, trading practices, and fishing rights litigation. The new Federal case was lifestylestiof the tribes involved both before and after to become an attempt to stop tile judicial merry-go- treaties were signed; and similarly complex factual round by going back to the beginningthe trea- details provided the basis for thorough and tiesto derive a thorough factual record' upon lengthy final decision of the district court. which its decision and any future decisions could be The Federal district court issued a very extensive based. t opinion detailing- the meaning of fishing provisions of the treaties, the interference by the Stategovern- ment with the exercise of treaty fishing rights, and The Boldt Decision the measures necessary to'reestabliah Indian fishing The case of United States.v. State of Washington 69 rights The major findings and legal conclusions in was filed in Federal district court in 1970. The U.S.. the eas.;reluded the follring: Department of Justice filed the suit on behalf of 1. -at the treaties reserved fishing rights to seven fishing tribes in western Washington in re- Indian tr:Ses that are distinct from those of other sponse to a request by the Depar ment of the citizens.", Interior. The purpose behind filing t e case wasto 2 That the treaties prohibit both Indians and extend the principles of the So. ppy decision to non-Indians from faing in a manner that will Washington State, i.e., to require Washington State destroy (the resource or preempt the rights of the td regulate its fisheries ina way that would recog- other." nize Indians as a distinct group, with rights beyond 3.That the term "usual and accustomed fishing hose of other fishing groups to a fair share of the grounds and stations," as used in the treaties,meant resource." A total of 14 tribes were eventually that the off -reservation fishing rights of each tribe involved as parties whose interests were represented extended to every place the tribe customarily fished, tryprivate counsel as well as by the Federal no matter where such places were and whether or Government as trustee." The State, as a party.tthe 1.+t such places overlapped with those used by my suit, pursueditslitigativepositions throughits other tribe.74 Departments of Fisheries and Game. Commercial - 4.That the right to "fish in common with, the and sports fishing organizationi were also permitted citizens of the territory" meant that the Indians to file briefs in the case, although, except for the reef reserved a fair share of the resource for themselves, netters, they were not technically parties to the not just a right of access to fishing places." litigation." 5.That theshare of the resource reserved The litigation required 3-1/2years to reach a included half the harvestable number Of fish (i.e., decision interpreting the rights guaranteed bytreaty those not needed for spawning) exclusive of catches to each of the tribes. The 1974 decision by Judge for subsistence or ceremonial purposes." George Boldt in United States v. State, of Washington 6.That the State may regulate Indian off-reser- was different in kind from all the decisions preced- vationfishing only to theextent necessary to ing it. It did not limit the review only to the "facts" preserve the -resource and not in a way that limits existing at the time of the litigation. Nor did it treaty rights to State-preferred times, fishing metfl- merely pull together enough historical judicial prec- ods, or purposes.77. edent on fisheries cases to support whatever decision 7.That the State laws and regulations control- the ccurt was to reach. Instead, the case was based ling Indian treaty right fishing at the time the,case on an exhaustive record dating back to treaty times. was decided were unlawful because: the State did Historical analysis of the jargon usedintreaty not show that they were necessary to i,reserve air! " 384 1' Slipp It 112 Id at 14$ IS at 112 '* After theIse K decided. more mite% touted the action to hate their rights detern ted Id at ;41 IS "184r Supp attr n Id at44 4 t " Id at 401 70 c -..! maintain the resource; they discriminated against the if followed, would have ended the controversy but, t- "' treaty fishing rights; they were adopted and even so, would have required a forum to address ... ---ed in violation of appropriate standards and in specific issues as they arose in regulating a complex deroga.of treaty provisions. and dynamic resource. 8.That the classification of steelheadas a In order to facilitate day-to-day determinations, "game" fish operated to restrict Indian fishing and to Judge Boldt appointed Dr. Richard Whitney of the reserve that species for a special interest group University of Washington to serve as chairman of a (sportsmen), and violated the treaties." fisheries advisory board, composed of tribal and The exhaustive analysis of facts and law conduct- State representatives, to hold meetings on fishery ed by the Federal district court not only resulted ilia management issues and to supply the evidence long list of factual findings, but also provided a necessary for the court to make supplementary perspective of what lied happened to treaty right rulings. fishing from its establif.hmtnt to the present. It became clear that, over time, the treaty rights had The Reaction been whittled away by State governmental and To non-Indians who were told that their fishing private encroachment to the point where they lost opportunity would be cut back in order to allow their intended meaning. They had largely become Indians a substantial chance at the fish runs, and to paper rights that did not translate into actual fish for r the State regulators who were told that State law Indian. could no logger be used as a shield to mask the In order to protectthe treaty rights of tribal transfer of salmon and steelhead resources from fishcatchers,the court handed down a decree Indian to non-Indian hands, the district court's defining tribal fishing rights and an order providing opinion was anathema. The case was appealed by the framework for a new management system. The the State, but to no avail, because tne Federal order prevented Washington State from enforcing appeals court upheld the district court." The case itsexisting fishing laws and regulations against was then appealed to the United States Supreme treaty right fishing and from enacting other mea- Court, which denied review." This meant that the sures without first proving their necessity for con- district court's opinion was the final statement of the servation of the resource. The order prevented the law to be applied. i State from using its arrest authority against fish- Non-Indians were-furious and the fury was direct---1 catchers carrying tribal identification and fishing ed at Judge Boldt personally. Despite affirmation of under tribal regulations in usual in-aaccustomed the decision by the appellate court, public animosity grounds and stations. It also recognized, as part of was aimed at this judge as if he, rather than any legal the treaty right, the authority of the tribes to manage principle, were the foundation for the judgment in their own fisheries without interference from the th:: case. The case was popularly renamed the State, provided that preconditions establishing each "_Boldt decision." Anti-Judge Boldt bumper stickers tribe's ability to manage the resource were met." and anti-Boldt T-shirts, buttons, and other insignia of In additidn to restricting the State's application of the new battle were in abundance. fishing regulations to the tribes, the order also Not so innocuous was the open defiance of the \required the State to assume an affirmative obliga- opinion by non-Indian fishcatchers. In response to tion to govern the fisheries in a manner that would the court's allocation of additional Indian fishing assure Indians their fair share of the resource. The time to permit tribes to catch their rightful share of State was expected and required to restrict non- fish, protests were called for by non-Indian fishing Indian fishing as necessary to assure Indians the gr-Dups."4 Buoyed by cries that the decision consti- return of their share of the fish resource to their tuted racial discrimination against them, the non- usual and accustomed grounds and stations." Indians took to the water on Indian fishing days." The 1974 decision did not settle the matter of The matter took on an air of urgency in October Indian fishing rights. It laid down the principles that, 1976 when, after a sustained illegal fishery by non- '*Id. at 403.404 "520 F 2d 676 (9th Ca 1975) " Id. " 423 U S 1086(1976) " Id 31413 -19 " Pluhp Sutherland, Intervsew in Seattle. Wash , Aug 10. 1978 " Id. at 403 " Ibid 71 Indians, a non-Indiar itshcatcher was shot by a State Their tactic has become increasingly clear: enforcement officer on the waters of Puget Sound." create as much discord, lawlessness, and chaos In addition. there were allegations that fish buyers as possible (so that the task force and Congress willfeela need to remedy the situation), closed their facilities to Indians who were trying to attribute the problem to Indian treaty fishing sell fish caught on Indian days" and that non-Indians rights, and then apply political pressure to caught fish in closed waters and claimed they ware induce Congress to resolve the matter at the taker in areas open to them." expense of the groupith the least political The open defiance of the Federal district court impact, the Indian Tnbes.94 ruling went further. Non-Indians continued their The tribal observation was painfully accurate. A protests to areas that were closed to all fishcatchers mere 9 months afterit was made, Washington's . for the purpose of conserving the resource." Scien- Senators signed a letter to the Secretary of the tists began to express concern thatthe major Interior that in relevant part said: casualty of this "fish war" would be the fish resourceitself.If thisactivity continued, there would be no more fish." The situation was tense, As you know, the implementation of the so- destructive,' and dangerous. The suppler -ental rul- called "Bold: Decision" has caused four years ings of the court as fishing seasons 1.rogressed and of conflict and controversy in Washington State...it has become impossible to provide the massive opposition to the court became a media adequateprotectionof theresourcewith event with all the excitement of play-by-play repot present enforcement capabilities....In 1976, ing to be seen in a sporting event." illegalnon-Indian fishing accounted for an The protest was aimed largely at the Washington estimated 34 percent of t.te total' non-Indian congressional delegation in the hope that its mem- catch in all of Puget So and...adequate escape- bers would intercede in some way to reverse or ment levels necessary for the perpetuation of the resource are in jeopardy. ..while we work nullify the effect of the ruling of the Federal district together for a long term solution, we must urge court. The non-Indian fishermen were apparently your very serious consideration of less than Full convinced that their cause was just and their legal implementation of the Boldt decision for this interpretation of-the treaties correct. Their theory year.95 was simply that the treaties 'recognized nothing The letter was indicative of the approach of many more for Indians than a right to fish on an equal non-Indians after the district court's decision was `competitive basis with non-Indians." Therewas also rendered. It blamed Judge Boldt for the woes of the a determined effort to get the case before the U.S. non-Indian fishery, as if the court were, responsible Supreme Court, even though that Court had already for the inability of some memberf, of the oversized declined to hear the matter. If that Court would non-Indian, fishing fleet to make an adequate living only r'evie);v the case, the thinking went, it would The letter assumed Federal inability to enforce certainly reverse the lower court's decision." treaty law. but instead of suggesting either a greater The Northwest Indian Fisheries Commission, the enforcement effort or a Federa: subsidy for affected organization of treaty area representatives coordi- non-In, Tian fishcatchers, the letter, in effect, said that nating tribal efforts after the 1974 decision, clearly illegal activity spOuld be stopped via-a payoff to the saw thatillegalfishing was atactictoforce lawbreakers and that the amount should be assessed reevaluation of the treaty rights decision: against the tribes. " Wayne Williams, interview on Tulalsp ,7teservation. Wash Aug 4, 1977 " Dayton L Alverson. testimony, Bearing Before the U.S Commission on " Forest Kinky. testimony. Healing Before the U.S. Commission on Civil Rights Seattle. Washington. Aug 25, 1978. vol Rights. Se4tle. Washington. Oct. 19-20. 1977. vol 1. p 134 (hereafter cited III. p 28 (hereafter as Seattle Hearing. volsI and II): Jim M.:Cay. vice chairman. Lummi cited as Seattle Hearing. vols. III and IV). Indian Tnbe. interview in Marietta. Wash, Sept. 6. 1977. violations of " See, c g . numerous articles appearing between 1974 and 1979 in the treaty fishing rights summarized in Summary of Evidence Appearing of Seattle Times and the Post Intelligencer. Record Re Illegal Fishing and Washington Department of Fisheries " Philip Sutherland. Wallace Green. Archie Graham. testimony. Seattle Failure to Lawfully Regulate (filed Apr 4,1978), United States v Bearing, vol III. pp, 85.97, 105. Washington. 384 F. Supp. 312 (W.D. Wash 1974) " Reports of Indian fishery patrol officers in the Point No Point Treaty " Sutherlsnd Tes many. Mid . p 87 area of-PugerSound in the autumn of 1976 and 1977 indicated the presence " Post Intelhgencer. Oct 25. 1976, p 1 of between 8 and 90 illegal non-India:. gillnet boats on at least 12 separate " "Tnbal Report. vol II." Seattle !fearing. vol 'II exhibit no 3. p, 173 dates Rod Marrom. interview in Kingston. Wash Aug 19, 1977, law " Henry M Jackson and Warren G Magnuson to Cecil Andrus. Aug 4, enforcement records and Joint technical report of the Point No Point Treaty Council and Washington Department of Fisheries. Oct. 13. 1977 1978. Seattle Ikarmg. vol IV, exhibit no 4, pp 6-7 72 84 The strong negative reaction by non-Indian fish- resource were a product of the failure of the State to catchers to the rulings of the Federal district court exert adequate management control. Even represen- came from a sense that they had been wronged by it, tatives of fishing groups, complaining about the as well as from the view that if it were implemented effect of the Boldt decision upon them, admitted that the decision would ruin them financially. The Puget there were other causes for then economic diffic/1- Sound Gillnetters Association claimed that the total ties: amount of time they were permitted to fish had been / drastically reduced by the Boldt decision: [T]here were problems in the fishery 'prior/ to On fish of Puget Sound origin, '74, '75, and '76, I974dams; lack of passage forfish; poor we had 16 days, and last year we had 7. So logging practices; poor road building practices; that's a total of 23 days of fishing opportunity in a mammoth Canadian troll fleet sitting up north 4 years contrasting to a normal 2 and 3 days per that in the case of Puget Sound chinook salmon week and 14 to 15 weeks, which would be 30 to will take 70 percent of the total harvest, and in 45 days each year...they have already, as far the case of the Columbia River they'll take as I'm concerned, by physical coercion forced upwards of 50 percent; the needs of manand me out of rly normal income pattern to the tune that might sound as a facetious statement, but it of some $60,000 in the 4 years." seems that, unfortunately, that anytime you have a battle of the welfare or the needs of fish Similar negative economic effects were tied to the versus the benefit needed for society, the fish Boldt decision by the non-Indian purse seiners97 and lose.'°' the charter boat owners." Non-Indian fishcatchers received support for their in 1963 a report was produced by fishery experts position from other arms of the Federal Government at the University of Washington in response to a as well; In March 1975, a year after the district request from the Governor's Fishery Advisory court'sdecision,the National Marine Fisheries Committee and the Legislative Interim Committee Service issued a report called "The Economic on Fisheries.'02 It found, among other things, that Impact of the Boldt Decision." This agency of the the number of units of fishing gear could be reduced U.S. Department of Commerce, which upon subse- to two-thirds its then current size and still have the quent State default became a principal enforcer of ability to harvest all salmon runs fully. Despite near the treaty rights decision, suggested that non-Indian record runs of the most valuable species, sockeye, fishing income was severely reduced due, in large earnings of three major gear types in Washington part, to court decisions that transferred income from were severely depressed. The report also noted that non-Indians to Indians." any further increase in the numbers of fishing units The report was viewed as sufficiently distorted in or decreases in the size of the fish runs would cause its conclusions and deficient in its analysis to warrant economic losses to be even more severe.'03 a critique from an Assistant Regional Solicitor of the The report recommende3 license limitations, in- Department of the Interior, who pointed out some cluding a freeze on the issuance of new licenses and of its obvious errors.'°° Despite the deserved criti- a program to b uy back existing licenses and fishing cism, the report was available to non-Indian fish- vessels, in order to reduce economic competition to catchers as support for the argument that the Boldt a point where the remaining fishcatchers could make decision had caused an economic crisis for them. a reasonable living in the industry. 104 Although sport Despite the political public attack or the Boldt fishing for salmon had a considerable effect on the decifion, those who were in a position to know were economics of the fishery, the report said, there were well aware thatthe tension among competing inadequate data to determine the total impact accu- fishcatching groups, the environmental degradation, rately, because no licenses were required for sport and the negative impact of overfishing on the salmon fishing. The report estimated, however, that " Sutherland Testimony. Seattle Hearing, vol III. pp 83. 88 "" Manary Testimony. Seattle Hearing. vol III. p 107 " Ibid , p 96 " Edward Manary. testimony. Mid . p 105 O2 William F ito)cc and others, Salmon Gear Lto 'atom in Northern " National Marine Fish. rtes Sers.xe, 1/u hconomtc Impact of the Bold, Washington Uater% (SLattle Um% ersit5 , f '11 ashington. 1961). p ,. Decision. by Jack Richards (Mar 3, 1975), Seattle Hearing. volII. exhibit 10' Ibid . pp v -vi no 27, pp 460-93 10' Ibid , pp 118-19 l" George D Dysart. Memorandum to Area Director. Bureau of Indian Affairs. Apr 25. 1975 (Commission files) 73 8,3 between 500,000 and 1million fish were caught High-level Washington State officials were also annually by sport fishcatchers1" at a time when fully aware that faulty State management rather than commercial salmon catches in the State were being treaty fishing rights was largely responsible for the reported averaging under 4 million fish.'" poor economic condition of some of the fishcatchers Despite the recommendations for limitation, statis- in Washington State. For example, in a printed tics showed that "[F]leet size increased dramatically article, Donald Moos, former Washington State in all State-licensed gillnet and troll fisheries be- Director of Fisheries, admitted the State's danger- tween 1965 and 1974. The increase in size ranged ously slow progress in limiting the size of the fishing from 200 percent in the troll fleet to 500 percent in fleet. He described how the unrestrained competi- the Willapa Bay gill net fleet."10' The huge increases tion among groups fishing with different types of in non-Indian licenses were probably more responsi- gear has led to greater profits for some fisheries at ble for the adverse economic effect on the non- the expense of others: Indian fishcatchers than the Federal court decision on treaty rights. Eveinhough Indians increased their share of the reported Washington salmon catch, by By and large, uncontrolled catch transfer has 1976 they still accounted for only 15 percent of fish been a passive thing; one fishery gains a politi- cal advantage or simply corks [intercepts fish caught, including their ceremonial and subsistence headed for another], and gradually the catch catches. Non-Indian sport fishing accounted for 26 shifts. It is, of course, a form -of allocation, and percent of the reported catch, and the non-Indian from the manager's view has occurred from troll fleet reported a 25 percent share. The non- lack of rules or power to enforce rules about Indian Puget Sound gillnet fleet reported 15 percent who has a right to catch what. The Boldt of the catch (not counting any illegal fishing), and decision has had a similar effect, except it is the purse seiners16 percent. Figures froM the enforced, conscious allocation; the only differ- previous 2 yearsindicate that reduced catches ence is that the transfer is obvious."o among purse seiners and gillnetters were actually The "obvious transfer" of fishing opportunity to more attributable to increases in troll and sport Indians as a remedial measure, mischaracterized as catches than to tribal fishing.'" discrimination against non-Indian fishcatchers, di- One of the authors of the 1963 report, 14 years rected public attention to the racial aspect of a battle after its issuance, lamented the failure of the State to adopt its rccommendations to restore economic between Indian end non-Indian fishcatchers. Some State officials, including the State attorney general, health to Washington fisheries through license limi- tation and controlled use of effective gear to harvest supported non-Indian positions by emphasizing the the resource: conflict's racial aspects through characterizations of indians as "supercitizens."1" The vehement protests Nobody seems to have either the courage of non-Indian fishing groups concerning the "dis- political' or the legislative technique to free crimination" against them caused by the Boldt the hands of a Department of Fisheries and then decision were, in large measure, aimed at the wrong require it to deal effectively with the reorder:ag source. The allocation of fish to Indian tribes in of the way in which we harvest the fish.. Ale recognition of the treaty rights was the latest and framework makes no economic or biological most visible blow to the economic well-being of sense atall.. ..[S]ince1963...a program under which excessive gear at the salmon non-Indianfishcatchers. The more devastating fishery might be reduced...has been avail- blows came from the failure of the State to regulate able...yet it has sat there mildewing, as far as I the resource in a way that would allow non - Indian, can tell.'" to make a good living fishing a healthy resource.'" '" Ibid . p 44 Abuse and a Projection on Limitations." in Fisheries in Puget Sound. Public '" State of Washington. Department of Fisheries. 1975 Fisheries Statisurol Good and Private Interests. Occasional Paper No. 9. ed Manfred C Vernon Report. p 26 and James W. Scott (Bellingham. Wash.. Western Washington College, 1°' 3 Carl Mundt. Report to the Regional Task Force of the Presidential 1977), p II Task Force on Northwest Fisheries Problems Concerning Catch. Licensing, "° Donald Moos. "The Fisheries Today Assessing the Problems," in Man. Gear Reduction. and Allowable Fishing Time History for Washington Salmon Government and the Sea Northern Puget Sound and the Strait of Georgia. eves 1965-1977. Nov 3, 1977. p 5 Occasional Paper No5, ed James W Scott and Manfred C Vernon !bid , exhibit no 6, table of Washington salmon landings from Washing- (Bellingham. Wash Western Washington State College, 1976), p 100 ton Department of Fishenes "' Slade Gorton. testimony. Seattle Hearing. vol. I, p 14. '" James Crutchfield. "An Overvseu of the Fisheries Their Use and "' Many fishcatchers from Washington derive s.gnificant portions of their 74 Although a moratorium on new fishing licenses departments in Washington, D.C.1" Authority was was enacted by the State legislature in 19741" and a then subdelegated to the working arm of the task limited gear buy-back program was initiatedin force, which was a regional team of Federal officials 1975,114 these moves were too little and too late for a in Washington State."' situation that had gotten out of hand. The political The departments involved in the task force were pressure generated by non-Indians was sufficient to already playing important roles with respect to the get the Washington congressional delegation to fisheries of the Northwest."' James Waldo, an advocate an alternative to implementation of the assistant U.S. attorney from Seattle, served as chief Boldt decision. negotiator and senior staff person for the regional team."' The role of the regional team was not Federal Task Force defined well to the public, and the team itself was given very little guidance on the nature of its mission The Washington congressional delegationre- or how to go about it, with the exception of four sponded to the clamor of the non-Indian protest guiding principles established by the Federal task against Federal judicial authority by viewing the force:120 situation as a crisis requiring a firm Federal reactior 1. The optimum utilization of the fisheries re- At this point in early 1977, with the case deJded source, including Federal assistance for fisheries and upheld on appeal, an approach could have been enhancerrent. to send agents of the Federal Government to the 2. A healthy commercial and sport fishery that Northwest to enforce the district court's orders. will provide an opportunity for all who depend Any necessary enabling legislation and subsequent upon salmon fishing for their livelihood to earn a regulations could have been sought to authorize good living. Federal agents to enforce the law if the State failed 3. A utilization of the fishery consistent with or refused to do so, and the unlawful fishing might recognized treaty fishing rights reserved under the have ended. Stevens Treaties of 1854 and 1855. Strict enforcement of the decision, however, was 4.Development of management systems that not the approach chosen. Instead, the Federal Task will ensure that the salmon fishery is preserved and Force on Washington State Fisheries was appointed developed so as to satisfy points 1 through 3.121 by President Carter on April 7, 1977, at the request The approach of the members of the regional team of the Washington congressional delegation, and to the dispute that they were to address was that suddenly there was a new player in the drama.111 there were two groups of fishcatchers, Indians and The members of the task force, namely the Secretary non-Indians, each with a strong claim of equity on of the Interior, the Secretary of Commerce, and the its side. Mr. Waldo stated his view of these argu- Attorney General, had the authority and power of ments: the executive branch at their command, but there were no initial indications as to how the power Let's say on the treaty side they signed a woald be used. Their responsibilities were delegated contract. The contract says, "We give you clear to high-level Federal administrators within those title to all this land except what we reserve for resources from fishenes in and around Alaska, California. and Oregon The Director, Northwest and Alaska Fisheries Center, National Marine Fisher- extent to which any diminished return from Washington waters affects the ies Service, Department of Commerce, and John D Hough. Director. overall income of these mobile fishcatchers vanes greatly based on their Western Field Offices, Department of the Intenor. 'bid ability to fish alternative sources ". The Department of Commerce, through its National Manne Fishenes, "' Rev Code Wash Ann 075 28 450-485 (Supp 1980-81) Service, is responsible for enforcing U S. fishing regulations in the 3 to "' Rev Code Wash Ann 075 28 500-540 (Supp 1980-81) 200nule zone and for commercial fishery development. The Department of ORegional Team of the Federal Task Force on Washington State the Interior has an ongoing interest in protecting the resource through the Fishenes. "Settlement Plan for Washington State Salmon and Steelhead authority of its Fish and Wildlife Service. Intenor also is the pnmary Fisheries."Seattle Hearing. volIV, exhibit no 6, pp 34, 37 (hereafter cited United States agency for implementation of the Federal trust responsibility as "Settlement Plan"). toward Indian tribes, which is carried out by the Bureau of Indian Affairs "" Anne Wexler, Deputy Under Secretary for Regional Affairs. Depart- under the Assistant Secretary for Indian Affairs. The Department of ment of Commerce. Leo Krulitz, Solicitor. Department of the Litenor, Justice, as the Goveinment's litigator, has been directly involved in the James Moorman. Assistant Attorr.y General. Land and Natural Resources cases that have judicially acknowledged the treaty rights to fish in Division. Department of Justice. Forrest Gerrard. Assistant Secretary for Washington State waters Indian Affairs, Department of the Interior, and Richard Frank. Administra- James Waldo. testimony,Seattle Hearing. volIII. p. 5 tor. National Ocea rte and Atmospheric Administration. Department of Leo Kruhtz and James Moorman. testimony.Hearing Before the U.S. Commerce "Settlement Plan." p 29 Commission on Civil Rights. Washington. D.C. Mar19-20, 1979 (hereafter ," The members of the regional team were John C Merkel. Unites! States cited asWashington. D.C. Hearing). Attorney and chairman of the regional team. Dayton L Alverson. "Settlement Plan."Seattle Hearing. vol. iv,p 30 75 reservation, in return for which we want to fish, while the State, representing the non-Indian retain certain things, particularly fishing." For viewpoint, held the view that the treaties gave the 100 years or more. . .there was very little done tribes nothing more than a right of access to their to substantiate that claim. And then they go through the court system, as we're supposed to fishing places with no guarantee that enough fish do in this country, and they establish what that would return to permit fishing at those places. The right means.. .. State regulated the fisheries without r, card to any special Indian rights, and the Federal Government 'The decision comes out and the tribes say, was "willingtoletthatride,"123unwilling'.o "Okay, it is now final and has been supported challenge the State's view on, behalf of the Indian by the ninth circuit. Cert, [review] has been denied by the Supreme Court, we've established tribes for more than 80 years."' our rights, and we'd like to have them fulfilled." With these viewpoints in mind, the regional team set out to find a solution to the controversy that I think as an advocate attorney I could make a would be a "fair and equitable settlement for each of good case on that side... .Onthe other side, the participants in this fishery."I25 According to the you have people who. ..want to fish and don't regional team's own view, its objective was "to want to be warehouse employees or anything devise a new set of arrangements under which the else. They want to fish....There are instances in which people have told us that, "When I got principal concerns of each of the parties could be into this business back in the forties or fifties, accommodated."'" there were questions about these Indian treaty What the regional team was trying to do is much fishing rights, and I'd ask people in government clearer in retrospect than it was during its life. There who were supposed to know, 'What do these was no clear initial statement of authority for the things mean?' and 'No, it doesn't mean any- thing.' That was back 100 years ago and it just task force or its regional team. None of the entities meant that they could fish like you could." involved in the dispute knew whether the regional team would act in some way to affect the ongoing Based, in a sense, on what you might almost call daily dispute being litigated in Federal and State detrimental reliance on what the governmental courts, or whether it would play an advisory role. officials were telling them, these people com- When the regional team was created, for example, mitted their life to being fishermen.... The Federal Government as well as the State is Mr. Waldo was the primary trial attorney for the encouraging them to get into fisheries. United States, representing the tribal interest in the case. Mr. Waldo played the apparently contradicto- So. . .the non-Indian fishermen say, ry roles of partisan attorney and impartial negotiator "Look...[o]ne generation of fishermen are for about 3 months, until his role as litigator was bearing the brunt of something that was de- given to another attorney. Simultaneous pursuits of signed to benefit everyone. We knew nothing about it when we got into this business, and is these functions, when added to the U.S.legal that fair? We don't have the benefit to the land position as trustee for the tribes, made non-Indians title. It may be a benefit to the government and very skeptical about the Ltsk force.'" The lack of citizenry as awhole,,but to usit'sof no definition of Mr. Waldo's new role, and the extent to particular benefit." which it included a continuing duty to uphold tribal interests inside or outside the courtroom, was not I think, again as an advocate, I wouldn't mind having that side of the case either.'22 clear to either the tribes or the non-Indian fishing grOups and, in fact, may have been the cause for a The regional team could view both fishing groups request by non Indians to the President that Mr. as having good arguments, because its view of how Waldo be removed from his position with the task the conflict got to this stage was that it resulted not force.128 through the fault of ether, but from the differing Beyond the confusion over Mr. Waldo personally, views of the State and Federal governments. The the authority or power of tile regional team to have treaty tribes always said they had a right to catch any effect on the continuing dispute was never clear. '" Waldo testimony. Seattle Hearing .ot III pp 9-10 '" p 145 ." !bid Waldo Testimony. hid PP 16-17 p '.* Pod .2. John Merkel. Lee Alserwm. and John Hough. written testimony. Scanle Hearing. vol III. exhibit no 2. p 157 76 According to Mr. Waldo, the groups dealing with making an effort with their hands tied because of the the regional team were not sure that it was in their guidelines."135 interest to have anything to do with it: "We were The regional team, however, thought that it hada always being second guessed as to whether anybody wider range of options. Its members did not believe in the executive branch would even readour report, they h'to view the decision and orders of the much less do anything about it."'" district ...out t as the starting point for their- work. The effort of the team, in its collective view,was Instead,the team members thought they could different in kind from the responsibility of the propose alterations to the court's decision, as they United States as a trustee of tribal interests. While deemed necessary, in order to facilitate negotiations. working on the regional team, the members and staff The task was begun, however, with the idea that the did not feel bound to act in any representative, goal would be a settlementthat would differ fiduciary, or advocate role for the tribes. Instead, somewhat from the court's decision, but that would they viewed their roles as catalysts to promotea also be agreed upon by thetribes, non-Indian settlement that in their view would be fair to all fishcatchers, the State of Washington, and the parties.1" Federal Government. As Mr. Merkel, the U.S. It was not at all clear to the tribes, however, that attorney, expressed it: the regional team of the task force was acting in a You can't negotiate a court case after thecase capacity outside the traditional responsibility that has been decided without somebody givingup the Federal Government has as a trustee of tribal something that he won in the court decision. interests. An attorney who represented the tribes in their negotiations with the regional team said: So, you enter into this negotiation knowing full well that the law is this way and thisway and "Initially it was my understanding that they would that you've got to -flake some movement in be a Presidential task force operating under the duty there, that the law ..as got to be changed. If the executive has pursuant to the trust responsibili- nobody wanted to change the law, and nobody ty."'" wanted to change the rights that are involved, It appears that neither the Indian tribes nor the there would be no necessity whatsoever to do any negotiations. . non-Indian fishing groups had the same understand- ini, as the regional team concerning its mission and If the Federal Government and the task force its constraints. For example, the third guideline of started out saying, "All right, we're going to sit the task force required that the regional team work down and figure out a way to negotiate full toward a "utilization of the fishery consistent with implementation of the Boldt decision," there recognized treaty fishing rights reserved under the would have been nobody else sitting down with us. That was very obvious that the point of this Stevens Treaties of 1854 and 1855."132 The tribes was to try and negotiate with all the parties and thought that this provision required the regional see if you couldn't come up with a better team "to deal fairly with the problems that the tribes economic condition for everybody by making were having with implementation [emphasis added] some adjustments in the decision that the court on the decision, and that they would work towards came to.136 implementation of the decision in such a way as to Dr.Alverson, the Commerce Department repre- deal with some of these other problems."'" sentative, saw the regional team effort ina similar Indeed, the non-Indian fishcatchers also believed vein: that the regional team was hamstrung by the guidelines into a position of having to negotiate the The Government perceived thateven though it implementation of the court decision.'" A represen- was attempting to enforce, essentially, a deci- tative of non-Indian commercial fishcatchers said: "I sion of the court, that a large part of society in this area was not accepting it, and itwas not think they were making a sincere effort to try and leading to provide the benefits to the minority have some type of solution, but they were actually groups that they sought. '" !bid , p 23 '" Morisse Testimony,Seattle Ileartng. volIII. p 70. "° Ibid ,pp17-18; Merkel and Alverson Testimony, p27. }lough "' Sutherland Testimony. ibid . pp 86-87 Testimony. p 30 " Green Testimony. }bid. p 93 A similar view was expressed by the ", Mason Morisse, testimony. ibid . p 70 Stmt.! Sportsman's Council, Graham Testimony. And. p 109 "i "Settlement Plan." Seanle Hearing. vol.IV, p 30 '" Merkel Testimony ,W . pp 40-41 I 77 8J Now, there are a number of ways you can view it would be in the long term interest of the resolve this, and I agree you can develop a large tribes to have the matter settled.'" enforcement capability and rush in and, essen- tially, put your thumb on these people and force them through a very large enforcement activity to respond to this. :Regional Team Process Thr task force maintains that it began its work with no preconceptions about the final result of its There is another alternativein,essentially, efforts. The only major requirement placed on the bringing a group of people together and asking regional team beyond the four guidelines mentioned the people who have the right if there is a previously was "to start essentially with no precon- different way to exercise that right which will help to resolve the problem that faces the other ceived plan and simply approach all of the partici- body 137 pants and say, 'What do you think the problems are and what do you think the solutions are?' and go In fact, the fmal solution proposed by the regional from there within the context of trying to meet the team was not an attempt to implement the court four guidelines."'" decision, but rather an attempt to replace the There was, however, at least the knowledge on guarantees of the treaties, as determined by the the part of the task force that there was strong court, with a completely different fishery manage- political pressure to get certain provisions into the ment and distribution scheme. As it turned out, it final plan. One of those, which was expressed in a was critical that the tribes not be made aware that congressional meeting in Washington, D.C., just the regional team was prepared to consider what in before the task force was formed and which found practice would amount to altering the terms of the its way into the proposal of the regional team over a court's decision. Three of the five treaty representa- year later, was the decommercialization of steel- tives to the Northwest Indian Fisheries Commission head: were asked whether they would have cooperated with the task force, knowing that it might recom- menddiminishmentoftheircourt-adjudicated The first goal is to eliminate the competition rights. TheY responded that they would not have between Indians and sports fishermen for steel- head. A trade off of salmon for steelhead with a participated in discussions with the regional team corresponding enhancement of the salmon runs had they realized the result could in any way is the most probable solution.'" diminish their hard-won and long - awaited judicial victory.'" Although some provisions of the regional team's A task force member at the Washington, D.C., proposal may have been earmarked for inclusion level viewed the regional effort to produce a from the beginning of the task force effort, most of settlement after, rather than before, a final court the provisions seemed to have been generated by a decision as justified by the continuing authority over significant investment of time and resources by the day-to-day fisheries management that the Federal tribal, State, and Federal governments and to some court had to exercise after its 1974 decision. Thus, extent the fishery groups to be affected. even though the court's decision was final as a The regional team began: its work by putting matter of law, the case was not closed because the together a technical staff and holding meetings with litigation, like the fishery, is ongoing.'" the State, the tribes, and the non-Indians in May Furthermore, the effort to reach a settlement was 1977.'43 An initial decision was that the tribes and seen by at least two members of the Federal task non-Indian fishing groups should be seen separately force as an appropriate way for the United States to and given an opportunity to tell the members of the live up to its trust responsibility, even if the tribes regional team the problems they saw and the ideas did not like the solution proposed, because in their they had about solving them.'44 Alverson Testimony, ibid., p. 44. 1" James R. Fielding, Chief, Legislative Services. Fish and Wildlife 1" Forrest Km ley, Guy Mc Minds, Billy Frank, testimony. ibid , pp 113 - Service, U S Department of the Interior, memorandum to Assistant 14. Secretary for Fish and Wildlife and Parks, Mar. 18, 1977 (Commission " Krulitz Testimony, Washington. D.C. Heanng. vol 1, p 199. files). 1" Kru litz and Moorman Testimony, ibid., pp. 194-95. 1" Waldo Testimony, Seattle Hearing. vol III. p. 12. "' Waldo Testimony, Seattle Heanng, vol. p I I. 1" [bidpp. 12, 14 78 The regional team believed that face-to-face dis- posed to the tribes that they accepta 5 percent cussions woulo. not initially be productive because reduction in their 50 percent share ofcoho and the sides were so far apart.'" Separate meetingsalso chum salmon headed for south Puget Sound. Appar- gave the regional team added control in the process ently this was, at least in part,an effort to gain because only its members knew what all factions had credibility with the non-Indian fishinggroups and to to say and how flexible they would be about a given show all sides that the task force hadsome clout. issue. The tribes would not agree to reduce theircourt- Much of the early work of the staff of theregional determined share voluntarily, but the Government, team addressed technical problems. A seminal prob- with the approval of the Federal task force lem was the objection of all fishing in groups to using Washington, chose to take the proposal into Federal the State's data base. The lack of confidence in the court anyway.'5° With very little advance notice, the State's figures required a major effort that resulted in regional team told the tribes that it would a computerized data system.'" Another point, real- request a one-time reduction in the tribal shares of the two ized by the regional team early in theprocess, was that the total fishing effort was too large for salmon runs in order to "minimize otherwisesevere the economic impacts upon commercial fishermen."'" resource and would have to be reduced.' Another The tribes protested vehemently, feeling that necessary step wao determine the possibilities for the United States had betrayed them as trustee of their enhancement of the resource, i.e., takingmeasures to increase the fish supply, including artificial interests and that the regional team had changed propaga- character from an intermediary seeking voluntary tion and habitat improvement. Enhancement,how- ever, was one thing superficially and another when agreements among the parties to a new adversary. In explored in depth: an angry letter to the Solicitor for the Department of the Interior, the requested reduction ofthe Indian I think it was...clear that... enhancement share was characterized by a tribal representativeas ... was not a panacea. Unfortunately, many of undermining the Boldt decision, "deprivingtribes the people and public officials looked at itas a further of their treaty and economicrights, and panacea. The more you got into it the more you sacrificing the welfare and escapement needs ofthe realized that there were substantial disagreements salmon resources of Puget Sound."'" A similar between the biologists.'" letter was sent to President Carter that expressed the additional concern that the Federal Government To better understand the problems ard possibili- was distorting the facts of the matter.'" ties of enhancement, a technical team, consistingof a The salmon runs at issuewere those headed biologist representing each of the State departments, toward the fishing areas of small Puget Sound tribes two persons from the tribes, one each from the sport that were last in the line of fisherieson these species. and commercial fishing groups, and several fromthe The economic effect of the 5 percent reductionon Federal Government, was assembled. Theyput these tribes was expected to be greater thanany togethertechnical standards and developeden- benefit to be derived by non-Indians, because the hancement proposals that later becarr,-a major tribes' fishing opportunities were already severely component of the plan.'" limited by prior intercepting fisheries. Thesewere As the work of the regional team progressed in tribes "who thus far have not receivedany apprecia- the summer of 1977, an unexpected changewas ble salmon harvest in 1977."1" made in its method. The Federal Government,in its To the tribes,it also seemed that if the real role as litigator in day -to -day fishingmatters in the purpose of the Federal Government was to alleviate Federal district court, made a unilateral decision to economic hardship of non-Indian fishcatchers,it request reduction in the court-ordered Indian share could have done so without requiring tribesto pay of two particular fish runs. It was originally pro- for it. This view, as well as a demand forclarifica- '" !bidp 14 '" Ibid pp 13-14 Counsel (Aug24. 1977), statement of Mike Thorp on behalf of the "' Ibid.p 15 Dom; a: tment of the Interior before Judge Boldtin United States v Washington. 384 F Supp 312 (Aug 30, 1977) ".Ibid '" Ibid .p 16 '" Bill Frank. Jr . to Leo Kru'az. Aug 27, 1977 (Commission files) '" Bill Frank. Jr. to the President of the United States, Sept2, 4977 '" 'bid p 18 (Commission files) ", Telegram from regional team to Calvin Peters, Squaxm Island Tribal '" Ibid 79 91 tion of the role of the task force and another for the same Congressman. One, called the "Steelhead assurances that the task force was really not out to Trout Protection Act,"'" would have done the same abrogate treaty rights, was expressed to task force thing but would only have applied to steelhead, and members in Washington, D.C.'55 another bill, entitled the "Native Americans Equal It is important to note that at no time prior to this Opportunity Act,'"62 would have accomplished the was there any indication to the parties that the same result by requiring the President to abrogate all regional team would infuse its work into the ongoing United States treaties with Indian tribes. enforcement and allocation matters still being litigat- Though these particular measures were not given ed before the Feckrai district court, and the surprise much chance of passage due to the extreme reversals to the tribes infuriated them to a point of refusing to of Federal policy they proposed, there were more deal with the regional team for a time.'" The serious attempts in Congress emanating from Wash- benefits to the regional team apparently did not ington State at this time to limit or eliminate tribal outweigh the loss of tribal cooperation, because the rights on a national scale.'" In addition, as the .non-Indians also viewed this maneuver skeptically. regional team's efforts were proceeding, Senator Some believed that a 5 percent reduction in the Warren Magnuson (D-Wash.) wrote to Interior Indian share, from 50 percent to 45 percent of two Secretary Andrus asking for a detailed breakdown particular fish runs, was all they could expect to gain of Federal expenditures related to the Boldt deci- from the entire task force process,'" and others that sion.'" Although the purpose of the request was not any allocation of fish between Indians and non- stated in the letter, it was viewed by tribal represen- Indians was both unfair and legally wrong.'" tatives as a threat to continuation of Federal funds The decision to seek a diminished share of fish for allocated to the implementation of the Boldt deci- tribes by going to court was viewed by tribal leaders sion.165 as an example of overt pressure on the tribes by the Despite these actions,%,.hichinfluentialtribal Federal task force and its regional team. There were leaders viewed as coercive, they could not risk also allegations that the Washington congressional withdrawing from the regional team effort. They delegation, the task force, and the regional team had renewed their participation in the project in Novem- used their authority to threaten the tribes in other ber 1977, submitting a 651-page series of reports to areas of intergovernmental contact if they failed to the team detailing the data, positions, suggestions, cooperate in the conciliation process. Leaders of the and recommendations of the tribes within the case Lummi and Nisqually Tribes said their tribes had area.'" A second round of discussions between the been threatened with the prospect of Federal fund parties and the regional team consumed November cutbacks or other adverse congressional action if and early December 1977 during which proposals they did not cooperate with task force efforts.'59 were discussed, and in January the regional team Threatening legislation actually was introduced in published its first draft of a settlement plan.'" the Congress. One of the more extreme legislative The tribes had incurred considerable expense of measures proposed was a bill introduced by Con- time and money in producing their written submis- gressman John E. Cunningham (R-Wash.).'" De- sion to the regional team as well as in cooperating ceptively titled "Washington State Fishing and with and reacting to the initiatives of the team. The Hunting Equal Rights Act of 1977," "bill would director of the Lummi Fisheries Program, for simply have eliminatedtreatyfist rights by example, testified that his duties were seriously subjecting all Indians to Washington State hunting interrupted by the need to spend significant periods and fishing laws, regardless of any treaty provisions of time monitoring and providing input to the to the contrary. Two other b..ls were introduced by regional team effort.'" The executive director of the '" Bill Frank, Jr . letter to Leo Kruluz. Jim Moorman. Anne Wexler. and "' H R 9736. 95th Cong.. 1st sess (1977). Forrest Gerard. Sept 20, 1977 (Commission files) "2 H.R.9054. 95th Cong 1st sess (1977). " James fleskman and Mason Morisse'. testimony. Seattle Hearing. vol " See discussion of Congressman Meeds' bills in section on Junsdiction. III. pp. 67.68 chapter 5 ", Waldo Testimony. ibid . p 18 1" Warren Magnuson to Cecil Andrus. Mar 3. 1978, exhibit no 4. Seattle '" Sutherland Testimony. !bid . p 87 Hearing, vol. iv. p I. '" Forrest Kinky. testimony. Seattle Hearing. vol I, p 129, Bill Frank. Jr . " Morisset Testimony. Seattle Hearing. vol III. p 74-75 testimony. Seattle Hearing. ,,o1III. p 117-18. Sam Cagey. interview on " Heckman Testimony. ibid.. p 68 Lummi Reservation. July 29. 1977 " Waldo Testimony. ibid. p. 19. '" II R. 9175. 95th Cong . 1st sets (1977) '" Kinley Testimony. ibid.. p 113-14. 123 80 92 Northwest Indian Fisheries Commission expressed a After the January plan was issued, the tribes, similar view of the drain on tribal resources resulting State, and non-Indian fishing groups thought they from necessary interaction with the regional team.'" might be able to resolve some of their differences in There was considerable shock among the tribes, face-to-face negotiations. The regional team ex- who felt that their efforts and proposals had either pressed a willingness to allow an opportunity for been ignored or drastically changed, to the detri- such negotiations and to incorporati. agreements ment of the tribes, by the regional team in the reached in the final version of the settlement plan.'" January proposal.'7° For example, an alternative fish The vibes chose a single negotiator, as did the management system suggested by some of the tribes State, and talks began. The Commercial-Recreation- would have coordinated tribal and State manage- ment. It would have done so, however, without al Fisheries Delegation joined the talks ata later sacrificing the federally-recognized, independent date and agreed to have the State negotiator repre- sent its positions.'" governmental authority of individual tribes toman- age the resource and their fishcatchers, as was Negotiations continued from shortly after the ultimately suggested by the regional team.'" issuance of the draft plan until approximately June "f he tribes were not the only disappointed bar- 1978. During this period the negotiating teams gaining group. At least some dissatisfactionwas reached tentative "agreements" on enforcement and expressed by all factions in theirresponses to the resource enhancement that were incorporated into January draft settlement plan. The non-Indian fish- the final version of the -egional team's settlement ing groups, with the notable exception of the Puget plan, which it issued i.June 1978. These "agree- Sound Gillnetters, put aside their own intergroup ments" were a matter of dispute, however, as the differences to form a Commercial-Recreational Fish- tribes claimed that these were only tentative draft eries Delegation for the purpose of.reacting to the agreements of technical committees that were misre- draft settlement plan and to unite their efforts in presented as final agreements. The tribes did not seeking alternatives.'" consider them final agreements because they hadnot The State government also took issue with many been ratified by the tribes.'" points in the draft settlement plan, although it The final draft of the settlement plan offered by determined that the draft contained "a number of the regional team in June 1978 contained most of the excellent ideas which will significantly improve the provisions originally posed in the January draft, condition of the salmon resource in Washington.''" although several clarifications and a few changes The State went on, however, to recommend modifi- were made in the final version. After issuing its cations to the draft that would strengthen State report, the regional team of the Federal task force control over the fisheries,'" reduce opportunities for ceased to exist, and its members and staff returned to Federalinterventioninthe event of continued their normal functions. abuses by the State,"s and clearly eliminate all the legitimate management rights and judicial authority of individual tribes as governments in favor The Settlement Plan centralized system,'" among other things. In ottiL.r The Settlement Plan for Washington State Salmon words, the State. was suggesting that its hegemony and Steelhead Fisheries is the final product of the over fisheries, which was reduced by a Federal efforts of the regional team. It is about 350pages in court due to State abuses of power, be effectively length and is reproduced in the printed record of reestablished through the vehicle of a settlement exhibits received by the Commissionon Civil Rights plan. at its hearing in Seattle in August 1978.1" '" Heckman Testimony. bid . p 69 " p 6 "' Ifecktnen.and Kinky Testimony. ibid. ppbg.123. '" It6d . p 24 &that Report. vol ul.ihtd . pp 180-221 See subsection entitled "' Ibid . p 40 "Settlethent Plan" for a full analysis of the proposal of the regional team of the Federal task force ." Waldo Testimony. Seattle Hearing. vs)!III. p 19. Heckman 1 estimony. "' Manary Testimony. Seattle Rearing. so) III. p 108 p 69 '" State of Washington. Department of Fisheries. Comments on Proposed '" Manny Testimony. ibid . pp W8-09 ..ettlensent for Washington State Salmon and .Steelhead Fisheries 11 eb15. "' Ilmknian restimony, ihtd , pp 69-70. Johnson. testimony. p 78 1978). p S (Commission files) "° "Settlement Plan," Seattle Ileartng. sol IV. p 27 81 y`) Fundamental Premises follow the course of what was politically possible in It is easiest to 'understand the end result of the their view, the team decided that the rights won by efforts of the Federal regional team with a look at the tribes in court had to be considered negotiable. the premises ypon which it was based. First, the task In fact, the plan sought to dismantle and rearrange force came into being in1977, 3 years after the adjudicated tribal rights into what the team viewed Federal district court had ruled exhaustively on as a politically acceptable form in order to produce Indian treaty right fishing in Washington State and a an effective document. year after the U.S. Supreme Court had made the The regional team did not have the power to decision final by denying further appellate review. decide what was right and to order it carried out. Though the law had been decided, the dispute was The team had only the power to persuade the parties far from being settled as massive resistance among to agree to changes and compromises and, failing non-Indian commercial fishcatchers created a con- that, to promote a solution thatit thought the frontational crisis with State law enforcement offi- ultimate deciders, i.e., Congress and the executive cers on the waters of Puget Sound. The non-Indians branch, would invest in politically. A major premise of the State were refusing to accept the decision, and supporting creation of the task force was the view the State seemed unable or unwilling to stop illegal that the Federal court decision could not be en- fishing. The resource was being damaged. State forced: "Well, I think the United States in the last 3 effort at enforcement was minimal. The establish- years...has done most everything it could within ment of a Federal task force was viewed by many its power to enforce that court decision."'" participants as atleasttacit recognition of the Actually, given the power of the Federal Govern- massive resistance to the decision by the State and ment, it may be more appropriate to, say that the the private interests involved. In a sense, the illegal Federal Government would not go to any length behavior had borne fruit. that might be necessary to enforce the decision. The The task force and its regional team were created difference between these expressions is .pertinent at the behest of a powerful congressional delegation because there are many more alternatives available that was being pressured by non-Indians to do to the Government in dealing with a court decision something about an adverse court decision. The task not popularly accepted, as opposed to the choices it force and its regional team knew that whatever they has in facing a situation it really lacks sufficient chose to do would be subjected to political scrutiny powertoenforce. The conscious choice of creating rather than judicial review. a task force is a political decision of preference, and As evidenced by the testimony of its drafters, the any solution proposed by it is similarly a matter of plan was a political document, designed to accom- political preference in place of strict enforcement of modate all those claiming rights or interests in the the law. fishery in such a way as to ease tension on the The planning .proceeded on the presumption that resource and .among those groups.'" Thus, the each and every fishing group should be permitted to approach to drafting the document had to include continue its interest in the fishery. This included considerations of what would be politically accept- grouping by gear type such as trollers, gillnettets,' able. The views of those factionsthat looked purse seiners, as well as the classifications of Indian politically strong enough to object successfully to and non-Indian. The distribution plan to be recom- implementation of the plan were supported in the mended was based on a consideration that a fair plan to the extent the regional team thought neces- share of the resource should be provided to each of sary to keep them from seeking to destroyit these groups.' For this purpose, Indian tribes were completely.' considered one of these groups that, unlike the This basic political problem accounts for many of others, had some specialFederal treatyrights. the ideas finally adopted in the plan. The political Although these treaty rights could not be ignored, weakness of the tribes,'in relation to the other the regional team decided that they could be 'combatants involved, was a factor incorporated into converted to completely different concepts, prom- the judgments of the regional tcam members. To ises, or cash as long as the trade off seemed "fair" to ." Alverson Eztilmony. Seattle Hearing. vol III. p 34-35 ." Waldo Testimony; Seattle Hearing. vol III. p 21 '" Tribes account for less than I percent of the population of The State ." "Settlement Plan." Seattle Hearing. vol. Iv. pp. 61-62 U S. Department of Commeirce. Bureau of the Census. Characteristics of the Population. 1970 Census of Population. volI, part,49, p 41 82 the regional team members. The Federal judiciary's The usual and accustomed off-reservation fishing determinations as to the meaning of thetreaty grounds are based on the historical fishingpatterns provisions could be put aside if some substitute for of each tribe. Consequently, theyvary considerably them could be found that would work better in the from tribe to tribe. Under the Federal court deci- overall plan-being developed. As evidenced by the sion, each tribe's jurisdiction follows its fishcatchers provisions of the planitself,the Federal coda into these waters. decision determining treaty rights was not usedas a The State has management jurisdiction outside the premise from which to begin planning, as both reservations over nontreaty fishing and Indians and non-Indians ,thought it wo'ild be, over Indians but fishing outside their tribe's usual and accustomed rather as an alterable set of elements to be consid- grounds. In a sense, the jurisdictional scheme ered in drafting the proposal. Given this view of the today isa mixture of geographic location and, more law and its mission, the regional team soughtto justify the drastic changes it was suggesting for important, the status of the person. Indian treaty right fishing. The plan would clearly eliminate these off-reser- vation usual and accustomed grounds.'" In their place, the plan would superimpose a two-zone Provisions concept of jurisdictional control over the geograph- The proposed final settlement plan claimed, by its ic area of the fishing run. The Tribal Commercial language, to be a proposal separate from treaty Management Zone (TCMZ) for the duration of the rights and separate from the decision of the Federal settlement would replace the treaty concept of court. It proposed that Indian tribes .refrain from "usual and accustomed" for individual tribes and exercising certain treaty rights rather than relinqtiish asrign a noncontiguous area to the tribes collectively those rights."Given the extent of, the physical for multitribal management. rite TCMZ would be changes in fisheries proposed by the pjlan, however, smaller than the sum of all the "usual andaccus- itis unlikely that, if itis adopted, the technical tomed areas" and made up primarily of reservation distinction of wording would be taken seriously, areas, newhy river mouths, or coastal areas. The allowing the tribes to go back to theway things State Commercial Management Zone (SCMZ) were under the Federal court decision if they did would consist of those areas not included in the not like the new terms once those terms became TCMZ, the areas in which the majority of the operative. This discussion of the plan's provisions fishing has occurred in recent years. The signifi- will therefore be expressed in terms of the actual cance of this change is not in a iestriction of the 'changes that it would make in both treaty rights and areas in which Indians may fish, since Indians would the Federal court's decisions regardin4. them. be able to fish in the SCMZ. The crucial difference A major change proposed by the plan is in the is that anyone fishing in the SCMZ would be subject management of the resource. Prior t9 Federal court to State regulatory control. The loss of tribal rulings, the State had exerted its authorityto control regulatory control over tribal members in those allfishing for salmon and steelhe,ad withinits parts of the SCMZ that have been judicially deter- borders, including Indian fishing. The:case of U.S.v. mined to be tribal usual and accustomed fishing Washington added significantly to previous Federal grounds would constitute a major change from the court decisions that had imposed some restrictions litigated right. on the State's assumption' of authority to regulate Federal treaty rights. After the decision, the tribes were recognized as having authority to regulate Management their fishcatchers, not only on reservation but alsoat The settlement plan places jurisdictionover the their usual and accustomed fishing grounds off resource in three managing agencies: the Washing- reservation, free from State regulation; and enforce- ton Department of Fisheries (WDF), the Washing- ment agencies that had previously succeeded in ton Department of Game (WDG), and a Tribal rendering the off -reservation rights meaningless. Commission (TC).'s7 The process of managing the "' Ibid.p 59 1 'bid Tribal Commission It is also noted that the Qui:mutt Tribe is expected to "forgo- its possible treaty fishing rights claims to the Columbia River and " Separate management authority is given to the Qu nault Tribe for the - Willapa Day areas Ibid . p 103 . Quinault. Queets. and Raft Riser watersheds. similar td butapart from the resource and fishing effort would be a coordinated Washington in the SCMZ; with the State, the function. Tribal commission, and the tribes in the TCMZ; Under the plaq, disputes among the three manage- with the Tribal Commission and the tribes on ment agencies about proposed plans or regulations reservations;and withtheFisheries Review wotild be settled through a process of incorporating Board anywhere in the State. the advice from the joint technicalommittee the The management scheme would be aided by a assistance of a thin' party in the case of predictive joint technical committee composed of six scien- models and preseason regulations. and mediation by tiststhree appointed by the State and three ap- a Fisheries Review Board. In the evet_t that the pointed oy the Tribal Commission. The responsibili- managing agencies failed to reach agreement in ty of the committee would be to review proposals either of these three areas, the agency with the and make recommendatrms to the appropriate5an- authoritytopromulgate models orregulations aging agencies. The committee would act- as a would have the final say, short of a finding of technical forum tOr resolution of biological or conservation emergency or substantial noncompli- technological conflicts and would also have some ance with the settlement plan (see later section -nn responsibility to propose data collection require - compliance protection). Thus, subject to the safe- ments and methods. The only power of this commit- guards noted in the compliance protection section, tee would be to stop the issuance of permits for authority would be divided in the following ways. enhancement projects it considered technically un- Washington State agencies would have the sound. authority to develofilial prediction of fish run sizes; the authority tpromulgateomulgate fish escapement Analysis of Management 4 rovisions , plans based on run sizq predictions; the authority Management authority Of -t1Tribal Commision to promulgate harvelt 'regulations for the SCMZ, and the State would not be mextensive within the based on run size prOictions and State; and the two zones. The State's NI thority would include authority to promulgate sport fishing regulations emergency conservation -iosure authority within everywhere in the State except on reservations. the TCMZ, except for reser,iiion areas; licensing The Tribal Commission would have the au- authority for sport fishing v.ithin the TCMZ, except , thority to promulgate commercial regulations in forreservations; authority to promulgate sport theTrihalCommercialManagement Zone fishingregulations,to whichtribalregulations (TCMZ) and regulations governing all on-reser- would have to conform ;it part; !control over the ViZks , - yation fishing. entire data system for both the TCMZ and SCMZ The authority to issue permits for enhance- (tribes would be guaranteed access to it); and the ment projects would belong to the State for off- final say on the harvest plans tor th1. SOIVIZ and the reservation projects and to the Tribal Commission_TCMZ, except for reservations. . for on- reservation projects; The sole intrusion of the Tribal Commission into The authority to operate license and fleet the SCMZ would be the authority to license treaty adjustmed programs would rest with the State for fishermen. in addition tothis disequilibrium of non-Indians and with the Tribal CommisSion for power, itis clear_that what occurs in terms of Indians; harvest plats and enforcement activity in the State The authority to license nontribal charter boat Commercial Management Zone (SCIAZrwould owners, nontribal commercial salmon fishermen in dominate all the fisheries and determine resource the SCMZ, anti nontribal sport fisheinien every- availabilities in the TCMZ. The same is not frue for where but on reservation would rest with agencies the TCMZ, except that failure of the Tribal Com- of Washington State; mission to live up to the terms of the proposal could The authority to licensetribal fishermen affect the escapement goals for replenishment of the anywhere, and, if desired, to license nontribal resource. Three factors would weigh against such a commercial fishermen !inthe Tc,MZ andall poS'Ability: the State's power for emergency conser- fishermen on reservation' would rest with the vation closures in the TCMZ, the Fisheries Review . - . Tribal Commission. Board's emergency conservation authority e ery- The authority to close fisheries for conserva- where, and the tribal self-interest in a contii uing. tion of the resource would rest with the,State of fisherySimilar constraints are not apparent to' 84 96 forestall failure of the State to exercisepower provision constitutes a major reduction in their off- appropmtely in its zone, where, historically, overf- reservation fishing rights. ishing has passed greater conservation responsibili- ties onto tribal fisheries. Furthermore, the management authority of the Compliance Protection Tribal Commission, although it appears to be broad- The settlement plan envisions a newly created er than the current authority of the tribes, actually Fisheries Review Board at the top of a system of would not be. For example, the Tribal Commission "integrated State/tribal management." Although could develop regulations for fishing in the TCMZ, this location is accurate structurally, it carries few, if but the number of fish reaching the TCMZ would any, implications of power or authority. depend on the number that could get through the The Fisheries Review Board would be madeup of State-controlled SCMZ. The Tribal Commission three representatives of the tribes, threerepresenta- could bring Indian violators into a newly established tives of the State, and one party acceptable to all. It Tribal Commission court, but it would haveno would have a limited staff, relying primarilyon the judicial control over non-Indians fishing anywhere. expertise of the Washington Department of Fisheries The Tribal Commission could ordera conservation (WDF), the Washington Department of Game closure in TCMZ waters, but in all likelihood sucha (WDG), and the Tribal Commission. Its role would closure would only affect tribal fishermen, because be to review the actions of those three bodies and non-Indian commercial fishermen would do their the Federal agencies to assess whether thesettle- fishing in the SCMZ and sport fishermen who might ment were being successfully implemented'. Only fish in terminalareas would not be affected by a WDG, WDF, or the Tribal Commission could bring Tribal Commission conservation closure excepton a compliance matter to the attention of the board.'" reservation. The Tribal Commission could license Individual complainants may bring mattersto the tribal fishermen to fish Lnywhere in the State, attention of WDF, WDG, or the Tribal Commis- sion, any of which, in turn, may eventually refer subjeet to ceilings on the numbers of licensesset out a in the plan, but when they fished beyond the TCMZ complaint to the board. they would be subject to State regulations, State The board's powers would. be: to request butnot to order compliance; order conservation closures enforcement officers, and-the-Staie judicialmachine- ry. It was because of the abdsej of State authority anywhere (it could not, however, lift sucha closure imposed by any of the 'parties); to adopt WDF, that the Federal district court orders provided tribal WDG, or Tribal Commission regulationsas Federal authority exclusive of State authority at off-reserva- reiulations where such regulations tion fishing grounds. Despite this, under the settle- were not or could not be effectively enforced; to make binding ment plan the Tribal Commission would not have decisions between competing, biologically sound concurrent jurisdiction over Indians iis:iing in the enhancement projects, one of which is off SCMZ, even though the State would have reserva- total tion and the other on reservation; to makea finding jurisdiction and enforcement authorityover non- of substantial noncompliance and recommend Indians fishing in the TCMZ.'" sus- pension of management functions toa three-judge Taken altogether, the plan removesany tribal Federal court, which inturn could order theY.- control (except licensing) over tribal fishing in usual appropriate Federal department toassume the func- and accustomed areas incorporated into the SCMZ. tions;'" and to issue an annual reporton the For tribes that are traditionally marine fishermen, implementation of the settlement to the Federal like thetMakahs, this provisionremoves most of the Government. Parties could appeal a decision of the fisheries . Jurisdictional authority recognized bythe board to the Federal district court; however, in Federal district court. For all tribes involved, this order to reverse a decision of the board, thecourt '" The January, draft of the plan would have provided thetribal commission court with authority over non-Indians in the TCMZ unless 1" "Settlement Plan." Seattle Hearing. vol Iv, pp 81-84. preempted by the State, Regional Team of The Federal T...4. Forceon '14 The proposed resort to a three-judge Federal court to adjudicate Washington State Fisheries. "Proposed Settlement for Wa.hington State matters or substantial nom.ompliame is a diange from the January draft of Salmon and Steelhead Fisheries," factsheet no I. p 3 (Jan16. 1978) the plan. which would have required Federalagencies to preempt (hereafter cited as "January Draft"). The provision was probably deleted.n light of the Oliphant decision (Oliphant v. Suquamish Indian Tribe. 435 management authority in such cases without a judicial determinationor U.S. 191 (1978)). which eliminated tribal judicial authorityover non. order "January Draft." p. 9 Indians, 85 9'7 would have to find it to be "clearly erFaneous," a The Tribal Commission could not exercise any difficult burden to meet."' authority other than licensingtreatyfishermen At a minimum, a major gap in the authority of the within the SCMZ, whereas both the Department of Fisheries Review Board, not residing anywhere else Fisheries and the Department of Game would have in the integrated management system, is the power some jurisdictional powers within the TCMZ. Al- to compel any agency to issue appropriate harvest though the Tribal Commission would have access to plans and regulations and .he authority to order data 'arid would collect data for the TCMZ, the closures of the, fishery for allocation of the resource control of data, including the allocation of the in order to achieve the goals of the settlement plan. harvest, .would be a State function. In addition, the The coordinated system for development of predic- Tribal Commission's role with respect to WDF and tive models and regulations should not be confused WDG management functions would be to review with the authority to control any aspect of resource and comment on State plans and refer compliance management. If agreement were not reached among issues to the Fisheries Review Board. Neither the managing agencies on any question, the authority to Tribal Commission nor the review board could make a final decision, subject to limited appeal compel compliance. rights, is designated in the plan to either the State or An additional problem is presented in relation to the Tribal Commission as above noted. the proposed taxing authority of the Tribal Commis- sion. Tulee v. State of Washington 192 held that the jurisdiction to tax the exercise of the treaty right The Tribal Commission resides with the tribes, not with the State, and Treaty-recognized fishing rights belong to the presumably not with an artificially created tribal individual tribes. For coordination purposes, entities commission. Additional compliance protection is have been established in each treaty area and for the offered in provisions which state that a failure to case area. The jurisdictional authority lo license, tax, meet resource distribution goals in any one year and regulate is vested in the tribes and not in any of would be made up in succeeding seasons whenever the coordinating entities. The Tribal Commission, to practicable. The settlement plan, however, does not be created under the plan, would be established by specifically delegate the authority to require adjust- the tribes delegating their individual jurisdictional ments by managing agencies for disproportionate authority to this single entity. The Tribal Commis- resource distribution."' sion would have the authority to run a fishery- related justice system, to license treaty fishermen, to Resource Distribe:on and Allocation tax the treaty right, and to operate the full range of Separate resource distribution plans are offered the remaining tribal management functions in the for salmon and steelhead. It appears that tribes are , TCMZ. If the Tribal Commission wished, it could being asked to relinquish a portion of their judicially redelegate its authority to individual tribes in their guaranteed percentage of fishing opportunity in reservation areas. The Tribal Commission would exchange for the promise of greater numbers of fish also have the authority to license nontreaty fish- in the future. Short of conducting an independent catchers in the TCMZ, including reservations. Ap- technical review of Washington State fisheries, it is parently the only authority retained by the tribes not possible to determine the likelihood that predict- would be to effect conservation closures for com- ed fishing opportunity will actually occur or that the mercial fishing in the TCMZ and for all fishing in eventual division of the resource between treaty and reservation areas. nontreaty fishing interests will occur. Jurisdiction has been an explosive issue in Indian Eventual fishing opportunity will-depend on the country; tribes do not lightly give up jurisdiction to success of a complex enhancement plan, augmenta- anyone, whether the entity is Indian or non-Indian. tion of tribal fishing fleets and diminishment of non- History has shown that the powers tribes give up are Indian commercial fleets (both outlined at length in rarely, if ever, recaptured. Major changes in Fe-demi the plan),194 and the practical ability of Indians to law would be required to effect a transfer such as the fish successfully at the same time and in the same one proposed. . waters as non-Indians who will outnumber them. "' pp 84-89 " "Settlement Plan." Seattle Ikaring. vol IV, pp I f4 and 267 "3 315 US 681(1942) "' Ibid . chaps. 6 and8. pp 285-348 86 There are still some points that may be noted percentage of fish existing at any time. The settle- about the distribution. The plan endeavors to distrib- ment plan replaces the treaty provisions witha ute the salmon resource by establishing fishing management system. It establishes rights to shares of limitations on treaty and nontreaty fishermen and on fishing opportunity among competinguser groups, fishing by different gear types in designated areas. and it divides an opportunity to harvest theresource The following geographical areasare considered numerically in some areas and separately under the plan: on a percentage basis in others. For example, theresource distribution for 1. Columbia River 2.Willapa Harbor the coastal tribes (Quinault, Hoh, and Quileute) is expressed in terms of "minimum harvest goals" for 3. Grays Harbor 4.Coastal rivers separate salmon species running in four coastal rivers. There is neither an expression of ,5.Ocean a right to a 6. Strait of Juan de Fuca set percentage of the catch nor any guaranteeas to 7. Puget Sound and International Pacific Sock- when or if the minimum numbers will be availableto these treaty eye Fishery Commission (Canada-USA treaty) wa- tribes.200 Thus, comparison to the ters08 existing right to 50 percent of harvestable salmon in In two of these areas, Puget Sound and Grays off-reservation areas, as expressed in the Federal Harbor, the plan 'would allocatea 40 percent court decision, is not possible. opportunity for catching salmon to treaty fishcatch- Some provisions can be compared, however, and ers, while nontribal fishcatchers are to be given an where this can be done, treaty fishcatchersseem to opportunity to harvest 60 percent.'" be losing a portion of their adjudicated rights (oras Treaty fishing is not recognized as a separate right expressed in the plan, forgoing exercise of these in Willapa Harbor or the Pacific Ocean under the rights). For example, in the two geographicareas plan.197 The Quinault Tribe is specifically expected where overall percentage of fishing opportunity is not to pursue the establishment of treaty fishing expressed in the plan, the tribesare given the rights in Willapa Harbor.'98 opportunity to catch 40 percent of the salmon, The plan for the Columbia River is adapted from compared to the 50 percent level expressed in the an agreement among the States of Washington and Bolds decision. In addition, the 40 percent allocation Oregon, the Yakima Nation, and three Oregon of opportunity for Puget Sound origin salmon would tribes. Broken down by species andrun, the agree- include fish taken by the tribes on reservation and ment is not susceptible to analysis of overall percent- those caught by treaty fishcatchers for ceremonial ages of fishing opportunity between treaty and and subsistence purposes. These categories of fish nontreaty fi thing. Simila'rly, the coastal riverspor- are available exclusively to the tribes under separate tion of the plan sets minimum harvest goalsfor treaty provisions and do not count in the 50 percent treatytribesinterms of numbers of fish,not share of off-reservation catches availableto the percentages, and the provisions for the Strait of Juan tribesunder the Federal district court'streaty de Fuca limit treaty and nontreaty fishing topresent interpretation."' The plan does hot specifically levels without specificity as to overallpercentag- compensate the affected tribes for this reduction in es.'" adjudicated fishing rights, nor does it offerany Itisdifficult to compare this plan with the explanation why the adjudicated allocation of fish decision of the Federal district court interms of for these tribes was reduced in the plan. ultimate fish catches for treaty and nontreaty fish- catchers because the bases of the twoare so different. The Federal district court decision relies Steelhead on a legal interpretation of treaty provisions to reach The treaties make no distinction betwcen salmon a finding of treaty fishing rights, expressed as a and steelhead, and the Federal district court and the '" Ibid,. pp. 219-6G "' This 'as later changed by the Supreme COurt decision that included Ibid pp. 219.251 'tl Ibid oreservation catches as well as ceremonial and subsistence catches in the , pp. 226. 233 trsbal 50 percent share, Washington v 1" !bid , p. 233 Washington State Commercial Passenger Fishing Ass'n, 11 S , 99 S. Ct 3055, 3095-76 (1979). At the '" Ibidpp. 222, 230-33. time 1111: plan was produced, however. the tribes still had a legal right pp. 237,40. to these catches over and above their 50 percent allocation. 87 99 U.S. Supreme Court have held that the treaties Each phase of steelhead fishing reduction would be apply equally to both sp.cies.202 The plan seeks to linked to specific guarantees that would eventually alter this holding by recognizing tribal rights to fish replace steelhead with a guaranteed minimum num- steelheadbutrequiringthattribes forgo these ber of available salmon.2" Agairf, by expressing rights.2°3 salmon harvest guarantees in terms of available fish The plan would have11federally-recognized rather than fish actually caught, there is room for tribes204 and 5 that may be recognized in the future's debate over how many fish are actually available. forgo their steelheadfishingrightscompletely. Also, there is no provision made for reintroduction Three more tribes"' would be required to stopotheir of commercial Indian steelhead fishing in the event steelhead fishing, but due to their current economic that numbers of returning salmon decline after dependency on the resource they would be provided replacement goals have been achieved. with steelhead income replacement grants until Thus, judicially established tribal steelhead fishing enhanced salmon resources are available as an rights,both on and off reservation, would be economically comparable,'alternative fishing effectively eliminated for some tri61 and replaced source:2°2 with a promise of salmon enhancement opportunities To determine the appropriate amounts of payment for others. to these tribes, run size estimates and other calcula- tions would be developed by the Washington De- License and Fleet Size Adjustments partment of Game and the Tribal Commission, with In recognition of the fact that there is an overcapi- the help of the joint technical committee. The talized non-Indian fishing effort on salmon, the Fisheries Review Board would review salmon en regional team recommended a reduction in the hancement program results and other management number of commercial salmon licenses, a reduction measures to determine when sufficient numbers of in charter boat licenses, and a "buy back" of vessels, replacement species were available so that payments gear, and licenses.212 Due to the imbalance between could be discontinued. Procedures are not spelled Indian and non-Indian marinefleets,a modest out by which compensation could be determined in buildup of Indian marine fishing power is proposed. the event of disagreements as to the data base. There Although the Indian fleet would be limited to a total is also no mention of the possibility of reinstituting size of 447, compared with 2,01021 boats of the same compensation to these tribes in the event that salmon classes for non-Indians after fleet reduction, itis replacements declineinsize after the Fisheries expected that traditional terminal Indian gear, mod- Review Board has ended compensation payments. It ernized with Federal aid,214 could account for the should be noted that in this section the plan speaks in fishing power necessary to bring Indian catch totals terms of available replacement fish, not in terms of up to those proposed in the plan. A major purpose of fish actually caught, and it does not identify the basis the plan is to adjust treaty and non-Indian fleets so as upon whLh the replacement grants would be deter- to justify the elimination of special treaty Indian mined. . fishingslays.2" g Two tribesin the south Puget Sound area208 Although the idea of rediZtion in the overall size would be permitted to fish for steelhead but restrict- of the fishing fleet has received general acceptance, ed in the number ot steelhead that could be commer- there is no certainty that the regional team proposal; cially sold. In part, this is a recognition of a mixed or any proposal for alteration orfleet size, would be run problem in which steelhead and the late running effective in protecting Indian fishing opportunity. chitin salmon pass through the river at the same The regional team notes that a large portion of time."9 licenses are issued to persons whose boats produce Finally, three coastal tribes210 would have their only a small percentage of salmon landings."' It is steelhead fishing eliminated in a four-phase process. useful to restrict the potential these relatively dor- 2" Id. at 3071-3073. 2" Mid . pp 278.279 "3 **Seattle Plan." Seattle Hearing. vol. IV. pp 272.275 Quinault. 'loth and Quileute !bid , p 279. Suquamish. Squaxm. Tulalip, Swinomish. Sauk-Suiattle, Noasack. pp 279-84 Lummi. Skokomish. Port Gamble. Makah. and Stillaguamish. Ibid , p 277 3" Ibid p 286 Snoqualmte. Duwamish, Sa mush, Stetheoom. and Snohomish Ibid 3. Ibid , table 8-5 p 348 Muckleshoot. Upper Skagit. and Lower Elwah Ibid 3. Ibid . table 8-3. p 345 3. Ibid. Ibid . pp 212.235 ". Puyallup and 7k:squally 3" Mid . p 287 88 mant licenses have for becoming productive ele- that The new entity, the Tribal Commission, be ments in the fisheries, but it has also been noted that established not simply as a coordinating entity reducing the number of marginally productive boats among the tribes, similar to the Northwest Indian means that more of the resource can be divided Fisheries Commission, but as a separate governmen- among the remaining gear holders 2" Thus a reduc- tal entity to centralize the tribes' collective manage- tion in the non-Indian fleet size. does not necessarily ment authority. 221 equate with additional fish for fisheries farther down To the tribes, eliminating individual, tribalman- the line where most traditional tribal fishing is done. agement authority was a major unacceptable ele An increase in tribal marine fishing ability is not ment of the plan. As Billy Frank, fish manager of the necessarily something tribes want to do, because it Nisqually Tribe and Northwest Indian Fish Corn- involves a change in the basic way of life for most missioner, said: tribes to move their fishing effort from river to marine waters. One of the things in that last report of the task force...is that it takes away our enforcement. Enhancement It takes our usual and accustomed fishing areas, and it also takes away our management. A key element of the regional team's plan is enhancementenlargement of theavailablere- Now, without the management, then I [might] source. The settlement plan proposes an expenditure just as well have never even started any kind of of $121.6 million to support an enhancement effort a process to have the U.S .v. Washington, and go designed to add 5.7 million salmon to the harvestable through all these years of putting a good lawsuit resource, increasing it to approximately 15 million against the State of Washington....222. salmon over a 10-year period.2The enhancement State _management was a different matter, how- -moneyincludes enough- to raise the steelhead catch ever. The regional team believed that in order to an additional 40,000 fish.2t9 The mammoth enhance- consolidate management functions there, the State ment effort is proposed in'order to restore commer- legislature would have to approve a realignment of cial viability to the fishing industry remaining after State agency functions, most likely involving the fleet alterations are made. The problems of substitut- removal of steelhead management authority from ing a promise of more fish for the right to catch fish the Department of Game. State sport fishing inter- guaranteed by treaties is discussed below. ests were viewed as having the political strength to prevent any such change of authority occurring in General Analysis the State legislature. So with respect to manage- The regional team draftedits plan upon the ment, the team recommended a system that it did not premise that the goal was to reach a result capable of consider the fairest or the most sensible. The team passing muster in the political arenas of the State and had to go with an idea its members thought could the Federal Government. In testimony, as well as in best approach the desired results for the fishery and the provisions contained in the plan, it is clear that emerge intact from the State and Federal political the regional team considered the relative political gauntlets?" strengths of the government and' interest groups More of the perceived political realities involved *involved as the plan was being drafted. in addressing the fishing rights controversy become As an example, the members of the team believed evident in view of the proposals put forward in the that it would be best for the fishery to coordinate plan. One of these was the fact that non-Iridian management as much as possible.22° In its plan for fishing groups would not accept any plan that tribal management, the team suggested that the permitted Indians extra fishing time. The extra authority to manage the resource, which under the Indian fishing time ordered by the Federal courtas a Federal district court decision each tribe possessed remedial measure to allow Indians a realistic oppor- individually, be conglomerated. The team proposed tunity to catch their share of fish was viewed by "T "For example. an average of 3.366 boats per year were licensed for ," "SettlementPlan." Seattle Hearing. volIv. pp. 185-400 commercial salmon trolling during the 4.year period 1972-1975 but an Ibid .13 173. average'of 267 boats (or only 8 percent of the fleet) landed 50 percent of the Alverson Testimony.Seattle Hearing. vol III.p 34. catch." State of Washington. Department of Fishenes.Status of Washing. "' "Settlement Man.-SeattleHearing. vol Iv.p. 98. ton's Commercial Troll Salmon Fishery in the .%f:d 1970s(1976) Technical ," Seattle Hearing. vol. III.p. 124. Report 21. p. 27. Alverson Testimony. ibidp 35 89 e 10.E non-Indian fishcatchers, as well as the State court moves tribes toward a change in the traditional system, as discrimination against non-Indians. The fishing culture they tried to preserve through the large non-Indian fleet made it impossible for Indian treaties. marine fishcatchers to compete for their court- deter- The tradeoff made little biological sense, because mined share of fishwithout specialhelp. The moving part of the fishing effort of river tribes to Federal court decision provided this by allowing deeper waters would exacerbate the problem of Indians to fish at places and times closed to non- mixed stock fisheries. Simply stated, fish in marine Indians.224 The mischaracterization orthe remedy as waters come from different rivers. When they return discrimination became the justification for the illegal to spawn a new generation, they return to those fishing that has been damaging the resource. It was rivers. Fisheries on mixed stock cannot differentiate well understood when the plan was devised that among fish headed for different rivers, and so a there was too much non-Indian fishing' gear in the modedte fishing effort might underharvest one water, with or without Indian competition. An river'sfish stock while severely overharvesting obvious answer this problem and the disparity in another. A more appropriate answer biologically Indian fishing power was to limit the size of the non- would be to switch fishing effort nearer to originat- Indian fleet. Non-Indian fishing groups objected to ing rivers, but such a solution would be unaceept: the imposition of limitations on the size or fishing able to the commercial non-Indian fleet. Encourage- opportunity of the non-Indian fleet. They objected ment of riyer-fishing-would-also-make-moresense in even more, however, toallo-v-Citig- Itidiatisextra this age of rising fuel prices and fuel shortages,222 fishing time.2It was possible, in this case, to require but, again, such considerations had to be subordinat- a trade in the plan providing for a partial reduction ed to an approach deemed politically acceptable. in the size of the non-Indian fleet and a concurrent increase -in-Indian- -gear- -to- a-point-where-the-fleets Another perception of political reality was that would be close enough in size (in the view of the the State would not be favorably disposed td any regional team) to eliminate extra treaty fishing plan that challenged its management authority. As days. 226 Gordon Sandison, director of the Washington De- Though this compromise was viewed as being partment of Fisheries, plainly put it, "I don't think politically palatable to the resistant mg:Indian com- the Federal Government should be involved in , mercial groups, it would be a partial abrogation of managing the .fisheries of the State of Washing- treaty tights for tribes that customarily fished in ton."222 When the regional team was cleated, there rivers:Instead of allowing fish to return to those were clearly two factors that challenged the State's usual and accustomed tribal fishing places, which authority. One wa: the Federal judiciary itself, were along rivers, the provision would force tribes, which was managing the fishery on a day-to-day in part, to change their fishing styles. Cheap aid basis due to State default in complying With Federal efficient method developed by IndiansI tch fish orders, and the other was the ruling of the court that near their homes would be shifted t? make I ans recognized the right of Indian tribes to manage their more competitive in deepwater areas of the 'ays, own off -reservation fisheries at "usual and accus- Puget Sound, and the Pacific Oceani.lti h boats tomed places," free from State interfetence except would be provided by the Federal Government, for conservation purposes. maintenance, insurance, fuel, repairs, and other The plan was more subtle in addressing these incidental costs would have to be borne by Indians, perCeptions. By a combination of provisions,it who, though they might profit from these changes, would have effectively made State control domi would also be subject to a significantly greater risk nant, even though abuse of State power in control- of loss. A major point of the Federal court case was ling fisheries was a basic reason for the Federal to guarantee a meaningful right not just to catch fish, litigation in the first place. Elimination of usual and but also to catch them in a tribal manner. The plan accustomed fishing places in favor of Tribal Com- ". United States vWashington. 459 F Supp1020, 1036 (Decision. State Salmon and Steelhead Fishenes. July 31, 1978. Seattle Hearing. vol. Injunction. and Order of Sept. 12. 1974) (limitation on harvest); ,d. at 1125, IV, exhibit no. 10. p 631. 1129 (Preliminary Injunction of June 6. 1978). "' In 1977 trollers with gross receipts between S10,030 and $20,000 i" Puget Sound Gillnetters Ass'n v Moos. 565 P 2d 1151 (Wash 1977) reported that fuer costs averaged about 6 percent of those receipts Petty r" James Waldo. interview in Seattle. Wash.. Aug. 15. 1978: Purse Seine Report. p. 152 Vessel Owners Association. Response to Settlement Plan for Washington "' Gordon Sandison, testimony, Seattle Hearing. vol 1. p 18 90 102 mercial Management Zones (TCMZ) reduced tribal which their right to a fixed percentage of fish was authority to smaller, less productive areas.229 Tribal being traded for the promise of an increased number fishcatchers in usual and accustomed grounds not of fish.233 o included within the TCMZs would be subject to This divergence in views made little difference in State regulations and State criminal prosecution for the setting of a settlement agreement, but in the violations. Freeing tribal fishcatchers from this type context of an involuntary legislative settlement, of control, which in the past had been coercively were the plan to be congressionally enactdd, Dr. used, was a major victory for the tribes that would Alverson's view might be taken to mean *hat be rendered nugatory by these provisions. Creation enhancement constitutes payment for the taki,.g of of an impotent review process to replace the tribal rights. That line of reasoning would require authority of the Federal district court would el;mi- evaluating the treaty right in dollars and equating nate the State's 'fear of Federal judicial sanctions. that with the yalue of enhancement dollars, a The creation of a Tribal Commission to replace the process not performed.234 authority of individual tribes would tamper with the Enhancement is not a simple matter of planting essence of tribal government and reduce the power more fish and reaping more return. There are many of individual tribes to have a say in a matter of complicating factors such as disease, ocean intercep- fundamental importance to each of them. Although tions, and the carrying capacity of waterways that this consolidation of tribal authority may never be have an impact On the return on theitivestment in acceptable to the tribes, it would certainly be looked enhancement.Thereissufficientdisagreement upon with favor by the State, since it would be a among biologists on what can be achieved through smaller, less representative body, more subject to enhancement213 to make it doubtful that any pro- manipulation.23° posed enhancement could be considered the consti- __Finally, there may_have been a perception that to tutionally required "just compensation" for the make the plan acceptable, more fish had to be made- taking of tribal treaty rights. available toallfishcatchers. Thl regional team There is also a significant question as to who proposed to gain support by recommending Federal benefits from enhancement. Since Indians are gener- enhancement money for the construction of fish ally the last in line to fish, the mere fact that more hatcheries and habitat improvements that, according fish will be produced is not a guarantee that the to their calculations, would double the size of the tribes will get them.236 In addition, it appears that available resource. At least with respect io tribes, it enhancement of the resource has been made neces- was perceived that treaty rights'were not the issue sary, irre§pective of the recognition of Irdian treaty but the commercial value of fish that was the fishing rights, in large measure from o'erfishing, priority interest. According to regional team mem- property development, dam building, environmental ber John Merkel, treaties "can be done away with degradation, and other factors beyond the control of anything can be modifiedit is just a question of the, tribes involved.237 To the extent that enhance- money. ...If they want principles instead of fish, ment replenishes the salmon supply depleted by that's their business."231 these; non-Indian causes, it is, at most, payment for The promise of resource enhancement as a substi- damage already done rather than compensation to tute for the exercise of tribal fishing rights is a matter the tribes for rights that might be lost as a result of that raises both legal and practical questions. The enacting the plan. members'of the regional team did not view the legal implications of enhancement in a uniform way. Mr. Battling Back to Court Merkel saw it as just an incentive to bargain, not to The work of the regional team of the national task be equated with the purchase of treaty rights in a , )rce progressed from April 1977 through June constitutional sense.232 Dr. Alverson 'saw enhance- 1978. During this time, there were other arenas in ment clearly as an exchange offered to the tribes in which/the fishing rights battle was being fought. "2" KinleY TeStiindny, Sibttk Hearing. vol. 111. p. 122. '" Seattle Hearing vol. 1-11, p. 37. 2" See State of Washington. Department of Fisheries and Game. Com- 2" Dayton L Alverson, interview in Seattle. Wash Aug. 11, 1978. ments on Settkment Plan for Washington State Salmon and Steelhead 2" Merkel Testimony, Seattle Hearing. vol. 111. pp 36-37 Fisheries and Alternative Fishery Management Plan. Aug. 22. 1978, Seattle Alverson Testimony. tbtd, pp. 37-38 Hearing. vol. Iv. p. 425 2" Morisset Testimony. ibidp. 73. 22, John Merkel, interview in Seattle, Wash,. Aug I I, 1978 "' Ibtd.. p. 37. 91 O State and Federal judicial systems became embroiled allocation regulations anyway. Despite the cozy in a battle of their own as two separate lines of relationship between plaintiffs and defendants in decisions worked their way through the courts. these cases, the resulting elimination of State author- In essence, when the Federal court ruled in 1974 ity left a void in enforcement of the Federal court's That the Indian tribes of western Washington had orders. fishingrightsthat entitled them to a realizable Kesponding to this dilemma, the Federal district opportunity to catch half the harvestable s.71,rnon and court stopped trying to work through the State steelhead entering the waters of the State, it did so government and, instead, took over fishery manage- with the')expectation that the enforcement machine- ry bf the State would be used to secure the Indian ment directly, to the extent it thought necessary to fishing rights determined to exist by the court.233 As protect the treaty right.22 indicated previously, this did not come to pass. By Without the assistance of the State, the only the summer of 1977 the situation was viewed as method available to the Federal court enforte its critical: . decree was through Federal agencies. Accordingly, the court issued a series of orders through which the The state.. ,.with well publicized reluctance, issued regulations which, if enforced, would treaty fishery was removed from State jurisdiction23_ - have metthe-districtcoon'srequire- and transferred -to "Federal -EnfoiCement agents. To ments. ..State prosecutors refused...to prose- prevent non - Indians from further violating treaty cute violations in the few instances where the fishing rights, the Federal court required that they State issued citations.239 call a special telephone number before going fishing . On June 9, 1977, the State supreme court ruled to find out which marine areas would be open to that, as a matter of State law, State enforcement salmon fishing.244 Then the court, through its ap- officials had_no_authority to enforce regulations pointed advisor, went about the_process of gathering designed to allocate fish between Indians and non- data and making determinations on which portions Indians.240 State officials were caught in the middle of the fisheries should be opened and closedor of Federal court rulings ordering them to enforce otherwise regulated in order to achieve-the result of Federal law and State courts telling them they had allocating an appropriate share to the tribes. no authority to do so. The court's assumption of direct control over The State court cases held that under State law fishing was not based upon any statute, but rather the Washington State Department of Fisheries had upon the equitable power of a Federal court to no authority to allocatefish among competing enforce its own decisions. Thus, the court had to use groups us:ng the same type of fishing gear and that it its contempt powers to prevent violations- of its was beyond the power of the Federal district court orders. This method was, at best, awkward. To hold to require State officials to act beyOnd their statuto- ry authority. The State supreme court also decided non-Indians in contempt- who -were fishing in viola- that fishing regulations that differentiated between tion of court orders, they had to be notified officially Indians and non-Indians were unconstitutional dis- of the court's injunction. This required that copies of crimination and therefore could not be enforced by the orders be served upon each individual fishcatch- the State Department of Fisheries.' er. To do this, the court ordered agents of the \II parties in these State cases were winners. The National Marine Fisheries Service, the United States cases consisted of fishing associations, representing Marshals Service, and the Coast Guard to carry members who did not want to be subject to the copies, of the injunction to State-licensed, commer- treaty rights rulings of the Federal court, bringing cial net salmon fishcatchers. After 2,445 fishcatchers an action against the State government, which did had been served with notice, the judge entered an not wish to enforce its reluctantly established treaty injunction requiring them to obey fishing orders 22" Usnited States v Washington, 384 F Supp 312, 415-16 "' Puget Sound Gillnetters Assn v United States District Court. 573 F.2d ". Puge Sound Gillnetters Ass'n v United States District Court. 573 F 2d 1123, 1128 Oh Cif, 1978) 1123, 1129 (9th CIL 1978) 2" Puget Sound Gillitetters Ass'n v Moos. 565 P 2d 1151 (Wash 1977) Id. at 1126 2. Washington State Commercial Passenger Fishing Vessel Ass'ns 2 United Stairs v Washington, 459 F Supp 1e20. 1125 (W D Wash Tollerson, 571 PA 1373 (Wash 1977), Purse Seine Vessel Owners Ass'n v Moos. 567 P 2d 205 (Wash 1977), Puget Sound Gillnetiers Ass'n v Moos, June 1978) (preliminary injunction) 565 P 2d 1151 (Wash, 1977) 92 04 established by the court or risk being held in Enforcement is a problem because the state, its contempt.245 courts, and the non-Indian .fishers have never The State of Washington and groups representing fully accepted the principle that treaty rights can be claimed by a politically impotent minori- non-Indian fishcatchers appealed the orders of the ty. Before -1977 the State enforced the district Federal district court, claiming, among other things, court's orders grudgingly at best. The current that the district court was: denying non-Indians their crisis is the result of a breakdown in state law right to equal protection of the law by allocating fish enforcement in 1977.2" O .to Indians, exceeding its authority by assuming direct &mtrol over the State's responsibility for fish Based upon the State's refusal to enforce Federal management, and violating the rights of non-Indian law, the court of appeals held- that the Federal fishcatchers by requiring them to obey an injunction district court had the authority to use thee equitable issued in a case in which they were. not technically powers possessed by Federal courts to protect those involved as parties. -'6 rights. The Federal court of appeals issued its decision .The alternatives would have, been to force the 'with the historical intransigence of State institutions State government to comply with Federal court on treaty_fishing_cases.clearly-in mind. The difficult orders by holding State officials in contempt of situation facing theFederal district court was noted Federal court or to allow treaty rights to fall in the in the opinion of the Federal appellate court when it face of official and private resistance. Thus, with no a stated: other viable choices, the Federal court fashioned an appropriate remedy iii-undertaking fishery manage- ment and enforcement for the benefit of the treaty The state's extraordinary machinations in resist- tribes. ing the decree have forced the district court to The specific legal arguments raised before the take over a large share of the management of the state's fishery in order to enforce its decrees. court of appeals were found by it to be without Except fof some desegregation cases [citations merit. The court of appeals reiterated the holding of omitted] the district court has faced the most the Sohappy case in Oregon, which had decided 8 concerted official and private efforts to frustrate years earlier that there was no denial of equal a decree of a federal court witnessed in this protection of the law in allocating the fish resource century. The challenged orders in this appeal between Indians and non-Indians, or by separately must be reviewed by this court in the context of regulatingthefishingactivities two events forced by litigants who offered the court of these no reasonable choice."' groups." The rights of the Indians to fish came from the treaties that legitimately recognized them The Federal c curt of appeals carefully restricted and their successors as a separate political group its review to the propriety of the Federal district with distinct rights in the fisheries.222 The court court's direct intervention into fishery management pointed out that race was only a factor in determin- and the enforcement orders generated by it. The ing who was a member of the specific political court did not reopen the matter of actual allocation, group that had a treaty agreement with the United i.e., the percentage of fish due to the treaty tribes, States. Indians who were not members of treaty noting that the allocation question had already been tribes had no special rights and, as a race, were litigated and decided in 1974 and made final after subject to fishing laws of the State just like anyone available appeals were exhausted."' else.223 Given the chain of events that preceded the The court of appeals also held that there was no Federal district court's removal of the treaty fishery merit to the argument that the district court was from State hands, the court of appeals upheld the without authority to impose its orders directly upon district court's actions as being reasonable?" the non-Indian. fishcatchers themselves, who techni- "' United States v. Washington. 459 F. Supp. 1020, 1125 (W.D. Wash. "' Id. at 1126. June 1978) (preliminary injunction). 2" Id. at 1129. o 2" Puget Sound Gillnetters Ass'n v. United States District Court, 573 F.2d, '" Id. 1123. 5127. 1129. 1132 (9th Cir. 1978). In tl.e case leading to the Federal 2" Id. at II2S district court decision in 1974, fishing associations and non Indian fish- catchers were not technically parties. Any rights or privileges they may "'Id. at 1127-28. have in the fishery, however. are derived from the State. and so their '" Id. at 1128. interests were legally presumed to be represented by the State Id. at 1132 "' Id. at 1127-28 105 93 ,- tally were not parties to the ,earlier litigations that Depa rtmentand Interior Department haven't had decided the extent of the treaty fishing rights. insisted on this. Thist'jitst seems like simple The Federal court of appeals found that the interests justice and the America'ay to me.25' of the non - Indians, lvere in fact represented *by the The State, nominal loser in the State supreme court State, and, given the failure of State to enforce cases as well as in the case before the Ninth Circuit the decision against them, they.could, with proper'r notice, be made subject to the contempt power of Federal Court of Appeals, filed "petitions for review with the United States 4upremetourt the Federal cOurt.254 A troubling aspect of the dispute in 1977 was the The response of -the United Statesto these direct confrontation' that had developed between petitions was to become the source of a separate State and Federal judiciaries. the State supreme,cpntrbversy. between the tribes and.,the Federal court decisions were used as the basis for a ruling Government. From the trikal viewpoint, tits- case that not only prevented the WashingtonZppartment was over and they had won. Their fishitg.rightS had __of-Fisheries from, enforcing the Federal court alloca- been judicially established,iiid-the-Federal district tion orders but went beyond them, requiring the court was prepared to take control of the fisheryas department to violate those orders by promulgating necessafS, to protect tht,ir, rights. The authority of fishing regulations that would allow non-Indian the Federal district court to do this had just been fisheatchers to take much of the treaty Indian completely upheld by the court of appeals, and it share.'" The Federal court responded to the State finally looked as though treaty rights might be trial court's -ruling by blocking the State court's,honored in a way. that would mewl fish for the order and by enjoining that court from taking any tribes. The United States Departments of Justice and .further actions to violate the Federal court's ord- the Interior, however, did not agree with the tribal 'ers.2' The Federal court of appeals found this action view. They were concerned that the State-Federal by the Federal district court to be totally appropri: conflict wa§ serious and that a decision by the U.S. -ate under the circumstances.257 The confrontation Supreme Court on tFejundamental meaning of the between court systems, however, was obvious and treaties might finally end the dispute and restore extreme, and, as the interplay continued, the fish order.259 ; resource was being damaged. When the tribes learned that the United States a.4 a, This new litigationseries gave the State its litigant was considering a position of agreeing to opportunity to claim that there was now an absolute review by the U.S. Supreme Court, they protested division of authority between State and Federal vehemently. Tribal attorneys joined in a memoran- courts that only the United States Supreme Court dum adamantly opposing further review S60 There zould ultimately determine. The State of Washing- were many reasons to oppose review. First, as a ton and the associations representing its non - Indian general matter, the winner-Of a case does not seek fishcatchers. were stilleager to have the case further review, since any review runs the risk that reviewed by the United States Supreme Court. One the lower court's decision might be reversed in representative of non - Indian commercial fishcatch- whole or in part. In this case, the tribal attorneys ers expressed a prevailing non-Indian view at the believed that a victory in the Supreme Court would time: solve very little because, in order to overcome the State refusal to protect treaty rights, the State .. .We have sa confrontation between State courts and Mira! courts..So that the°legislature would have to grant affirmative authority simple solution is to have the entire Boldt to the State Department of Fisheries to regulate the decision heard by the Supreme Court. I can't resource in a way that would assure an allocation for see -any other honorable way out for our the tribes. The U.S. Supreme Court, in their view, country. . .I can't understand that our Justice could, at best, completely uphold the basis of Judge "' Id. at 1132. 1978. at 19-21. Washington v. Washington State Commercial Passenger "' Puget Sound Gillnetters Assn v Sandison. No 58107 (Superior Court, Fishing Vessel Ass'n. U.S 99 S Ct. 3055 (hereafter cited as 0.S. Brief Thurston County, Wash. 1977) onPoution). "4 Order of Aug. 31. 1977, United States v. Washington, 459 F Supp fte 1020. IBM (W.D. Wash. 1978). 4ason D. Mt.:is-set. Steven S Anderson. Alan C. Stay. Thomas 1'. "4 573 F.2d at 1133. Schlosser. William M. Rodgers. Jr . Litigation Memorandum to the United *" Green Testimony. Seattleflexing. vol. III,p. 98 States Department of the Interior. Department or Justice. and Solicitor "' Brief for the United States on Petitions for Certiorari, filed Sept19. General of the United States, Aug 10. 1978. (Commission files.) ' 94 'Ufi , ; - Boldt's original 4ecisions, and it would then still be41ispropationate sHare of its limited enforcement up -to thaTeder,i1 Government to enforce any orders' personnel on :oval enforcement.2". ._..._,...'of the Federal district court,, as it was already One eleinent that must be incorporated into thb .... dojo.") . .. : decgionmaking process.of the Solicitor General ina The complexity of the case was also viewed as a case involving Indian rights is the view of the problem, because omission or distortion"of relevant Department of the Interior, regardless of whether' facts- might result in an adverse ruling on some that position is finally ,used in court. Interior is.the aspect of the case not fully brought 'out in appellate Federal department having primary responsibility: argument. This fear was, in part, based on prior for adtWinisteation of_the United States' trust rela- . Supreme Court rulings in the Puyallup cases men- tionsiiip with Indian tribes. The Solicitor of the__ tioned earlier. Tribal attorpeys pointed out that in Department, as its chief legal officer, communicates- the second. Puyallup case Nto reach ie Susp?eme Interior's itigative -positions to the Department of . r. Court, tlyee:justices said they would have decided _Justice, Which then, after adding its own judgmenl, an issue concerning hatchery fish adversely to the 'represents the view of the United Slates in court. In ,_ .tribes 'eve!' though that point had n i been full this case, the Solicitor of the Interior Department \ .9 litigated.m Simila? problems might ar in a new, communicated his views on the petitions for review: Supreme Court decision if the whole fishi . . . pending before the Supreme Court to the Solicitor case was reopened."' General. The United States Department of Justice recog- Despite recommendations to the contrary from nized that there were cogent reasons why the case the tribalattorneys, the Associate Solicitor for 'should not be reviewed, including the complexity of Indian Affairs,2" and the Assistant Secretary for"` the case, the fact that the bases of the cast:. had been Indian Affairs,2" Interior's Solicitor suggested that affirmed twice by the Ninth Circuit Court of the United States accede to the requests for U.S. Appeals; and that the Supreme Court of the United Supreme Court review and that the review be ' States had previously denied timely review of those limited 1,6 the issue of the propriety of the district .. basic issues, making the ruling of thelowercourtson court's allocation of 50 percent of the harvestable ose points a definitive Statement of law, which the salmon resource to Indian tribes. In a letter to the n-Indians were trying to relitigate.2" The Justice Solicitor General of the United States, the Interior Department, noting these. points, said, "in these Department Solicitor suggested that settling the circumstances, We would normally urge denial of interpretation of treaty rights at the U.S. Supreme the petitions for certiorari'," Court level would resolve the differences between 1 Instead, the Solicitor General of the UnitedStates, Federal and State courts that if continued would, in who determines the positions to be taken by the his view, inevitably lead to a direct conflict over United States before the U.S. Supreme Court, chose control of the salmon resource.2" Apparently, the to acquiesce in Washington State's request fora view was that instead of making the .conflict be- hearing. Three "very real practical problems" were tween the State and Federal courts the main item for cited as reasons for agreeing to the review. First, the review, the difference between those court systems' conflict of State and Federal decisions had caused a interpretationi of treaty rights would be made the breakdown in enforcement leading to the destruc- central issue. A definitive ruling by an authority tion of the fish resource; second, the Federal district superior to both court systems would cause the court had become a manager of fisheries in Washing- other differences between State and Federal courts ton State on a day-to-day basis, a function that flowing from that matter to dissolve. should be in State hands; and third; the Federal In suggesting this course, the Solicitor was advo- Government had been forced to concentrate a cating the most risky course for the treaty rights. If "I Ibid.. pp. 3-4. U.S. Brief on Pattionat 19, "" Ibid., p. 3. f N'Id. "1 A simple illustration a this problem is the notion that equal time and '"Id.at 19-20. access to the fishery would provide Indians a fair ant! equal shareorfish caught. A failure to understand that most Indian "usual and accustomed" *I' Thomas W Fredericks, Memorandum to the Solicitor, Aug 17, 1978 fishing places are at the endorthe line could blind a court to the reality that (Commission files.) the nght to such places would be devoid of meaning if nonIndians were :" Forrest Gerard, 81eMorandum to the Solicitor, Aug 17. 1978 (Corn. allowed an untrammeled opportunity to catch all the fish before the fish mission files ) could get to those places where Indians catch them "' Leo Kruhtz to Wade II MCCree, Jr.. Aug IS. 1978 (Commission files ) I 95 the U.S. Supreme Court review were confined to a State, which'atready has an operating enforcement consideration of the propriety of Federal district apparatus. court orders allocating fish to treaty Indians, its If the Unit States can obtain the assistance of decision would haven() direct effect on the.question the State (or any other entity) to enforce its treaty . of the State's responsibility to enforce Any such obligations, without damaging the rights involved, ,allocation order. Furthermore, by focusing Supreme then that is an acceptable way to fulfill a Federal" Court attention on allocation, tribes would have.obligation, but the obligation sema;ns with .the nothing to gain directly, because they already had United States. The desire of the United States to stay the hest allocation of the resource they could expect out of local fishery management or to reduce the to achieve. It would be quite possible, however, for level of commitment of its enforcement resources is the Supreme Court, 'in its decision, to reduce the irrelevant to this obligation. If, as in this case, the allocation to tribes or in some other way jeopardize alternate means chosen fails to meet the obligation, tribal fishing rights already established in lower the United States must reassume an active role. In Federal courts. fact, for the latter half of the 1977 fishing season and Although the Solicitor General did not take this the entire 1978 season, the Federal Government had advice and request the Suprenit Court to limit its made a substantial commitment to the enforcement. review to the 50-50 allocation of fish, he did of the Federal district ,.:Jurt's rulings. It created an acquiesce in the requests for Supreme Court review interagency pool of Federal enforcement officers to by Washington State and non-Indian fishing groups. carry out the court's orders, consisting of officers The Solicitor General listed the allocation question from the Departments of the Interior, Justice, as the first of six questions presented to the Court by Commerce, and Transportation."' 'the case.2" The commitment of these resources, however, The differing interests of the tribes and the United was viewed as a strain on Federal resources that the States were clearly demonstrated in this case. Only United States would prefer not to have to continue. the first reason given for reviewing the case, i.e., the As expressed in the filings of the Federal flovern- impact on the resource of the failure to enforce the .ment before the IA. Supreme Court, Federal treaty rights decision-, was a matter of concern to the enforcement of treaty fishing rights was viewed as a tribes. The secoqd reason given, the need for the temporary measure, to be replaced once again by Federaraistrict court tomanage the fishery on a State enforcement apparatus once the matter had day-to-day basis, and the third reason, that the been settled legally.222 Federal Government was beinrforced to concen- To the extent that Federal actions are motivated trate limited enforcement resources in Washington by a desire to get ou.of the management and State, were matters of State-Federal conflict and enforcement responsibiliNs which it was forced to Federal tAidgetary problems that legally had nothing undertake, there is an underlying danger that treaty to do with the tribal interest in securing fishing rights may be compromised. That danger is particu- rights. . larly noticeable in this case. Ending Federal inter- Determining which goyernment has a responsibil- vention puts significant 'authority over treaty right ity to enforce established treaty rights is a very fishing back into the hands of the same State different question from allowing a redetermination government that had ignored treaty rights until of what those treaty rights mean._ It was thus in the forced to recognize them and then resisted their interest of both the tribes and of United Stales as implementatibn with recalcitrance strong enough to trustee to have these rights enforced, but it was only motivate Federal courts to point it out separately in in the interest of the United States, not as trustee, to their own judicial opinions. settle the enforcement issue both as a State and as a Agreeing to have the Supreme Court reopen the Federal responsibility. Such a decision would shlt a entire decision upholding treaty rights was certainly significant share of the enforcement burden fr the not the only available course of action. Instead, the United States, which is primarily responsi e for United States could have suggested review limited upholding its treaty agreements with tribes, the (as it was by the Ninth Circuit Court of Appeals) to ". U.S Brief on Petition at 3 s" Bud for the United States filed Jan 30. 1479. at 81. Washington v. "' U S. Department of the Interior. "Report on Implementation of the Washingtiin Stale Commercial Passenger Fishing Vessel Ass'n. 45. Hrlsinli Final Act." Washington. D C 1979. pp 35-37 99 5 Ct 3055(1979) . 96 0 a determination of the responsibility of State courts When it filed a brief with the Cour,, the Depart- to uphold Federal rulings on treaty rights. With that ment of Justice significantly altered the position issue stated as a limiting ground rule, arguments of expressed inits acquiescence to Supreme Court all parties could have been restricted to proceeding review. Initsbrief,the United States argued from the basis that the allocation orders based on principally that the substance of the lower court's 1974 treaty rights interpretations were all final and decisions, including the allocation of fish between not subject to further review. In that context, only Indians and non-Indians, should not be reviewed. the State-Federal conflict would have been present- Instead, it argued that the authority of the district ed, and the decision, no matter what it was, would court today to enforce the ;ay.', which it determined deal only with how the rights would be enforced. to be applicable to the case 5 years earlier, should be The rights themselves would not be subject to supported and upheld over the objections and modification. interference of the State court system.273 The scope The United States could also have opposed of review suggested by the Department of Justice reyiew outright and shifted its effort toward seeking was essentially the same as that utilized by the Ninth from Congress whitever additional authority or Circuit Court of Appeals that refused to reopen the budgetary support iHnight have needed to create an question the propriety of the allocation of fish to effective management-enforcement presence on a treaty Indians because that had been established as permanent basis. Although the creation of a continu- law through earlier decisions. ing Federal enforcement presence would have been, It is' difficult to tell whether the U.S. Supreme a fundamental change from the view that regulation Court might have restricted its review, as the court of fishing in State waters is a State prerogative, a of appeals had, if the Jgtice Department had strong argument could have been made to the expressed a desire to restrict review when the Congress that Washington State had so thoroughly Supreme Court was deciding whether or not to hear defaulted in its obligation with respect to treaty the case. At that time, as noted in the previous rights that jurisdiction to regulate or enforce any section, the Department was suggesting to aspect of treaty right fishing should be removed the from its authority. Supreme Court that it fully review the basic treaty rights decision, hoping that this time a firm state- Neither_the- above approaches nor any similar ment from the Supreme Court would make it clear alternative was tried. In recommending a full reyiew of the basis for the 1974 decision of the Federal that the Federal court interpretation of treaty rights district court establishing treaty fishing rights, the was correct and entitled to be enforced."' Department of Justice threw its considerable weight On July 2, 1979, the U.S. Supreme Court issued its behind the State's position that the U.S. Supreme long awaited 'opinion in the case."' The Court Court should make its own determination of what reviewed the original decision of the Federal diitrict the treaty rights really meant. Once again, the tribes court, the Boldt decision, upholding it almosfentire- faced the prospect of a new judicial determination of ly.It upheld the district court's determination of the rights they possessed. what constitutes "usual and accustomed" fishing places.27' It upheld the conclusion that the treaties did grant righ& to the Indians separate from those 'The Supreme Court Hears the Case which non-Indian citizens have.277 It upheld the The Supreme Court decided that it wpuld hear district court's authority to enforce its own decision the case. As the Indians had feared, the issues before when faced with a State refusal to do so, and it the Court were not restricted, as they VaZ been it included itr-that -enforcement -power -the- ability to the circuit court of appeals, to the propriety of the require compliance by non-Indian fishcatchers even Federal district court's'assuming control over treaty though they were not technically parties to the right enforcement. The substance of the decision case.2" In a footnote, the Supreme Court disposed of allocating a set share of the catch to treaty tribes was the State'c argument that enforcement of treaty considered a central and reviewable issue. 7 rights through an allocation of the fish would violate "I Id. at 46-47. 2" Id at 3064 -65. to U.S. Briefon Petition at 22 2" Id. at 3070. n 22 "' State of Washington vWashington State Commercial Passenger 2" Id at 3068. n, 32 Fishing Vessel Assn. U.S . 99 S Ct 3055 (1979) 97 0 equal protection principles, noting that this issue had treaty rights may be honored by allocating a set already been decided correctly in previous Federal share of fish to treaty tribes and that such an cases, which .held that there was no denial of equal allocation is not unlawful discrimination. Now that protection."9 these issues have been determined, thereis the The Supreme Court agreed with the lower court's question of the practical effect of the decision for understanding that the treaties were not the result of treaty and non-Indian fishcatchers in Washington military conflict, nor were the Indians a "con- quered" society. Instead, these were arm's-length State. negotiated agreements by which land and rights One immediate effect of the decision is to remove were traded away by the tribes in return for the impediment to State enforcement of treaty promises of protection and guarantees acknowledg- rights,held toexist by the Washington State ing rights reserved by them.' " Supreme Court. This means that the State Depart- Yet, despite these rulings, the tribes did lose some ment of Fisheries has the authority to promulgate of the thingS they had won in Judge Boldt's court. regulations restricting non-Indian fishcatchers in The 50 percent allocation of the district court was order to provide an opportunity for,tribes to catch modified downward by including in its calculation their allotted share of the fish runs. the subsistence and ceremonial catches that the Public statements by State officials, issued shortly slower court had considered to be a separate caw- after the U.S. Supreme Court's decision, indicated a gory exclusively owned by the tribes and not,to be recognition that the State had a responsibility to shared? " The Supreme Court also decided that fish protect tribal treaty fishing rights. They also force- caught on reservation were to be included in the 50 percent treatyright,despitethe lower court's fully declared that the "State of Washington should determination that "on-reservation' catches, cov- be the manager of the salmon fishery."2" ered separately in the treaties, were the exclusive One problem with the U.S. Supreme Court's possession of the tribes."2 decision is that it did not affirmatively establish the The Supreme Court added some confusion to the ecifics of tribal management rights, but merely left determination of the appropriate allocation by dec- the lower court rulings undisturbed on that issue. laring that the 50 percent figure was a maximum The previous pattern was that the State ignored amount for the treaty tribes. It said that the percent- treaty rights until told otherwise by a Federal court. age was subject to downward adjustment, based on If the State does show good faith by establishing changing circumstances such as a decreased need for regulations that effectively allocate half the fish to subsistence fishing, but it failed to set the criteria tribes,if it doesnot_ try_to _seize _on_ambiguous__ - -.upon which-such a decision-was-to-be-made2".Thus,--- further negotiation, legislation, or perhaps more language or issues not fully decided by the Supreme court battles are likely on this point. Court to modify the intent of Federal decisions Although the tribes clearly won their case in the interpreting treaty law, if it does not in practice Supreme Court, they cannot sit back and enjoy the manipulate control over fisheries in a manner that victory. The matter is still not completely settled, forces Indians back to court to protect their rights, and even if it were settled judicially, the Congress then the State will have broken sharply with the would not be required to let the decision stand as it historical role it has played. is. There are already some indications that the State plans to ,extend its fisheries authority following the Fpilogue U.S. Supreme Court decision. Early statements by The U.S. Supreme Court has made its decision, State officials to the effect that the whole concept o upholding lower Federal court decisions that recog- tribal self-regulation in their fisheriesis "out the nize separate treaty fishing rights among certain window as a result pf the. ..decision,"2" and that northw'est Indian tribes. The Court has decided that "' Idat 3068. n.20 z" State of Washington. Office of the Governor. News Release. July 17. ".Id.at 3069 1979. State of Washington. Department of Fisheries. News Release. ",Id.at 3076 "Supreme Court Ruling." July 2. 1979 8,Id.at 3075-76 "lade Gorton. State attorney general, quoted inlaminaNossTribune. ",Id.at 3075 July 4. 1979. p [3-14 98 the decision has given the State a new power to As legislation moves through Congress, non-Indi- regulate on-reservation fishing for conservation". an interest groups will undoubtedly try to amend it are interpretations beyond slw actual decision of the to limit judicially determined treaty rights. For Court and indicate a likelihood of further friction example, the Washington Department of Game and between tribes and the State in the coming years. its constituency persist in their efforts to reestablish In the first season following the decision, the total control over steelhead management, as that tribes have seen a diminution of non-Indian illegal department"° and sportsmen continue to apply fishing, but they have also had to protect themselves pressure to classify steelhead as a "national" game from the exercise of the State's power through fish, not to be captured by net or other more proceedings before the Fisheries Advisory Board .2" efficient, traditional Indian means despite treaty As the tribes try to work with the State on a day-to- rights. The Senate billrequires that benefits of day basis to ensure that State fishing regulations will steelhead enhancement shall accrue to the recrea- protect their interests, there remains the larger tional fishery.291 question of whether the treaty allocations and tribal There may also be efforts to deal administratively management authority determined to exist by Feder- with issues raised by phase II of the fishing rights al courts will be left intact in the next forumthe case that is still to be litigated in the lower Federal Congress. courts. This part of the case concerns two questions. The Carter administration proposed legislation to One is how and whether hatchery fish should be deal with three aspects of the Washington State considered in determining the number of fish to be fishery.covered in the settlement plan written by the allocated to Indians and non-Indians.292 The second regional team of the Federal task force. Initially, the question involves the rights of tribes to have a say in proposal called for $90 million to be used over the governmental decisions that have an effect on fish next 10 years for fish enhancement, buy back of non- environment. These issues have all the explosive Indian gear, and buildup of Indian fishing capability. potential of the recent phase I litigation. Whether Of the total, $75 million was set aside for the first and to what extent phase II will be incorporated into two purposes, with the State expected to provide_ any legislative measures dealing with treaty fisheries matching funds doubling the total? "" After hearings is another consideration before the Congress. in Washington State and Washington, D.C., on the The fishing rights conflict is very much a study in proposal, legislation was introduced that would frustration. Indian tribes have been fighting for their assist in overcoming economic dislocation caused by economic survival throughout this century. When the implementation of the decisions in United States non-Indian institutions, like courts and legislatures of v.Washington. Some of the provisions of the bill the_State andEedexaLgovernments-upon which-they Inc ude: have had to rely, have failed them, they have lost ,a mechanism to provide Federal funds for the their promised rights. When some of those institu- enhancement of the salmon and steelhead re- tions have supported them, the battle itself has been sources; moved to a different forum. The struggle, like the a mechanism to provide Federal funds to fish, is cyclical and ongoing. It requires tribes to be purchase and retire commercial and charter fish- ever vigilant to protect their fishing rights from ing vessels, gear, and licenses; many forms of direct attack as well as indirect the development of coordinated planning by assault. Through all the battles, they must move the State and thetribes (represented by the with caution. They are a political minority with Northwest Indian Fisheries Commission) for re- assets envied by others. They have had to pay law search, enforcement, enhancement, and manage- firms and technical experts in order to retain their ! ment of the salmon and steelhead resources.' "" rights, and they have had to deal extensively with all "4 State of Waslungton. Department of Game. News Release. "Game 3" Ralph W. Larson, director. Wailihilon Deriattmtrit of-Game. wrItten- Director. Sees Hope For Fisherman in Supreme Court Ruling." July 3. statement. Hearing Before the Senate Committee on Commerce. Science, and 19;9. Transportatiot..96th Cong 1st sess., Aug 18. 1979 (hereafter cued as "' Michael Grayum. letter to Marvin Schwartz. U S. Commission on Civil Commerce Hearings). !sights. December 1979. Commission files "4 U.S.. Department of theInterior. Office of the Secretary. News "' Earle Engman. Washington Stale Sportsmen's Council. Incwritten Release. Aug. 16. 1979. statement. Commerce Ikartngs. "2 S.2163. 96th Cong , 2d sess. (1980) The Senate bill was passed on 2" The State. the Federal Government, and the tribes each have hatchery Ma: 5, 1980. and referred to the House of Representatives facilities producing substantial numbers of artifically propagated fish 99 branches of State and Federal governments in order counsel for tribes in much of the litigation; to give lasting effect to last century's promises. The mediator inthe fishing crisis through the . situation is perhaps most easily summarized by the establishment of a Federal task force; ,remark of one Indian fish manager: "Well,...if they regulator of the fishery; and 'could get the politics out of the management of the financer of State fishery programs. fish, we'd have some.""3 7. By establishing a task force designed to renegotiate treaty rights, the United States failed to Findings act as trustee, operated with a substantial conflict of Fishing Rights interest, and subjected the tribes to a political process in which the tribal position was weakened. 1. Indian tribes have been in conflict with the States over fishing rights throughout this century. Recommendations 2.The Federal Government as guarantor of Indian fishing rights has not effectively protected Fishing Rights and assured these rights. 1.CongresS should provide for enhancement of 3.Throughout this century, the State of Wash- the salmon resource, diminution of the inflatednon- ington has utilized its governmental authority in Indian fishery, the development of tribal fishery such a manner as to deprive Indians of their fishing management capacity, and increased coordination rights. between the various State,tribal, and Federal 4.Indian tribes have been blamed erroneously entities with jurisdictional responsibility. for the crisis concerning the scarcity of fish. 2.In the absence of an effective Federal, tribal, 5.The fishing rights conflict, which is a dispute and State management mechanism, a continued over property rights, has racial dimensions. strong Federal presence, such as that currently 6.The Federal Government has played the provided by the Federal court,isrequired to following contradictory roles in the fishing conflict: implement and enforce treaty fishing rights. "3Guy McMinds, testimony,Seauk Mating. vol. III, p, 100 . .... I ":"..*...... At, itiOfii4 iiqiit.11641.3;t citicc-Qtag, raga it wetisi? /*, 4, 14V4Vit..60.0,11104;.atfrit eigy. 1,04f404 ta,6, 1.4*,4 4 .i.IMP4$ "IV( nif,,g tVitAfili41.'%faorti* .ot 1410" 1 "1 fA .41141.1.s. 11111 """"1.64.41 '1:4141.41441 101 The previous numberedpage ht, the original documentwas blank Chapter4 Eastern Land Claims ...[The Maine Indian claim] is potentially the Although the issue of the fairness or unfairness of most complex litigation ever brought in the any particular transaction is not legally germane, it Federal courts with social and economic im- would be erroneous to assume fairness. The national pacts without precedent and incredible poten- tial litigation costs to all parties. .. .A Con- record with respect to these transactions, as noted gressional solution should be reached before the previously in this report,' is permeated with gross process. ..has reacheditsultimate conclu- abuse of Indian land rights. sion.. .1 The 'reactions of State and local 'governments have ranged from the bombastic to the relatively For decades, the "sleeper" among Indian rights cooperative. Eastern tribes have viewed their tenta- issues was eastern land claims. Non-Indian landown- ers were unaware of the "cloud" on the horizon or tive successes as "vehicles for the return of a were confident that traditional defenses of time' sufficient land base to assure future economic viabili- would defeat any possible Indian rights to the land. ty and cultural survival."' Their spirit does not `seem Afilmydr court actions, hoWever, have found to be-OnTliftfelikeance; rather, goa to Indians' title claims to be meritorious, thus unsettling be to use their court victories as a bargainingcool the bond and real estate markets, throwing entire negotiations with the States and landowners, with towns into uncertainty, and sparking much rhetoric. Congress eventually approving Federal funds to The basic Eastern Indian land claim is that Indian support whatever settlements are obtained: . land in the East was invalidly transferred from Indians to non-Indians in the 18th and 19th centuries because the Federal Government, although required Colonial History and Status of to do so, did not supervise or approve the transac- Eastern Tribes tions. During the exploralion period in North American The ultimate issue is not whether these transac- history, an important question of international law tions were fair or unfair, but whether they were arose concerning the treatment of property rights of legal. It was- as if the lands were obtained from a Indian tribes. In 1557 Charles V of Spain sought the minor without the consent of the minor's legal advice of Francisco de Victorio,*a prominent tneolo- guardian. It would not matter whether the minor gian. Victorio concluded that the Indians were true was cheated, deteixed, or even provided with owners and "discovery" could not convey the title, reasonable compensation for the land taken, the for title by discovery can be justified only where, transaction_woulcLbefalally flaw-flawed and voidable. property is ownerless. A just war to obtain title was ' U.S.. Department of Just:cc, Memorandum to the U.S District Court. See chap. 2. Northern District of Mame (Jan. 14, 1977). reprinted in 123 Cong. Rec S3205 'Nature American Rights Fuld Announcements. vol 4 (August 1977). p. 3 (daily ed. Mar. 1,1977). (hereafter cited as NARF Announcements). ' E.g.. adverse possession. !aches. and estoppel. 103 -- impossible, and only through consent of the Indians earth belongs."" Chief Justice Marshall,. however, could sovereign power be secured.' made a crucial distinction between Indian title lands Victorio's principles were not universally fol- and other more protected forms of ownership. lowed. The conquistadors and pirates of 16th centu- Indian title lands were not to be provided the full ry Spain, for example, argued that Indians were heretics, tainted with mortal sin and irrational. But panoply of property rights, such as the constitutional Victorio retorted that even heretics and sinners right to just compensation for governmental tak- could own property and could not be punished for ings." Indian or aboriginal title is frequentlycon- their sins without trial, and the Indians were at least trasted with "recognized title"title that draws its as rational as some Spaniards.' The debate continued authority from treaty,act of Congress or the throughout the 16th, 17th, and 18th centuries? In President, or some form of governmental recogni- the British colonies, the problem of dealing with the tion. Indian title was predominant in eastern tribes, Indians was largely left up to each colony, except while recognized title was the general rule in the during the French and Indian War.' West. The two forms of title have not been treated Although discovery, according to Victorio, did alike. Indian lands based on recognized titleare not itself divest the Indians of all their rights to land, protected with fifth amendment just compensation it was a universally recognized principle of interna- rights, while Indian title lands are not.'2 To date, the tional law that discovery did vest certain exclusive only eastern land claims .based on recognized title rights in the discovering sovereign. As Chief Justice John Marshall described the principle in an early have been those of the Oneida Indian Nation" the Indian case: Mashpee Tribe,',t, the Cayuga Indian Tribe, and the St. Regis Mohawk (Akwesasne Tribe)," while all Discovery gave tothe nation making the others rest on aboriginal rights alone. discovery, as its inevitable consequent, the sole right of acquiring the soil and of making Among the Thirteen Colonies, Great Britain settlements on it... it was an exclusive princi- possessed the right of discovery, although Indian ple which shut out the right of competititon land was acquired by each individualcolonial among those [Europeans] who had agreed to government. By the mid-18th century, nine colonies it... .regulated the discoverers; but could not affect the rights of those already in posses- had enacted laws forbidding the purchase of Indian sion,either ,asaboriginal occupants,. or as lands unless such transactions_ were appyliyed by occupants-by-virtueof -a UrsdiTvery mare & fore respective governmental authorities." nits practice the memory of man.' served as precedent for the Federal Government In short,it was the exclusive right to negotiate after the American Revolution. By means of the with the tribes. Treaty of 1783,'7 the Thirteen Original States stood Indian title to land, known as "aboriginal title," in the shoes of Great Britain with respect to rights of has been based on the recognition that Indianswere discovery, or preemption, as it was later called. the "owners and occupants of the territory where During the American Revolution, a number of they resided before the first approach of civilized Indian tribes fought on the side of the United States. man to the western continent, deriving their ti- 'The Passamaquoddies and Penobscots in Maine had tle.. .from the Great Spirit, to whom the whole . Felixi Cohen. Handbook of Federal lndtan Law (Albuquerque. L'niserci- '1See 1 eefist-1 on Indians v United States. 348 U S. 272 (1955). Note. ty of New Mexico Press: 1942 facsimile ed.). pp 4647. "Indian Title- The Rights." p. 671. Felix S Cohen, "Oriipnal Indian Title." Minnesota Law Renew. col 32 " Oneida Indian Nation v County of Oneida. No 70-CV-35 (N.D N.Y (1947), p 47 See also. Felix S Cohen. "The Spanish Origin of Indian Nov 9. 1971). a/rd. 464 F 2d 916 (2d Cir 1972). rev's! & rent. 414 U.S 661 Rights in the Law of the United States." Georgetown Law Journal. vol 31 (1942). p 1 (1974). 434 F. Supp 527, 533 (N.D. N,Y 19771, 'See. e.g.. authorities cited by counsel in Johnson v M'Intosh. 21 U S (8 " Mashpee Tribe v Town of Mashpee, 447 F Supp 940 (D Mass 1978), Wheat.) 543 (1823). affd sub nom. Mashpee Tribe v. New Seabury Corp. 592 F 2d 575 (1st Cir. Walter 11 Mohr. Federal lndtan Relations (1933). pp 4-9. quoted by Felix 1979). cert. denied. 444 U S 866 (1977) S. Cohen in Federal Indian Law. p 47 " No action has yet been filed on behalf of the Cayugas and the St. Regis Worcester v Georgia. 31 U S lb Pet 1 515. 544A183.0 Mohay.ks. but negotiations arc undcrss ay Treaties that recognize the tribes " Holden v Joy, 84 S (17 Wall )211. 243 (1872). are Treaty of Fort Stanwtx of 1784. 7 Stat15. Treaty at Fort Harmar of "'Johnson v M'Intosh. 21 V S at S87 For a history of Indian title. see 1789, 7 Stat 33. Treaty with the Six Nations of 1794. 7 Stat. 44 N oi, InthatrTrtte-TheRights-of-Amerrcan-Nzmves andrThry-Hnvr- Colusis-Ferloro Occupied ied Since Time Immemorial," Columbia Law Renew. vol 75 (April " Definitive Treaty of Peace with Great Britain, Sept3. 1783. Great 1975), pp 655-75, IlritainUnited States 104 115 a significant role in extending the border with Every court that has examined the purpose of the Canada to its present location." The Wampanoags Trade and Nonintercourse Act has agreed that the in Massachusetts suffered a severe loss of 70 men, congressional intent was "to protect the lands of the although their tribe numbered only a few hundred," Indian tribes in order fprevent fraud and unfair- and the Oneidas were responsible for breaking up ness."26 the British allegiance among the powerful Iroquois alliance known as "The Six Nations."" The Continental Congress took great strides to Neglect and Disuse of the secure and preserve the friendship of the Indians" Nonintercourse Act and instituted a number of treaties.22 In like manner, Even though the Thirteen Original States had the after the Federal Constitution was ratified, one piece right to negotiate for Indian lands within their of legislation passed in the First Congress was the boundaries, the Nonintercourse Act subjected any "Indian Trade and Intercourse Act," more common- such negotiations to Federal approval. It did not ly known as the Nonintercourse Act of 1790." The take la ,g, however, for these two issues to blur. As a pertinent part of the act, which is still in effect, consequence, States that possessed the right to provides: negotiate came to believe it was also proper for them to exercise the right without Federal supervision. NO' Purchase, grant, lease or other conveyance In New York, in particular, a number of cases of lands, or of any title or claim thereto, from held that the Nonintercourse Act was not applicable any Indian nation or tribe of Indians, shall be of to the Thirteen Original States. Although a land any validity in law or equity, unless the same be made by treaty or convention entered into grant dispute in a case involving the Seneca Nation pursuant to the Constitution." was found to be in compliance with the Noninterc- ourse Act, the New York court carved out an Shortly after its passage, President George Wash- exception that subsequently became known as the -in tsainterpreted_the_first-Nonintercourse-Aet-in-a---"Thirteenraigilria speee- h-tothe Seneca Nation: The-original-states,before-ancrafterthe adop- security for the remainder of don of_ the__Federal _Constitution, assumed the your lands. No State, no person, can purchase right of entering into treaties with the Indian your lands, unless at some public treaty, held tribes for the extinguishment and acquisition of under the authority of the United States. The theirtitleto lands within their respective General Government will never consent to jurisdictions. They exercised the power, which yotit being defrauded, but it will protect you in had before been vested in the crown, to treat all your just rights. But that, when you may find with the Indians -and this they did independent- it for your interest to sell any part of your lands, ly of the government of the United States. This the United States must be present, by their was notably true of the state of New York." agent, and will be your security that you shall not be defrauded in the bargain you may make. As support, the court recited along list of eminent That, beSides the before mentioned security for --your-land; yOuCva perceive; by the law of Governors of New York who had negotiated trea- Congress for regulating trade and intercourse ties with the Indian tribes.28 But in an era when the with the Indian tribes, the fatherly care the States were strong and the Federal GovernMent was United States intend to take of the Indians." weak, such support could be mistaken. " See. e.g., Francis J. O'Toole and Thomas N Tureen, "State Power and " I Stat137. codified at 25 U.S C. §177 (1976) the Passamaquoddy Tnbe 'A Gross National Hypocrisy'? Maine Law 22 25 U.S C. §177. For a legislative history of the act, see Joint Tribal Review. vol. 23 (1971), p.1. Council of the Passamaquoddy Tribe v. Morton. 388 F Supp. 649. 652 Mashpec Tribe v. Town of Mashpee. 447 F. Supp 940. 944 (D Mass. (N.D. Me. 1975). 1978). 22 American State Papers (Indian Affairs. vol. I. 1832). p 142. quoted in " Oneida Indian Tribe v. County of Oneida. 434 F. Supp. 527, 533 (N D. Seneca Nation of Indians v United States. 173 Ct. CI 917. 923-:4 (1965) N.Y. 1977). 2 Passamaquoddy v. Morton. 388 F. Supp. at 656. 21 Journal of the Continental Congress (Library of Congress cd . 1775). '" Seneca Nation of Indians v. Christy. 126 N Y 122. 139. 27 N E. 279 2. p. 174, cited by Cohen in Federal Indian Law. p 47 (1891). writ of error dismissed. !62 U S 283 (1896) For a fuller discussion of -Set-r.g.:-Treaty-of-Fort. Stanwiof -1784,-7-Stat.- 15.-Treaty_ation__.,....Alus_saKansl others, see O'Toole and Tureen. -State Posver." pp I3,9 Harmar of 1789.7 Stat. 33. 22 Seneca Nation of Indians v. Christy. 1261qni-139.2714-E7at-279 105 6,N 116 Other cases as recently as 1943 and 1958 also held matter to have meaning for purposes of statuto- that the Nonintercourse Act did not apply to the ry construction Thirteen Original States." One of the 1958cases on In addition to arguments that the Nonintercourse appeal at the Second Circuit tolled the death knell Act is inapplicable to Eastern Indian land claims has for the doctrine. In Tuscarora 3° the court noted that many land transfers in New York had occurred been the popular perception that a claim ought not to be brought that involves land to which clear title without Federal approval or else by tacit acquies- has been presumed for nearly 200 years. That feeling cence from the beginning of this country's existence. translates into the legal doctrines of `lashes,'' "ad- Nonetheless, the court first maintained that "Indians verse possession," and "estoppel," which Maine's are and always have been.. .the wards of the attorney general suggested were applicabL:. to the Nation and not of the States," and second that the Indians' land claims." Federal Government never relinquished itssover- Two eastern land claim cases have held that eign power over the Indians." This pronouncement enforcement of State statutes involving time limita- came down despite the longstanding tradition of tions "would be inconsistent with the federal posture special dealings that New York had with its resident of trust and vigorous protection of Indian rights."" tribes" More recently, in both Oneida and Passama- Thus, the Federal trust responsibility overrides the quoddy, the courts have reiterated evenmore explic- interest the States have in preventing "stale" claims. itly the lesson of Tuscarora that the "Thirteen Lastly, the long term neglect and disuse of the act Original States" doctrine is without merit." And yet has led to a widespread unwillingness to take the it is still periodically raised. claims seriously. "Is a law unenforced formany Maine's attorney general, in a memorandum to the years still a law?" constitutes a lively jurisprudential Maine Legislature in 1977, explained that Congress debate. One writer describes how an Indiangover- had never intended the Nonintercourse Act to apply nor packed a council of tribalelders into his to New England." Evidence he used to_s_upportAhis____-automobile-upon-discovetitirfWIFicient treaty that theory inclirded the fact that both Congress and the established the basis of their land ,claims and drove executive branch knew the act was not applied in 200 miles to see the Maine attorney-genera , New England_and-did not express disapproval-rot-1EWere unable to meet with the attorney general and framer of the act even going so far as to buy were told by an assistant to present their claim in aboriginal land in Maine." Additionally, the admin. court. The tribal leader had hoped that the matter istrative framework necessary to carry out theact could be resolved without ever going to court!' was never set up in the Eist." All these arguments Although the initial response of the attorney general were resurrected despite the words of the Appeals was probably predictable, subsequent court deci- court in the Passamaquoddy case" 2 years before: sions have forced State officials and landowners to consider the claims more seriously. Congress' unwillingness to furnish aid when *requested did not, without more, show a con- Statute of Limitations for Indian gressionaLintention that the Nonintercourse Claims Act should not apply... .The reasons behind In 1966 Congress for the first time createda time Congress' inaction are too problematic for the limit for the recovery of damages resulting from " United, States v Franklin County, 50 F Supp 152 (N.D. N.Y. 1943); St. " Ibid.. p. 6. 123 Cong. Rec. S3207 (Secretary of War Henry Knox). Regis Tnbe of Mohawk Indians v. State, 152 N.E. 2d 411 (C.A.N.Y. 1958); " Ibidp. 5, 423 Cong. Rec. S3207. Tuscarora Nation of Indians v. Power Authority of New York. 164 F. " Joint Tribal Council of the Passamaquoddy Tribe v Morton. 528 F.2d Supp. 107 (W.D.N.Y. 1958), modifievi. 257 F.2d 885 (2d Oir. 1958); but contra. Buffalo R. & P.R. Co. v. Lavery, 27 N.Y.S 433 (S. Ct. 1894). affd 370(1st Cir. 1975). on opinion below. 149 N.Y. 576.43 N.E. 986 (1896); United States v. Boylan, " Ibid.. p. 378. 265 F 165 (2d Cir 1920). appeal dismissed. 257 U.S. 614 (1921). " Robert McLaughlin. "Giving It Back to the Indians," Atlantic Monthly. " Tuscarura Nation of Indians v. Power Authority of New York. 257 F.2d vol. 239 (February 1977), p. 82. 885 (2d Cir. 1958). " Schaghticoke Tribe of Indians v. Kent School Corp 423 F. Supp. 780, " Id. at 889. 784 (D. Conn 1976): Narragansett Tribe of Indians v. S. R I. Land Doi. " Id ; see also Cohen. F.Pcfcral Indian Law. pp. 416-24. Corp. 418 F. Supp. 798, 804-805 (D.R.I. 1976) " Oneida Indian Nation v. County of Oneida. 414 U.S. 661(1974) " Attorney General Joseph Brennan, **Memorandum to the Members of " McLaughlin. "Giving It Back." p. 72. the Maine Legislature" (Augusta, Me.. Feb. 18, 1977). p. 5. reprintedin 123 Cong Rec. S3206-S3207 (daily ed. Mar. 1,1977). 106 s> ilk trespass on Indian lands." In 1972 when that time tribal land, recognized the significance township governor, While resolution of the issues will requirea John Stevens, some long-forgotten papers she had judicial determination, research strongly-sug- discovered in her home.4iThe' fragile documents gests that Maine'&.historical- dealings-with the assamaquoddy are without legal authority." in-cluded-theeilY of 1794, by which the Passama- quoddies and Penobscots ceded land, and letters The Passamaquoddy_ and Penobscot Tribes took from George Washington." Mr. Stevens, concerned an impoitant step in their effort to regain 10 to 12.5 about the legal integrity of the tribes' lands and million acres of the State of Maine-a territory uncertain whether any constraints would prevent covering over one-half of the State and populated by further seizures of the 17,000 remaining acres of over 350,000 non-Indians. The total value of the " Pub L No 89-505, 80 Stat 304 (1966) (codifie.4,91 28.,U,§.CJ2415(b) reprinted in 123 Cong Rec. 53209 (daily ed. Mar. 1. 1977) See also. 123 (1976)). AnrdamagerethardllegmllrOccurred prior to 1966 were treated as Cong. Rec. 115447 (daily ed. June 6. 1977). if they occurred on the date of enactment. Any land suits had to then be., " 123 Cong. Rec. 53211 (daily ed. Mar. 1. 1977). filed within 6 years, Although Inc act did not 'expressly include suits " Secretary Cecil Andrus, letter to certain Members of Congress, June 16, brought by Indian tribes on their own behalf, it has been so construed. See 1977, repeated in NARF Announcements. p. 22 Oneida Indian Nation v. County of Oneida. 434 F. Supp 527. 543 (N.D " Presently codified at 25 U.S C. §177. N.Y. 1977). " McLaughlin. "Giving h Back." p. 71. " Act of July 18, 1972. Pub. L. No 92-353, 86 Stat. 499, Act of July 11. " Ibid.. pp. 71-72. 1977, Pub. L. No 95-64, 91 Stat 268. Act of Aug. 15..977. Pub L No. 95- " 103, 91 Stat. 842. " O'Toole and Tureen, "State Power." p. I. " U.S.. Department of Justice. Memorandum in Support of Plaintiffs " McLaughlin. "Giving It Back." p. 74 Motion for Further Extension of Time to "eport to the Court (Feb 28. 1977). " O'Toole and Tureen, "State Power." pp. 38-39 107 118 a claim, including trespass damages, is estimated at Maine that the United States would not bring suit $25 billion." By far the largest claim asserted and against the State of Maine on behalf of the Indians" also the first case resting solely on the Noninterc- and enclosed a copy of the Department of the ourse Act, the Passamaquoddy claim has served as a Interior letter. foundation case for the ether claims. The tribe, antick-ing an adverse response froni The Passamaquoddy Tribe petitioned the Depart- the Department of Justice, had already asked the mentof,the Interior in February 1972 to iniiiate a U.S. district court to declare that the Noninterc- land claim on its behalf. If the Federal Government ourse Act created a Federal trust responsibility and would institute a claim based on the trust relation- to order the United States to file a lawsuit on their ship," then the tribes would not need to take action behalf before July 8, 1972. themselves and pay the high costs of litigation. On June 29, 1972, United States v. Maine " was Furthermore, an important part of the .claim was filed by the United States for the Passamaquoddy money 'damages against the State of Maine, which Tribe and a similar action was filed for the Penob- probably could be brought only by the United States scot Indian Nation .".Both suits were !or the purpose because of sovereign immunity of the State." The of preserving tribal rights vis-a-vis the statute of court of appeals later took notice of this problem, limitations and were held in abeyance pending the stating, "And without United States participation, outcome of the tribal suit against the United States the Tribe_may find it difficult or impossible ever_to concerning the issue of Federal trust responsibility. secure a judicial determination of the claims."" Although the Bureau of Indian Affiirs (BIA) recommended filing suit on the Indians; behalf, the Judicial- Affirmation of the Trust , Department of the Interiorrejected the recommeD.-___Responsibility___ datiotyarflieFaiii thillviiine Indians were not Two and one-half years after the tribe's action was federally-recognized Indians. I n a letterdatecLJune-.filedahtslistrict-court-handed-down itsdeCiii-On. In th-CACtiiirSacitor of Interior Depart- the interim, the State of Maine had intervened as a ment advised the Department of .Justice thatit party to the suit, joining the Interior and Justice would not request the bringing of a suit. The letter Departments. In a three-part analysis, the court stated: inquired: (1) Did the Nonintercourse Act apply to the Passamaquoddy Tribe? (2) Did the act impose a [N]o treaty exists between the United States and trust relationship between the United States and the the Tribe and, except for isolated and inexplica- tribe? and (3) Were there any procedural nuances ble instances in the past, this Department, in its that would stop the court from ruling upon the first trust capacity, has had no dealings with the two issues? Following 34 pages of legal analysis, the Tribe. On the contrary,itisthe States of opinion, Passamaquoddy v. Marton, concluded: Massachusetts and Maine which have acted- as -- trustees for. thetribaLproperty-for-almost-200-- ., years.... Judgment will be entered for the plaintiffs declaringthattheIndianNonintercourse [A]s there is no trust relationship between the Act. ..isapplicable to the Passamaquoddy United States and this Tribe, we are led inesca- Tribe; that the Act established a trust relation- pably to conclude that the Tribe's proper legal ship between the United States and the Tribe; remedy should be sought elsewhere." that defendants may not deny plaintiffs request for litigation in their behalf on the sole ground Two days later the Department of Justice notified that there is no trust relationship between the the U.S. District Court for the Northern District of United States and the Tribe." " Stuart Taylor. "Indians on the Lawpath."New Republic:.vol. 176 (Apr " Passamaquoddy Tribe v. Morton.388 F. Supp, at 654. 30. 1977). p 21 (estimate by tribal attorney ThomasN. Tureen). Civil No 1966 (N.D. Me). " The trust relationship is discussed in chapter 2. " U.S.. Congress. American Indian Policy Review Commission. Task United States v. Maine. Civil No 1969 (N D. Me). Force Ten.Report on Terminated and Nonfederal!, Recognized Indians. " Passamaquoddy v Morton. 388 F Supp. at 667 In considering whether "Federal Recognition and thePassamaquoddyDecision." by Thomas N the Nonintercourse Act applied to the tribe, the court Idled upon Tureen (Washington. n C Government Printing Office. 1976), p 1660 principles if statutory construction, which prefer the literal meaning of a " Joint Tribal Council of the Passamaquoddy Tribe v Morton. 528 F 2d 370. 376 (1st Cir. 1975), statute wherever such Interpretation does rgt thwart the intent of " Acting Solicitor Ray Coulter. letter to Assistant Attorney General Kent Congress Even when ambiguour. if theactconfers benefits or protection. Frizzell. Lind and Natural Resources Division, June 20. 1972. quotedin it must be understood in a nontechnical sense. Furthermore, any ambigui- Passamaquoddy Tribe v Morton. 388 F Supp at 653 ties are to be resolved in favor of Indians 108 o- In December 1975, the Court of Appeals for the a trust relationship. The court instructed theipepart- \ First Circuit upheld the district court's decision ment of the Interior that there was no need to go adopting in all important respects its reasoning and beyond the Nonintercourse Act in seeking legal analysis. The centralissue,the appellate court authority for bringing an action. The court,never- determined, was whether the Department of the theless, did not foreclose later consideratiqn of Interior was correct in stating that the United States whether Congress or the tribe acquiesced in the land had no trust relationship with the tribe and thus transactions, or whether Congress ratified them. should play no role in the tribe's land dispute with These unanswered questions triggered the Depart Maine. The court did not address the issue of ment of Justice and the State of Maine to hirea host whether the United States must sue Maine on the of ethnohistorians and anthropologiststo search for tribe's behalf," as the lower court had done earlier. remnants of "long-forgotten treaties" and land give- An additional issue faced at the Federal appeals aways predating 1790. level was whether the tribe was barred from The Department of Justice later narrowed the proceeding in the case because of any congressional claims to between 5 and 8 million acres." This action terminating the relationship or because of the reduced the scope of the claims from approximately tribe's own Wise to have raised the trust issue for 60'percent to 40 percent of the State of Maine.The__ so many, years. The court found no bar because the claims were not preejse) y_drawn-and-weitde-pen- longstandihg State relationship was insufficientto dent upon high tide marks and watersheds." Exclud- end the Federal relationship. Neither had Congress ed from the amended claim were the heavily cut it off, as' no express termination existed. The populated coastal areas, for which the United States court-refused-1161iir-MainYtase of State v.std -would-substitutesa a monetary claim." Newell " In Newell, the Passamaquoddy Tribewas Along with narrowing the claims, the Department -found no longer to meet the criteria of_political life of `Justice also pointed out the comparative advan- and power." The United Statesrargued in Passama- tage of a legislative solution over litigation, since it quoddy that since the Federal Government had done would take a great amount of time 'to locate the nothi sg for over 80 years to overturn the Newell present landowners and litigation could not "correct decision and recognize the tribe, silence equaled the past injustices without creatingnew hardships agreement. The U.S. court of appeals attacked this for others." Several attempts at congressional argument, explaining that there was no need for the action and negotiated settlement occurred, ult.:nate- Federal Government to react to the Newell decision ly resulting in a settlement in late 1980.71 because a State court decision had no effecton a Federal authority." Oneida v. County of Oneida Although th; United States was not ordered -to In a number of ways the Oneida case72 is unique carry out specific duties, no excuse for filing an among Eastern Indian land claims. It is the only case Indian landclaim could be based on theseverance of that has been decided favorablyon the issue of In applying these.principles, the court found that "any Indians" or "any relationship and the United States erred in refusing the Indians' reouest for Indian nation or tnbe" included the Passamaquoddy Tnbc.even though litigation on the sole ground mat no trust relatiouship existed between it they were :,ot recognized by the Federal Government by Corn at treaty. and the tribe statutory/eference, or course of administrative conduct In this case. it was Finally, the court looked to whether three procedural defense, raised by acknowledged that the Passamaquoddies had always been viewed as a tribe the United States and the Slate of Maine precluded the court from ruling of Indians. The court found no contrary intent of Congress. after sdtin8 the sin the substantive issue All wen- readily dismissed cases that had previously Construed the act. The basic policy of the United States as embodied in the act was to "protect the Indian right of occupancy " Passamaquoddy Tribe v Morton. 523 F 2d at 370(1975) of their aboriginal lands." " 84 Me, 465.24 A 943 (1842) In determining whether the act imposed a trust relationship between the " Id at 468, 944 United States and the tnbe, the court relied upon Seneca Nation is United " Passamaquoddy Tribe v Morton, 528 F 2d at 380 Star's. 173 Ct. Cl. 917, 923 (1965) where the courts were "first squarely " U S. Department of Justice, MeMorandurn to the L'S. District Court. presented with the question of the nature of the obligatioil. if any. imposed forth District of Maine (Feb 28. 1977). reprinted in 123 Cong Rec. S3209- by the _Nonintercourse Act. (at 661) In Seneca. the court found a "full S3211 (daily ed Mar I. 1977) fiduzary responsibility" to protect and guard against unfair transactions. " Bangor Daily News Mar. 2. 1977, p 14 riot only the responsibility of a "mere contracting party or a better busines.s " U S Department of Justice. Memorandum (Feb 28. 1977). reprintedin bureau." (guoted at 662) Later cases reaffirmed Seneca. ending with Federal 123 Cong Rec. S3210 (1,11y ed Mar 1. 1977) Power Commission v. Tusearma.cwhicli specifically mentioned the purpose " [bid . p. S3210 of the Noninterconrse Act "to enable the Government to vacate any " Maine Indian Claims Settlement Act of 1980. Pub I. No. 96-420 dispostion of their (Indian) lands made without its consent (362 U S 99 " Oneida Indian Nation s Count) of Oneida, 70-CV -35 (N D N 'V Nov 119 (1960). 2.1971). affd. 464 F 2d 916 (2nd Cir 1972). rev'd & rem. 414 U S 661 Thus, the Federal district court concluded that the act established a trust (1974). 434 F Supp 527 (ND N Y 1977) 109 whether the tribe's rights to land hale been violated The court of appeals upheld this view,'" but the U.S. and the only modern eastern land claim to date to be Supreme Court in 1974 reversed the decision and considered by the Supreme Court. The Oneidas sent it back to the district court for further action." have not only held their lands through "aboriginal In recognition of The Federal court's responsibility_ title," the right stemming from holding laiid for a to hear the case,the Supreme Court directly long time, but also through recognition by Federal attacked,the Original Thirteen States doctrine by treaty. dedlaring: The Oneidas were party to three treaties, dating propositions that Indian title is a matter of from 1784 (prior to ratification of the Federal federal law and can be extinguished only with Constitution) to 1794." The third treaty, the Treaty federal consent apply inall of the States, a Canandaigua of 1794, which included the Onon- including the original13.It is true that the daga and Cayuga Tribes as well, guaranteed that United States never held fee title to the Indian lands reserved to the tribes would "remain theirs lands in the original States as it did to almost all until they choose to sell the same to the people of the rest of the continental Used States and that fee to Indian lands in these States, or the pre- the United States, who have the right of pur- emptive right to purchase from the Indians, was chase.'" in the State....But this reality did not alter Acquisition attempts by New York State be ,aas the doctrine that federal law,treaties, and early as 1782.13 Between 1782 and the passage of the statutes protected Indian occupancy and that its_ Nonintercouise Act in 1790, millions of acres of termination was exclusively the province of Oneida land had been ceded. The Nonintercourse federal-law." Act, however, did riot have any effect on these'Federal courts were determined, therefore, to be the dealings. Between 1790 and 1842, New York, despite proper forum when Indian .tribal land claims are specific warnings thatitwas violating Federal premised on violations of the Nonintercourse Act or policy, acquired an additional 246,000 acres. It is of Federal treaties. these 246,000 acres that are t subject of the Oneida After the Supreme Court found that -the lower. claim." One historian ha."docunted that although court should have decided theease, the:omicra---- New York Governors and State Indian commission- claim once more made its way into court. The ers were specifically told they were violating Feder- Oneida claim was originally brought as a test case, al Indian policy, they chose to ignore the warnings claiming only the tan'' in two counties and only and conducted treaty negotiations." requesting the rental value of the land for the 2 years Before research had begun on the Maine case, prior to when the case commenced. By limiting the Indian claims in New, York State were in progress. claim, the parties hoped to settle the issues in a Several State court cases had held that tlit Nonin- calmer political atmosphere.'' Thus, the first stage of tercourse Act did not apply to New York." This litigation was to determine viability of the original interpretation came to an end when the Supreme claim. The second stage would examine the scope of Court dealt a final blow to the "Thirteen Original liability for all claims, and the nature of relief would States" doctrine and set the stage for a number of be the final issue contested. claims. In 1977 the first part of the three-part process for The Oneida claim was filed with the Federal relief began. Liability was separated from a request district court in 1970, but in the following year the for damages, and the Oneida title was found to be court refused to rule on the case, stating that it had good. The Federal district court sifted through the no jurisdiction because such.an action to repossess historical background in the case and concluded that land was proper only in the State court systeni." the Oneidas had established that the transfer of lands " Treaty of Fort Stamm of 1784.7 Stat15, Treaty at Fort Harmar of " Oneida Indian Natioli v. County of Oneida. 70 -CV -35 (N D N Y. Nov. 1789.7 Stat. 33: Treaty of Canandaigua of 1794, 7 Stat. 44. 9. 1971) " 7 Stat. 44, 45. " Jack Campisi. "New York-Oneida Treaty of 1795 A Finding of Fact." " Oneida Indian Nation v County of Oneida. 464 F 2d 91b 2d Cur 1972). American Indian Law Review.vol. 4 (1976). p. 73. " Oneida Inds n,Nation v. County of Oneida. 414 U.S 661 (1974) " NARF Announcements.p 5 " Ibid.. p 670 (citations omitted) " Camp's:. "New YorkOneida." p 79 " ArlindaLocklear.staff attorney. Native American Rights Fund " SeeSeneca Nation of Indians v Christie. 126 N Y 122. 27 N_E 275 (NARF). Interview in Washington. D C.. Aug 8. 1979 (hereafter cited as (1891); United Sates v. Franklin County. 50 F. Supp 152 (N D N.Y 1943); St. Regis Tnbe of Mohawk Indians v State. 5 N Y 2d 24. 152 Lockleatinterviev.,) N.E.2d 411 (C.A.N.Y 1958). 110 121 4 by the 1795 treaty with New York was in violation Narragansett Tribe v. Southern Rhode ''11F the Noniptercourse Act. Ali elementsnecessary Island Land Development Corp. to prove the claim were present, andnone of the The Narragansett Tribe claimed that 3,200 acres defenses of time, abandonment Qf the claim, or around Charlestown were taken by the State of failure to join certain parties in the shit would Rhode Island in 1880 in violation of the 'Noninterc- preclude a in the case. ourse Act." in this case the settlement process The extentf the liability and the manner in proved successffil, and the judicial processnever had to reach ultimate determinations. Nevertheless, which relief is to be fashioned still remains to be It3 preliminary determined. Al the same time, the judge in the case'prehnunary litigation resulted in the articulation of stressed the inability of the court to fashion an legal principles that have subsequently been adopted and followed by other courts in other cases." In appropriate remedy and the preferability of a politi- particular, the court in Narragansett established the cal solution. "The greater part of the disruption and four elements that an Indian tribe must demonstrate individual hardships caused by litigation such as this to succeed on a claim that its land bad been taken in could be avoided by seeking solutions through other violation of the Nonintercourse Act. The court said . available vehicles."" the four elements of a prima facie case which a tribe Negotiations, however, have not yet begun. At must show are that: first the Federal Government found it had a conflict of interest in negotiating- on behalf of the Indians 1. It is or represents an Indian "tribe" within the meaning of the Nonintercourse Act. while it was being sued by them in the U.S. Court of Claims." Once the court of claims case was decided 2.The parcels of land at Issue herein are in 1978, a schism in Oneida tttal.gthernment made covered by the Act as tribal land. negotiation virtually impossible, because the Depart- 3. Cite United States has never consented to ment of the Interior did not know which of the the transfer of the tribal land. co. n-peting factions represented the tribe. Moreover, many of the Oneidas were relocated in Canada and 4.The. trust relationship bctween the United Wisconsin, and representatives from thosereserva- States and the tribe, which is established by coverage of the Act, has never been terminated tions also had to be appointed. The Department of or abandoned by the United States." the Interior finally agreed that:4 whoever would consent to meet -with them would be accepted for No single criterion can be used to piove or the limited purpose of these negotiations." disprove tribal existence. Although recognition by The tribe is also trying to get the Department of treaty or receipt of Federal programs" is helpful-in the Interior to expand the claim frOm about 1/4 determining tribal siatus,ihe absence of such official million acres to 6 'Million." Three documents prior recognition is not fatal." In many eastern land to the Nonintercourse Act are proposed as the basis claims, the tribes hatte not been recognized by treaty with the Federal Government, and yet the Nonin- for invalidating-land transfers that occurred before tercourse Act may still protect their rights. The test _the Nonintercourse Act was passed." If the Depart- for determing whether an'aggregation of Indians is a ment of the Interior refuses to act in response to this "tribe" protected by the act hag been addressed by argument, the Oneida Indian Nation is willing to file the Supreme Court and described to mean: "a body a claim on its own behalf." of Indians of the same or similar, race,' unite& in a 4.Oneida Indian Nation v Counts of Oneida. 434 F SLp. 527. 531 (N.D. 798 (D R.I. 1976). See also Narragansett Tribe of Indians v. Murphy. ap F. N.Y. 1977). Sbpp. 132 (D.R.I. 1976) (railed case involving State lands). " United States v Oneida Nation ofNew/York. 176 F,2d 870 (Ct. CL " Schagticoke Tribe of Indians v Kent School Corp.. 423 F. Supp. 7130 (D. 1978). " Locklear Interview. 4119° Conn. 1976): Mashpee Tribe v New Seabury Corp. 427 F. Supp.' 899 (D. " Ibid.. Mass. 1977): Oneida Indian Natwn v. County of Oneida. 434 F. Supp. 527 " See 1783 Continental Congress Proclamation. Journals of the Continental (N.D. N.Y. 1977). Congress. vol. 24 (Sept. 22. 1783). pp 505-06. Articles of Confederation. Narrangansett Tribe of Indians v S. R.I Land Dev. Corp. 418 F. Supp art. IX: and Treaty of Fort Stanwix of 1784. 7 Stat. 15. Thisolait treaty at 803. 1 would only serve to invalidate the 1788 New York transfer if found to " See. cg. list of tribal entities that ...lye a governimmt-tagoVernment ' support a claim at all. relationship with the United States. 44 Fed. Reg. 7235 (Feb. 6. 1979). " Locklear Interview " The necessity of Federal recognition was soundly rejected in Oneida 's* Narragansett Tribe of Indians v S RI Land Dcv Corp. 418 F. Supp. Indian Nation v, County of Oneida. 414 U.S. 661.669 (1974). 111 -122 -11 community under one leadership or government and clearer route mapped for them. The preliminary_ inhabiting a particular, though sometimes ill-defined, victories on procedural matters in Narragansett and territory."" _ other cases have served to'spur negotiation attempts The second_... -element, showing that the land in by clarifying to both sides what proof is necessary to question was intended to be protected by the act, establish a claim when faced with the relevant can be proved in two ways. A tribe can establish evidence. Narragansett demonstrates that where the "aboriginal or Indian title" by showing that a tribe elements can easily be met, negotiation proves a inhabited the land in question from "time immemori- speedier and more desirable all-around solution than al" before it ceded, its holdings, or by showing that litigation." the United States has recognized the tribe's interest in certain land through a treaty or statute. The first type of proof was offered in Narragansett, with the The Case that FailedMashpee Indiansassertingthat"sincetimeimmemorial The action brought by the Mashpee Tribe of the...tribe...exclusively owned, used and occu- Wampanoag Indians to recover 13,000 acres in the. pied" the Aclaimed land until 1880 when Rhode town of Mashpee, Massachusetts, was a landmark Island took it over." The court stated that if such case.'" It has been the first and only outright defeat allegations were established at trial, then the tribe for any eastern tribe under the Nonintercourse Act ' had satisfied its burden." and also the first time that the question of tribal* The methods by which a tribe can satisfy the third definition has gone to a jury;'" requirement involves showing that the United States The Indian interest in recovery of lands was has never consented to the land trans er:. It has not sparked by, two developments: Indian loss of politi- been determined whether the mere pprOval by a cal control of the Mashpee township and loss of Federal Commission of a State treaty would consti- access to traditional fishing areas. Both losses were tute consent, or whether explicit consent by the caused by the influx of non-Indians to the Mashpee President .or Congress or both is -required.- In any community in the "booming" Cape Cod land devel- event, approval has never become.an issue in a case, opment. Leadership in the town of Mashpee, go- because no method for determining it has been found verned 63( a three-member board of selectmen, had in the cases brought thus far. been in hands,of Mashpee Indians since the town Finally, the tribe must maintain that the Federal was incorporated in 1870.'" In the..1960s, however, .trust responsibility has never been terminated or with the numbers of summer homes rising and real abandoned. It is- not sufficient that a State has estate development booming generally, the Indian disbanded a "tribe-or- assumed responsibility for the tribe became a minority in the community. In 1968 trite, as in She cases of Rhode Island, Maine, and the first non-Indian was elected to the. board of ....others.gt in Passamaquoddy thycburt saidthat selectmen, and in 1972 the board's composition .)7'Federal itAiination of the trust responsibility must became two-thitds non-Indian.'" The non-Indian be "affirm tively" demOnsttated by "plain and un- population in Mashpee continued to grow!The 1970., ambiguous' elide.' census showed a population of 1,288 and the With the,elements of a prima facie case delineated estimated 1976 population figures totaled 3,144.104 anda number of defenses disallowed,.. tribes have a Although exact racial breakdowns for these figures thated States v Candelaria. 271 U S 432. 442 (1976) quoting. Montoya for their definitions of what constitutes a tnbe. In Montoya. the Supreme United States. 180 US 251. 266 (1901) Determination of tribal status is a Court defined -Indian tnbe" as '_"a_body-of-Indians of the same or a similar question of fact Mishpee Tribe v Town of Mashpce. 447 1 Supp 940 (D racte'. united in a community under one leadership or government, and Mass. 1978). alfd sub nom.. Mashpee Tribe v New Seabar5 Corp. 592 F 2d inhabiting aparticular though sometimes dl defined terntory." Montoya v. 575 (1st Cir 1979). tea dented. 448 U S. 866 (1979) United States. 180 U.S. at 266. The Court in Candelariater adopted this " 418 R. Supp 798 at 807 definition %Oen construing "Indian tribe" as used in the Nonintercourse " id. Act. 25 U S C §177 The novel legal issue addressed in Mashpee is that, of " at 804: Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d at 380. affd. 388 F Supp at 663. no. 15 voluntary ab.mdonment of tribal status. " See. e.g. the discussion of the Rhode Island settlement later in this Mashpee Tribe v Town of Mashpee. 447 F. Supp a4946. chapter. '"Id. Mashpee Tribe v. Town of Mashpee. 447 F Supp. 940 (D Mass. 1978), '" U SBureau of the Census, US. Census of 1970; Current, affd sub nom.. Mashpee Tribe v Nev. Seabury Corp , 592 F.2d 575 (1st Cir Population Reports. Series P25. No, 760, issue uary 1979. "!971 1979). cert. dented. 48y.s.L.w3205 (Oct. 1. 1979). Population Estimates and 1975 and Revised Pe apita Estimates for "" Eastern land s.launs cases have relied upon Montoya vUnited States. Cities. Incorporated Places, and Selected Minorivil Divisions in Massa- 180 U.S 261 (1901) and United States v. Candelaria, 271 U S. 432 (1926). chusetts " 112 123 _ . do not exist, approximately 400 are Mashpee public buildings, and a shopping area for the ans. i0S entire section of the Cape down there. There'll In order to maintain an independent tribal entity be parking problems, of course, but we'll handle when the Mashpee Board of Selectmen fell out of them with lots of pavement... .Our ideas tribalcontrol,the Mashpee-Wampanoag Indian reflect what modem Americans are seek- ing... .The Mashpees can go along or not. It Tribal Council was incorporated in 1974.106 Since won't make any iiifference."° that time, it has served as the governmental entity for the tribe and has represented the tribe in securing The Mashpee Jury Trial Federal funds.'" On August 26,1976, the Mashpee Tribe of The influx of non-Indians to Mashpee resulted ina loss of access to shared areas as wellas loss of Wampanoag Indians filed their suit against the New political control. Even though land had been Seabury Corporation (a large developep, thetown legally of Mashpee, and over 100 large landowners in the partitioned in 1842,1" it remained largelyopen and unfenced for many years. The shore community. The town selectmen, who it first failed areas were totake accessible to everyone for fishing and recreation, but the lawsuit _seriously, had by October retained a nationally prominent attorney to represent ch'anges in the fifties and sixties broughtan end to this. Cape Cod was aggressively developed by real them. By the trial's end, legal fees for the town and the other defendant parties reportedly exceeded estate interests. Individual Mashpee Indians, many of $500,000.111 .whom were relatively 'poor, -sold off their lots. It is - The defendants challenged the Mashpees' questionable whether those Indians who sold their asser- holdings knew that this would entail forfeiture of tion that they were a tribe, charging that their bloodlines were racially mixed, theijgovernment" hunting and fishing areas and a shrunken communal: did not function as a political body, and they territory, complete with "no trespass" signs and high were fences. As reported by an old Mashpee Indian: not united in a: community. The tribe viewed that attempt as "a strategy of desperation'"" andgar- after we were given the right to sell our land a nered a group' of historians and anthropologiststo lot of smart Boston real-estate men came down refute what it regarded as "an outrageous attack Here to look things over, and in no time at all upon its identity and heritage.""3 Responding to theyhadfiguredouthowtocheat pressure Trom angry homeowners, the tribe in early -F-r--,Today,- most-of our lakefront property 1977 reduced its claim from 17,000acres to the is owned by outsiders and the shorefront doe 13,000 undeveloped acres in the town. "" Again in in South Mashpee has been made into housing developments. Why, Mashpee is the only town Auguit, the tribe voluntarily amended its suitto on the whole of Cape Cod that doesn't have a 11,000 acresN3 public sea beach for its own residents! Iguess a Retired Georgia Supreme Court Justice William lot' of people think it's ftinny how easy to fool Gunter, the Presidential representative who started we Indians have been about all this, but I can the mediation process in Maine, also studied the tell you that it's not funny to us. In fact, iteats situation in Mashpee. After 5 months, he withdrew at our hearts.'" from the case and recommended that the question of The no,Womers, the developers, were not always in Whether the Mashpee were a tribe proceedto tune with the Mashpee community: .court."4 On October 17, 1977, the trial-began and lasted 40 Whk's needed inMashpeg is long-rangeplan- days, with 300 years of history explored bynumer- . .We're going to pull what now passes,ous experts."' Over 5,000 pages of testimony were for the center of town down to the traffic circle generated by 52 witnesses.11s The Native American on Route 28, and we're going to build churches, Rights Fund reported that "the Mashpee trial isone "a New York Time Jan. 8. 1978. p. 27 NARFAnnouncement.t p 20. " Mashpee Tribe v. Town of Mashpee. 447 F. Sum at 947. Ibid "1 Id 1"cltrodeur. "A Reporter." p 123. '" Each Mashpee Indian was allotted 60 acres Land not divided was held "3 lbid p 126 . in common in Mashpee District Id. at.945 "' Sec transcript. "Press Conference of William B Gunter." Office of the '" Paul Brodeur. "A Reporter at Large The t4lashpees.":Vew Yorker vol. White House l'ress Secretary. July 15. 1977 54 (Nov ./k1978). p. 98 "1 New York Times. Jan 7. 1978. p p. 119 .. "" Stacy Jolna. "Indians Defeated in First Round of Land lawsuit." "' New York Times. Jan. 7. 1978, pI Washington Post. Jan 7. 1978. p A 113 of the longest and most complex in which NARF whomesverl leys, pleased.In 1870 Mashpee was has ever been involved."'" incorporated as a -town and the 3,000 acres of Historical evidence offered in the trial dated back common lands remaining -after the allotments of to 1665, when Richard Bourne, a Christian mission- 1842 were transferred to it along witthe right to ary, wanted to gather a community of Christian sell them. It was these two transactions, t -e-allot- Indians in the Mashpee area.'" Twenty years later, ments of 1842 and the transfer of comman land with- his son, Shearjashub, insisted that the General Court the right to sell to the town, that the Indians claimed of Plymouth County grant an area of land to the violated the Nonintercourse Act. That claim, how- South Sea Indians (the Mashpees).12' This land grant ever, was never to be litigated. contained the restriction that no land could be sold At issue at trial were the differing views of what to an Englishman without the consent of all the constituted the necessary elements of tribal govern- f Indians and the permission of the General Court."2 The land was to be held in common and could not ment. The non-Indians argued that sovereignty was be sold indefinitely. It was on this 1685 grant, or the key and that the Indians lacked a separate recognition of title, that-the curt said the Mashpee government and an independent leadership with Tribe had to base its claim.'" strong authority over tribal members. The Mashpees At various times in the Mashpees' history, influxes argued that continuing leadership could be proved of outsiders contributed toward a mixed race. A by interrelated families, town governors, or tribal major instance of this was" after the American councils.'" The issue of tribal existence was submit- Revolution, when there were reported to be 70 ted to the jury. The jury was given the task of widows out of a population of a few hundred. determining whether the Mashpees were an Indian Marrying into the community then were approxi- tribe on any of the following dates: 1790, the date of mately 60 black males, 4 escaped Hessians, and a the Nonintercourse Act; 1834, when the District of Portuguese sailor.12' It was argued to the jury that Mashnee was first created; 1842, when the land held because of intermarriage over 2 centuries, it would in common was broken into allotments; 1869, when have to decide whether the Mashpees always restrictions on alienation of land by individual thought themselves to be Indians, or whether they Indians were lifted;1870, when the remaining had come to consider themselves blacks.'" common land was transferred to the town for sak, In 1834 the District of Mashpee was created. and 1976, when the suit was filed. If the Mashpees Governed substantially like a Massachusetts town, were a tribe at the time of the pertinent transfers, the Mashpee differed in that land transactions affecting transactions would have required Federal approval the common lands and the treasury were subject to in order to have validity. approval by a Governor-appointed commissioner. In The court's lengthy instructions to the jury were 1842, by statute, every person deemed a proprie- significant. The burden of proof was placed on the tor*" was allotted a portion of the common lands to Mashpees, and the-jurors were instructed that, if in bring each person's holdings to 60 acres, but the doubt on any particular issue, they were to find for restraint against selling lands to non-Indians re- the other parties.'" The court explained its reasons mained.127 In 1869 the Massachusetts Legislature considered for requiring the Indians to meet a difficult burden giving Indians full rights of citizenship and remov- of proof in its March 24, 1978, opinion: ing the restrictions on land transfer. Despite the fact that at a legislative hearing in Mashpee a majority of The standards of that Act [Nonintercourse Indians failed to support the measures, the Massa- Act], at least as I have interpreted it, require chusetts Legislature passed an act granting citizen- that a tribe demonstrate a definite organization ship to the Indians and the right to sell land to beforeit can qualify forthe extraordinary 1 9 Native American Rights Fund. Annual Report (1977), p 49 some critics to charge James D St Clair with pursuing a racist strategy. '" Mashpee Tribe v. Town of Mashpee. 447 F. Supp at 944. lbidp. 129 m Id. 1" In 1723 Mashpee had been organized as a permanent proprietary Indian 1" Plaintiff's exhibit 38. quoted in Mashpee. 447 F. Supp. at 944 plantation Id. at 945. uzId. Mashpee Tribe v. Town of Mashpee. 447 F. Supp at 945. "4Id. 1" Brodeur. "A Reporter." p 128 "9 Brodeur. "A Reporter," p 127 This stress on racial intermarriage led "9 Mashpee. 447 F Supp at 950 n 7, agd. 595 F.2d at 588-90 114 remedy of thetotal voiding of landtitles in varying stages and most acquired in good faith and without fraud.'" are attempting negotii- tion as an alternative to protracted litigation. After 21 hours of deliberations,on January 6, 1978, the jury decided that the Mashpeeswere a Gay Head, Massachusetts tribe in 1834 and 1842 but not onany of the other The Gay Head Indians, like the Mashpees,are dates. The court subsequently, after motions,sus- part of the larger Wampanoag Indian.,Confederacy. tained 5lite jury's .lierdictl" and disniissed the Mash- Their claim in the small town of Gay Head(popula- pees'alit. The First Circuit Court of Appei'ls tion 118) on Martha's Vineyard originally included affirmed the district court,'" and the U.S. Supreme only the 150 to 200 acres of common land butwas Court declined review."' enlarged to include 150to 200 extra acres of private i The immediate reaction to the jury verdictwas a land. Their potential claim couldcover all of the `i sigh or -relietamong landowners buta senseor town of 3,600 acres.'" ; unfairness amoneIndians. Mashpees, whogrew up No suit has been filed in the Gay Headcase, and a thinking they were Indians, reportedlywere upset dean of Harvard Law School has been servingas when 12 non-Indians in Boston (the jury)declared mediator since 1977 in the hope of reachinga that they were no longer a tribe.'" RussellPeters, negotiated settlement. With the high costs of litiga, president of the tribal council, described The political tiod,'" a settlement could end by costing thetown factor and the standard used in thecase: less than a full defense of the case. Thetown voted to return a 243-acre parcel in December 1976, but They [the jury] and the judge had to find the tranfer requires State-legislation before itcan be against us from a political standpoint because finalized. The Gay Head Taxpayers' Associationhas the remedy of giving back the landwas too opposed the legislation until there isa settlement on harsh. Judge Skinner set very difficult criteria the question of all the land. Meanwhile, negotiations for tribal existence,criteriathat would be continue.'" difficult for many of the Western tribesto meet.'" Two Connecticut Cases The town felt the effects of the struggle,which Two land cases have been brought by tribes in the trial heightened. Kevin O'Connell, chairmanof Connecticut, one for 1,300 acres and the other for the board of selectmen, expressed his pleasurewith 1,000 acres. Both were brought by tribes suingon the "legal victory" but added, "There isno social their own behalf (not the Federal Government)and victory because we havea community that is torn represented by Native American Rights Fundattor- apart."'" Robert Maxim, the sole Indianon the neys. The first, involving the Schapticoke Tribe of board of selectmen, said he felt relief that thetrial Indians, is still in the early stages of litigation."'The was over but expected strong feelings to continue.'" U.S. district court refused to letone of the current non-Indian leaseholders argue thecase on the grounds of the defenses of time, namely, !aches, Other Asserted Claims statute of limitations, :-And adverse possession.'" The At least seven other claiMs have been asserted only defense argument permitted by the court relies under the Nonintercourse Acct, involving from350 on events predating the 1790 Nonintercourse Act. acres to over 140,000 acres of land. These claims are This case, as well as the other Connecticutcase, 1"Id. '" Michael Knight, "Land Suit of Indians Dismissed by Judge,"New York Mashpee. 447 F Supp. at 950 The c urt determined that only 1976. Times. Mar 25, 1978, p 6 1842, and 1870 were relevant dates , '" New York Times. Jan 7. 1978. pI 1" Mashpee Tribe v. New Seabury Corp, 92 F 2d 575 (1st Cir 1979) 1" Ibid , Jan 8, 1978, p 27 '" Town of Mashpee v. Mashpee Tribe. 444 U S. 866 (1979). " NARP,Anwuneemenrs. p9 '" New York Times.-Jan. 8. 1978, p. 27 A similar Judgment-was madein New York regarding the Shinnecock Indiins,even prior to litigation In '" C g , over 5500,000 in lc at fees, was reportedly spent by thetown and September 1979 Solicitor Krulitz denied a request to bringa lawsuit for the other &tendon, parties in the ,,,tinhixecase New York Imes, Jan. 7, 1978, tribe to recover 3.200 acres of land. due in part to what heconsidered significant intermarriage, which resulted in the Federal Governmentnot '" N.4/21:.-Innouneemenrs. p. 19. recognizing the Shinnecocks as a tribe The tribe, however, still has the "' Schaghticoke Tribe of Indians v Kent School Corp, 423 F Supp.780 option of suing on its own behalf or attemptingnegotiationMark (D Conn 1976) McIntyre. "U S Backs Away From Shinn+cks' Suit." Newsday. Sept5, '" Id at 780. 786 Other parties holding land in question 1979, p 19 are the town of Kent. Connecticut Light & l'osver Co and a couple of privatecitizens 115 iti closely parallels the Narragansett case in Rhode Interior. Congressional approval of the tentative Island decided 6 months earlier.'" Consequently, settlement will be required. with fewer issues to handle and the burden of the The Cayugas and St. Regis Mohawks claims each parties more narrowly defined, a trial may be have a unique history. speedier and incentives for negotiation more appar- ent. No further court action has occurred in this case and negotiation con 'inues. Cayuga Indian Nation The second _Connecticut case, brought by the The Cayuga India' Nation,nowa landless tribe, Western Pequot Tribe, involves a claim to approxi- has claimes! that 64,000 acres (100 square miles) mately 1,000 acres in Ledyard (population 14,558).144 were taken from them by New York State without Not only are the tribe's attorneys and the judge the Federal approval. As a member of the powerful same as in the Schighticoke case,'" but the same alliance, the Six Nations of the Iroquois, most defenses of time were raised and the Indians' Cayugas sided with the British in the American attorneys asked the court to disallow them.'" A Revolution. In 1789, however, New York State further argument, advanced by the present landhold- made a treaty directly with the tribe, recognizing er, was that claims brought under the Noninterc- their title to 64,000 acres. Six years later (and after ourse Act could only be brought by the United the passage of the Nonintercourse Act) the Federal States.'" There has been no decision to date. Government acknowledged and confirmed the New York treaty in the Treaty with the Six Nations." New York Claims The tribe thus bases its claim upon recognized title, In actions that have attracted very little national which is entitled to all the fifth amendment protec- publicity, two New York tribes, the Cayugas and the tions of just compensation, unlike aboriginal or St. Regis (Akwesasne) Mohawks, have also filed Indian title, which affords less protections and i3 claims.'" Based on lengthy title searches, the two exclusively the type claimed in Maine and most tribes have identified 12,000 landowners affected by other Eastern States.'52 the Cayuga claim and 6,500 to 7,000 affected by the In two transactions, in 1795 and in 1807, New Mohawk-claim. Their names, addresses, and proper- York State regained without Federal approval the ty descriptions were computerized, enabling the lands it had recognized as the Cayugas'.'" Simulta- tribe to prepare quickly for ejectment suits against neously, New York commenced a series of removals the 19,000 individual landholders if statute of limita- of the Cayugas. A portion of the original tribe still tions problems arise.'" exists today in Oklahoma and is recognized as the A tentative settlement, announced by Interior Seneca-Cayuga Tribe.154 These Indians are not Solicitor Leo Krulitz on August 20, 1979, would included in the settlement talks, however, but have give the Cayuga Indian Nation a-5,481-acre reserv&. received a portion of a New York trust-fund in an tion and an $8 million trust fund in return for earlier action brought in the U.S. Court of Claims.'" extinguishing the claim.'" The agreement was The Department of the Interior, having studied worked out among the tribe, the State of New York, the case and the other New York claims for several and the U.S. Departments or Agriculture and the years, recommended to the Justice Department in 1" Narragansett Tribe of Indians v. S. R.I. Land Dev. Corp.. 418 F. Supp. 1" See the classic case of TeeHit-Ton Indians v. United States, 348 U.S. 798 (D.R.I. 1976). 272 (1955). which enunciated the requirement of formal sovereign recogni '" Western Pequot Tribe of Indians v Holdndge Enterprises, Inc.. Civil tion for fifth amendment compensability. Thus the difference between the No. 76-193 (D. Conn.) Cayuga claim and the claim in Maine is that Congress could not extinguish '0 Le.. Native American Rights Fund attorneys and Judge M. Joseph the Cayuga claim unless it provider: jest compensation at the fair market bluincnfeld. value for the land, while no such restriction exists in Maine. See also, *-1" See Schaghticoke Tribe of Indians v Kent School Corp.. 423 F. Supp. Daniel G. Kelly. Jr., "Indian Title: The Rights of American Natives in at 783, n. 2. Lands They Have Occupied Since Time Immemorial," Columbia Law NARF Announcementx p. 21. Review, vol. Is (1975), p. 655. "" Arthur Gajarsa, interview in Washington. D.C.. Aug. 15, 1979 (herea " Gajarsa Interview. ter cited as Gajarsa Interview). 1" 44 Fed. Reg. 723o (Feb.6, 1979). 1.* MidAttorney General Griffin Bell had said that the Department of 1" Cayuga Nation v. United States, Docket 434, 36 Ind, CI. Comm. 75 Justice would not sue any 1,;:vate landowners but only the State of New (1975). 41Ind. CI. Comm. 308 (1978) (approval of a compromise York. settlement). The 1975 opinion of the Indian Claims COmmission was 1" U S, Department of the Interior, news release. "Tentative Agreement important for establishing the principle that an obligation of the Federal Reached on Cayuga Indian New York Claim." Aug 20. 1979. Goverment exists despite the fact that the tribe sided with the British to the ", 7 Stat. 44 (1794). American Revolution 116 June 1977 that suits be brought by the Federal State officials, dubious before, are now seriously Government on behalf of the tribes.'" The Justice scrutinizing the claims. As Jeremiah Jochnowitz, Department agreed to commence the suits before assistant New York attorney general for Indian the statute of limitations was to expire in August cases, described it, "These cases would be laughed 1977. Congress subsequently extended the time out of court if they were brought 30 years ago, but period for bringing lend claim suits to April 1980.1" the temper of the times has changed."'" The various Thus, with more time availabt for settlement. talks, tribes and their attorneys are well aware of the no lawsuits for either the Camras or -the St. Regis temper ofThetimes and are moving towards settle-settle - Mohawks have been filed in court. The Department Inents. . , of the Interior' will not recommend litigation and neither will the tribe file lawsuits as long as some South Carolina's CataWba Tribe hope remains alive for another alternative.'" The 1,200-member Catawba Tribe has a long, continuing history of asserting its claim to 144,000 St. Regis (Akwesasne) Mohawk Indians acres of land it once owned. Since 1904 the tribe has The Si. Regis Mohawk Tribe came into being at sought Federal assistance to bring its claim.'" the St. Regis Jesuit Mission as a conglomerate of Prior to the American Revolution, the Catawba converted Roman Catholics and elehients of non- were secured in a15-mile ,square,144,000-acre Christian Mohawk groups.'" The tribe was a mem- reservation :through the Treaty of Augusta with the ber of the "League of Seven Nations," an alliance British Crown.'" When the United States took- over united to offset the "Six Iroquois Nations." In 1796 Great Britain's sovereigntiafter the Revolutionary the tribe was recognized by treaty with New York War, the new governm. ent did not abrogate the State and granted a reservationof 28,000 aCres.'" earlier British treaty. Solicitor Krulitz of r'-e Depart- This treaty wat ratified by the Federal Government ment of the Interior in a recent announcement thus and thus, as with the Cayugas, gave rise to a fifth concluded, "the Catawbas retained a vested right in amendment compensation claim. their reservation."'" Between816 and 1845 the reservation was Following a series of encroachments, the State of diminished iii size by 15,000 acres without U.S. South Carolina acted to extinguish Indian title to the approval. Due to a boundary change with Canada, 144,000-acre reservation by approving the Treaty of two islands were transferred in 1822 to the United Nation Ford in 1840.1" The treaty was signed, StatesBarhart Island and Long Sue Island. The ratified, and confirmed without the Federal approv- Mohawks also claim, the 3,000 acres of flooded al required by the Nonintercourse Act. In two later islands (complete with the gigantic St. Lawrence actions, the State repurchased parcels of land as a Power Project) under aboriginal title, since no treaty home for the Catawbas, which amounted to 4,000 was involved and the tribe never relinquished its acres.'" rights when the land changed flags." In the early 1900s, the Catawba Tribe petitioned Between 1928 and 1958, three cases were brought the United States for assistance in restoring its by the tribe, but none was successful."2 In all three reservation or payment for its loss. In 1909 the cases the courts rejected the claims of the St. Regis Commissioner of Indian Affairs denied the petition Mohawks on the basis of legal theories*" that the because the Department of the Interior viewed the Supreme Court of the United States has subsequent- tribe as "State Indians," as opposed to federally- ly declared to be no longer tenable.'" recognized Indians, notwithstanding the fact that U S . Department of the Interior, news release. "Interior Asks Depart- "` Oneida Indian Nation v, County of Oneida. 414 U.S. 661 (1974). ment of Justice to Bring Suits in Support of Indian Claims in New York '" Harold Faber. -Indian Land Claims Put to Negotiators." New York State." July I. 1977. Tunes. Jan I, 1978. p. 20. 1" Statute of LubitationsIndian Claims. 28 U S.0 §2415 (1977) " U S. Department of the Interior. news release. "Interior Asks Justice 1" Legislative attempts at implementing a proposed settlement agreed to by the tribe and the Department of the Interior. H.R. 6631 (96th Cong., 2nd Department to Begin Legal Action in Support of Land Claims of Catawba seas.), were not successful. The matter is now pending in litigation Indians in South Carolina," Aug. A. 1977. Gajarsa Interview. " Treaty of August 1763. Catawba Indian Tr:be-Great Britain. An earlier 1" Ibid. treaty, the 1760 Treaty of Pine Tree Hill. established the same result but no "' Ibid. copy of the treaty is available See NARF Announcements. np 16-17. 1" Deere v State of New York, 22 F 2d 851 (N D N.Y. 1927), United " U S . Department of the Interior, news release. Aug 30,1977 (hereafter States v. Franklin County. 50 F Stipp. 152 (N.D. N.Y. 1943); St. Regis cited as DOI News Release) lobe of M ,awk Indians v State. 152 N E 2d 411 (C A.N.Y 1958) 1" NARF Announcements.p. 17. 1" St.kegis Tribe of Mohawk Indians v. State, at 419 '" Ibid. 117 Congress had acknowledged the Catawba Tribe in tion but a reality, the initial reaction was extreme. 1848 and 1854.1" Political figures filled the media prophecies of On August 30, 1977, Interior Solicitor Xrulitz doom. Dire economic consequences were predicted announced that the Department would recommend and, given the non-Indian general ignorance of all a suit to recover the tribe's 140,000 acres if a things Indian, it probably was not surprising that a settlement could not be reached. With the threat of period of shock followed the initial recognition that litigation in hand, Solicitor Krulitz wrote to the the claims were real. Justice Department, "We.woulti prefer an amicable, One of the most quoted speeches about eastern orderly settlement to lengthy, disruptive litigation, land claims was delivered by Representative Wil- and will lend immediate assistance in negotiations liam Cohen (R-Maine) on March 1, 1977, when he for a just and model settlement."'" introduced a bill to extinguish Indian title in Maine. Negotiations have proceeded for over 2 years, and Dubbed the "dark cloud speech" for its meteorologi- both the tribe and the State attorney general agree cal metaphor, the speech included the following: that an oat-of-court settlement is likely. However, the various groups involved have not'yet been able A dark cloud of doubt and instability is. hover- to agree on settlement figures. Within the tribe, some ing over the- State of-Millie-as a result of a members are intent on receiving land -While others lawsuit brought by the Passamaquoddy and Penobscot Indian Tribes against the State.... ---s-dekaCash award, to be distributed on a per capita basis. [T]he very pendency of the suit threatens to Despite the disagreements over awards, the spirit bring the State of Maine to its knees. If the of conciliation of all parties is apparent. The area's Justice Department proceeds to s tic a return of Representative, Kenneth Holland (D-S.C.), who is the land, local municipalities in the disputed largely responsible for getting the sides together, land areas will have difficulty issuing bonds to finance capital construction programs; banks remarked: will no longer finance home loans and mort- We started to view the consequences, we saw gages; investment and commercial development how explosive it could be, and we were able to will be terminated; and the flow of Federal get the confidence of everybody. What strikes dollars into programs such as FMHA, SBA, and Me about the way things have gotten up in EDA may be restricted. The central nervous Maine is that people reacted in a purely political system of the municipalities could not survive fashion. Perhaps if they had acted reasonably this act of financial anoxia. Already there is a and in a conciliatory way, there wouldn't be revolt beginning among the non-Indian citizens unrest there now.'" who threaten to withhold payment of taxes and mortgages pending a resolution of this contro- Representative Holland, prior to a negotiatiated versy. This, of course, will only exacerbate the settlement, introduced a bill, the "Catawba Settle- financial pressure now being exerted on local` ment Act,'" that would cut off the claim in return communities.'" for "full, just, and adequate compensation."'" The Maine's attorney general, Joseph Brennan, in a bill leaves open the details of a settlement plan, similar vein wrote to the Maine Legislature and however, authorizing the Secretary of the Interior sounded the following cry of alarm: to develop a plan, subject to the approval of the Catawba Tribe.'" A full hearing was held on June Because of the economic problems created by 12, 1979, before the Committee on Interior and the pending claims, some people have suggested Insular Affairs.'" that we should negotiate with the Tribes..-. .The only purpose that I can see in negotiations would 'be to discuss the possible Reaction to the Claims payment of state lands or monies to the Tribe. I When it became apparent to the non-Indian public believe it would be wrong to compromise this that Indian land claims were not simply an abstrac- claim in that way. I believe it would be wrong ." Ibid. '" A draft settlement proposal was produced in July 1980; however, it was ." DOI News Release. rejected by the full legislative committee in October 1980. Suit was filed by 01 Peter Kovler. "Native American Land Rights," Current, no204 the tribe (July/August 1978). p. 19. §2(b). 1" H.R.3274. 96th Cong. 1st sess (Mar 27, 1979) "' !bid Ibid., §2(a). "` 123 Cong Rec. H1533 (daily ed Mar 1, 1971Xremarks of Rep. Cohen). 118 129 to settle a case about which wefeel so strongly it...the Indian Renaissance:..the size of the simply because the Tribes, .backed by the offensive is striking.' resources of the Federal Government, are in a position to bring great financial pressure to bear Time only briefly mentioned the legalasis for the on the state.'" claims and the fact that the Justice Department had Maine's largest newspaper, the Bangor Daily concluded in several instances that the Indians have a solid case in law. The article, however, viewed News, took a similar view in an editorial on the Maine claim. "Unless this country is prepared to potential court decisions that would turn over land destroy itself in the name of justice," the Bangor as "the unthinkable unraveling of society," "the paper _warned, "it-is madness to foresee 1,500 or so inherent absurdity," and "the impossible rolling back of history."" Maine citizens, of any color, creed or ancestral origin, getting 10 or 12 million acres of land and Community spirit and Cooperation were wounded by_the-persistenrract§ni-exhibited in the billions of dollars....If Maine's Indian case has medt,..then.,.-no-landitiate in the country is land claim areas,. Senator Edward Brooke (R- safe."' inserting the editorial in the Congressional Mass.), knowing firsthand the problems in Mashpee, Record, Representative Cohen said that a town of fewer than 5,000 people, commented in a it "well congressional bearing: represented public opinion in Maine.""4 Attempts by the' Maine tribes to minimize the It [Mashpee] was,_and,it. is -a very wonderful potential effects of the suit were viewedaa.unsatis- cape town. They are very warm and beautiful factory by the Bangor Daily News: people, but racism has crept into this town as a result. of this....1 think it is a credit to both 6 Token gestures such as reducing the amount of sides that it hasn't expanded more that it has so acreage sought are of little value. The principle far. is the same. Nor does the Indians' offer to steer Racism has also had an economic impact in that clear of the "small landowner" have any true there has been an economic retaliation in certain comfort or redeeming value. If you can take instances on both sides as a result of these land or tribute from the large landowners, it is claims. [property rights are important but only a matter of time before you can take it, human rights are still more important.... much easier in fact, from the, small landdwners who won't have the means to defend them- As long as we deny the people who have that selves except in numbers and force." right and bought that land the right td sell that land and repair that landor do anything with One of the harshest criticisms of the Indian land itthe business of racism will do nothing but claims appeared in a Time magazine essay under the increase and fester. loaded question, "Should We Give the U.S. Back to the Indians?"' The following excerpts reflect the It is a problem.'" biases of generations: . Landowners in several States united to oppose the land claims. In Mashpee, for example, two groups They are un a warpath of sorts again, armed formedone that favored a negotiated settlement this time with old treaties and new court writs and led by sharpshooting lawyers; and one that strongly opposed the suit. The latter, the Mashpee Action Committee (MAC), which Mashpee, Mass., one besieged town; received support from the Interitate Congress for Equal Rights and Responsibilities (ICFRR), was After so many quiet years what got into the organized in 1976. Indians?...Indiannationalism...newasser- One of the prime issues of the ICERR became tiveness..fundamental. new strategy. ..the what it called "Indian land grabs." Leaders of the ongoinglegaloffensive...partof aspir- group said that their efforts "could make Mashpee as 1" Attorney General Joseph Brennan, "Memorandum to the Members of 1Bangor Daily Ness. Mar. 2. 1977. die Maine Legislature" (Augusta. Me, Feb 18, 1977), p 8. reprinted in 123 '" Frank Trippett. "Should We Give the U.S Back to the Indians" Time. Cong. Ref. 53206. S3208 (daily ed Mar 1. 1977) vol 109 (Apr, IL 1977). p 51. 1" Bangor Dat4. News. Mar. 2. 1977. reprinted in 123 Cong Rea. £1481- '" Ibid. £1482 (daily ed Mar 15. 1977) 1" lbid . p. 52 ''' 123 Cons Rea £1481 (daily ed Mar15.1977) (remarks of Rep '" U S , Congress. Senate. Select Committee on Indian Affairs. Mashpee Cohen) Lands: Hearing on Si Res. 86, 95th Cong. 1st secs1977. p 39 119 130 important for civil rights as the Little Rock civil Indian Affairs'would be picked up by the Federal rights conflict of the1950s."1t5 'It was an odd Goyernment.191 Ads federally-nonrecognized tribes 'analogy to make, equating their position in relation who were not likely to be a part of a Maine to the Indian land claims with that of black citizens settlement, Micmacs and Maliseets believe they are in the Little Rock crisis. In the case at hand, white being unfairly treated. citizens were asking the Federal Governnient to Before the suit was filed, Indians and non-Indians support the white majority in its efforts to oppose in Mashpee had interacted. After the suit was filed, Indians, who are clearly the numerical, political, and Indians tended to stay in the northern part of the racial minority. An article in The Nation criticized town and whites clustered in_thesouthern part. 1112 At this type of thinking in the following comment: least one Indian-owned business was openly boycot- ted by non-Indians.193 On one occasio. two to three The fact that a legal vindication of Indian land dozen policemen routed an Indian youth camp-out claims may be unfair to non-Indians is a proper and sent 12 young peopleto jail. All the youths were cause of concern, although Indians may be left to wonder why discussion of their cases con- dater acquitted. Mashpee Indians are convinced that centrates almost exclusively on the real or the incident was at open attempt to intimidate them imagined hardship in store for non-Indians. into dropping their lawsuit.i It is this one-sided approach and itscorollary Actual Economic Effect . disregard for the longstanding and very real Economic problems related to the lawsuit in economic and social plight of Native Americans Maine first surfaced when a prominent law firm that has been used to 1tstify the distorted and punitive anti-Indian ri :hts legislation now be- refused to give an unqualified legal opinion as to the fore Congress. tea security of a $1 million bond issue proposed by Millinocket, a city in the heart of the claims area,. Some Indian tribes whad filed land claims were Shortly thereafter, the Maine State treasurer an- denied public services. eida, New York, allegedly nounced the delay of a $27 million issue by the responded to thes'.1 of the Oneida Indians by Maine Municipal Bond Bank on behalf of towns, cutting off police a fire protection to an existing schools, and hospitals both inside and outside the 32 acres of Indiannd."9 claims area."5 In Maine, Ians who would otherwise qualify The land ownership dispute was perceived as for financi_.trcAn the Veterans Administration on threatening to the bond market because itraised home impvements or mortgages allegedly could questions about the ability of local and State govern- not get f nds because of the land claim.190 Even ments to tax property,since it is the availability of though cmac and Maliseet Indians (constituting such revenues that guarantees government bonds. If about one-half of the Indian population in the State) the tribes are successful in regaining lands, title will had not been involved in the Maine claims, they met be transferred to the Federal Government in trust the same hardships as the Passamaquoddy and for the tribes and no State or local taxes will be Penobscot Indians. received from the property.196 Additionally, lending All Indian tribes in Maine were excluded from the institutionsthat retain property as securityfor 1980 Maine budget (effective July 1,1980). The repayment of debts are less likely to bear the risk of Governor's explanation for the drop from $1.7 nonpayment if ownership is uncertain. million to zero was that Federal monies would be Maine's Governor James Longley responded to coming into the State of Maine by 1980; and services the bond crisis by seeking help from the congressio- currently provided by the State's Department of nal_ delegation and from the Department of the .0Wassaja (published by the Amman Indian Ifistomal Society). May Clam on the Economy of Mashpee. Ma,hachusetts (Philadelphia published 1977 by the American Friends Servic.; Committee. July 1978). p 12 (hereafter '" Petra Shattuck and Jill Norgren. 'Indian Rights The Cost of Justice." cited as Report from Mashpeet. Nation. vol. 227 (July 22-29. 1978). p 71 i" Brodeur. "A Reporter." p 123 '" Gumpert. "Indian Land," p 17 in McLaughlin. "Giving It Hack." p 71. New YorA Times. Sept 30, 1976, '," Barbara Namias. testimony. Hearing Before the U.S Com/unstop on Owl p 16 Rights. Washington. D.C. Mar 19 20. 19'9, pp 34 35 (hereafter sited " In parts of the ountry %here trust land is located, the lout tax loss is Washington. DC. Hearing) often offset ssith Federal payments. particularly through Pi, 874 and P.L. Ibid .p. 36 875 (Impact Aid for Education) and/or offset by the substantial benefit to Gumper. "Indian Land.- p 17 the local economy (sales taxes) usually provided by Indian and Federal inReport /iom Mashpee. .4 Study of the Impact of the Wompanoag Land spending. 120 131 Interior. Members of the Maine delegation asked the on the non-Indian population and upon the State Farmers Home Administration Administratorto itself. The preliminary report predicted positive continue loans to Maine lands clouded by the Indian effects on all three groups, thus helping to calm the land_ claims.'Shortly thereafter,the Assistant atmosphere surrounding the claims.5" Secretary of the Treasury notified Governor Long- Despite the excited political rhetoric and head- ley that programs of the Farmers Home Administra- lines about the economic effect of the suit in Maine, tion and also those of the Small Business Administra- some local officials did not appear to have the same tion and the Economic-Development-Ndministration level of concern about the outcome. Millinocket's would not be adversely affected.'" Maine's treasurer town manager put it this way: predicted that the backing of Federal monetary policy agenbies would have "a alming effect on the There's been no impact whatsoever from the financial community."'" The Maine congressional suit here, and just a little inconvenience in the delegation also announced plans to introduce legisla- form of a slightly delayed bond issue. I really tion to pledge Federal backing to guarantee the -don't think anybody is overly alarmed. You'll State's credit and to limit the claims to a monetary findthat our Yankee philosophy is one of pragmatismand wait and See.207 settlement.20° Five months after the September crisis in Milli- In Masqachusetts a study conducted by the Ameri- riocket, bond sales resumed. In' February 1977, can Friends Service Cdmmittee sought to separate rating agencies gave Maine's bonds very good fact from fiction in the Mashpee claim. Descriptions ratings and underwriting groups proceeded to bidon of economic conditions in Mashpee were collected the bonds.'O1 Although the interest ratewas ,some- from a number of civic leaders. A few of those what higher, dealers hesitated to, estimate exactly quotes illustrate the fervor with which the claims hoW much."2 Investors also showed somereserva- -.vere received: tion toward the new issues on the first day of trade. Selectman O'Connell, referring to Mashpee But a half year later, investor confidence in Maine people: "the mental anguish these people are securities seemed assured. Maine Housing Authority going through." ( Cape Cod Times, Feb. 28, 1977) bonds totaling $19.3 million were sold despite the "Mashpee is perhaps the most economically de- fact that about half the proceeds were earmarked for pressed town in the Commonwealth." ( Falmouth the claims area:2" Enterprise, Sept. 30, 1977) The Maine tribes, interested in the overall effects William Clendenin, town assessor and presi- of their suit, Commissioned a financial effects report dent, Mashpee Action Committee: "It's killed the in 1978. The investment consultant hired by the economy. The town has the highest unemploy- tribes predicted that, if the settlement recommended ment rate in the Commonwealth. There are no by the three-merither White House study group were mortgages, no building, no federal grants." ( Cape adopted, tribal investments would produceover Cod Times, Oct. 17, 1977) 5,800 new jobs, 88 percent of which would be filled Senator Brooke (R-Mass.) and Representative by non-Indians. The report204 also estimated that Gerry E. Studds (D-Mass.), in a telegram to $2.4 million in new tax revenues would enter the Vernon Weaver, head of the Small Business Maine coffers from tribal, investments. This sum Administration (SBA): "...unimaginableeco- would be offset by the $375,000 then provided in nomichardship for nearly an entire year." ( Cape property taxes in the area under discussion for the Cod Times, July 28, 1977) potential settlement.205 This study *as prepared for Town attorney Stephen Olesky at a U.S. the tribes to determine if the amount of money could Senate hearing in October 1977: "Real property make a significant long term improvement in their transactions are at a standstill. Mortgages cannot economic condition and also have a favorable effect be obtained and property, therefore, cannot be '" Maine Congressional Delegation. press release. Oct 22. 1976 Economic Consequences of a Settlement of the Passamaquoddy and Penobscot 1" New York Times.Oct. 26.1976. p 20 Claims 1" Ibid. (release by the Passamaquoddy and Penobscot Indian Tribes. Feb. 16. 1978). 70' Ibid.. Feb.10. 1977, p. 18 " Ibid.. Feb. 26, 1977. p. 28 "' Ibid. '°' Ibid. Ibid 1O3 Ibid.. Aug 4. 1977, p. A-I4 to "If Indian Tribes Win Legal War to Regain Half of Maine.- U.S. News ManPatncof Associates.Preliminary Analysis of Certain Potential AWorld Report.vol 82 (Apr 4. 1977). p 54 121 i32 sold- for- an-amount even remotely approximating Town finances: The township. was in trou- its fair mRrket value prior to the institution of the ble, but the difficulties could be traced to other lawsuit. In many instances, property owners have reasons, namely the enormous growth in popu- lation needing schools and other services, and responded to the decreases in marketability in the fact that Mashpee lacks a commercial tax their titles and interests by refusing to pay their base comparable in size to that of nearby towns. real property ad valorem taxes... .The Town of Additionally, by legally contesting the suit, the Mashpee is rapidly approaching a financial crisis town paid out over $500,000 for legal fees. (p. of disastrous proportions." (Mashpee Lands Hear- 19)2* ing, before the Senate Select Committee on Indian In short, the American Friends Service Commit- Affairs, Oct. 21, 1977, p. 59)202 tee found that the effect of the suit was selective. The "gloom and doom" forecasts did not materi- The great majority of individuals and businesses felt alize. Through a systematic series of' interviews, the little if any effect. Unemployment appeared to be no American Friends Service Committee gleaned the higher than normal. The development industry, following information: however, was burdened by the uncertainty of Construction industry: Home construction ownership. The town's finances were affected by the was down about 90 percent but up in neighbor- large amount of legal fees and other expenses of the ing towns. (p. 8) suit and by withheld taxes."' The report cited another .study by the Massachu- Unemployment: Although official statistics setts Department of Community Affairs which were unavailable, interviews indicated that whi- concluded that planned and controlled growth was le there were some serious problems of unem- essential for Mashpee, especially because it lacks an ployment in the first six months of the suit, most people found jobs in the surrounding area, in a industrial or large-scale commercial tax base.''' The similar manner as the construction industry. (p. suit, by checking rapid uncoordinated growth, had 16) the collateral effect of offering the town a chance to analyze the growth in the community, according to Banks: No problem was found with foreclo- the authors of the State study."" sures and no bankruptcies were found that were The tribes and others involved in the land claims suit-related; however, in genera) no new mort- have viewed the initial panic and fear as a necessary gages were being given. (p. 9) step in having the claims taken seriously. One guest Development: Developers were hard hit but editorialist in the Bangor Daily News attempted to not all the developers were in perfect financial describe this: health before the suit. Hardship was somewhat related to size and diversificeEon of developers. [W]e non-Indians would not be lifting a finger (p. 11) for the tribes now, had not the Penobscots and Passamaquoddies found a way to hold a legal Realtors and builders: Those who were not shotgun to our head. Let's not fool ourselves. also developers could go where the construc- We in Maine and Washington aren't moved by tion was, and found a good deal of work any moral fervor, but only by the implications available in surrounding towns. (pp. 11-12) of lawsuit, loss of land and potential economic chaos. Other businesses: The majority lost little or no business. TvVelve businesses opened and 12 Many politicians and editorial writers seem to closed since the suit commenced. (pp. 13, 15) play on neople's fears, and on potential econom- ic problems of a land claims suit. Feanis a low Personal hardships: Thirty-four persons, in- common denominator, and a questionable mo- cluding 15 senior citizens, wanted to sell their ,;ve for action of any kind. And are economic homes but could not. Those cases represented .S problems more important than equality and percent of Mashpee's population. (p. 18) justice?'" '*" Reprinted in Report from Mashpee. pp 3-6.9 Mashpee. Mass. (Local Assistance Series No. 4. December 1Q75). quoted in "' Ibid Report from Mashpee. p. 23. no Ibid . p 23 "1 Ibid. 1" Massachusetts Department of Community Affairs. Office of Local ''' Steven Cartwright ( WabanaAs Alliance editor). "Fair Shake.' Bangor Assistance. Developing a Land Use Management Process: Case Study. Daily News Mar. 2.1078. 122 134 In the Oneida test case in 1977, the Federal district the executive branch, thus making a Presidential court also noted the potential economic realities if veto likely. Meanwhile, as negotiations have pro- the parties refused to". settle out of court and then gressed in a number of States, a consensus has stated the reasons why a, political solution was formed that any legislative solution of Indian land prefeble to a final court determination: claims should await a final negotiated iettlement. The potential for disruption in the real estate market is obvious and is already being felt. Maine Extinguishment Bills News reports indicate that title companies have Maine was the first State for which extinguish- refused to insure titles in areas where Indian land claims exist, even if law suits have not yet ment ,legislation was introduced in Congress." been commenced. Originally both the House and Senate bills were to be introduced in February 1977. At the request of The greater part of :he disruption and individu- the Carter administration, they were forestalled. al hardships caused by litigation such as this Two related developments occurred in late Febru- could be avoided by seeking solutions through ary. The Department of Justice reduced the size of other available vehicles. This in no way is the claim (to affect 90,000 non-Indians instead of intended to be critical of the plaintiff's conduct. The trial of this case demonstrated that they 350,000), 'and President Carter decided to name a have patiently for many years sought a remedy special representative to help reach an out-of-court by other meansbut to no avail. The aid of the solution?" United States as a guardian has been sought for Amid the panic accompanying the clouded titles the purptise of instituting claims against the and the requests for legislation by Maine officials,2" State of New York, to challenge not only the the Maine congressional delegation agreed to act. 1795 sale but other treaties with the state. The On February 9, 1977, the delegation announced that remedy afforded by Congress against the Unit- ed States for alleged breach of trust has been it would submit legislation to pledge Federal back- and is presently being pursuedbefore the Indian ing of the State's credit and to limit the Maine claims Claims Commission. Finally, itis within the to a monetary settlement." power of Congress to dispose of the matter On March 1 Representative William S. Cohen (R- under the constitutional delegation of power. Maine) and Senator William D. Hathaway(D- Maine) introduced virtuallyidenticalbillsthat The aptness of what was recently said by Chief would have limited the tribal remedy to monetary Judge Kaufman is striking. "As in so many cases in which a political.solution is preferable, damages." The bills would not have eliminated the the parties find themselves in a court of law."2" entire pending lawsuit or have foreclosed any possibility of a negotiated settlement. A statement by Attempts to Cut Off Claims 0 the Maine delegation said: An angry constituency will attempt to translate its concerns into legislative action. It is not surprising, [T]here are no guilty parties in Maine today. therefore, that the Congress would become one of The Federal government bears a heavy respon- the arenas in which land claims would be fought. sibility for the present situation. .). .The equi- One of the first congressional battles concerning the ties demand that the land aspect 9f the Indian claims was the effort to extinguish Indian land claims be extinguished. There is simply no claims. equitable way of forcing a return of land which has been settled, developed and improved in Attempts were made to cut off the Maine, Massa- good faith by Maine people for two centuries."' chusetts, and New York claims. The measures were regarded unsympathetically by chairmen of the Representative Cohen noted, the Justice Depart- pertinent congressional committees. It is doubtful ment's decision to reduce the size of the claim, but that, if passed by Congress, any such extinguishment indicated that it did not negate the necessity for the legislation would have received the endorsement of legislation, since vast acres of claimed land still hung 2" Oneida Indian Nation v. County of Oneida. 434 F Supp 527. 531-32 2 Ibid., Feb. 10. 1977, p. 18. (N.D. N.Y. 1977) (citations omitted). m S842 and H.R. 4169, 95th Cons . 1st sess. (Mar. 1, 1977) "2 S.1342 and H.R. 4169, 95th Cong .1st sess. (Mar I. 1977) 2" Maine Congressional Delegation, statement. "Delegation to Introduce 2 Representative William S. Cohen, press release. Mar. 1. 1977. Bills on Indian Claims." Feb. 28. 1977 1" New York Times. Sept. 30. 1976. p. 16. 123 134 inithe balance and only by act of Congress could the The Maineextinguishfentbills, however, failed cloud on title be effectively removed."' He also to make any progress, in large part because of the mentioned the intent of the Maine delegation to staunch opposition of the relevant committee chair- introduce further legislation authorizing the Federal men. In a terse and unequivocal statement released Government to guarantee all State and local bonds March 12, 1977, Representative Morris Udall (D- and land transactions, although lie _acknowledged Ariz.), Chairman of the House Committee on Interi- the difficulty of such a measure.222 No such bill was or and Insular Affairs, and Representative Teno ever introduced. Roncalio (D-Wyo.), Chairman of the Subcommittee Senator Hathaway also indicated that the impetus on Indian Affairs and public Lands, declared that it behind the bill was to remove the cloud on titles while allowing the case to proceed: was "inappropriate for the Congress to involve itself in the dispute. Under° existing circumstances," the It is not intended to be a judgment on the legal chairmen said, "the House Committee will initiate merits one way or another; itis, however, a no legislative or oversight activity on the matter in recognition that there are other considerations order to facilitate the possibility of a negotiated which demand to be taken into account. The settlement."2" Negotiation, coupled with a Federal most significant Of these is the potential eco- nomic disruption and confusion in the State of mediator, was urged as the best approach, with Maine which might result from the mere pen- Congress cooperating with the endeavors. The dency of the litigation, regardless of the merits chairmen's statement declared that "the Committee of the claim.223 will take a dim view" of failure by any affected party to negotiate."' Subsequent to that time, Senator Hathaway took the lead in negotiations that would not severely Senator James Abourezk (D-S. Dak.), then Chair- en roach upon the Indians' right to sue and at the Man of the Senate Select Committee on Indian sae time would protect the non-Indian landowners Affairs, echoed these sentiments. "The Maine bill by affording them just compensation. After that would be an interference on one side," he said.' "If -time,-the_Maine delegation ne'er again took so there were going to be such an interference, I would. unified a position, with all members in accord with rather do it on the other side."2" He also maintained e.t.. State position. that it was an inappropriate time for any legislative The Passamaquoddy and Penobscot Tribes were effort. Without the support of the Committee chair- uick to respond. On March 8 the tribes issued a men and with the stern opposition from the Indian atement that recounted 200 years of their history tribes,thebillswere destined to go nowhere. nd the facts of their case. Sharply critical of the Although the Senate Select Committee on Indian egislation, the statement concluded: Affairs changed chairmen after the 1978 election, the mood was such as to settle the claim once and The State of Maine, which has steadfastly for all through a negotiated settlement. refused our offer to negotiate, responded to these developments.. .by having the Maine The opposition did not discourage election year Congressional delegation submit identical bills bills, however. Governor James B. laingley and in the House and Senate providing for the total Attorney General Joseph E. Brennan again request- ielimination of our claims by retroactively ratify- ed their congressional delegation to introduce their ing these illegal transactions. While the mem- draft legislation, which would have done three bers of the delegation tried to tell us that these bills would preserve our rights to sue for money thingstransferred the claim to the U.S Court of (as though that should be enough), anyone who Claims, provided a mechanism to determine the reads the legislation can see that it leaves no amount of compensation, and converted the claim to claim at all n' an action for money damages only."' The bills were m 123 Cong. Ref:I-11533 (daily ed Mar. I. 1977) (remarks of Rep Cohen) 2"Ibid m Ibid "' Lyle Denniston. "A Serious Dispute Over Indian Land Claims in 2" 123 Cong. Rec. 53206 (dal./ edMar.1.1977) (remarks of Sen if at hay.ay). Northeast." Washington Star. Mar. 20. 1977. p A-1; see also NARF Announcements. p 11 "" Passamaquoddy Tribe and Penobscot Nation. statement. Mar 8. 1977. reprinted in NARF A nnouncemees. pp 9-10 S 3130 and H R 12834. 95th Cong 2nd sess (May 23. 1978). see also m Representatises Morris K IAA and Teno Ronsalto. "Statement Attorney General Joseph E Brennan. letter to Senator Edmund S. Muskie. Regarding Indian Claims Case.".Mar 12. 1977 May 19. 1978. reprinted in 124 Cong*Rec. 58113 (daily ed May 23. 1978) 124 J,5 introduced although both Maine Senators acknowl- for the 'measure, but the administration, through edged thavdoing so was "an exercise in futility."2" Eliot Cutler of the Office of Management and Budget; 'strongly opposed the resolution?" His Legislation and the Mashpee Claim position, in short, was that it was not good policy to Representative Gerry Studds (D-Mass.), in whose so expose the United States to potential rability for a district Mashpee was located, met with the non- fifth amenilment taking. Just,compensation, equal to Indian citizens of the town in late 1976. Mitny of the fair market value plus interest, could climb these property owners were looking for Federal considerably above the cdrrent value of S150 to $200 legislation to solve the economic problemsboth million. That would set a dangerous precedent for the anticipated and the realwhich the town experi- other Indian claims, Mr. Cutler enced as a result of the suit 2" The cost of indemnifi- _Faced with such strong objectionscongressional cation of title in Mashpee would total $300 million. enactment was highly doubtle and even if enacted Moreover, any attempt at such legislation would be probably faced a, vetothe House subcommitt subject to amendments seeking similar guarantees refused to report the bill tofu!! committee-?4 In for other areas affected by, Indian land claiihs.231 meantime, other possible legislative optionser% Congress, he said, would not likely agree to such an discussed. Senator Kennedy and Senator Brooke expense. Two additional conditions had to be met also prepared the draft of a new resolution iat before any legislation had a chance of passing in overcame some of the objections encountered in the Congress, he explained. First, it must not be subject to a constitutional challenge. Second, it must be earlierttempt. During the Senate's hearing on accepted by all parties in the suit."2 This view ran -Mashpee,. Senator Kennedy outlined three options: counter to the sentiment of many of Representative 1. S.J.'es.- 86, which would extinguipi title and Studds' constituents and was also at odds with the make the U.S. Govern-dent liable if the tribe won its town's attorneys, who had drafted indemnity. legisla- current suit; tion?" 2.Establish a fund, managed by the Secretaryof In 1977 legislation was again requested to guaran- the Interior, lo,be awarded to the tribe, upon a teetitlein Mashpee. This time Representative favorable judicial ruling; and, Studds did comply with the request for legislation, 3.Recommend an immediate out-of-court settle- along with Senators Kennedy (D-Mass.) and ment for homeowner lots of 1 acre or less agreed to Brooke (R-Mass.). Identical resolutions were sub- by all parties.?" mitted:" in both the House and Senate. The legisla- OMB objecte4, to the third alternative which waft' tion would have extinguished title and made the U.S.t the heart of the new Kennedy-Brooke draft. The Government liable for compensation if the Indians won on; the question of recogniul title. The administration believed such an approach would encourage frivolous actions because it would pro- legislation noted that the tribe had already amended its suit to exclude homeowner plots of 1 acre or less. vide remedies without proof of liability."" Alrna- That modification, however, was not enough to tively, the'administration proposed the creation of a clear title to land. Only Congress has the power to S4 million fund that would be turned over to the clear title of Indian lands. tribe, should it prevail. This compensation would be The House Subcommittee on Indian Affairs and in lieu of receiving property (up to and including 1 Public Lands held hearings on the resolution in acre per property owner of developed }end) and any October 1977.2" Representatives from both the tribe other recovery from the United State/ or any other and the New Seabury Corporation indicated support sovereign.", "" Maine Times.June 2. 1978, p 6: 124Cong Nee.58112 (dad. cd. May Lands.Mashper Lands. Ileanng on ILL Res. 612.95th Cong. 1st secs., Oct. 23. 1978) (remarks by Sen. MuAie). 13. 1977 (unpublished). Mashpee Tribe v. Town of Mashpee, 447 F Supp. 940 (1) Mass. 1978). U.S , Congress, Senate. Select Committee on Indsa Affairs.Mashpee was filed in August 1976. Lands Bearings on SJ. Res. li6.95th Cong. 1st sess.. Oct, 21. 1977, p Samuel Allis. "Mashpee Residents. Stud& Lock Horns."Boston Globe. (hereafter cited asMashpee LandsSenotel. Dec. 12. 1976,p. 33. Ibid.. p 42. " Ibid. "4 Ibid,. p 17 (remarks of Sen. Kennedy) "1 Ibid. '" Ibid.. pp. 17-18. 21-22. "4 Si.Res. 86 and Hi. Res. 612.95th Cong.. 1st secs. (Oct. 4. 1977). "4 Ibid., p 45 (remarks of Mr. Cutler) "I U.S.. Congress. House of Representatives. Subcommittee on Indian Ibid . p.43. 125 136 An attorney for the Indians testified against the to- go to some tremendous legal .expense to OMB-proposal'and in favor of the original Senate defend their lands. resolution."' The OMB elution, he argued, would put a cap on the potential recovery and still subject Frankly, Ithink the tribe to the risk of litigation. Such a solution, itis time the decent, law abiding, hard-working, tax paying citizens of unlike the joint resolution, would not preserve the this Nation got a break. What an innovation it status quo.'" Representatives for both the tribe and would be for Government to come to their the town agreed to meet to discuss amendments to assistance for a changc. Senate Joint Resolution 86 which, upon their agree- ment, could be submitted to the committee. Chair- man Abourezk supported this approach, despite the Well, here is our chance. Limit the funds of the administration's opposition.'" Justice Department to the prosecution of crimi- Meanwhile, the Mashpee trial concluded and the nals rather than the harassment of American Indians were defeated before any congressional citizens.' action could be taken'" The chairman of the relevant appropriations subcommittee opposed the amendment, stating: New York Legislative Efforts to Curtail Claims Several attempts were made to enact legislation If the Indians in New York have a legitimate that wot.ld blockine Indians' action to recover land ..claim and the Department of Justice is autho- in New York, as well. Although they were not rued to represent them or authorized to be successful, one attempt has been revived in succes- involved in some way in the matter, I think that sive Congresses. s'u the Department should be permitted to do S0.248 Thefirst effort by New York Members of The amendment was rejected by a vote of 43 to Congress was an amendment offered on the floor of 27.249 the House by Representative William Walsh (R- N.Y.) to the appropriations bill for the Department Representative Walsh then introduced an extin- of Justice, which read: guishment bill that would have confined any claims brought by the Cayuga, Oneida, St. Regis Mohawk, None of the funds appropriated by this titlemay Onondaga, or Seneca Tribes to a monetary remedy be used to represent the Cayuga Indians in any Cited as the State of New York Aboriginal action at law or suit in equity to recoverany Claims Act of 1977, the bill failed to note:that some damages or real property from the State of New York or any owner or prior owner of any real of the titles at issue were based on recognized title property located in the State of New York.' and not aboriginal title, 'and nevertheless would be subject to full fifth amendment just compensation This amendment was a novel attempt to circumvent claims. Even assuming that the bill would have the Interior and Insular Affairs Chairmen who had passed the committee, the prohibitive fair market declared their opposition to extinguishment legisla- value cost would have rendered passage unlikely. tion in Maine several months previously. Represen- Neither Representative Walsh nor his successor, tative Walsh, in remarks during the House debate, Representative Gary A. Lee (R-N.Y.), reintroduced expressed sympathy for the non-Indian landowners the legislation. of the properties in dispute: Representative James Hanley/ (D-N.Y.) also con- sidered introducing what he called "harsh legisla- Two wrongs will not make a right... .Now because some pointy-headed bureaucrat with tion" to extinguish the Oneida claim to land.'" nothing better to do decides the Government However, after he was informed that such aon should pursue the claim, these people may have would probably constitute affifth amendme aking, "2 lbid. pp. 52-55 (remarks of Thomas N. Tureen) 3" ibid.. p 115727-5728. 1b6.:. pp. 6G-69. "' Ibid(remarks of Rep Slack) t r "' lbidp. 72 (remarks of Sen Abourezk) "'Ibid Hs Mashpee Tnbe v Town of Mashpee. 447 F Supp. 940 (0 Mass1978) 3" H R 9906. 95th Cong, ht sess' (Nov 2. 1977) (verdict announced on Jan. 6, 1978). "' P3 Cong Rec 116826 (daft- ed July 12. 1977) (remarks of Rep "" 123 Cong. Rec. H5697 (daily ed June 9, 1977) flanley) 126 3?-/ compensable at fair market value in excess of $1 precise form that the responsibility should take or billion,252 he declined to introduce the measure in provide a legal strategy for the Justice Department. that session. In January 1977 the district court judge granted In 1979, however, local officials from Madison an adjournment of the case to allow further time for County asked Representative Hanley to introducy research and also 'to allow the incoming Carter bill that would ratify the treaties retroactively and, it administration a chance to pursue alternatives.256 In was argued, thereby extinguish the Indian land the interim, the Department of Justice had received claims.=" The 1977 Oneida test case did not involve a litigation report prepared by the Department of the full claim but was limited to Madison and Oneida the Interior recommending that the Federal Govern- Counties and only settled the issue of liability, not ment seek 8 to 10.5 million acres plus $300 million in the issue of damages..`= rent and damages for the Indians."' In its motion for .. the delay, Justice stated that it needed more time to study the Interior Department recommendations. In The Search for a Negotiated addition, the Department of Justice recommended Settlement in Maine that congressional involvement, whisk would be The chain a events that led to a number of required in any event before the case could be resolutionstc.. the Passamaquoddy and Penobscot completely settled, should begin before the conclu- Indian land claims is a fascinating study. The Maine sion of litigation."5f claims have been the largest and most publicized and Several requests for a mediator, negotiator, or the most aggressively opposed, and attempts at Presidential representative followed. The Maine negotiation, mediation, or conciliation have pro- congressional delegation called on President Carter ceeded for the greatest length of time. A whole to "recognize a moral and legal obligation" to take array of solutions have been proposed: Judge Gun- the lead in developing policies geared towards a ter's recommendation, the White House joint memo- settlement and also to name an independent observer randum, the Hathaway memorandum, and a later to assess the situation 25 Congressional representa- modified version or versions of a settlement. A tives for Mashpee also called for a Presidential congressionally enacted settlement agreement was representative for the land claims,favoring an finally achieved in September 1980. independent mediator over afactfinder.26° The tribes, too, supported the idea of a Presidential The Gunter Appointment and Preceding representative, since they had favored an out-of- Events court settlement all along. Only the Maine State Following the Passamaquoddy case in 1975,255 the officials continued to press for litigation. Maine's Depirtment of Justice decided not to appeal its Attorney General Joseph Brennan said, "The case obligation to represent the tribe to the U.S. Supreme willultimately be successfully defended inthe Court, but rather began the laborious job of re- courts."2" searching the massive claims. The court case had -President Carter, after taking office on January simply reaffirmed the Federal trust responsibility as 20, quickly responded to the pleas. A Department of it related to the duty of the Federal Government to Justice memorandum, filed with the district court in represent the tribes, but it did not spell out the Maine on February 28, announced President Car- '" NARF Announcements. p 8 if the Government sued for less than the tribes could demonstrate as a "3 Doug Carroll. "Tribal Lands In New York. Six Million Acres Hang in legitimate claim, such action might have the practical effect of extinguish the Balance." Washington Post, Sept 24. 1979. p A-2 mg titlei, task only Congres, was empowered to do. AlternaUvcly. land "' Oneida Indian Nation v County of Oneida. 434 F Supp 527 (N D in the claim arca not brought into a Justice Department suit might still be N Y 1977) brought by the tribes. thus leaving a portion "in a legal limbo long after "' Joint Tribal Council of the Passamaquoddy Tribe v Morton. 388 F resolution of the suit "Final Draft. Civil No 1966 N D . pp 12-13, see also. Supp 649 (N D Mc 1975). a/rd. 528 F 2d 370 (1st Cir 1975) "Why Interior Department Attorneys Took a Hard Line." Maine limes. "' United States v Maine. Civil Nos. 1966 and 1969 (N a sic . Jan 17. Feb. 9. 1977 1977) (order granting extension of time for hearing). sec also, New York Times. Jan 18. 1977. p 62 "" U S . Department of Justice. Memorandum to the US District Court. "' U.S . Department of the Interior. Final Drafts of Litigation Reports in the Northern District of Maine. Jan 14. 1977. reprinted in 123 Cong Rec . S3205 Cases of United States v Marne. Civil No 1966 N.D. and United States v (daily ed. Mar I. 19771. Maine. Civil No. 1969 N.D. submitted to the Assistant Attorney General. 's* New York Times. Feb 10. 1977. p 18 41f Land an! Natural Resources Division. U S Department of Justice. Jan 11. "° Mashpee Lands-Senate, p 24 Members of the Maine delegation refused 1977 In explaining the broad sweep. the report noted that once the Federal to join in signing a letter asking for a "mediator Government had been ordered to acknowledge the trust relationship. it was "' John Kifner. "Justice Staff Asks Congress to Settle Maine Indian Sun. "in no position to view our responsibilities in a niggardly fashion " Further. New York Times. Jan 20. 1977. p 19 127 ter's upcoming appointment of a special representa- tral third-party mediators for any claim that needed tive in the case.'" With that announcement and a one." plea for congressional action, the Justice Depart- Judge Gunter's recommendation, issued on July ment put off filing any suit until June 1, to allow 5, 1977, set the record straight on the description of---- Congress and the special representative a chance to hirole. "I have not acted as a mediator in this work somthing out. ma ter; my role has been more t.lat of a judge."" In President Carter aske51 retiring Georgia Supreme his report, Judge Gunter concluded that although Court Justice William B. Gunter to be his special the States of Maine and Massachusetts (out of which representative in the case. The role chosen for Judge Maine was created in 1820) bore some responsibility Gunter was the one recommended by the Maine delegationan independent evaluator," not an for the problem, the Federal Government was arbitrator or mediator as was recommended by the primarily responsible. The tribes and property own- Massachusetts delegation and the House Interior ers within the claims areas, were totally absolved of Committee."' any blame. The primary harm of the cases was seen Then Senator Edmund Muskie called the choice as an adverse economic result in these States. Absent "excellent," noting that Judge Gunter had the such impact, Judge Gunter could see no necessity confidence of key figures in the land claim discus- for Presidential action. , sions, including Attorney General Griffin Bell and His specific proposals for recommendations to White House Counsel Robert Lipshutz, and he came Congress included: $25 million appropriations for to the case with "no obvious Maine connection or the tribes to be administered by Interior; 100,000 slant in any direction."2" The Native American acres of State-held lands to be conveyed to the Rights Fund, however, was hestitant, noting that United States as trustee for the tribes; and long-term Tudge Gunter was unknown to the Indians prior to options to be acquired on an additit gal 400,000 acres the announcement. "' of land in the claims area and exercised at the election of the tribes. Other proposals involved Judge Gunter's Attempt maintaining BIA benefits and State benefits." After receiving the consent of the State of Maine to give On March 20, 1977, Judge Gunter held a "get- up 100,000 acres and maintain normal benefits, tribal acquainted meeting" withtribalgovernors, the consent should be sought to accept the benefits as Maine Governor, attorneys on both sides, Interior and Justice officials, and members of the White the sole remedy. If consent were given, all claims of House staff. Several participants described the ses- the two tribes should be extinguished, but if consent sion as "letting off steam."20 White House Counsel were withheld, all claims should be extinguished Robert Lipshutz called it "an excellent start."2" anyhow, except for the State-owned land. The tribes From that time on, Judge Gunter did not hold would then be allowed to proceed through the sessions with all the parties, but met separately with courts, while the adverse economic consequences ,. each group, requesting briefings on the legal issues would be eliminated. Finally, if the State of Maine and the concerns of various parties. would not consent, the tribes should be given\525 Before the Gunter recommendation was issued, million for their consent to relieve economic stag4- there were many who considered this approach don and to narrow the claims." Judge Gunter inadequate.RepresentativeUdallandSenator expressed hope that all parties would agree, but the Alourezk, after meeting with the judge, called fora recommendations included coercive steps to be congressional-administration effort to establish neu-"taken if unanimity could not be reached. Kifner."U S May Sue Maine in Indian Land Case. It Gives State "' John Kifner, "Sides in Maine Suit Meet in White House," New York Until June Ito Reach a Settlement Out of Court," New York Times. Mar I, Times. Mar. 30, 1977. p. A-10. 1977, p. I. Ibid "3 Office of the White House Press Secretary, press release. Mu. I I. 1977. "' Inparticular. Chairman Morris KUdall of the House Intenor NARF Annourcemenis. p 12. Committee and Chairman Teno Roncalio of the Indian Affairs Subcorenut- "° William 13 Gunter, "Recommendation to President Carter re Passami- tee. quoddy and Penobscot Tribal Claims Maine." July 15, 1977, reprinted in 1°' A. Mark Woodward and Donald Larrabee. "Land-case Bills Shelved. NARF Announcements. p 12. Coordinator Chosen." Bangor Daily News. Mar 12-13. 1977. p I. NARF Announcements. p I I 128 ,34 President Carter's immediate pronouncement was We spent five years getting the courts to force that the judge's report was "fair, judicious and the Federal Government to act as our trustee. Now this man says that if we don't accept his wise."2" He also told Judge Gunter that the Indian terms, the President should protect the big issue in Maine was "one of the most difficult and timber companies by taking away our claim. I controversial" decisions since he assumed office in just don't understand it.' " January." Few such comments came from any otl n- sources. Senator Abourezk sharply criticized The tribal statement did, however, contain one the report, accusing Judge Gunter of acting `as positive remark concerning Judge Gunter's plan. thOugh he were conducting a trial without benefit of Noting that he recognized the claims to be valid, the the rules of evidence and other aspects of due tribes stated that they would consider his proposal to process. His recommendation is devoid of fairness be "a point of departure."2" and understanding of the historical nature of the On the same day the tribal statement was issued, national Indian spokespersons, activists, and political land claim. """ Maine officials were relieved that no recommen- leaders urged President Carter to reject Judge Gunter's recommendation that Maine Indian claims dation was made to take private lands, but they were to private lands be extinguished without compensa- dissatisfied with the grant of State lands. Attorney tion. An excerpt from the three-page telegram with General Brennan reacted favorably to what he an 11-page listing of signatories declared: called the "99.9 percent" reduction in the scope of the claim, but was still distressed at the idea of "requiring the State of Maine to contribute land."'" We deplore [Gunter's] failure to consider the alsoex- rights of the Indians and particularly his sugges- Maine's commissioner_ of_ conservation_ _ _ pres.sed his views: tion that the States wipe out 90 percent of their claims to land without any compensa- tion if they do not accepthis offer. If the Federal Government wants to give away land in Maine, they've got their own land... [O]ne whose primary responsibility is to guard don't think Judge Gunter realizes how little the treasury cannot hope to fulfill the function public land there is in this state:.222 of an independent judiciary. It is unfortunate enough that Judge Gunter did not serve as The Indians waited over a week before respond- mediator. But to say that the Indians must ing, and in the interim, Judge Gunter added a new accept his proposal or face extinguishment of .. proposal in a television interview, which was not their claims by the political branches is to make part of the official report. Ile suggested that large a mockery of this nation's legal and moral trust property o-vners might help resolve the dispute by obligations to Indians and to tell the world that giving "10,000 or 5,000 acres apiece to the Indi- the United States is unwilling to abide by the ans.""" Much of the land in the claims area was dictates of its own legally constituted courts.282 "owned" by large corporate timbering interests. Followup talks were conducted by Judge Gunter Finally, the Indian leaders expressed their shock at and White House Counsel Lipshutz with tribal the recommendation that Congress eliminate their leaders and State officials. Maine Attorney General claims to private lands in Maine. They issued a Brennan and Governor Longley reaffirmed the statement which noted that Judge Gunter's recom- State's position that the Indians file suit for only an mendation "would wipe out 90 percent of Indian estimated 350,000 acres of public land in the State.2" claims to land in Maine whether or not the state In a separate session, Indian leaders asked for a tribes agreed to the other terms."2" One tribal leader mediator to negotiate a settlement. Judge Gunter added: said he would assume a mediator role if the Presi- "9 Donald Larrabee, "525 Million. 100.(100 Acres Proposed," law, Daily ".Ne% York Times. July 18. 1977. p 30 Sews. July 16-17. 1977, pI "' !bid . July 27. 1977, p A-I0 "' Ibid "° Ibid (comments by Francis Nicholas) "s Bangor Daik NeKs July '6-17, 1977. p 5 "1 Bangor Daily Noss. July 27. 1977, pI '" John Kibler. Yso Mains Tribes Would Get 525 Million and 100.0(X) "' Telegram to President Carter. July 26.1977. reprinted in NARI' Acres in Proposal." New York I ones. July 16. 1977, p 46 Announcements. p 15 "' David Bright. 'State Land Offisial L met. Indians Mum. Bangor Dolls "' Donald Larrabes. "Tribes Ask White Howe Mediator; Bangor Daily New. July 16-17. 1977. p ,Vows, Jul, 29, 1977, pI 129 dent desired, but indications were that another The memorandum acknowledged the desirability person would be chosen."' of a complete settlement, but dueto the difficultiti in obtaining one, it opted for publication of theterms The White House Task Force and conditions upon which the tribes would consent Although the Gunter report was rejected by both to settle with the State of Maine and the large the tribes and the State, it became a basis for future landowners. The White House workgroup carefully negotiations. To resolve the impasse, President explained its role as "an intermediary with limited Carter appointed a three-member team, known as authority to settle the remaining claimson the terms the White House task force. The group consisted of set forth by the tribes."2" Eliot Cutler, Associate Director of OMB; Leo The tribes agreed to wipe out their claims against Krulitz, Solicitor of the Department of the Interior; Maine in exchange for an assurance that Maine and A. Stephens Clay, a partner of Judge Gunter in would continue annual Indian appropriations at the priva ractice. current level of $1.7 million for the next 15 years, e task force was given the mandate to work out payable tothe Department of theInterior,as an agreement "in keeping with the spirit" of Gun- trustee."' The tribes agreed to wipe out their claiins ter's proposa1.222 Among the constraints placedon against the large priyate landholders in exchange for the group were a $30 million limit on Federal funds 300,000 acres of average quality timberland plus to settle the claims (imposed by the White House) long term options to purchase additional land total- and protection for the small landowners from losing ing 200,000 acres at fair market value.292 The tribes their homes (in order for Congress to approve). As also asked for $3.5 million to help finance their Mr. Cutler later stated, "We were unashamedly exercise of these options.293 Finally, the workgroupb, budget-conscious, and we had to protect those who recommended the payment of $1.5 million directly are in no position to protect themselves."29n For to the landholders who contributed acreage and several months the White House group negotiated options in the package, divided in proportion to the with the tribes. Noticeably absent from theseses- contribution made."' This part of the offer was not sions were State officials and representatives for endorsed by the White House, but was set out asa landowners. starting point for further negotiations.295 On February 10, 1978, the White House work Thus, the Federal Government would pay $25 group and representatives of the Passamaquoddy million to achieve the basic aateement andan and Penobscot tribes issued a joint memorandum of additional $5 million to facilitate a settlement of understanding outlining a partial settlement of Indi- claims against private landholders. The $30 million an claims, The basic agreement reached by the tribes total amounted to the maximum that the work group and the White House included the submission of was authorized to offer. Additional provisions in the legislation in Congress that would pay the tribes $25 memorandum included an explanation that all cash million in exchange for (1) extinguishment of the funds be given in trust for the benefit of the tribes tribes' claimsto 50,000 acres per title holder of land and divided equally between the two of them. The within the 5 million-acre revised claims area and (2) work group also agreed to use its best efforts to extinguishment of all their claims in the 7.5 million assure access to a place in Baxter State Park for additional acres that were originally claimed."' The religious ceremonial purposes. The location of the memorandum concluded that approximately 9.2 300,000 acres had to be 'satisfactory to the tribes, million acres would experience clear title, andan though not necessarily in one piece. All lands estimated 3.3 million acres would remain in dis- acquired by the tribes and land currently held by the pute.228 About 350,000 acres of this land are held by tribes would be covered by Federal jurisdiction.299 the State; the remaining 3.0 million acres are held by The agreement was first presented to Maine's about 14 large landholders.269 Governor Long ley and Attorney General Brennan 7" Ibid. ." Ibid.. p 3 '" Aimee L. Monier. "How the Indians Frightened Great Northern "' !bid . pp 3-4 Nekoosa." Fortune, July 31, 1978, p 99 ' Ibid ", Ibid . p 4 7" Office of the White House Press Secretary. Joint Memorandum of "' Ibid Understanding. Feb 10, 1978. pp 1-2 222 Ibid . pp 4 -5 '" Ibid . p 2. 7" !simmer. "Host the Indians." p 99 2" 'bid 2 Ibid . pp 6-8 130 i'jj on February 8 and to the Maine congressional negotiations with the tribes, or fight the Indian delegation on the next day." The State officials claims in gou rt."3" expressed their views immediately, while the con- Behind the scenes two efforts continued concur- gressional delegation adopted a "wait and see" rently. The Department of Justice began' drafting approach. Governor Long ley said he thottght the legislation to implement the agreement relating to White House had treated the attorney general of the small !andowners.In addition,Presidential Maine and the Maine congressional delegation "very Counsel Lipshutz began a series of meetings to win shabbily in disregarding and circumventing their over Maine to the work group ,proposal. These and important position on behalf of the people of other talks aimed at winning support for the White Maine."'" In the same tone, State Attorney General House work group's memorandum continued for Brennan called the memorandum "really outra- several months after its issuance. Although only geous." He said it was "appalling that the task force congressional support was needed for a partial members did not consult us and ask for any partici- settlement to take effect, the Carter administration pation,"" These remarks came despite the attorney consistently attempted to find a solution acceptable general's earlier refusal to particpate in any negotia- to all concerned. tions.'" A change in the State officials' position seemed to The paper companies, which hold many of the come about in one meeting with the tribes' attorney. large tracts of Maine land, also expressed indigna- Maine's Attorney General Brennan agreed to seek tion. The previous Gunter solution had removed an out-of-court settlement of the Indian claim, their lands from the controversy while the State provided that the Federal Government-would --shouldered- th-einajiii responsibility. One paper sume thecosts.3" At the same time, the large landowners 41::rlayed a reluctance to engage in company president described the offer as "a cynical talks, preferring to let the State officials do the attempt to isolate a group of large landowners from talking for them.'" everyone else" and as "a stacked deck, a raw Two major obstacles arose in negotiations be- deal."'" Another called the offer "a de facto form of tween the tribes and the State officials. Both the confiscation, and certainlynot due compensa- Governor and the attorney general sought to have tion."'" any land in question remain under State jurisdiction. Task force member Cutler defended the cutoff at The State officials also preferred a court of claims 50,000 acres as inherently fair, since every landown- resolution of the claims, which would thus limit er was subject to 'the same cutoff. However, he relief solely to a monetary settlement. When the acknowledged that the large landowners were "sin- tribes did not shciw signs of warming to their gled out."'" Another member, A. Stephens Clay, proposals, Governor Longley -dropped out of the explained that the payment to landowners should negotiations and left them to the attorney general not be considered payment for land but only until, as he expressed it, his "nation within a nation" payment to cover administrative costs. The compa- concerns were answered."' nies still had the option to litigate; thus, it was not The tribes interpreted this development as a break "tantamount to confiscation."'" in the talks. Criticism and accusations abounded on President Carter, in an attempt to clear the way to all sides. The upshot of the deteriorating tribal-State settlement, explained at a New England press con- relationship was that the tribes urged the Federal ference that "there is no constraint on the large Government to sue the State for $300 million and landowner nor the state to accept the settlement."'" 350,000 acres but to hold off suing the large private They could choose among three options, President landowners.'" aelations between the tribes and the Carter explained, "accept the settlement, begin paper companies at the same time improved. The "' Stephen Wenmel. "White House to Ask S25m for Maine Indians." '" Jonathan Harsch. "White House Prods Maine Indian Accord. Carter Boston Globe. Feb. 10, 1978, p. 16 Formulates Trust, Donor Policy," Christian Science Monitor. Mar. 1. 1978. '" New York Timex Feb 12, 1978, p. 20. '° Ibid. '" Ibid. '0i New York Times. Apr 27. 1978. p. A-2I Wermiel. "White House to Ask " "' Momer. "How the Indians." pp. 98, 100. '" Morner. "How the Indians." p 190 , pp 99-100. '" Daniel Beegan. "Governor Quits Indian Land Negotiations." Portland 3" Ibid., p. 100. Press Herald. May 19. 1978. m" Ibid. "0 New York Times. June 7. 1978. p A -16 131 process of locating timberland that the owners might million Federal grant to the tribes and a $10 million consent to sell to the tribes at fair market value met State and Federal grant for purchase of 100,000 with a modicum of success. Although insufficient acres atfair market value from Maine's largest land was offered, both the landowners and the landowners. Indians remained willing to talk. When the request Previously the Federal Government had favored for action against Ihe State was made, attorneys for a State contribution and Maine had fought for a total thetribes indicatedthat suing the landowners Federal payment. The two sides were brought "might ne" be necessary if current discussions with together through the provisions that credited Maine those landowners lead to a satisfactory agreement.'" with $5 million for its previous contributions to the The task of writing legislation to implement the tribes, which totaled $13 million. An additional first part of the joint memorandum issued by the concession to the State provided that all land sold to White House work group and the tribes was given the Indians would be subject to Maine civil and to the Department of Justice.Legislation was criminal laws. _Finally,the State would not be designed to resolve the claims against small lan- required to pay any more money to the tribes in the downers. The legislation drafting effort eventually future,"a unlike the earlier White House proposal was dropped because Attorney General Bell refused that would have required the State to maintain its to support any bill that would treat landowners annual $1.7 million in tribal benefits for 15 years in- differently because of the size of their holdings."' order for the claims to be dropped.'" His refusal frustrated the efforts of the White House In discussing the negotiations Senator Hathaway group toward a negotiated settlement."' The team remarked, "The main problem was getting them [the thus had to reconsider a solution for all landowners tribes] down and the White House up."'" The new in the State. plan provided for 100,000 acresa 200,000 drop Prospects of Maine agreeing to a settlement from the previous offer by the Indians. It also raised looked grim over the summer of 1978. The Depart- by $7 million the previously announced ceiling on ment of Justice was scheduled to bring suit against Federal funds, $5 million of which was credited as Maine for $300 million and 350,000 acres. In Sep- the State contribution. tember, however, U.S. Attorney General Bell re- Five days after the announcement, Maine's top fused to press the suit and requested a 6-month delay non-Indian leaders agreed to accept the plan, agree- in the litigation.'" ing to it largely because tfl settlement placed full Behind the scenes negotiations continued, culmi- responsibility for the land claims en the Federal nating in an October settlement announced by Government."' Although many Maine residents Senator Hathaway, who had become personally assumed that a final settlement had been reached, involved in negotiating the settlement earlier in the many details were still unresolved. Although the fall. The plan was approved by President Carter, paper companies had tentatively agreed to a sale of tribal leaders, and private landowners, but awaited 100,000 acres, the parcels and prices had not been formal State approval and a tribal vote. Although agreed upon. More important, the tribal approval the agreement lacked State approval, it contained did not automatically come as same had expected. the two conditions that State officials had pressed The tribes, realizing that the Hathaway memo for in any settlementa total Federal solution and a would give them far less than what they previously provision establishing State jurisdiction over Indian said was their bottom limit, needed to estimate how lands. Specifics of the settlement included a $27 close the current cash offer would put them toward ", "' John S. Day, "U.S. Offers to Pay Indian Claims: Maine Would Bear No ", Katheryn Ober ly, attorney, Department of Justice. interview in Wash. Cost Under Proposal," Bangor Daily News. Oct. 18, 197, p. I. ington. D C Nov 30. 1978 "' There was no formal wntten document for the settlement. See n' Additionally. due to the negotiations in Maine. Attorney General Bell generally. John S Day. "U.S. Offers to Pay Indian Claims," Bangor Daily changed his litigation strategy in three other States: New York, South News. Oct 18, 1078, p. I; Arthur P Bushnell, "Proposal May End Indian Carolina. and Louisiana. In a letter to Secretary Andrus. Attorney General Bell stated that the Justice Department would not sue landowners in those Case." Portland Press Herald Oct 18, 1978. p. 1. John Lovell, "Prope..al three States because of the administration's policy decision to relieve small 'Surprises Longley," Portland Evening Express. Oct 18, 1978, pI, Boston landowners in Maine and because of the Attorney General's position that Evening Globe. Oct. 18, I978, p. 1. he would tot support a settlement bill which forced anyone (other than a "' 01 of the White House Press Secretary, Joint Memorandum of State) to give up land Attorney General Griffin Bell to Secretary Cecil D Understanding. Feb. 10. 1978 Andrus. June 30.1978. reprinted:n U S .Congress. Senate. Select "' Portsmouth Herald (N H ), Oct. 19, 1978, p 2 Committee on Indian Affairs. Statute of Limitations Extensions. 96th Cong, "' Susan Pstlewaite, supplemental material, New York Times. Oct. 24, 1978, 'st sess . 1979. pp 34-36 p 36 (on microfilm and microfiche oily) 132 14.4 3 obtaining their desired land base. A tribal referen- Negotiations, however, continued and a complex dum in March 1979 resulted in acceptance of a jurisdictional arrangement was finally agreed upon. proposed modified version of the proposal; the The tribes are accorded the status of State munici- money requested was reduced by $10 million while palities with exclusive jurisdiction over internal the acreage was increased to 300,000." The Carter tribal matters, minor criminal offenses involving administration did not support the request for more Indians, small claims, civil matters, and issues of land if it meant new monies. Only if the funds domestic relations. Maine, otherwise, has extensive toward settlement could be garnered from existing:.-jurisdiction over Indian lands. The settlement also programs would the White House approve. provides for the acquisition of 300,000 acres of and In the interim, cases in several areas superficially related to the land claims enhalsed the tribes' for the tribes to be held in trust by the Federal bargaining position. The- first,.Bottomly v. Passama- Government and the establishment of a trust fund of quoddy, involved a suit against the tribe for servic- $27 million to be administered for the benefit of the es."' In a brief filed in the case by Maine's deputy tribes. The settlement was signed into law by attorney general,. a number of arguments were President Carter on October 11, 1980. presented to show that Passamaquoddy v. Morton was in error.'" This analysis apparently was intend- ed lo be used by the State if the litigation brought by Other Claims Negotiations the United States in its trust capacity against Maine Of all the Eastern Indian land claims, the Narra- came to court. In the Bottomly case, the State's gansett claim was the only one to reach a final arguments were clearly rejected, thus weakening the settlement quickly. The original claim of 3,200 acres State's position in the case and the ongoing negotia- was reduced to a 1,800 -acre settlement, complete tions. with some of the key ingredients necessary for The other cases decided in July 1979 by the Maine Federal approval. When the settlement was ap- Supreme Judicial Court concerned the arson convic- proved by Congress, there was much talk of using it tions of two Indian men 322 and the case of a man as a model for other claims. At the same time, many accused of starting a ceremonial campfire without a critics of this suggestion pointed out the wide permit.'" In the arson case, the court disagreed with disparities between the Narragansett claim and the the State's definitions of "Indian country" and larger claims such as the Maine claims. "dependent Indian communities.""a Further, it dis- One remarkable contrast between Maine and agreed with Maine's contention that Passamaquoddy Rhode Island has been the willingness of Rhode v. Morton was wrongly decided."8 In the ceremonial Island officials to negotiate. In hearings on the fire case, the judge ruled that the State did not prove Rhode Island Indian Claims Settlement Act,'" the beyond a reasonable doubt that a paper company had better title to the property in queston than the special assistant State attorney general for Indian Penobscot Indians.'" If the Penobscots held the affairstestifiedthatthe key to success inthe land, the Indians would not have needed a permit to negotiations came from the "personal interest, direct light a fire.'" involvement and crucial suggestions" of Rhode These cases taken together raised doubts about Island's Governor J. Joseph Garrahy.3" Maine's ability to prevail in the claims litigation."' The Narragansett claim began in January 1975 Thus, one of the major concessions to the State of when two lawsuits were filed against the State and Maine had been thrown in jeopardygranting privateiandowners for a total of 3,200 acres of land. Maine jurisdiction over the acquired lands. The cases were consolidated and significant prelimi- '1, New York 7 Imes. Apr. 22, 1979, p. 57. "T Ibid. Bottomly v. Passamaquoddy Tribe. 599 F.2d 1061 (1st Cir. 1979). See. e.g., New York Times. July 22. 1979. p 22. "i Joint Tribal Council of the Passamaquoddy Tribe v. Morton.'528 F.2d 370(1st Cir. 1975). " 25 U.S C. §1701 et siq. (1978) '" Maine v. Dana. No. Was. 78-3 (Me. Sup. Ct.) (July 3, 1979X6 I.L.R U S.. Congress, Joint Hearing Before the Senate Select Committee on G43 (1979). Indian Affairs and the House Committee on Interibr and Insular Affairs, '" Maine v. Francis. (July 1979) Subcommittee on Indian Affairs and Public Lands. Rhode Island Indian "4 Maine v. Dana, slip opinion at 8-9, 13-15 1" Id at 22-23. Claims Settlement Act, 95th Cong2d sess., 1978. p 62 (testimony of '" Peter Slocum. "Ind= Innocent :n First 'Land' Case," Port:and Press William Brody) (hereafter cited as Rhode Island SettlementJoint Hear- Herald. July 20. 1979. ing) 133 4 nary motions were decided in the tribe's favor in the Nonintercourse Act shotild be considered on a 1976.3" During. the course of tribal preparations, comprehensive rather tha'n a piecemeal basis.'" attorneysforthe tribe,theState, and private President Carter signed te settlement into law on landowners began meeting to discuss the possibilities September 30, 1979, offering an encouraging word of settlement negotiations. Talks proceeded in a for what he called "just and amicable settlements of conciliatory spirit for over a year before agreement legitimate claims."" could be reached. Consultation with nonparties The third step, State incorporation legislation, included State legislative offibials, the Town Coun- occurred early in the 1979 session. Fear that the bill cil of Charlestown (where the land in question was might be held up/ to win concessions on other bills located), the Rhode Island congressional delegation, did not prove correct, as it passed both houses by and the White House. unanimous vote?" Governor Garrahy signed the The negotiations culminated in a 19-point docu- bill into law oh May 11, 1979, amid the ceremonial ment signed by the attorneys for all parties as well as smoking of the peace pipe."" Governor Garrahy and the Town Council of I Charlestown."' To become effective, the agreement required three additional steps: (1) a determination Findings by the Department of the Interior that the Indians had a credible claim to the lands in question, (2) legislation by Congress to extinguish title to the rest Land Claims of the claim and to appropriate funds necessary to 1. The failure of the Federal Government to the agreement, and (3) legislation by the State of implement effectively its statutory commitments to Rhode Island to set up a State-chartered corporation tribes resulted in the Indian land claims. for the purpose of acquiring, managing, and perma- 2.Both the United States and the individual nently holding the settlement lands.'" States initially refused to take tribal claims seriously, The three steps followed in uneventful succession. thumissing opportunities fornegotiations and The Interior Department determined that the tribal ultiatelyescalating the conflicts. claim was "credible," or one that was beyond a 3. The ,United States, after initial efforts that frivolous claim but something short of an absolutely weunsure and unsuccessful, has adopted a case- certainty."' This credibility requirement was added -ca.se approach to neg,:iation as a means to solve to ensure that frivolous claims would not flood the nd claims. Some of tho principles established courts and Congress. Further, it offered Congress nclude the following: reassurance that funds would not be sought before( Good faith negotiations must have been at- fully establishing the facts in the case. '.tempted before a clain may litigated. The congressional legislation was drafted by the If necessary, the Unitej States will litigate appropriate congressional committees, the Interior meritorious claims. Department, and the White House. The chairmen of Affected Federal agencies and the "injured" those committees in June 1978 held a joint hearing tribe determine what they will accept in lieu of so that the matter could be expedited. The Senate court action using a task force approach. approved the agreement on July 21 and the House 4.Tensions arising from the land claims have followed on September 12,1978, acting under a exacerbated racial animosities in affected communi- suspension of the rules to further speed up the ties, especially where State and local officialS have process. Approval' by the House came despite been unwilling either to take the claims seriously or Representative Cohen's objections that sucha prece- to negotiate. dent-setting measure .-,hould not be passed under the 5.For the eastern tribes, land claims provide a suspension procedure and also that all claims under potential for future economic and cultural survival. "' Narragansett Tribe of Indians v SRI :..and Des Corp. 418 F Supp s" 124 Cong Rec.. 119484-9485 (daily Sept 12. 1978) (remarks of Rep, 798 (D R 11976). Narrangmsett Tribe of Indians v Murphy. 426 F Supp Cohen) 132 (D RA 1976) s"Weekly Compilation of Prodenital Documents. vol 14. p. 1696 (Oct. 2. s"JOINMemorandum of Undemanding Concerning Settlement of the 1978) Rhode Island Indian Land Mimi. Feb 28( 1978. as reprinted in Rhode "'Indian Land-Claim Act is Sent to Garrahy." Providence Journal, May Island SettlementJoint Rearing. p 67 5. 1979 "' 1bsd . pp 67-.70 ". "A Hick Moment Indian Land Claim Bill Signed," Narrangansett " Rhode Island SettlementJoint Hearing. pI I 1 limes May 17, 1979 134 45 Recommendations determine an acceptable settlement prior to full litigation of the claim and before bringing Congress, Land Claims the State, and local communities into the process, 1. The prelitigationtask force approach,in should be maintained for eastern land claims.,. which the United States and the tribes jointly O 135 146 Atm \\ - 40\ 4\vs 40'4is \ <0 t.,2 111111111tiI s itO\1*: Chapter 5 Law Enforcement ,.. The scheme of legal jurisdiction in Indian country has had a major roleits direct statutory responsi- has been variously' characterized as a patchwork, a bilities under the Major Crimes Act and its unde- labyrinth, and a maze. It is not a product of logic but fined role in implementing the Supreme Court's has developed through layers of historical events decision in Oliphant v. Suquamish Indian Tribe' and changes in the national philosophytoward Indian tribes. 'Historical Perspective The manlier, quality, and frequency of 'criminal Conflict over the power-to control Indian land law enforcement on Indian reservations have been and resources has been a constant factor inthe issues of great significance in Federal-Indian rela- history of chi's country's relations with Indian tribes. . tions that have freinently transcended the substance Parties to those' conflicts have been the tribes, t of a particular issue. Politically, incidents on one States in which Indian reservations are found,. and reservation, or a few reservations, have affected non-Indians present or having property interests on policy and law on all reservations. For example, the or near reservations. The FederalGovernment's role manner in which the Siouxhandled a murder of one has been one of vacillation between the protection of of their members tiy another in the late 19th century tribal autonomy and lesources and the pursuit of a . ' was directly responsible for increasingthe Federal policy of assimilating Indians into the dominant presence on allreservations. Law enforcement society. Each swing in Federal policy has left a problems in some areas in the 1950s led to a greatly tangled legacy of land ownership and jurisdictional increased State role on reservations in many areas, patterns, the effects of which have persisted after the and the violence associated with the occupationof Federal policy that established them has been Wounded Knee in the 1970s helped fuel a nation- repudiated. wide "backlash" against Indians. Indian reservations, as noted previously, were Criminal law is an area in which-the Federal established for the most part in the 19th century as Government is a direct supplier of services. The an adjunct to Federal policy that encouragedwhite tribe or State or both, depending upon which tribe settlement and westward expansion of the new and which State, can also be direct service provid- nation. To, the extent that the presence of Indian ers. The ownership of the particular parcelof land tribes impeded that process, they were removed and or the race of the perpetrator orvictim of the crime restricted to reserved land. This was done through a can also affect who has jurisdiction. series of treaties between various tribes and the This chapter will trace some of the historical Federal Government that guaranteed Federal pro: events and policy changes and focus on two areasin tection for the tribes and their remaining assets. The law enforcement where the Federal Government nature of the Federal, State, and tribal relationship 1 435 U.S. 191 (1978). 1 137 148 was defined in this period by the U.S. Supreme Indian victims and Indianperpetrators and non- Court in the seminal cases of CherokeeNation v. Indian victims. The rationale for Georgia 2 and Worcester v. this Federal as- Georgia. These cases sumption of jurisdictionwas said to be the need to resulted from conflict over jurisdiction and econom- protect the Indian tribes, and the territory andrights ic resources of the same character that occurs today. promised to them by treaty, from thelawlessness of In a highly politicized setting, the Supreme Court white settlers and adventurers. . of the United States, led by ChiefJustice John A series of Indian trade and intercourseacts, Marshall, struck down an entire seriesof State which were revised and reenacted,culminated in the statutes as violative of tribal-State and tribal-Federal General Crimes Act, section 25 of theTrade and relations. These cases established theprinciples that Intercourse Act of 1834, which provided: Indian tribes possessed sovereigntyover their mem- bers and territory, subject to the legislativeauthority That so much of the laws of the United Statesas of the Federal Government; that States provides for the punishment of crimes commit- had no ted within any place within the sole and jurisdiction over Indian territory; andthat the exclusive jurisdiction of the United States, shall Federal Government protects tribalsovereignty, be in force in the Indian country: Provided,the land, and resources from Stategovernments and same shall not extend to crimes committed by non-Indian interests. one Indian against the person or propnty of Ultimately, political pressures deprived theCher- aother Indian' okees of the fruits of their legal victory, and they By this statute, the U.S. Congress . were removed to the western territories. Nonethe- asserted Federal jurisdiction over offenses between Indians less, the legal principles enunciated by Chief and non- Justice Indians. Significantly, the General CrimesAct did 1 Marshall continued to serveas the theoretical model for tribal not. deprive Indian tribes of concurrent jurisdiction State, and Federal relations with the with the Federal Governmentover offenses commit- Indian reservations created in the mid-19thcentury ted between Indians and non-Indians: "to concentrate the various Indian nations Further, it away specifically sreserved to the tribesexclusive juris- from the major paths of whitewestward move- ment. diction over even the most serious ofoffenses if both the perpetrator and victimwere Indians. When initially established, Indian reservations During the first three-quarters ofthe 19th century, were enclaves almost exclusively occupied by Indi: the Federal Government leftthe IndiaA tribes ans. to the first treaties between the new govern- relatively undisturbed in themaintenance of law and ment of the United States and die Indian tribes,from order in regard to their own members.The various 1778 until approximately 1796, criminal jurisdiction tribal societies had varyingsystems for the mainte- over Indians and Indian territory was premisedupon nance of order, but some generalization% could the assumption that Indian tribespossessed complete nevertheless be made: sovereign powers over theirown members and over their own lands. Manyoof the early treatiesrecog- Many different syStems existed forresolving nized tribal jurisdiction disputes and maintaining order.Some tribes.had over non-Indians who set- warrior societies which functioned tled on Indian land and committedcrimes.' as enforce- ment mechanisms, other tribes utilizedcommu- Although the primary means of dealingwith the nity pressure to enforcenorms; scorn is said to Indian tribes during this periodwas by treaty, during have been an extremely effectivemethod of the first half of the 19th century the increasing enforcement. Imprisonmentwas unknown, and conflict between Indians and non-Indiansencroach- restitution, banishment, and deathwere the mbjor retributive sanctions.* ing on Indian territory impelled the U.S.Congress to assert Federal jurisdiction by statuteover crimi- During this period, however, white nal offenses between non-Indian settlers and perpetrators and fortune seekers encroached in increasingnumbers ' 30 U.S (5 Pet )1(18311 ' 31 U.S (6 Pet ) 515 (1832) Act of June 30. 1834. ch CI.X1. §25. 3 Stat 733 Thesuccessor to the Wilcomb E Washburn. "The Historical Context of General Crimes Acr is noss codified 4.18 U S C §1152(1976) (also known American Indian as the Federal Enclave Act) Legal Problems." Lauiand Contemporary Problems. vol40(1976). p 17 ' U S , Robert N Clinton. "Deselopment of Criminal JurisdictionOver Indian Congress. American Indian Policy ReviewCommission. Task Lands The Historical Perspective." 4rizonal.a* Review.vol17 11975). p Force FOUL Report on Federal. State. and TribalJurisdiction. Final Report 952 A list of these treaties non p 954.n 19 (July 1976), pp 121-22 (hereafter citedas /as4 Imre Four Report) 138 c. upon the territories reserved for the Indian tribes, or allotments to be conveyed to individual Indians, and the Federal Government became increasingly with remaining "surplus" landto,be made available unwilling or unable to fulfillits guarantees of to white settlers.' protection. The Federal Government's failure to live Even at the time the benefits. of the policy of up to its treat); obligations has been described: allotment were being propounded, there were dis- senters. The minority of the House Committee on The destruction of many of the reservations at Indian Affairs expressed doubt that the mere posses- the end of the nineteenth century resulted from a similar expedient response to the pressure of sion of a small amount of' land could trinsform. white settlers on the reservations created in the Indians into model Americr. earmers. The minority -1840's..The crisis came to a head in the 1870's report on the allotment lez,'...mtion condemned the with the continuing rapid expansion of white motives underlying the movement: population. The new weapon in the white, arsenal wasthe railroad, whi6h provided a physical presence of white power in the heart of The real aim of this bill is to get at the Indian the Indian country and guaranteed rapid move- lands and open them up to settlement. The ment of white military power wherever needed. provisions for the apparent benefit of the Indian Indian lands, though seemingly protected by are but the pretext to get at his lands and the treaties netiotiated in the 1840's and 1850's, occupy them. ...If this were done in tit* name were increasingly subject to invasion by undis- of greed, it would be bad enough; but tr.) do it in ciplined and unregulated frontiersmen. the name of humanity, and under the cloak of an ardent desire to promote the Indian's welfare Miners rushed into the Black Hills of 'the Sioux by making him like ourselvas, whether he will Reservation in search of gold. Stockmen and or not, is infinitely worse." settlers invaded the homelands of the Utes of Wyoming and the Nez Perce of Washington Allotment was accomplished under a complex and Idaho. Even'the Indian Territory, inhabited scheme of statutes and treaties. On many reserva- by Indians who had been coerced or induced tions, there remained "surplus" lands after the into moving west to forltn the piototype of a eligible Indians had received their allotments. These separate Indian state or territory, was under lands v.;erc sold by the Federal Government to constant threat of invasion by-white ruffians white settlers.' perched on its borders. The Outcome of this pressure was occasionally war. Chief Joseph In 18.71 Crow Dog, a Sioux Indian, killedSpetted and his Nez Perce were humbled and defeated a Brule Sioux chief, and 4vas dealt with by thee) in 1877. Even the Sioux, though _they destroyed tradinal; tribal justice system, which imposed a George Cuater's Seventh CaValry Regiment, -requitement ofrestitution and support of the victim's gained only tempcintry satisfaction before being family. Notwithstanding, Crow Dog was brought crushed by larger forces. These military con- before a Federal court in South Dakota, convicted frontations were the outward expressions of a crisis that ,seemed to men of both good (and ill. of murder, and sentenced death. On a writ of will to require radical solutions.' habeascorps,the United states Supreme Court reversed, applying the law and longstanding Federal The solution chosen by the Federal Government policy to find that the tribe had exclusive authority in response to the crisis was not a more vigorous over offenses committed by its own members. In enforcement of treaty provisions that guaran interpreting the treaty between the" United States protection of Indian lands from encroach ent. and the Sioux, the Court affirmed the duty' of the Instead, a solution was devised to divide the cOmmu- United States to protect the self-govegunent of the nally held reservation lands into individual parcels tribe: Washburn. "The Historical Context." pp. 17-16. with the advancement of Indian, at the same time they regarded the The suprerni aim of the friends of the Indian was to substitute white scheme as promoting the best interests of the whites as well. For one tfilng, givilization for his tribal culture, and they shrewdly sensed that the it was hoped that setting,. the Indian on his own feet would relieve the difference in the concepts of property was fundamental m the contrast Government of a great expense. In 1879 the Indian Commissioner, in between the two ways of life That the white man's way was good and the recommending an allotment till to Secretary Schurz, wrote, "The evident Indian's was bad, all agreed So. on the one hand allotment was counted on ly growing feeling in the country against the continued appropriations for to break up tribal life " Otis. "History of the Allotment Policy." quoted in the care and comfort of the Indians indicates the necessity for a radicle Felix S. Cohen. Handbook of Federal Indian Law (Albuquerque. NM. change of policy in affairs connected.with their lands." Ibid. Unillersity of New Mexico Press.-1971). p 208 It must also be noted that ' U S , Congress. 46th Cong . 2d. seas May 28, 1880, H. Reptll 576. p. 10, wink, the advocates of allotment were primarily and sincerely concerned as quoted in Cohen, Handbook of Federal Indian Law. p. 242 139 The pledge to secure to these people, with The constitutionality of the Major Crimes Act whom the United States was contracting as a was soon tested in the U.S. Supreme Court in an distinct political body, an orderly government, appeal of two Indiars convicted t,, a Federal court by appropriatelegislationthereafterto be framed and enacted. necessarily implies, having of murdering another Indian on the Hoopa Valley regard to all the circumstances attending the Reservation in California. In upholding the law, the transaction, that among the arts of civilized life, Court specifically declined to rely on the clause in which it was the very purpose of all these arrange- the Constitution that gives Congress "power to ments to introduce and naturalize among them, regulate commerce'.. .with the Indian tribes,"" as was the highest and best of all,that of self. authorizing Federal regulation of the internal rela- government the regulation by themselves of their tions among Indian tribes. Instead, the Court relied own domestic affairs, the maintenance of order and peace among their own members by the on the status of Indians as wards of the Nation. The administration of their own laws and customs. " Court en.phasized the long history of animosity of (emphasis added) the States toward the Indian tribes and their condi- tion of helplessness, giving rise to both the duty and e Crow Dog decision had the apparent effect --of authority -of-the federal---Government-to-p-rov inflaming the public and the U.S. Congress. Con- protection: vinced that the traditional tribal justice systems were incompatible with the goal of "civilizing" Indians, It seems to us that this is within the competency Congress moved to extend white man's law to of Congres3. These Indian tribes are the wards of the nation. They are communities dependent intratribal crimes. Representative Bryon M. McCut- on the United States. Dependent largely for cheon (R-Mich.) introducing what was to become their daily food. Dependent for their political th.' Major Crimes Act as an amendment -to, an rights. They owe no allegiance to the States, appropriations bill, stated: and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest Mr. Chairman, I believe it is not necessary for enemies. From their very weakness and help- me to say that this amendment is in .he direction lessness, so largely due to the course of dealing of the thought of all who desire the advance- of the Federal Government with them and the ment and civilization .)f the Indian tribes. .. tre; ties in which it has been promised, there believe we allfeel that an Indian, when he arises the duty of protection, and with it the commits. a crime, should be recognized as a power. This has always been recognized by the criminal, and so treated under the laws of the Executive and by Congress, and by this court, land. I do not believe we shall ever succeed in whenever the question has arisen." civilizing the Indian race until we teach them regard for law and show them that they are not The Federal duty of protection explicated in Kaga- only responsible to the law, but amenable to its ma appeared to justify Federal criminal jurisdiction penalties.. ..It is infamy upon our civilization, a disgrace to this nation, that there should be to the exclusion of the States. anywhere withinitsboundaries a body of people who can, with absolute impunity, com- The Power of the General Government over mit the-crime of murder, there being no tribunal these remnants of a race once powerful, now before which they can be brought for punish- weak and diminish-ed in numbers, is necessary to their protection, as well as to the safety of those ment.12 among whom they dwell. It must exist in that The legislation empowered i.ederal courts to try government, because it never has existed any where else, because, the theatre of its exercise is and punish Indians for the commission of seven within the geographical limits of the United specified crimes on Indian reservationsmurder, States, because it has never been denied, and manslaughter, rape, assault with intent to kill, arson, because it alone can enforce its laws on all the burglary, and larceny." tribes." Ex pate Crow Dog.l09l S 55e, 5e8 (1883) (emphasis added) resulting in serious bodily injury. rubbery. and kidnapping. making a total '' 72 Cons Res 94 (Jan 22. 1885) of 14 18 DSC §1153 " Act orMar 3. 1885, ch 41. §9.23 Shit185 Since the enactment of the " U S Coma . Art 1. Sec 8 Major Crimes At in 1885. scs en additional crimes have been added to its S v Kagarna. 118 U S 375.383-84 (1886) (emphasis added) sus crage in, est. LAI rul know ledge of a finale under the agi.. of 16. assault "Id at 384 -85 It has been pointed out "that the tribes did not request the with intent to raptassault with a dangerous weapon. assault alleged po,tection. of the Major Crimes Act which was imposed upon 140 Even while the Supreme Court .spoke. of the identities and not becoming prototypical American Federal duty of protection, the executive branch farmers. In fact, their economic situation was drasti- was taking measures to break up the traditional cally declining, caused in large part by the policy of forms of tribal governments and Indian cultureas allotment. Federal policy again reversed itself in the impediments to the "civilization" of the Indian. In i 930s, marked by a "motive of righting pastwrongs, the 1880s and 1890s, the Secretary of the Interior inflicted upon a nearly helpless minority.' 920 established Indian police forces and "Courts of Under the new Federal policy, Congress aban- Indian Offenses" on the various reservations for the doned attempts at assimilation and the destruction of purpose of maintaining order and suppressing the tribal structure and adopted measures to revitalize authority of the traditional chiefs. Under the code tribal self-government, conserve and enhance tribal established by the Secretary of the Interior for these lands and resources, and reaffirm the Federal trust - courts, traditional religious practices and customs relationship with Indian tribes. Under the Indian were made illegal, including ritual dancing and Reorganization Act of 1934 (IRA)," allotment of mourning practices." Indian lands was prohibited and programswere The Court itself during this period also contrib- initiated to reacquire land for existing reservations to uted to the decline of tribal governmental powers. be placed in Federal trust status. The power of tribes to deal with offenses committed The act contained provisions to restore the status by non-Indians on Indian reservations had been and promote the development of tribal self-govern- almost completely eroded by decisions of the United ment. Tribes that voted to accept the act were given States Supreme Court. A line of cases held thata the opportunity to adopt written constitutions for State has exclusive jurisdiction over offensescom- their governmental structures, subject to tribal ratifi- mitted by a non-Indian against a non-Indian victim cation under the supervision of the Secretary of the on an Indian reservation located within the bound- Interior. The pervasive influence of the Interior aries of a State." Department in the development and implementation Beyond the economic consequences of the loss of of tribal governing structures under the act has been Indian land,_detailed elsewhere," thisera in Indian described: policy, particularly allotment,setthe stage for intense jurisdictional conflicts that have continued Section 16 of the IRA was silent, however, to the present time. On Many Indian reservations, concerning the procedures for drafting constitu- particularly in the West and Midwest, the legacy tions and the governing structures to be estab- lishedthereby.It from the allotment period is a significant number of specified only that each constitution must contain certain tribal preroga- non-Indians residing within reservation boundaries tives usurped during the allotment era, as well and owning a large ar-ount of land that is inter- as "all powers vested in any Indian tribe or spersed with tribali...id and population. Often tribal council by existing law." Some tribes had within the boundaries of a reservation, different adopted written organic documents prior to classes of land are intermixed, including trust land 1934. However, for most of these tribes, as well owned by the tribe, trust land ,owned by individual asforthe majority of Indians functioning without such documents, constitutional govern- Indians, fee patent land owned by Indians, fee patent ment was a novel experience. This inexperience, land owned by non-Indians, and lands under the combined with a lack of access to necessary control of Federal instrumentalities such as the legal assistance, left few tribes in a position to Corps of Engineers. The issue of whether and under develop their own constitutions. what circumstances the State, the tribe,or the Federal Government can exert jurisdiction over Consequently, the Interior Department pre- land held by Indians and non-Indians became, and pared a model constitution following passage of IRA. The boilerplate provisions of this model still is the subject of legal and political struggle. were adopted with few alterations by virtually, By the 1920s it had become clear to policymakers all tribes which voted to organize under that that Plains Indians were adhering to their tribal Act. Thus, although IRA was designed to themunilaterally by Congress American Indian Lawyer Training " See chapter 2 Program. Indian Self-Determination and the Rote of 1 rthal Courts (1977). p " Cohen. Handbook of bedew! Indian Law, p 83 I9, n 19 (hereafter cited as Role of Tribal Court%) " Act of June 18. 1934. 48 Slat 984. us amended. 25 U S C §§461-486 " Role of Tribal Courts. pp 17-18 (1976) " United States v McBratney. 104 US 621 (1881). Draper v United States. 164 U S 240(1896) 141 152 restore residual _powers of tribal sovereignty, The B.I.A. could have encouraged greater use the extent and aercise of those powers were of existing cooperative agreements between the determined largely by the Interior Department, tribes and state law enforcement officials which not the tribes." permitted the states to make arrests for the most widespread and troublesome Indian crimes; the The great significance of the IRA in ending the Justice Department could have deputized more disastrous allotment policy and in assisting the state officials; and the federal government could revitalization of tribal self-government can hardly be have strengthened federal law enforcement overstated. As a measurable effect, Indian landhold efforts or offered financial-and technical assis- ings were increased by 4 trillion acres between 1933 tance to enable the tribes to develop their own and 1949." Notwithstanding the beneficial effects of courts and other law enforcement machinery. the act for the preservation and -development of Any of these solutions might have been at- tempted had the goal of Congress been merely Indian tribal governments and resources, tribes were to improve law enforcement services pending unable to undo the results of the previous asFimila- the development of adequate tribal institutions. tionist policy of allotting substantial amounts of State criminal jurisdiction was preferred to reservation land to non-Indian ownership. other alternatives, however, because it was the Beginning in the early 1950s and lasting into the cheapest solution; Congress was interested in 1960s, the United States returned to«policy that saving money as well as bringing law and order favored ending the special relationship between the to reservations." Federal Government and the Indian. In the belief of some, the actual underlying motive The policy, which became known as "termina- tion," had three major legislative components: the behind the States' move to acquire jurisdiction over Indian lands was the historical desire for economic spetific termination of approximately 100 tribes and rancherias, an aggressive relocation policy to and political control: encourage migration from reservation areas to urban centers, and the transfer to States of Federal juris- [A]nd finally, the question: Why do states want diction over reservation areas. Now repudiated, the the additional responsibility of jurisdiction ever termination policy has leftits mark on present Indian reservations with all the added costs this jurisdictional conflicts between tribes and States. would incur? This answer too is simple. Above The legislative vehicle for transfer of jurisdiction all they are interested in "control." Control was Public Law 280," a complicated statute devised over the territory or lands of the Indian tribes. as "an attempt at compromise between wholly Why do they want this control? Because, since the first European set foot on the eastern shore, abandoning the Indians to the statesand maintaining the non-Indian population of America has co- them as federally protected wards, subject only to veted the Indian's land." federal or tribal jurisdiction."" In congressional.debates leading to enactment of Public Law 280 divided States into three basic Public Law 280, the principal concern of Congress categories with specific sections as to how they appeared to be the threat to non-Indians occasioned might assume jurisdiction over Indian tribes within by the perceived lawlessness on Indian reservations their borders. Six States were given direct civil and and inadquate Federal law enforcement. Transfer- criminal jurisdiction \over reservations within their ring jurisdiction for law enforcement from the borders, with, the exception of a few enumerated Federal Government to the States was not an tribes." States that had\ specific provisions in the exclusive remedy available to Congress, if the real constitutions disclaiming "urisdiction over Indian issue were the quality of law enforcement, as, a land were empowered to ume civil or criminal commentator has noted: jurisdiction, or both, after ame ding their constitu- " Role of Tribal Courts. pp 23-24 (notes omitted) Over Reservation Indians." U.C.L.A. Law Review:\yol. 22 (1975), p. 537 " U-S , Department of the Interior, Report of the Secretary of the Interior (hereafter cited as Public Law 280 The Limits of State Jurisdiction). (1949), p 380. cited in Felix S. Cohen. "The Erosion of Indian Rights. A " Ibid.. p 542 (notes omitted), Case Study In Bureiucracy." Yale Law Journal, vol 62 (1953). p 363. n 58 " Wayne Ducheneaux. chairman. Cheyenne River Sioux Tribe, statement, " See. es.. 25 U S.0 §§677. 677a (Ute) 691-708 (Western Oregon Tribes) Hearing on S 2010 Before the Subcommittee on Indian Affairs of the (1976). Senate Committee on Interior and Insular Affairs, 94th Cong.. b& sess.. " ;.CI of Aug. 15, 1953. Ch 505, 67 S..588-90 (now codified at 18 U.S C. 1975. quoted in Task Force Four Report. p. 5. §1360 and 28 U S,C §I360 (1976) " Alaska (upon achieving statehood). California. Oregon. Minnescti; " Carole Goldberg, ''Public Law 280 The Limits of State Jurisdiction Nebraska. and Wisconsin 142 5,s tional disclaimers and enacting appropriate legisla- various county and city governments and their tion." States without such jurisdictional disclaimers lack of money and personnel to take care of in their constitutions were permitted to assume civil their own, yet the State was assuming jurisdic- and criminal jurisdiction upon enactment of enabling tion on these Indian reservations.32 State legislation. The Omaha and Winnebago reservations in Ne- Congress did, however, retain some Federal juris- braska were left diction. Areas specifically excluded from State without any law enforcement provided by the State once Federal officers with- control included alienating, taxing, or probating drew. A member of the Omaha Tribe reported: trust property and infringement upon hunting, fish- ing, and trapping rights. However, Public Law 280 did not provide for tribal consent prior to State We had some killings going on there, one right assumption of jurisdiction. Several tribes did, in fact, on Main Street which could have been prevent- object to Congress, and a few did manage to be ed if we had law and order... .We had a excluded on-the-basis-of "tribal law enforcement special deputized sheriff for a while until they systems that functioned in a reasonably -satisfactory claimed that he arrested so many Indians. None manner!'" of them could pay their fine, and they had to lay it out-in the jail. They said just that by keeping The legislation dissatisfied both the States arn.; the Indians they couldn't afford to furnish us witha tribes. Indian tribes objected in particular to the deputy." imposition of State jurisdiction against their will. The States objected to the lack of 17ederal financial Antagonism toward Indians was viewed ascon- aid to enable them to carry out their new responsi- tributing to the lack of law enforcement services bilities, and they objected particularly to the remain- provided by States to Indian communities under the ing Federal protections that deprived them of the jurisdiction of Public Law 280. Chief Jim Johnson of ability to tax the property of reservation Indians. the Colville Tribal Police Department in Washing- As a predictable result,State- assumption- -of-ton State-told-a-task-force of the American Indian criminal jurisdiction under Public Law 280 led to Policy Review Commission in 1976 that county law inadequate and discriminatory law enforcement. In enforcement authorities repeatedly failed to respond some cases States assumed jurisdiction over Indian to complaints of felonies' committed on the reserva- reservations from the Federal Government without tion." A tribal official of the Minnesota Chippewas allocating any additional resources for law enforce- told the task force: "One deputy sheriff in Itasca ment. Joseph De La Cruz, president of the Quinault County told me also, he said if all those Indians Indian Nation, described the situation in Washington would kill each other, then we wouldn't have togo State occasioned by the assumption of State jurisdic- up there?'" tion: In regard to discriminatory law enforcement If there was a violation on an Indian reservation favoring non-Indians, the American Indian Policy by a citizen other than an Indian, we had to Review Commission reported that therewas a depend on and hope that a county sheriff would "persistent complaint that even where law enforce- come down from 30, 40 miles down the road ment services are prided on the reservation, the and on some reservations even farther, so you police are less than wi. to enforce the law against had no jurisdiction, you had a vacuum... . non-Indians."36 There have been widespread reports Through those years [when the State legislature of discriminatory law enforcement practices against was enacting legislation to assume Public Law Indians in bordertowns adjacent to reservationareas 280 jurisdiction over Washington Indian reser- where, States have criminal jurisdictionover Indi- vations], there were [press] clippings of the ans." " The eight States are Arizona. Mcntana, New Mexico, North Dakota. " lush Force Four Report. pp 16-17 Oklahoma. South Dakota. Utah. and Washington " p 16 " For example, the Warm Springs Reservation in Oregon and the Red " Ihid Lake Reservation in Minnesota " Testimony. Hearing Before the C S Commission on Civil Rights. Seattle. " See. eg, US, Commission on Civil Rights. Southwest Indian Report Washington. Oct 19- 20.:977, p 46 thereafter cited as Seattle Hearing. vol (1973), New Mexico Advisory Committee to the U S Commissionon Civil I) Rights. The Farmington Report Conflict of Cultures (1975). South Dakota " As quoted in Pubht Lan :80 The Limits of .ate Jurisdiction. p 552. n Advisory Committee to the U S Commission on civil Rights, Liberty and 92 Justice for .111(1977) 143 154 The effect of Public Law 280, then, was to expose The Direct Federal Role Indians to a far greater extent to State jurisdiction, The Federal Government has primary responsibil- with particular vulnerability in communities where ity for the investigation and prosecution of serious racial animosities were intense.Inresponse to crimes that occur in Indian country and for the complaints from tribes that Public Law 280 was protection of Indian communities from non-Indian inherently defective as an infringement on tribal offenders. This primary role is the product of a sovereignty and operationallydefective because piecemeal historical development that has, on the S ate jurisdictiou did not provide effective or fair one hand, expanded Federal court jurisdiction and, lawnforcement, Congress made a limited number on the other, deprived the tribes of critical areas of of corrective amendments in the Indian, Civil Rights functioning. Act of 1968.38 Serious felony offenses committed by Indians in The act provided that from its effective date any Indian country fall within the scope of the Major further assumptions of State jurisdiction would Crime.a_Aet,!1_w.hich_gives_the FederaLcourts-juris-_____ Yaqui te-t he consent of The-affeCtiaTrige: The Indian diction over 14 enumerated crimes. These crimes are consent provision, however, was not made retroac- murder, manslaughter, rape, carnal knowledge of a tive and thus existing assumptions of State jurisdic--- minor notaspouse, assault with intent to commit tion were not affected. In response to the States' rape, incest, assault with intent to kill, assault with a perceived financial difficulties with Public Law 280, deadly weapon, assault resulting in serious bodily the act further provided that jurisdiction obtained by injury, arson, burglary, robbery, larceny, and kid- State governments could be retroceded or returned to the Federal Government, in whole or in part, nappingthe offensesconstitutingthegreatest upon request from a State and approval by the threat to the public safety of any community. Secretary of the Interior. No similar mechanism was The Federal Government also has jurisdiction provided, however, by which an Indian tribe could over all offenses committed on an Indian reservation initiate and force retrocession upon a State that by a non-Indian offender against an Indian victim wished to retain jurisdiction. and an Indian offender against a non-Indian victim. Thus, in those States that assumed jurisdiction The Federal Enclave Act" extends Federal court over Indian lands pursuant to Public Law 280 prior jurisdiction to all Federal criminal law applicable to to 1968, and in which rettocession has not occurred, Federal enclaves, including the Assimilative Crimes persistent legal, political, and economic issues re- Act, which applies the law of the surrounding State main today concerning the scope of the powers that to the Federal enclave located within its borders. Public Law 280 confers on the States in relation to The Federal Government. also has jurisdiction the tribes and the Federal Government, particularly over a number of offenses committed on Indian in the area of land use regulation and taxation.38 reservations falling under specific Federal statutes. The amendments regarding Public Law 280 juris- Of major importance are 18 U.S.C. §1156, proscrib- diction inthe Indian Civil Rights Act of 1968 ing violations of tribal hunting and fishing regula- signaled in part a recognition of the failures of the tions, and 18 U.S.C. §1159, proscribing violations of termination policy and its rejection by the Federal tribal liquor laws. Government. This was made explicit by another Tribal governments have a measure of jurisdiction portion of the 1968 legislation. Although not ex- over criminal offenses committed within Indian pressly limiting crimes that can be tried in tribal country. Tribes have criminal jurisdiction solely courts, it limited the punishment to no more than 6 over Indians committing offenses on Indian reserva- months' imprisonment or a $500 fine." Thus only tions. The U.S. Congress has imposed a limitation on prosecutions in Federal court can result in sanctions possible sanctions imposed by tribal courts of 6 of the severitythatthe serious felony offenses months' imprisonment or a $500 fine, which serves covered by the Major Crimes Act would seem to as a practical matter to confine tribal courts to require. misdemeanor offenses. By decision of the U.S. " 25 USC §§1321-26(1976) " 18 USC §1153(1976) " the current Jurtsdictiottal LontliLts arc disLussed below " 18USC §11(1970 '° 25 U SC' §1302(7) (1Q76)the act also prescrabes 4:ertain protedural requirements for praseentions in tribal Lourts similar to those imposed 1)% the Un....d States Conttitution for State andedcral proseLunons 144 Supreme Court, tribal courts are precluded from The Federal Bureau of Investigation trying and punishing non-Indian offenders." The FBI does not function as a local police The States also have a limited amount of jurisdic- agency on Indian reservations. Its role is to investi- tion over offenses committed in Indian country. gate violations of Federal law, particularly the Major Crimes Act, which covers most serious felony offenses committed on Indian reservations. Participants in the Law Enforcement The FBI does not have agents stationed Role on Indian reservations, and in some cases the nearest resident With the extensive scope of Federal jurisdiction agency to an Indian reservation is more than 100 over criminal offenses in Indian country and the miles away." The Justice Department's Task Force stringent limitations placed on tribal jurisdiction, it is describes this procedure: evident that an effective Federal law enforcement effort is essential to the well-being and safety of [A]n FBI agent must travel to the reservation, Indian communities. The roles of the various institu- often a considerable distance away, and retrace tional participants in the Federal law enforcement the investigation which has been conducted by effort are complex and interrelated, but may be the BIA. FBI agents normally reinterview all delineated in summary. persons involved, visit the crime scene, and review and examine all evidence. Until the FBI investigation, is completed, the offender typical- Tribal Police ly remains at large." Procedures for handling the investigation of seri- The role of the FBI in the investigation of Federal ous felony offenses under the Major Crimes Act offenses on Indian reservations is not required by vary from reservation to reservation, according to statute but developed when the BIA lacked staff the policing structure, but a general pattern exists. during the Second World War. The Department of Ordinarily, a tribal officer or aBIApatrol officer Justice Task Force described the background for the will be the first on the scene, and if he or she FBI's now primary investigative responsibilities in determines that a serious offense is involved will call Indian country: theBIAspecial officer. The special officer will conduct an initial investigation of varying scope and At time BIA special officers did all of the then notify the FBI, who will take over investigation investigations df federal violations occurring in Indian country.... of the offense and presentation of thecase to the United States attorney for prosecution. The Depart- In the 1940's and 1950's, special officerman- ment of Justice Task Force inits1975 report power was reduced and theBIAwas not able to described the usual practice: provide the investigative services it had histori- cally provided. During this period the FBI°. assisted the BIA in meeting its responsibility. The BIA has trained criminal investigators Initially, the FBI participated only in the more (special officers) on most reservations. TheSe Serious offenses upon the request of the agency special officers conduct the initial investigation special officer, often after a preliminary investi- for the majority of serious crimes whichoccur gation. Over the years, the precedent for report- on Indian reservations. Most U.S. Attorneys, ing to the FBI all vie lations of federal law in however, will not normally accept the findings Indian country was t.tablished. Due to the of a BIA special officer as a basis for makinga operating policies and general learkt :hip role in decision on whether to prosecute. Instead, mos the federal law enforcement field of the FBI, it U.S: Attorneys require that the FBI conduct an assumed the role of the primary investigative independent investigation, often duplicative of agency on offenses accepted for investigation the BIA investigation, prior to authorizing and made prosecutive presentation of thecases prosecution." to the appropriate U.S. Attorney althoughBIA " Oliphant v Suquamish Tribe, 435 U S 191 (1978) agents must respond fro'.Aberdeen, which is 150 males away. (Henry " U S , Department of Justice.Repoli of the Task I orcc on Indian Matters Gayton. testimony.Hearing Before the US Commission on Civil Rights. (1975), p 34 (hereafter cited as Deportment ofJustra Task Force Report) Rapid City South Dakota.July 27-28, 1976, pp. 171-72 (hereafter cited as " For example, the Standing Rock Sioux Resersation hes en both North SouthDu.c.viHearing))For offenses occurring on the Pine Ridge Dal, 11 and South Dakota For offenses occurring in the North Dakkuac Reservation in South Dakota, FBI agents must respond from Rapid City, portion of the reservation. FBI agents must respond from Bismarck. which which is about 125 mks away (Fred Two Bulls, 'bid, p 173 is 75 miles away For offenses occurring in the South Dakota portion. " Deportment of Justice lash Force Report.p 34 145 156 special officers generally provided the bulk of reservationwillreport tothe reservation BIA the investigative effort. Accordingly, U.S. At- superintendent. torneys came to rely solely on FBI investigative reports and prosecutive presentations. The BIA The Department of Justice has assumed a de facto supportive role in spite of the fact that itis regarded as having primary Oversight for the Justice Department's criminal general responsibility for reservation law en- prosecutions and investigations, including those in forcement.7 Indian country, is handled by the Deputy Attorney General. Key divisions under his direction incluae The United States Attorneys the Executive Office of United States Attorneys, the Federal prosecution of criminal cases on IndianCriminal Division, the FBI, and the Law Enforce- reservations is handled by the United States attor-ment Assistance Administration (LEAA). neys of the Federal districts in which the reserva- Primary responsibility for criminal prosecutions tions are found. Thus, in addition to their normal rests with individual United States attorneys whose responsibilities for prosecuting Federal offenses un- districts contain Indian country. and their exercise of der the United States Code, they must function as discretion is not limited or monitored to any great local prosecutors for Indian reservations. Because of degree within Department of Justice headquarters. the jurisdictional restrictions on tribal courts, if the Some support and technical assistance is provided to U.S. attorney fails to take action against an offender, them by the Executive Office of U.S. Attorneys and ordinarily no action will be taken in any system. the General Crimes Section of the Criminal Divi- sion. The BIA and Tribal Police and Investigators The day-to-day responsibility for reservation law The States enforcement generally rests with tribal or Bureau of Except in States that have acquired jurisdiction Indian Affairs police stationed on the reservation. pursuant to Public Law 280," the States play a very Indian tribes have varying arrangements for preserv- limited rule in law enforcement on Indian reserva- ing law and order. Most tribes have tribal police tions.State jurisdictionisordinarily limited to departments whose officers are paid either with reservation crimes where both the offender and the tribal funds or with BIA funds or with BIA funds victim are non-Indian." Some tribes have formal or that have been awarded to the tribe on a contract informal cross-deputization arrangements with State basis pursuant to the Indian Self-Determination police for traffic and other offenses, in which Indian Act." In addition, most reservations also have BIA offenders are cited into tribal court and non-Indians police and investigators. into State court. In addition, the BIA has stationed on most reservations "agency special officers," who are The, Performance of Enforcement trained criminal investigators. These special officers Responsibilities ordinarily report to the scene of serious offenses and Federal law enforcement in Indian country has conduct an initial investigation, prior to the involve- generated massive dissatisfaction from a numbe, of ment of the FBI. sources over a period of years. In the 1950s, the view of Congress that Federal law enforcement on The Department of the Interior Indian reservations was inadequate was the impetus The Bureau of Indian Affairs of the Department for enactment of Public: Law 280, which transferred of theInterior maintains within its Washington criminal and civil jurisdiction on a number of headquarters a Division of Law Enforcement Ser- reservations from the Federal Government to the vices that provides technical assistance and advice to States. BIA and tribal police forces. The Division Chief, In the current period of a Federal policy of Indian however, has no direct operational control over self-determination, criticism of Federal law enforce- BIA police. Under the decentralized BIA structure, ment has continued and intensified. In 1974 the the BIA police and investigators on a particular American Indian Court Judges Association conduct- " Ibul . pp 34-35 " The handling of non-Indian offenders on Indian resersations n doctosed " 25 U S C $§450-4501S (1976) in a follms Ing sec non of this chaplet. "Jurisdiction Oser Non-Indians " For discussion of State Jurisdiction under PublicI am, 280, 1 aik I ederal Inaction Force Four Report 146 1.07 ed a nationwide study of Federal law enforcement Washington, D.C., and conducted field interviews and found confusion and lack of coordinationamong and investigations in many parts of thecountry. The the Federal agencies involved and profound dissatis- data and information collectedon Federal law faction among the Indian communities whoare the enforcement corroborates, for the most part, the recipients of Federal services." findings and recommendations made by the Depart- Following the Wounded Knee uprisingon the ment of Justice Task Force 4 yeatt earlier. Pine Ridge Reserviltion, the Department of Justice Complaints expressed by the various agencies and convened an Intra- agency Task Forceon Indian investigative bodies about Federal law enforcement Matters to examine the execution of its responsibili- fall into three categories: ties toward Indians, particularly law enforcementon (1) Statistics: The statistics kept by the Federal Indian reservations. Participating in the TaskForce Government regarding law enforcement on Indi- were the Crirr.;nal, Civil 'Rights, Land and Natural' an reservations do not permit accurate analysis or Resources, and Tax Divisions; the Federal Bureau of systematic monitoring of the quality of lawen- Investigation; U.S. Marshals Service; Community forcement. Relations Service; Law Enforcement Assistance (2) Investigation: The FBI's role in investigating Administration; Office of the Solicitor General; offenses occurring in Indije country for the most Executive Office of United States Attorneys; and part results in delay and duplication of efforts by Office of Management and Finance. The Task Force BIA and tribal investigators; and, further, the was chaired by the Office of Policy and Planning. FBI's effectiveness is hampered bya widespread The Department of Justice Task Forceon Indian- perception within the Indian community that the Matters issued its report in October 1916 withgrave FBI is engaged in activities tosuppress militar.: conclusions 'for the -quality of the Federal law political activity on the part of organizations and enforcement effort. The Task Force noted that individuals. examination of law enforcement had long been (3) Prosecution: It takes the U.S. attorneystoo neglected and that the neglect itselfwas properly a long to respond when a crime under Federal matter of criticism: jurisdiction has been committed, and sucha high The reservation law enforcement issue has percentage of cases are declined for prosecution suffered inattention and neglect. The problem is that crimes on Indian reservationsgo virtually one of major proportion crossing many bureau- unpunished. cratic and jurisdictional boundaries. It is partic- ularly embarrassing that the present problem Statistics exists in an,area of ,rimarily federal responsibil- ity. This is not a situation where the federal A long-recognized impediment to analysis of the government serves as a model for other law problems affecting Federat law enforcementon enforcement efforts." Indian reservatiois has been the lack ofany system for generating factual information that wouldpro- The American Indian Policy Review Commission vide a precise base for identifying and monitoring of the U.S. Congress evaluated Federal policies and the status of investigations and prosecutionson an programs in relation to American Indians. In its 1976 ongoing basis. In 1974 the American Indian Court report, the Policy Review Commission's Task Force Judges Association conducted a nationwide study of on Federal, State, and Tribal Jurisdiction was highly Federal prosecution of crimes committedon Indian critical of Federal investigation and prosecution of reservations. Its efforts, however,were substantially offenses occurring in Indian country. Its analysis thwarted by the failure of Federal agenciesto keep was generally consistent with that of the earlier statistics that would permit analysis and identifica- Department of Justice Task Force." tion of problem areas. In its report, the association The inquiry of the United States Commissionon made a strong plea for the maintenance ofaccurate Civil Rights into these issues occurred from August statistics by the Federal Governmentas a basis for 1977 through August 1979. The Commission held evaluating and ensuring the quality of the Federal hearings in Washington State, South Dakota, and law enforcement effort: " Amencan Indian Court Judges Association.Jusuce and the American " Department of Jusuce 7arA Force Report.p 24 Indian.vol 5 (1974). "Federal Prosecution of Crimes Committed on Indian " I acA lone Four Report Reservations" (hereafter cited as "Federal Prosecution on Indian Reserva none') 147 - Investigation of the subject [Federal prosecu- The BIA maintains records on crime in Indian tion of crimes committed on Indian reserva- country, but they are maintained on a Uniform tions] soon revealed, however, what has be- Crime Report index format. Their records do come a strong secondary themethe lack of, not reflect the statutory areas under which yet imperative need for, accurate and adequate charges are presented to the U.S. Attorneys. statistics.. ..[W]ithout adequate statistics, it is The same is true for the FBI. Its records do not too easy for Indian communities to be told that distinguish between crimes on Indian reserva- their arguments are based on isolated examples, tions (CIR) and crimes on other government that nothing can be done if they don't have reservations (CGR).55 figures to support their contentions, and that funds cannot be appropriated and changes The present Director of the Federal Bureau of cannot be made without strong proof (meaning Investigation, William H. Webster, noted the impos- statistical proof) of express need. sibility of responding to requests for information from the U.S. Commission on Civil Rights because Thus, if the inadequacy or unavailability of of lack of statistical information: statisticsconcerningfederalprosecution of I realize it must be frustrating to you to have the crimes committed on Indian reservations seems people that you ask not give you the kind of strongly stressed in this paper, it is only because figures that will help you draw meaningful individuals and agencies responsible for making conclusions. decisions ask first to see numbers....[A]s an indication of the status of federal prosecution of Our major crimes program falls within our crimes committed on Indian reservations, as a general crimes program, and it is the general callfor adequate record-keeping, and as an crimes that we keel). figures on. We really appeal for remedial action, this document is an weren't trying tofigure out the difference important work. The National American Indian between an Indian reservation and some other Court Judges Association stands ready to help place. in any way it can to improve this area of the Indian criminal justice system. So the nature of our etirrent statistics doesn't provide us with the ability to ask the computer The "remedial action" sought by the American the kinds of questions you would liketo Indian Court Judges Association in the collection answer." and maintenance of accurate statistics was never forthcoming. The lack of accurate statistics con- In response to an inquiry from the Commission, tinues to bar effective analysis of the problems of the FBI surveyed its 15 field offices with responsibil- Federal law enforcement, even by the Federal ities in Indian country about the number and type of agencies themselves. referrals for investigation of offenses falling under Indeed, the Task Force on Indian Matters of the the Major Crimes Act and their disposition for the Department of Jtlatice noted in its 1975 report that period July 1977 to May 19i..57 These data? how- the Department's system for collecting statistics ever, are not collected or monitored regularly on a made analysis of the rate of declinations of prosecu- national basis. Moreover, the data concern entire tion "extremely difficult": field divisions of the FBI and is not divided or distinguished by offenses occurring on individual Indian reservations within a division, thus making Statistical analysis on the subject of declinations them of little use for analysis of such matters as is extremely difficult and unreliable. The U.S. crime, rates on individual reservations and the Attorneys' Reporting and Docketing System effectiveness of the law enforcement effort. maintained by the Justice Department includes The American Indian,Court Judges Association in figures on the numbers of matters filed by U.S. Attorneys under 18 U.S.C. §§1152 and 1153, its1974 study pointed outthat where precise and their disposition. However, it does not statistics are unavailable, other sources of informa- include the number of matters presented to U.S. tion must be employed: "[J]ust because adequate Attorneys under these statutes. statistics are often lacking, the importance of 'grass " "Federal Prosecution on Indian Reservations, p " William H Webste, Director. Federal Bureau of Investigation, attach- "Department of Justice Task Force Report.p 46 ment 11 to letter to Arthur S Flemming. Chairman, U S Commission on " Wilhac El Webster. testumon).Hearing Before the L'S Commission onCivil Rights. Aug 7, 1979, in exhibits to Washington. D C . hearing Civil Rights.Washington. DC May14. 1979 p 9 (hereafter cited as Washington. D C. Hearing) 148 roots' information concerning the operation of the was often an impediment to effective and speedy law criminal justice system is magnified." In fact, enforcement because "duplication onlyserves to substantial information is available from thoseper- lengthen the time, often by days, between the sons most directly involved with the administration occurrence of a criminal act and prosecutive, ac- of justice on Indian reservationstheprosecutors, tion."" police, and the Indian people whoare the consum- The Task Force noted that the response time of ersas well as from Federal officials within the FBI agents to a major crimes complaintmay vary Department of Justice and the Department of from "several hours to several days later, depending Interior. upon the seriousness of the crime and the press of _Investigation business."' The less serious felonies, suchas aggra- vated assaults, are not treated as a priority by the The FBI, as noted previously, has primary investi-FBI and thus may result in a greater delay in gative responsibility for offenses falling Underthe response tune. The Tisk Force observed that "often Major Crimes Act" by virtue of general practice there is a significant difference in the mobilization of - -over-the-past-30-years-,-despite-the1act-that it is not criminal justice resources when the victim ofa required by Federal statute to assume this responsi- reservation crime is a non-Indian" than when both bility. The critical role played by the FBI, andthe offender and victim are Indians." systemic d:fficulties caused in prant:ee, was pointed The practice of most United Statesattorneys of out by the American Indian Policy Review Commis- accepting only cases r4erred by the FBIwas sion: condemned by the Task Force as wasteful and Investigation by FBI agents is the primarybasis counterproductive to effective law enforcement. for U.S. attorney prosecutions. Highly trained Although recognizing the severe problems of the officers can make the work ofa prosecutpr BIA in providing adequate police servicesto Indian much easier, and consistent association develops reservations, the Task Force found that "its criminal identifiable working patterns. But FBIstgents investigative capacity is not inferior to that of other not usually close to Indian communiveF either physically or culturally, and cannot easiis; agencies which the Department, through the U.S. grasp the equities of a situation which so often attorneys, deals with regularly."" have much to do will the decision toprosecute Based on its findings, the Task Force recommend- or decline. Since local BIA special officers, ed that the FBI assume a supportive rather than police or tribal police are much closer, FBI primary role in the investigation of major crimes agents are not often the first officerson the occurring on Indian reservations and that United scene of a crime. Thus, the scene often has to be States attorneys accept referrals for prosecution preserved until an agent can arrive, in which case they usually end up redoing work already directly from BIA criminal investigators and, specif- done by a more closely situated BIAor tribal /ically, that the Department.of Justice should: officer. The quality of investigationmay ulti- mately turn on the work done by local officers Direct the FBI to confine itsinvestigative in any event, pointing up the desirabilityof activities to those reservationcases requiring having well-trained locals for this,as well as all their special expertise or cross-jurisdiction capa- the other more obvious reasons." bility or those investigations requested by the BIA or U.S. Attorney; and to assist the BIA Delay and Duplication special officers in assuming the responsibility of The Department of Justice Task Force concluded, direct presentment of cases to the U.S. Attor- after its nationwide review of the various partici- ney; and * pants in Federal law enforcement in Indiancountry, that the FBI's role in the investigation ofmost major Direct the U.S. Attorneys to begin accepting crimes was at best duplicative of the investigation investigative reports directly from BIA special officers and to work with the BIAas it would already performed by a BIA or tribal investigator. In any other federal investigative agency both in fact, the FBI's involvement, the Task Force found, the field and at the headquarters leve1.65 " "Federal Prosetution on Indian Reservation..." p v " !bid . pp 42-43 " 18 U S C §I153 (1976) " p 43. n 45 " TaskForce POW' Report.p 35 " !bid p 36, " Department oflusttceTaskForce Report.p 36 " 160 . p 39 149 i 0 The recommendations of the Department of Jus- FBI and administration priority because we're tice Task Force were never implemented, and the not able to accompl4h that by ourselves." Task Force itself ceased to exist when a new At the same time that national priorities for administration and a new Attorney General took investigation. of Federal offenses were established, office in 1976. It appears, however, that the inade- the United gtates attorney for Arizona wrote to the quacies identified in 1975 in procedures for investi- Director of the FBI requesting that investigations of gating major crimes on Indian reservations still exist, crimes on Indian reservations receive top priority in and a wide range of individuals close to law those Federal districts containing Indian reserva- enforcemenftin Indian country find valid today the tions,sincethereis no effective alternative to recommendation That the FBI should be removed Federal prosecution of major crimes." The Director from its role as the primary investigative agency for of the FBI declined the request based on a percep- major crimes in Indian country. tion-that crimes on Indian reservations do not have sufficient effect on society in general to justify Availability of FBI Resources increasing their priority and therefore allocation of A highly significant factor affecting the adequacy resources: of the FBI's performance on Indian reservations is No it was not done, and that would have the availability and allocation of FBI resources to included the whole range of personal crimes. It this classification of assignments. On a national level, was not done simply because it was inconsistent the Department of Justice sets priorities for alloca- with our effort to identify those types of tion of investigative and prosecutorial resources offenses which have the greatest impact on our based on an evaluation of the kinds of criminal society." activity that have the greatest effect on society. At At the same time, the total amount of FBI the present time, investigations of organized crime, resources on a national level is being decreased. The white-collar crime, and national security violations Director of the FBI explained: are at the top level of priority, and,'according to the Director of the FBI, "those being the areas of [W]e're trying to operate on an increasingly- primary impact, we try to devote an increasing demanding jurisdictional level with static and in number of our resources to them on an on-going fact diminishing resources. Between 1976 and the end of 1980, we will have lost over 1,000 programmatic basis."" Investigation of crimes on special agents by budgetary attrition." Indian reservations is set at the lowest priority level. United States attorneys whose districts include On an operational level, the reduction in resources Indian reservations feel the effect of the national cannot help but cause a reduction in the availability priorities in terms of inadequate FBI resources to of FBI investigative services on Indian reservations. serve the reservations. The, United States attorney The special agent in charge of the Minneapolis Area for Montana stated: Office of the FBI, which includes Indian reserva- tions in North Dakota, South Dakota, and Minneso- The big problem we find with the FBI is the ta, explained that the reduction in the number of priorities nationally of the FBI don't include agents will necessarily cause a decrease the priorities for law enforcement on Indian reser- amount of time FBI agents can respond to offensesoffenses vations. The priorities set by the administration committed on the Indian reservations within his and the FBI are white-collar, organized crime, area: racketeering, and national security. And we find a problem with numbers of FBI agents to There are only so many of us. We cannot, we service the reservations. I don't know what the don't have a response factor of minutes, of half- answer to that is other than an adjustment of hours, or 45 minutes. Many times within the " Webster Testimony. Washington. DC. /fearing. vol II. p IS and propvsed to draw six special agents from the Phoenix Division for this " Robert T O'Leary. testimony. Washington. DC. Hearing. vol 1. p 160 assignment According to Director Webster, "When we got down to " MiLhael D Hawkins. United States attorney for the Distnct of Arizona, Phoenix. the protest there was that they needed these six agents we were letter to the U S Commission on Civil Rights. Apr 11. 1979 (Commission going to take from Phoenix to work the Indian reservations and we left files) them Nonetheless. the prionty system was not changed and no additional " Webster Testimony. Washington, DC. /fearing. volII. p16 Mr investigative resources were allocated for work on Indian reservations Hawkins' expression of views had some effect. however The FBI had an Ibid emergency need for 100 agents to be used for foreign counterintelligence " !bidp 8 150 i uJ past years. we would say we have men who go almost unnoticed. Indians feel that some could respond within 1 hour of where a crime federal prosecutors have the attitude that of- was committed. However, with a reduction of fenders and victims of reservation crimes are monies and cuts in our budgets.. .we have "just a bunch of Indians." This view is rein- found that we are going to have slower re- forced by the fact that often there is a signifi- sponse time in many areas of work where before cant difference in the mobilization of criminal we were able to respond mmediately." justice resources when the victim of a reserva- FBI Credibility in the Indian Community tion crime is a non-Indian. Perhaps the premier example of this disparity in treatment occurr Particularly from the South Dakota Indian reser- recently on the Pine Ridge reservation, vations, a number of complaints have arisen regard- scene of widespread violence and several do en ing the conduct of FBI agents. Many individuals murders in the last year. Federal responto believe the mission of the FBI is to suppress dissent these crimes has been fairly routine. Howver, and rkdical political activity an the part of Indian when two FBI agents were killedon the .eseavation, the FBI mobilized more than '175 people, rather than to act as an impartial investiga- agents complete with-helicopters and armored tive agency. An example of this attitude toward the personnel carriers. Yet when Indians complain FBI was expreTsSed by a resident of the Pine Ridge about the lack of investigation and prosecution Reservation, who is active in the American Indian of reservation crimes, they are usually told that Movement (AIM): the Federal government does not have suffi- cient resources to handle the work's My personal view of the Federal Bureau of Investigation is, on the reservation, on the part The lack of accurate statistics inhibits a meaning- of the reservation where I live in Porcupine, I ful assessment of the complaint of disparate treat- look at the FBI as snakes. That is my personal ment by the FBI. The FBI, moreover, does not view:.. . employ a systenko0andling complaints about the As a member of the American Indian Move- conduct of its agent's that permits public accountabil- ment, we have had peoplemembers of the ity. ." American Indian Movement have beenmur- If an Indian, or for that inatter any person, hasa dered, and because they are AIM people, the complaint about the conduct of an FBI agent, the FBI does little or a show of an investigation allegations are investigated either in the field office towards the people that committed the murder, but there is never-any convictions made, or only of by the Office of Professional Responsibility in a few. There are deaths that are unsolved on the FBI headquarters. Within the Office of Professional reservation because of different people thatare Responsibility, any personnel action deemedappro- known members of the American Indian Move- priate is put into effect. However, as explained by ment, but if an AIM member is alleged to have the special agent in charge of the Minneapolis Area committed a crime against somebody or what- Office of the FBI, the complainant is not notified of ever, the FBI will go out and just break itself the disposition of his or her complaint: trying to convict an Indian person, especially if you have lon hair in South Dakota:is COUNSEL. Are the results of the complaints The Department of Justice Task Forceon Indian made known to the complainants? Matters in its 1975 report noted thesame kind of resentment arising from varying FBI response, MR. BRUMBLE. I do not belieVe so. I have never apparently depending on the identity of the victim: notified a complainant of the results ofone. Aggravated assaults are so common on Indian COUNSEL. I want to get that very clear. If reservations that they do not receive very high someone, let us say, in the tensions of the past 5 priority attention. Indians often complain that if to 10 years out here, made a complaint about a a person sticks a knife into his neighbor in specific FBI officer, misconductor alleged Peoria, Illinois, a major effort would -be made to misconduct or whatever, that officer could bring criminal justice sanctions to bearon the have been perhaps fired, transferred, demoted? offender. They contend that a similar crime Is that accurate? And that individual who made occurring in Pine Ridge, South Dakota, would the complaint and the rest of the community -" David Brumble. testimony. South DaAota Hearing. p 208 " Department of Justice Tas4 Force Report. pp 42-43. n. 45 " Lorelei Means, testimony. Mid . pp 109-10 151 162 would never know whether any action was with Indian reservations and Indian culture. The taken one way or the other? basic training provided to FBI agents at the FBI f Academy does not include any specialized training MR. BRUMBLE. That is right." in Indian law and culture. FBI agents newly assigned to agencies with investigative responsibili- Thus, by its policies for handling complaints, the . FBI does nothing to dispel any false impressions ties in Indian country may receive some on-the-job within the Indian community of FBI misconduct or orientation from their colleagues on an ad hoc to assure the community that appropriate corrective basis," but there is no coordinated system. on a action had in fact, been taken when misconduct, is national basis to see'that this orientation is provided. found. Moreover, FBI agents are not stationed on Indian reservations and thus are outsiders. Cultural Barriers and FBIsimpartiality Some FBI officials express the view that the FBI's Several United States attorneys have expressed professional investigative expertise tran...;ends any the opinion that the impartiality of the FBI_ com- cultural differences. The head of the FBI's Minneap- pared to the BIA or tribal police is a major factor iq.. DivisiOn stated: their preference for the FBI's maintaining L. substan- Our agents are not specially trained to work on tial role in the investigation of major crimes. David reservations because we do not feel as investiga- Vrooman, United States attorney for South Dakota, tors that there is any difference in investigating stated: a crime on the reservation, necessarily, than any other type of federal crime.", I do not believe the Indian- tribes have yet recognized the separation of power. As long as It is the.strongly held view, however, of tribal and the executive is calling the shots, I think it is BIA criminal investigatofs that the FBI is handi- going to be dangerous to have all crimes capped in its investigative abilities by reservation investigated on the reservation where, when residents regarding them as outsiders. Henry Gay- you have an election, people's jobs are at stake. ton, BIA special officer for the Standing Rock Sioux The FBI, I think at this point, goes in, does not have any local pressure insofar as their investi- Reservation,stated:"We havehadinstanc- gative techniques are concerhed." es...where people ofthe community have wanted to talk to one of us rather than somebody that is not In a similar view, Robert O'Leary, United States living there."' attorney for Montana, stated: A tribal criminal investigator from the Pine Ridge Reservation had a similar observation: L believe...thatthe Indian tribes and the residents on the reservations do have confi- People are a lot more open to you if they'know dence in the FBI and the FBI investigations, you. If you are going to go in a communitya,-Id and the independence of the FBI. . .which is nobody's seen you before and you come from not colored in any way by any connection with 40 miles away, they are going to look you over the operation or the overall administration of for about 2 days before the_ y are going to start the Indian reservations. talking to you." In offenses iiwolving Indian participants or wit- Fred Two Bulls, captain .ofthe Ogiala Sioux nesses from different tribes, for example, Navajos Tribal Poli-e of the Pine Ridge Reservation, con- and Hopis, the FBI is said to be the only investiga- curred, poiqting out the advantages of the bilingual tive 'agency viewed as impartial and therefore ability of his investigators on a reservation where having credibility within the Indian community." many residents speak the native language; The generalized expertise of FBI agents and the quality of their investigations, however, must be There. [are] many times when this happens [that viewed in light of their knowledge of and familiarity reservation residents will not talk to the FBI]. IS " Brumble Testimony.South Dakota nearing.p 207 See also Webster Brumble Testimony.South Dakota Hearing.p 195 Testimony.Washington. D C. Hearing. vol. 1.pp 6-7 ISGaskill Interview. " David Vrooman. testimony.South Dakota Heannep 196 Brumble Testimony.South Dakota Hearing.p 193 " O'Leary Testimony,Washington. D.0 Hearing. volI, p 155 41Henry Gayton. testimony. ibid p 174 " Leon Gaskill. special agent in charge. Phoenix Office. FBI. Interview, SIIce II Antelope. testimony. 'bid p 123 Apr 9.1979 152 6,1 4 - The people just would not communicate with Well, I imagine it would 'be some that would someone that isn't from there. It helps a lot to disagree with it, some will like it....1 think be bilingual in this line of duty on the reserva- they would give us a second look. They know tion to some of the people. They do speak that we are investigating and we mean business. English but not to a point where they can really This would give us more prestige." express themselves or make you understand what they really want. In their own language' A lieutenant from the Oglala Sioux Tribal Police they feel more comfortable." expressed his opinion about being the primary Tribal Autonomy investigatoi presenting a case to the United States attorney without the involvement of the FBI:4 An inevitable result of the requirement that FBI "Every time you have a middleman involved some- agents must present major crime cases to the U.S. where you are not getting the credit sometimes that attorney fora decision whether or not to prosecute you really want."" is seen as a loss of tribal t ontroj over the handling of A related,consideration is the widely held percep- serious offenses that threatens the reservation corn- tion within the Indian community that FBI agents, mtuntSY, The lack of control can affect reservation whoarenot part of the reservation community and tranquility and security and the credibility of the do not have a personal stake in the maintenance of tribal government. As the governor of the Gila law and order there, do not always make a strong River Community pointed out: presentation to the United States attorney for the We're getting quite a bit of concerned calls, in prosecution of -cases. The American Indian Court other words,--we're getting some pressure from Judges Association, in its survey, reported hearing our community members. such accusations: The only thing that we would do is to say that we don'twe, the tribal government, at- least in In our fieldtrips,interviews and informal the executive body doesn't have anything to do conversations, we haveheardaccusations with investigation of these cases, and it's to against the F.B.I. which we cannot substantiate. them it's kind of like a cop-out. These remarks have all been oral and have not been pa in writing by any of the persons who But the working relationship, I think, between have made them. Whether they are true or not, the tribe, the Bureau (BIA), and the FBI are not they arc i.2,:yrtant because the people who that good, at this point." related them believe them to be true. The main Tribal investigators have expressed their desire to complaint is that the F.B.I. doesn't truly cal about cases arising from Indian reservations. assume responsibility for the investigation of major These individuals contend that since there is no crimes as a way of increasing their standing and glory, in, or publicity for, such cases, the FfB.I. prestige within the Indian community 'they serve. is interested only in cases involving kidnapping, Asked if this was his goal, the captain of the Oglala drug rings, organized crime, etc. As a result, Siodx Tribal Police replied: they declare, the F.B.I.doesn't pay much attention to the ordinary cases arising on Indian Yes, that is what we are striving to do right reservations." now, make itthis way. In taking over the investigation, we'd feel more professional..Like An area special officer for the BIA expressed a what we are doing now, we feel like we are just similar view that FBI agents are often less than a figurehead between the crime and, the FBI positive when they .present cases to the United there, that at times we don't get any credit for what we have done in some of the investiga- States attorney, resulting in a denial of prosecution." tions." At any ra,the shielding of -the United States 4. attorney fir m direct contact with tribal or BIA Asked how he thought it would affect the resi- investigativ officers means a denial of tribal partici- dents of the reservation if his department tk over pation inecisions that profoundly affect law en- primary investigative authority, he replied: forcement land thereby the quality of reservation life. " Fred Two Bulls. testimony. and p 174 " Antelope Teitimony. ibid. p 123 " Quoted inTask Force Four Report.p 38 " "Federal Prosecution on Indian Reservations." pp 32- 13 " Two Bulls Testimony.&Nth Dakota Ileanng.p 174 " Eugene Trotut I. interview. June 7. 1978 " Ibid.. pp. 17445 153 What is at stake is a critical element of Indian self- Federal p osecutors to minimize the importance of ,,determination. Indian cares: Prosecution The remoteness of the United States Attorney's The prosecution of Federal offenses in Indian offices from the Indian reservations causes the importance of cases occurring on those reserva- country is emost exclusively handled by the United tions to seem less important than, in fact, they States attorneys of the various Federal districts in are. T:iese cases are generally not publicized in which Indian reservations are located. Although the major cities and do not appear to be matters they are responsible for prosecuting offenses falling of great urgency or public concern. In addition, under the Major Crimes Act, the General Crimes the great distances involved often mean that the Act, and other Federal statutes, there is no require- United States Attorney and his staff are general- ment that they prosecute every case that is presented ly unaware of the cultures of varying Indian communities. They tend to impute the culture to them. Each United States attorney possesses wide of one tribe to other tribes. Thus, they cannot discretion in the cases he or she accepts or declines fully grasp the problems of law enforcement on for prosecution. any specificreservation. Furthermore, .they learnlittleof progress and change on the Geographical and Cultural Barriers reservations, nor do they know of the moods The jurisdictional framework that has developed and attitudes of the reservation's residents." for Federal prosecution of the most serious offenses The Department of Justice Task Force recognized committed on Indian reservations produces tremen- in its report the prevalent feeling among Indian dous logistical and cultured problems. In its review, peoplethatthe Federal Government does not the Task Force on Indian Matters of the Department consider Indian cases important enough to devote of Justice noted the law enforcement difficulties sufficient prosecutorial resources: caused by the rural isolation of most Indian commu- nities: Citizen lack of confidence in the reservation law enforcement system is widespread. Resi- Indian reservations encompass enormous geo- dents of several reservations believe there has graphic areas where the population is sparse been a complete breakdown of law an,' order. and scattered rather than conveniently gathered They are cynical about the willingness and in cities or towns. The Navajo reservation, for ability of the [Federal] government to protect instance, spreads into four states containing persons and property. In many cases, no effort roughly16 million acres intotalarea and . is male, to report crime because of the feeling 136,000 people. More common, however, are that nothing would be done. Self-help is com- reservations of 1 to 2 million acres supporting a mon among both Indians and non-Indians.... population of 500 to 2,000 people.Itis not uncommon for several hours to elapse between Far more widespread and serious than concern the time a crime is committed and the time a about response time is the belief among Indians law enforcement officer arrives at the scene by that the Federal Government simply declines to car. Providing effective law enforcement ser- prosecute Indian cases because it is unwilling to vices under these circumstances is very diffi- devote- federal prosecutive resources to any- cult." thing but the most unusually serious offenses.92 In its 1974 study of Federal prosecution of crimes Declinations of Prosecution on Indian reservations, the American Irdian Court The high rate of declination of prosecution of Judges Association noted that the difficulges of law major crimes offenses by United States attorneys has enforcement on rural reservation areas are com- been a source of dissatisfaction in the Indian commu- pounded by the fact the the Fed ral courts and nity for some time. Precise statistics are not main- Federal prosecutors are located in major cities often tained by Federal law enforcement agencies, but it remote from Indian communities. The geographical appears that in excess of 80 percent of major crimes separation leads to a cultural separation and, in the cases, on the average, presented to United States view of the association, a tendency on the part of attorneys are declined for prosecution.93 Offenses " Department of Justice Task Force Report.p Z4 " Department of Justice Task Force Report.pp 23-45 " "Federal Prosecutiol, on Indian Reservations."pp33-34 " South Dakota Nearing. p186 154 covered by the Major Crimes Act are serious felony difference in goals and objectives on the part of offenses. Ordinarily, there is no alternative to Feder- the managers of the federal system, the prosecu- al prosecution other than referral for prosecution tors, and the consumers of that system, the within the tribal system, where the 6-month limita- Indians. The managers are faced with heavy competing demands against which they must tion on sentences that can be imposed is oftenan weigh Indian cases/ As a general rule they inadequate sanction for the seriousness of the of- prosecute cases in which the government has a fense. ' good chance to win. Indian cases by theirvery They epartment of Justice Task Forceon Indian nature are extremely difficult to win and are Matters examined the excessively hit,hrate of atypical of the kinds of cases usually brought in declinations by United States attorneys andcame to federal court." the conclusion that the exercise of prosecutorial However, as noted earlier, it was the Federal discretion did not appear to be deliberately discrimi- Government, and not the Indian tribes, that took the natOrYt but it was nevertheless unsatisfactory in initiative to assume Federal jurisdiction over serious terms of the federal responsibility: felony offenses .in Indian country and to deprive It is our conclusion that U.$. Attorneys treat tribes of the authority to exact meaningful sanctions. Indian country cases in the same manner as they Thus, the Federal Government should rkiear the treat other types of criminal cases. It is also our burden of providing adequate resources foran conclusion that to treat these cases in the same adequate prosecutorial effort: manner as other federal cases overlooks the role Of state/local prosecutor which, in addition to [O]ne cannot help but be concernedover the being the federal prosecutor, the federalgov- application of these factors [affecting the deci- ernment through the U.S. Attorney must play." sion to decline prosecution] to cases arising from Indian reservations. The Indian people did There is no question that Federal prOsecution of not ask the Federal Government to assume the cases arising in Indian country presents unique duties of prosecuting major crimes. This task difficulties. The geographical separation of Federal was assumed voluntarily by the government prosecutors and courts from reservationareas and the government should bear the burden of creates logistical difficulties in terms of transporta- all accompanying costs." tion of defendants and. witnesses for court appear- The American Indian Court Judges Association ances. The large percentage of alcohol-related of- recognized the difficulties in prosecuting violent -Tenses' often presents impediments to successful crimes in which abuse of alcohol is a contributing prosecution because of the unreliability of the cirCurii:siance,but condemned the effect on the ,ter....eption and memory of witnesses. Language and exercise of prosecutorial discretion: cultural barriers may cause reservation residents to seek to avoid having anything to do with acase in In declining these types of cases, the prosecutor Federal court. The Department of J. stice Task too often allows the real needs of the Indian Force found that all these factors affected the community to fall victim to his own beliefs about what will be viewed as moral, acceptable exercise of prosecutorial discretion by United States or excusable behavior. attorneys in the face of competing priorities: Itis estimated that over 50 percent of the U.S.Attorneys are committed to bringing Federal cases arising from violations committed cases they can win. Regardless of the serious- on Indian reservations involve alcoholic intoxi- ness of the offense, Indian cases present a range cation. ...Though this sort of behavior may of problems any one of which often defeats a occur often or regularly on reservations, it is successfl prosecution. Against these odds, it is not, in fact, acceptable. Failureto prosecute in difficult for a U.S. Attorney to justify great such cases could be interpreted as approving of expenditures of time given the competing de- anti - social behavior and; in effect, as licensing mands on his resources... . such activity." [W]hat' we face in the prosecution of crimes In addition to the encouragement of antisocial occurring in Indian country is a fundamental behavior, failure to prosecute a crime engenders " Department of !once Task Force Report.p. 45 " "Federal Prosecution on Indian Reservations." p 43 " Ibid..p48. " Ibid . pp 38-39 155 t 6o communal anger and a breakdown of the social investigation and prosecution of Federal cases in structure when "reservation residents see an individ- Indian country. ual set free'thous having been punished for his The State of Arizona contains 17 Indian reserva- crime."" tions of varying sizes and characters. The Navajo A more profouneffect on the Indian community Nation is the largest and most populous, with more is the shattering_of t ust in the good faith of the than 150,000 members occupying a reservation of 9 Federal Government,hich has assumed the re- million acres located within 3 States.'" sponsibility of law enforcement in regard to serious Michael Hawkins became United States attorney offenses without effectively fulfilling its responsibili- for the District of Arizona in February 1977. In ty The Chief of Law Enforcement Services of the looking at Federal investigation and prosecution of Bureau of Indian Affairs described the effect on major crimes on Indian reservations in Arizona, he Indian communities of the breakdown of law and noted the same duplication of investigative efforts order caused by failure to prosecute serious offenses: that had been condemned in 1975 by the now- defunct Department of Justice Task Force on Indian They [felony offenses under the Major Crimes Matters: Act] are serious offenses. And whether alcohol, whichisone of thebiggest problems on [T]hesingle most dramaticthing.. I saw reservations, is a good basis for prosecution or [upon taking office as United States attorney] not, a number of United States attorneys will was significant duplication and overlap of the not prosecute if alcohol is involved.. .. law enforcement services being offered either by tribal police agencies, the Bureau of Indian The fact remains that the Indian community Affairs Law Enforcement Services, and the looks totheFederal Government forthe FBI.I found instances, for example, where prosecution of serious offenses, and when it's three separate reports were being prepared by not happening, you have, again, this negative three separate agencies, witnesses being inter- impact in the eyes of the Indian community as viewed three and four times by different agen- to the role of the Federal Government in Indian ciesno sense, no standards, no guidelines as to country.That's where the whole problem the referral of those reports, nothing beyond starts. The mistrust begins at that level, and informal understandings between individuals when you begin to mistrust the police and the about investigative jurisdictions between the criminal justice system,allthe otherlittle agencies. I felt a compelling need, at least on my sections of the wall begin to crumble." part, to deal with that situation.101 Mr. Hawkins perceived the effect of the duplication Possible Directions for Change of investigations to be detrimental to effective law The serious problems for law enforcement in enforcement, as well as wasteful: Indian country are to some degree a product of neglect.It appears that where participants in the Beyond the cost to taxpayers of such duplica- system are open to change, possibilities for improve- tion of responsibility, this overlap posed signifi- ment exist. Au examination of some innovative cant practical problems for federal law enforce- programs recently put into effect in the State of ment. Witnesses to crimes were often inter- Arizona and on the Pine Ridgc Reservation of South viewed by two or three separate agencies, Dakota demonstrates that a more positive Federal sometimes producing such inherently conflict- role in law enforcement can be achieved. ing statements that subsequent criminal prose- cutions were rendered enormously difficult, if The broad discretion vested in the United States not impossible. 102 attorneys in the various Federal districts permits the initiation of innovative programs on a local level. It To develop a more Affective law enforcement is instructive to examine, therefore, the comprehen- prograM in Arizona, Mr. Hawkins initiated discus- sive evaluation and modification of existing practices sions with tribal and law enforcement officials of the undertaken by one United States attorney in the Navajo Nation: " Ibid . p 43 ." Michael D Hawkins. statement to the United States Commission on " Eugene Suarez, testimony. Waclumoon. I) C Hearing volI. p I 11 Cis!! Rights. Mar 20.1979, p 5 ." Arizona. New !Mexico. and l tab ..'NIIC11.1e1 D Flaw kills. testimons. 0 athingron. DC. Waring. volI. pp 148-49 156 i 6 i We began with the Navajo Nation, America's has ended the former duplication of investigative largest tribe, which has a fairly sophisticated efforts by tribal, BIA, and FBI investigators, accord- tribal government and its own very independent well-trained police force, its own independent ing to Mr. Hawkins: judiciary, and they have a real willingness to deal with the problem. So we began there and [W]e now have direct reporting...by tribal then moved on to the other Indian nations.. .. agencies, the BIA, and the FBI. There's The Navajo guidelines were drafted after a overlap in the reports; single investigations are series of meetings.. .with representatives of done; single interviews of witnesses to crimes the tribal police and Bureau of Indian Affairs are done.'" officers and the FBI and myself. 103 The greater involvement of tribal officers, Mr. As a result of these meetings, guidelines- were Hawkins said, has also improved the quality of issued on a 120-day trial basis within the Arizona Federal law enforcement by diminishing cultural portion of the Navajo Nation. The guidelines set barriers between the Anglo justice system and forth: (I) the types of Federal offenses that would be Indian participants within it. routinely declined for prosecution by the United States attorney and thus could be investigated and prosecuted within the tribal system; and (2) the It [use of the guidelines] has enhanced signifi- division of investigative responsibilities for Federal ,cantly the direct relationship between tribal offenses among the tribal police, the BIA, and the police officers and our own officers. They ire now moire intimately involved in what we do. FBI.10' Following the 120-day trial period, Mr. They participate in grand jury proceedings, and Hawkins met again with officials from the Navajo they are a tremendous help and benefit to Nation, the BIA, and the FBI and, with minor overcome language and cultural end experience adjustments, issued final guidelines'for the investiga- harriers that may exist between Anglo prosecu- tion and prosecution of Federal offenses occurring tors and crimes which involve inhabitants or within the Navajo Nation. The United States attor- members of various Indian nations.'" neys for Utah and Arizona agreed to apply the guidelines to those portions of the Navajo Nation Officials of the Federal Bureau of Investigation in lying within those States, and there are now uniform Phoenix participated in the development of the standards for Federal offenses within the Navajo guidelines and concur with the United States attor- Nation, despite the fact thatitlies within three ney that the implementation has been positive. The States. special agent in charge of the Phoenix Division of After a year's experience with the guidelines, Mr. the FBI said the guidelines have provided a more Hawkins met with most leaders of the remaining effective use of its investigative resources, since the Indian nations in Arizona, who, for the most part, FBI is no longer required to investigate those types wished to have the guidelines put into effect on their of cases that would be routinely declined for Federal reservations. With minor alterations, the guidelines prosecution. With the reduction of the number of are now in effect in virtually all the Iiidian nations in FBI agents on a national level and other priorities Arizona.'" that demand resources, the FBI official said, it is The use of the guidelines first within the Navajo necessary to encourage greater involvement of tribal Nation and then in other Indian nations in Arizona police and the Bureau of Indian Affairs in the 10' Hawkins Testimony. Washington. D.0 . Hearing. vol I. p 149 FBI for investigation and presentation to the United States attorney for '" In summary. the guidelines provide as follows prosecution murder. manslaughter. assault on a Federal officer resulting in Absent aggravating circumstances. the following types of offenses will be serious bodily injury. arson where death or serious bodily harm results. routtnely declined for prosecution by the United States Attor ey. and thus bank or other armed robbery. embezzlement. kidnapping. aid public may be investigated by the tribal police and prosecuted will in tribal court assistance violations involving more than 51.003 loss alcohol violations. theft offenses involving less than 52.000 in property loss. The guidelines further provide that in all cases where the United States and assault. except upon a Federal officer. not resulting in serious bodily attorney declines prosecution. the report of the investi6tion shall be harm returned to the originating agency for reference to tribal officials for The following types of offense may be investigated by Bureau of Indian processing in tribal court Affairs investigators for presentation directly to the United Slates attorney The complete text of the guidelines is attached to the Statement of Michael rape. carnal knowledge. incest, theft offenses with property loss in excess of D Hawkins. in exhibits. Rashington. DC. Hearing. vol II 52.000. public assistance violations involving less than 5 OM and arson not '"Washington. D C. Hearing. vol I. p 149 resulting in death or serious bodily harm '°' Mid The following types of offenses will be the primary responsibility of the 10' 'bid . p 150 157 165 investigation of Federal offenses in Indian coun- The greater responsibilities given to tribal and BIA try."' police have had another positive effect: Representatives of the Navajo Nation have also been pleased with the implementation of the guide- lines.Closer working relations have developed [Wje found that the report-writing abilities of tribal police officers and BIA law enforcement between the Navajo Police Department and the specialists have improved as a result. That's not FBI, with the clarification of investigative responsi- to say that there weren't problems initially, and bilities. The chief of law enforcement services of the particularly when you're dealing with the lan- Navajo Nation said the tribal police will soon be guage barrier and terminology barrier. But it capable of more extensive investigative responsibili- increased their proficiency in the report-writing ties, with the eventual goal of assuming primary immensely. And I think both sides have benefit- responsibility for the investigation of major crimes, ed from it.'" with the FBI playing a supportive role.'" In sum, the experience in the District of Arizona One goal of the United States attorney in promul- demonstrates that increased responsibility given to gating the guidelines wastoexpand tribal investiga- tribal and BIA police increases their ability to tive and prosecutorial responsibilities in order to put assume an even greater role in Federal law enforce- the Federal law enforcement effort more in accord ment. with the policy of Indian self-determination. At the Other examples exist of increased communication time the guidelines were first put in effect, Mr. and cooperation among tribal and Federal officials Hawkins set this goal: in regard to laW enforcement on Indian reservations. According to the United States attorney for Mon- This expansion of responsibility for Navajo Tribal Police officials is in the spirit of self- tana, the quality of law enforcement on Indian determination. We look forward to the day reservations in that State has improved since the when the Tribal Police will have primary 1960s because of the "development...of more responsibility for all criminal violations occur- adequately trained Indian and tribal law enforce- ring within the Indian Nation, with federal ment officers and. . .better cooperation with the agencies providing such scientific and other FBI in the delivery of law enforcement to the Indian support as may be neces3ary. 110 reservations.""3 He has systematically brought trib- In his view, Mr. Hawkins said, the increased al investigators into the prosecution of major crimes responsibilities given to the tribal police by the cases, both to develop their capabilities and to guidelines and the greater contact with Federal improve communication among tribal and Federal prosecutors has improved their investigative capa- authorities: bilities: With respect to the tribal police, in three of the As to those Indian nations with larger tribal reservations we have made every effortto police forces, we have found a significant encourage the tribal police forces to submit improvement inthe communication between their written reports to us on any case that has officers of those agencies and our own office. been accepted for prosecution, to bring the Since those officers now have direct contact tribal officers to the grand jury, make them a with our prosecutors, they have a gr.--+,T part of the full prosecution system, because I understanding of federal procedural and eviden- feelit makes a better operation for them as tiary requirements, and we have seen a resultant tribal policemen as far as participating in the improvement in the efficiency of investigations system from the beginning to the end. And it conducted by them*" also encourages cooperation between the FBI and the tribal policemen who, frankly, get Under the guidelines, the United States attorney together at grand jury,get together with will accept referrals for prosecution for some types us. ..to discuss it with myself and my assis- of cases directly from tribal and BIA investigators. tants, and we found it to be very helpful as far " Leon M Gaskdl, spesial agent in charge. Phoenix Division. 1131. "' Hawkins Statement. Washington, D e, nearing. vol interview, Apr 9, 1979 "' Hawkins Tesmnony. Washington. D C. Hearing. vol I. p 154 10' Larry Benally. acting commissioner of public safety. Navajo Police "3 O'Leary Testimony. chid , n 151 Department. interview, Dec 15 1979 "" Michael D Hawkins. United States attorney for the District of Arizona. press release, Aug JO. 1977 (Commission files), 158 as the law enforcement on the three major examine and report on the causes of the unreston reservations in Montana." the Pine Ridge Reservation. A major contributing Another example of a more constructive Federal factor identified was the inadequacy of the tribal law role is found on the Pine Ridge Reservation in South enforcement system. The special commission found Dakota,13 both in terms of the development ofan massive dissatisfaction among the tribal police offi- improved tribal law enforcement system and the cers themselves and in the Indian community they initiation of better relations between the FBI and the served. The special commission reported: Indian community. These developmentsare all the more remarkable in view of the recent, well-publi- The morale of the Department is very low due cized, armed confrontations on the reservation and to improper grade structure, lack of leadership, the almost complete deterioration of law and order. poor uniforms and equipment, unqualified per- Notable in the recent history of the Pine Ridge sons assigned to leadership positions and politi- Reservation was the occupation of the village of cal pressures.... Wounded Knee in1973. The American Indian Movement (AIM) had come into existence in theme late1960s as a militant organization seeking to The relations between the Police Force and the public is, very negative in all respects. Great provoke change on behalf of Indians by public dissatisfaction with the police was expressed in confrontations. Dick Wilson, then tribal chairman of all meetings. The people related experiences Pine Ridge, was bitterly opposed to AIM's ideology with selective enforcement, harassment, intimi- and tactics and announced his intention to drive dation, drunken officers, and general non-pro- AIM off the reservation. On February 27, 1973, fessional activities and abuses."' some 200 AIM members and Oglala Sioux seized the town of Wounded Knee, site of the massacre 84 The special commission concludedthat: "The ears earlier, and declared their determination to present patchwork police force could be character- stay and die. The Federal Government responded ized as an armed, only slightly controllable faction by surrounding Wounded Knee with 250 FBI of the community rather than a coherent stabilizing agents, U.S. marshals, and BIA police equipped with force."' armored personnel carriers, machine guns, and rifles. Law enforcement problems at Pine Ridgewere The siege at Wounded Knee went on for 2-1/2 exacerbated by the shootout on June 26, 1975, at months, observed and reported by news media from Oglala that resulted in the killing of an Indianman all parts of the United States and several foreign and two FBI agents who were attempting to execute countries. During the occupation, two Indianswere an arrest warrant. Following the deaths, more than killed and Indians and government agents alike 100 heavily armed FBI agents, includinga Special received serious wounds from the thousands of Weapons and Tactics (SWAT) team, combed the rounds fired in the course of the standoff. reservation looking for suspects. The Department of Following the occupation of Wounded Knee,a Justice ,Task Force on Indian Matters reported: period of violence and conflictsetin on the "The number of FBI agents on the reservation has reservation as AIM and its sympathizers clashed increased tensions and has resulted innumerous with tribal officials, BIA police, and the FBI. A ,-;omplaints of harassment, illegal searches, andgen- series of shooting,' and deaths as various eral disrupt ion of the Reser vation.""° factions contended for control ofof day-to-day affairs Following the Oglala killings, the number of FBI --on-the reservation. Many of these homicides remain agents assigned to the Rapid City office, which unsolved. serves the reservation, was greatly increased. As A special commission was established in the standard procedure, FBI agents would travelon the spring of 1975 by the Secretary of the Interior to reservation in caravans of two to three vehicles, '" Ibid , p 155 population of 12.0W Indians live The remainder of the population is Pine Ridge Reservation. home of the Oglala Sioux Tribe. is located in widely dispersed through the reservation in primarily rural areas southwest South Dakota in Bennett. Shannon. and Washabaugh Counties '" Report to the Secretary of the Interior from the Secretarial Commission Of the original 2 8 million acres provided under the 1889 treaty. approxi- on the Pine Rioge Indian Reservation. June 24, 1975. pp 17-18. mately half remains in Indian ownership Tribal headquarters are located in '" !bidp 19 the village of Pine Ridge. where approximately 2.0W of the reservation's "` Department of Justice Task Force Report. p 63 159 armed with automatic weapons, and occasionally [There aresmall detachments all over the escorted by a helicoPter."2 Although the upgrading reservation for the community and for each of FBI personnel and weaponry was characterized district.'" by the FBI as a necessary security measure, the A member of one of the outlying reservation display of force served to intensify hostility against communities described the improvement brought the FBI ottthe part of reservation residents. about by the availability of law enforcement services Several factors over the past several years have within the community: brought a considerable measure of improvement in law enforcement on the Pine Ridge Reservation. As compared to a few years back when the BIA Foremost has been a restructuring of the Oglala had the law and order system, it is a lot better in S.oux Tribal Ponce under a contract between -the that when the law and order was under the tribe and the Bureau of Indian Affairs, pursuant to BIA, most of the policemen were stationed in the Indian Self - Determination Act. Pine Ridge. That is about 50 miles away from Following a change in tribal administrations in "Martin. Any time we needed the help of the 1977, the Oglala Sioux Tribe contracted with the law, we had to call over to Pine Ridge; Sometimes it was 2 hours, 3 hours, andsome- Bureau of Indian Affairs to establish a tribal police times they never showed up. It was bad back system with a fundamentally different operational then.Itis a lot improved.. .Because the structure from the former BIA police system, which police are right there, right in the community. had received widespread criticism. Two key ele- They are right down the street when you need ments characterize the operation of the new Oglala them.'2' Sioux Tribal Police: decentralization and community A corollary to the decentralization of the tribal control. Under the previous BIA system, most police is a system of local community control of police officers were stationed in the village of Pine police personnel and activity. The Oglala Sioux Ridge, and their services were not readily accessible Tribal Police are under the direction ofa police toresidentsin outlying and rural parts of the commission, composed of commissioners elected reservation. The lack of a law enforcementpresence from each of the nine local districts, which sets was a contributing factor to the earlier climate of policy and oversees the operation of the law and violence and lawlessness. order program. Each district also electsa district Under the new system, officers are stationed in public safety review board that has the authorityto each of nine districts throughout the reservation. hire, fire, and discipline the police personnel of its This decreases the response time when the policeare district. Police are thus stationed in each of the local summoned and places them in closer contact with districts and are responsible for their conduct to the the communities they serve. A lieutenant of the elected review board in that district-- Oglala Sioux Tribal Police described the difference A member-f-oth-e-A-merican Indian Movement, between the old and new systems: residing in the Porcupine community of the Pine Ridge Reservation, praised the new police system I think there is more policemen over a that makes the officers accountable to the communi- bigger area in the communities. Each communi- ty: ty, we just about know the people there and how they are going to react, and weare Now, the tribal police, we get along _wi, h them- available.I mean, there is no such thing as good at Porcupine. We-have a community having to wait for officers for 2 or 3 hours like police review board. If there is any trouble, you had before. We are divided-into-nine they have a way to view the complaint and the districts. ._ past, most of the police grievances and the people on the police force, officers were stationed in Pine Ridge or in Kyle. we know them and get along very well.'" And from Pine Ridge to Martin it took them at least 45 minutes to get there if they had a call. The police officials themselves have accepted and And we got our response time on a call down to now are firmly in favor of the concept of community about 7 minutes. control. A lieutenant described his initial ambiva- "2 Brumble Testimony. South Dakota /(earwig. p 193 "2 Gerald Clifford, interview, Apr 6, 1978 10 Antelope Testimony. And , pp 119-20 " Mears Totimony. South Dakota Hearing. p. 111 "' Alice Flyc. testimony. 'bid , p III 160 171 lence about control by a community review board sketches that they make there. So far they have and his later acceptance based on how the system commented that we done a good job of getting was working in practice: all the evidence and all that stuff. It's making their job easier.. . When I first heard of this review board idea, I felt that policemen can't work for the board, The things that we hae missedare the things that was my idea. And in about 2 months after I that they are teaching us when theygo and do seen the operation and was part of it, I changed their investigation. The officers I have sentout my idea. It can be done and it's working this with them.. way.' 24 .go right ahead and help them take the fingerprints and photographs. Theyare learning right along with them. That is, thenew No doubt a number of interrelated factors have men I have on the force.126 contributed to the lessening of tension and violence on the Pine Ridge Reservation, but the improved Issues of conflict nevertheless persist between the law enforcement system must be seenas a major FBI and the Oglala Sioux Tribal Police. Among influence. The improvements in law enforcement them are the FBI's practice of comingonto the would not have been possible without Federal reservation without acknowledging an obligationto funding. inform tribal authorities of theirpi esence. Also at At the same time, there has been marked improve- issue is the view of some tribal officials thatsome ment in relations between the Indian community on FBI agents assigned to the Pine Ridge Reservation the Pine Ridge Reservation and the FBI. Many since 1975 have a racist attitude toward Indians. points of contention still exist, but thereappears to Tribal officials and reservation residents alsoallege be abasisfor discussion and working out of thatthereisan inadequate and discriminatory differences. The FBI has established a working pattern of investigation of major crimes by the FBI. relationship with the new Oglala Sioux Tribal If the potential defendant issomeone identified with Police. Cr primary importance is training provided former tribal president Dick Wilson, theysay, the by the FBI totribalpolice officers, arranged FBI is slow to act, but if the defendant issomeone through the FBI's Rapid City and Minneapolis Area the FBI believes is a member of the American_ Indian Offices, to prepare tribal policemen toassume Movement, the FBI moves zealbiigy to investigate greater responsibility in the investigation of major.---the_caser127-- crimes. The Director of th_e___gituieapolis-Afei-dffice A basis exists, however, for discussion of these explainerl_bis purp6Cein making FBIresources matters of controversy. Meetings have been held available for training: among tribal police officials, the FBI, and the U.S. attorney to air differences and in some instances to I would like to see them be able to becomea work out solutions. For example, the U.S. greater or have a greater role in it [investigating attorney_ major crimes]. To this end, I am committed to agreed to provide detailed_informationto tribal as much training as I can possibly provide to authorities about-his reasons for decliningto prose- both the BIA service officers as wellas the ttite in major crimes cases. He has also established tribal police.. trying to accommo- prosecutorial guidelines128 that set forth in general date-th-embY bringing the instructors here from terms the types of major cases that will be routinely Washington.'25 declined for prosecution, thus affording tribalau- In addition to formal class training, the FBI has thorities the opportunity to place thesetypes of been providing onsite instruction in investigative cases more quickly within the tribal justice system. techniques, a practice one of the supervisors of the Both tribal officials and the FBIare firmly in favor of continuing the training programs provided by the Oglala Sioux Tribal Police said he has foundmost useful: FBI to tribal police. The most significant development in the relations Well, they take tne evidence that I collect and of the FBI to the Pine Ridge Reservation isa they take some1` the photos or they go ahead reduction by half of the number of agents assigned and take the photos themselves and all the to the Rapid City office that serves the reservation. Antelope Testimony. ibid p 120 " Clifford line. view Mcas 1 estimony. South Dakota Hearing. p 110 Briltible Testimony. gibed . p 195 "4South Dakota Hearing exhibit 14. pp 306-10 Ellsworth Brown. testimony. dud. p 122 161 112 Although the FBI still perceives a need for spec:al While a review of the available evidence dem- security measures on certain portions of thi Pine onstrates that there is no conscious or systemat- ic discriminatory handling of Indian cases, it Ridge Reservation, the lessening of tensions and appears that current federal practices and stan- violence has occasioned a reexamination of the level dards applied in determining declinations in of security and the number of personnel necessary to Indian cases have created a serious problem for serve [he reservation.'" The decrease in the amount the overall maintenance of law and order on of force displayed by FBI agents on the reservation reservations and have undermined the respect has apparently lessened the hostility toward them. A and confidence which the Indian people feel in lieutenant of the Oglala Sioux Tribal Police de- the federal government's efforts to respond to scribed the change of attitude of community resi- the growing crime rate.Statedsuccinctly, Indian communities feel that the federal govern- dents toward the FBI in his district: ment is doing little or nothing to solve the crime problem. This fact alone should be of serious [The] population there in the community are a concern. At a minimum there has been a little bit leery of the FBI because the way they breakdown in communication between the Jus- went and represented themselves be- tice Department and Indian communities. At a fore. ...Well, before they usually come in maximum, the federal government is exacerbat- there and they pack weapons and surround the ing the reservation crime problem and under- house and all that stuff, and this is the image mining Indian confidence in a system of laws by that they went and made for themselves. But so prosecuting so few offenders."' far now lately, well, we go over there and there is no weapons showing or anything like that, The Task Force, in developing recommendations, and even some of the agents are invited into the recognized that the difficulties and inadequacies house and they do theirinterview_ing right identified in the Federal law enforcement effort on there. And the relationship between us and the Indian reservations do not admit to easy solutions special-agents with the community is getting better. I think they are being accepted a little bit but nevertheless could be addressed in a specific, more. That isn't all the community, but, you coordinated manner. Federal responsibility for crim- know, it's the ones that they go visitwell, inal prosecutions in the District of Columbia illus- they are not afraid of the FBI anymore.'" trates the kind of effort that would be required to improve the Federal performance on Indian reserva- The reduction of FBI personnel serving the Pine-tions":" Ridge Reservation has resultecL in an increased assumption of responsibility by the tribal police, a The District of Columbia is also a federal development welcomed by the tribe, the FBI, and enclave in which the Federal Goveitment must the united States attorney. The federal role on the play a state government role in the criminal reservation in this period has been to encourage and justice area in a manner similar to that required facilitate greater tribal participation in law enforce- of it with respect to Indian communities. The effort exerted in the1960's to reform and ment and to take steps to reduce the level of hostility revamp D.C.'s court system is an excellent between the Indian community and the FBI. Al- example of the level of commitment required of though the animosity still persists to some degree, the federal government in regard to the Indian Pine Ridge is an encouraging example of the positive criminal justice system.... results that can be obtained by putting into practice the Federal policy of Indian self-determination. Since the bulk of Indian reservations are located in less than ten federal districts, the problem is of manageable size.'" The National Coordinating Role: A Vacuum After completing its review, the Department of Foremost among recommendations of the Task Justice Task Force on Indian Matters came to the Force was Federal assistance to improve tribal law conclusionthatthe Federal Government's law enforcement and court systems, through a coordi- enforcement effort on Indian reservations was, in nated effort by the Bureau of Indian Affairs of the fact, contributing to the decline of law and order on Department of the Interior and the Law Enforce- Indian reservations: ment Assistance Administration of the Department Vrooman Testimony. OW p 185 "' Department of Justice Task' Force Report. p 49. '" Brown Testimony. ibid . p 122 '" p 51 162 i`3 of Justice. The Task Force urged increasing funding ney's office in overcoming language and cultural for law enforcement and court programs and for barriers, and to keep the tribe advised of the status training. of cases; The Task Force also urged .that greater use be Instituting methods for using the magistrate sys- made of the services of the Indian desk of LEAA to tem more effectively so as to favor making arrests aid communication with the tribes and to provide over seeking indictments and for diverting Feder- their court and law enforcement systems with al misdemeanor cases to magistrate court for assistance: disposition. Involving the Federal courts in the effort to make LEAA has a national Indian desk and personnel justiceless remote to Indians by periodically in several regional offices who grant and admin- sitting in areas near reservations and increasing ister a multi-million dollar program of assistance the numbers of Indians on juries; to individual tribes and Indian organizations in the criminal justice area. LEAA has been a Reviewing and updating departmental directives resource of major significance and influence. Its for FBI intelligence-gathering activities on Indian mission is extraordinarily well suited to meet reservations; the needs of Indian tribes and the most common Assisting tribes in their codification of tribal law points of contact with the Department for most so as to create a coherent scheme of Federal tribal Indians will have been through LEAA and'its offenses; and programs. LEAA has developed an excellent Assisting the Department in developing reason- Indian program dnd positive contacts and com- able legal and legislative approaches to Indian munication with Indian people. It is a source of expertise which should be far more extensively jurisdiction and related issues." utilized by other units of the Department."' The Current Lack of Coordination The Task Force recommended increased alloca- After the demise of the Task Force on Indian tion of investigative and prosecutorial resources to Matters, its recommendations in the area of criminal Indian cases. It also recommended the adoption, of a justice were not implemented. The problems con- system for improved coordination of Indian matters tinue to exist, as discussed in the preceding pages, within the Department of Justice. In regard to and some have been exacerbated. Coordination of criminal matters, the Task Force recommended that Indian criminal justice matters within the Depart- the departmental coordinating function include the ment of Justice and with other Federal agencies has following components: reverted to its former fragmented nature. Establishing better communication and coordina- Oversight for the Department's criminal prosecu- tion among all elements of the federal criminal tion and investigations, including those in Indian justice system and Indian tribes; country, is handled by the Deputy Attorney Gener- Working with FBI agents and FBI training al. Key divisions under his direction include the personnel to develop a greater degree of special- Executive Office of T. S. Attorneys, the Criminal ized expertise on Indian law and reservation Division, theFBI,and LEAA. Deputy Attorney investigations among agents assigned to reserva- General Benjamin Civiletti, later Attorney General, tion areas; did not employ and would not favor an ongoing Working with BIA and FBI investigators to system for monitoring the effectiveness of law ensure effective, thorough presentment of cases to enforcement in Indian country outside the ordinary U.S. attorneys; channels of the Department." Developing standards of prosecution for Indian There is !He or no monitoring on a national level cases which reflect the Department's role as State of the FBI's investigative work in Indian country, as well as Federal prosecutor; nor is there any ongoing policy discussion about Developing ways to gain greater cooperation how best to employ those investigative resources in from Indian people in the prosecution of cases a time of diminishing budgetary resources.FBI including the assignment of a representative of the Director WilliamH.Webster in testimony before tribal government to work with the U.S. attor- the U.S. Commission on Civil Rights discussed the '" p 68 "a Benjamin Cwiletti. interview. Mar 3. 1979 Ib'd pp 52-5; (note, omitted) 163 possible assumption by BIA and tribal investigators departmentalunitconcerningIndianpro- of some or all of the responsibility for investigation grams.'3 of ,major crimes on Indian reservations and the lack More serious, however, is the decrease in funding of any national coordinating role. Asked if there was any ongoing discussion between the Department of for LEAA-sponsored Indian criminal justice pro- Justice and the BIA, he said: grams. The Task Force on Indian Matters strongly urged an increase of LEAA training assistance to It is my understanding that there really is not. the BIA and tribal police and an expansion of the BIA is highly dispersed in terms of its authority funding LEAA provided to tribal court systems. and activity. I'm not sure that there's been Discretionary funds for Indian criminal justice pro- much carryover from the 1975 recommenda- grams were available in the amount of $5 million in tions of the Department of Justice Task Force 1976. Programs were developed in such diverse on Indian Matters. areas as model correctional systems for Indian I think perhaps it would be well to try to inmates and training of Indian court judges; criminal reconstitute some discussions in this area. We justice programs were also funded for individual are,as you pointed out, having on-the-site tribes. For 1979. however, funding was cut more discussions with the U.S. attorney 'very much than 50 percent from the 1976 levelto $2 million. involved in particular areas. Mr. Wing reported: I've asked and I've been advised that the level of cooperation and coordination is spotty; it's Anytime you cut off either the Bureau of Indian very good in some places and nonexistent in Affairs budget or plateau their funding level or others.'" you cut back on the amount of money that LEAA provides, it's going to influence and `'Despite the FBI's key role in Federal law enforce- impact the Indian community very negative- ment in Indian country, there is no systematic ly.. .. communication with other divisions of the Depart- ment of Justice or other Federal agencies on issues Infact, there are going to be some hard of policy. FBI Director Webster said, "I don't think decisions to be made as to which program is that we have been involved in national policy with curtailed and which one is moved along. So respect to the Indians in any significant way."'" because of the continuation process that we have going, anything that you cut out of the Statistics are not collected or monitored that would monies, then you're going to have cut one or permit an evaluation of the problems on a reserva- two of the program areas.'" tion-by-reservation basis. Finally, there is no plan- ning on a national level to compensate for decreas- Nor can the Bureau of Indian Affairs pick up the ing FBI resources in Indian country. slack when LEAA funding is reduced The Chief of Although kite Department of Justice Task Force Law Enforcement Services of the BIA reported: recommended` greateruse of theexpertise of LEAA's Indian desk in implementing law enforce- Because they cut LEAA's money does not ment responsibilities in Indian country, there has necessarily mean that we get an increase in our been little subsequent contact between the Indian budget... . desk and other divisions of the Department of Justice. Dale Wing, Chief of the Indian Criminal With rare exception, we have not been ableto Justice Program oftEAA, reported: accommodate any of the programs that have been terminated by LEAA.. .because of the Departmental communication inthe Justice lack of funds....So it creates a real problem, Department with respect to Indian affairs is and although we coordinate as much as we can, sporadic and responds to where the greatest there are still limited funds available, and when pressure originates. At the time of Wounded his program stops, the tribe does not have the Knee I was part of the task force. Following money to pick up the program, the Bureau does that I have t been privileged to meet with any not. It creates a great big impact and a hole Webster Testimon chington. DC Hearing. vol 11. p 8 '" Dale Wing. testimony. Wahington. DC hearing. vol I. p 134 "' Ibid '" Ibid 164 1 75 thatzs left by the services formerly given by that ment out of tribal funds and with tribal person- , pregram.1° nel. There seems to be across-the-board agreement Appellant was arrested at approximately 4:30 that', improTiiement of tribal law enforcementand a.m. The only law enforcement officers avail- justice systemsiscritical; however, the lack of able to deal with the situation were tribal coordination within the Federal system has seemed deputies. Without the exercise of jurisdiction by to work against achieving improvement. the Tribe and its courts, there could have been o Another example of the nesatiye results produced no law enforcement whatsoever on the Reser- by coordination has been the failure of the vation during this major gathering which clear- ly created a potentially dangerous situation with Federal \Government to respond to the problems regard to law enforcement.' created b\y the decision inOliphant Suquamish Tribe,which settled only part of the continuing Oliphant applied for a writ of habeas corpus to the conflict be weep tribes and States concerning juris- U.S. district court challenging the tribal court's diction ove non-Indians on reservations. jurisdiction over him, which was denied. The Ninth Circuit Court of Appeals affirmed the denial, saying JurisdictioOver Non-IndianaFederal that the "power to preserve order on the reserva- Inaction tion...is asine qua nonof the sovereignty that the Inevitably, the issue of whether tribal courts Suqualpish 'originally possessed" and no treaty or possess authokity totry and punish non-Indiancongreisional statute had removed such powers.'" offenders becancle the subject of litiguuon. The case The U.S. Supreme Court agreed to hear the case. eventually to reach the U.S. Supreme Court arose in TheOliphantlitigation had been widely recog- Washington State on the Port Madison Reservation nized to have broad implications beyond the inter- of the Suquamisli\Tribe, an area of some 7,276 acres ests of the individual petitioners and itself became an of which 37 percent is in trust status with the arena of conflict between Indian and non-Indian remainder held fee simple title by non-Indians. interests. Indeed, the attorneys general for Washing- The population of port Madison consists of approxi- ton and South Dakota appeared before the Court as mately 3,000 non-Indians and 50 Indians. The tribe amicia curiae,arguing that Indian tribes lacked in 1972 modified its \law and order code to provide jurisdiction to try and punish non-Indians. They for criminal jurisdiction over all persons, both tribal were joined in their briefs by the attorneys general members-and nonmembers, on its reservation. of Montana, Nebraska, New Mexico, North Dakota. Oliphant, a non-Indian resident, was arrested by Oregon, and Wyoming, all States with significant tribal authorities duripg a tribal celebration and portions of Indian country. The Solicitor General of charged with assaulting a tribal officer and resisting the United States, acting pursuant to the Federal arrest. The circumstances under which the tribe had trust responsibility for Indian tribes, also entered as occasion to arrest him v:kere described in the opinion amicus curiae,arguing the position of the United of the Ninth Circuit Court of Appeals: States that Indian tribes did, in fact, possess jurisdic- When the Suquamish Indian Tribe planned its tion to try and punish non-Indians. Several national annual Chief Seattle Day celebration, the Tribe Indian organizations filedamicusbriefs expressing knew thatthousands of people would be the interest of all tribes in the issue of tribal criminal congregating in a small area near the tribal jurisdiction over non-Indians. traditional encampment grounds for the cele- The U.S. Supreme Court in a 6 to 2 opinion bration. A request was mad'.f the local county written by Justice William H. Rehnquist reversed to provide law enforcemem assistance. One the court of appeals and held that Indian tribal deputy was available for approximately one 8- hour period during the entire weekend. The courts do not have inherent criminal jurisdiction to Trialso requested law enforcement assistance try and punish non-Indians.'" The !ourt found that fro the Bureau of Indian Affairs, Western both Congress and the executive branch had oper- Wasington Agency. They were told that they ated historically on the assumption that such juris- wod have to provide their own law enforce- diction did not exist, at least in part because tribes "' Suarez riottrnony. thud . pp 134-35 "'Id at 1009 ". 011pharylv &him 544 F 2d 1007. 1113 19th Cir1976). reiersed sub .ssId nom 011pftliut v Suquamish. 415 S 191 (1978) 165 1`16' did not hive justice systems similar to or recogniz- punish noa-Indians.' "S0 The holding and opinibn able by the United States. This assumption was were addressed solely to the matter of'tribal jurisdic- given significant weight by the Court in interpreting tion to try and punish non-Indians for criminal the purpose and effect of jurisdictional provisions in offenses. the early treaties, the Point Elliott Treaty with the Suquamish, and congressional jurisdiction legisla- tion. Utilizing its recently modified rule of Indian The Aftermath ofOliphant treaty and statutory construction "' that "treaty The Oliphant case arose on a small reservation and statutory provisions which are not clear on their with a relatively large number of non-Indian res- face may 'be clear from the surrounding circum- dents compared to the tribal population. Despite the. stances and legislative history',"'" the Court deter- great diversities among Indian reservations and their mined that collectively the treaties and statutes populations, however, the U.S. Supreme Court's imply the absence of tribal criminal jurisdiction over holding that Indian tribes lack jurisdiction to try and non-Indians. punish non-Indians committing offenses On their The opinion is a departure from doctrines of reservations falls with indiscriminate effect on all Indian law enunciated in other decisions inthis reservations. Substantial law enforcement problems century by the United States Supreme Court.'" have arisen in the wake of Oliphant, particularly in Most important is the principle of Indian treaty those reservations containingvast geographical construction in United States v. Winans that "a treaty areas crossed by major highways where there is was not a grant of rights to the Indians, but a grant significant non- Indian traffic, where Indian residen- of rights from them...a reservation of those not tial population and land ownership is intermixed granted."'" The Treaty of Point Elliott, between the with tribal land and population, or where there are United States and the Suquamish Tribe, is silent on considerable numbers of non-Indians temporarily the matter ofcriminal jurisdiction over non-Indians present because of economic development or tour- and thus, under Winans, would presumably be a ism. reservation by tke tribe of such jurisdiction. A The Supreme Court's holding in Oliphant preclud- commentator has noted: ed, at least without the consent of the accused, the prosecution of non-Indian offenders in tnbal courts. [131y refusing to acknowledge the vitality of the The Court gave no guidance about what procedures Winans doctrine...Mr. Justice Rehnquist ap- are lawful for the handling of non-Indians accused of pears to prefer nineteenth century case law and committing offenses on Indian reservations. Some of vague readings of congressional intent, to the the jurisdictional questions that have resulted, with concept of tribal sovereignty that has been developed by the Court in this century."' practical implications for day-to-day law enforce- ment, are whether tribal police may lawfully arrest The Court acknowledged the development of and detain offenders on the reservation Indiantribalcourts,the procedural protections and hold them for submission to local authorities, afforded to all persons subject to Indian tribal courts how to determine whether an accused offender is an by the Indian Civil Rights Act of 1968, and the Indian or a non-Indian, and whether and under what prevalence of non-Indian crime on Indian reserva- circumstances the State or the Federal Government tions that had led tribes to assert cnminal jurisdic- has jurisdiction over offenses committed by non- tion, but held that these were all "considerations for Indians on Indian reservations. Congress to weigh in deciding whether Indian tribes As a result of the confusion about these jurisdic- should finally be authorized to try non-Indians."" tional issues, there has been great divergence of They "have little relevance," the Court said, "to the opinion and practice among various State, Federal, principles which lead us to conclude that Indira and tribal officials. Illustrative of the difficulties and tribes do not have inherent jurisdiction to try and to inconsistencies inresolving these pdst- Oliphant "' D:Coteau v Distnct County Court. 420 U S 425 (1975) ," 198 U S 371. 381 (1905) The Supreme Court utilized the Winans '" 435 US at 208. n 17 .4. doctrine recently in United States v Wheeler. 433 U S 313 (1978) " A critical analysis of the majority (-pinion in)hphant is found in "' Jurisdictional Quagmire. p 231 Comment. "Oliphant v Suquamish Indian Tribe A Jurisdictional Quag- '" 435 U S at 1022 mire." South Daixta Law Review. vol 24 (1979). p 217 (hereafter cited as Jurisdictional Quagmire). '". ld at 1022-13 _166 177 4 issues are the experiences of Federal, tribal, and Another issue left unaddressed byOliphant isthe State officials in South DakOta. authority of tribal police to arrest and detain a non- One unresolved issue is the appropril procedure Indian offend' for submission to local or Federal for determining whether an. accused offender is an authorities,, in the absence of a formal cross-deputi- Indian or a non-Indian and therefore whether the =ion agreethent. As an example of the practical tribal court has jurisdiction. A South Dakota State's difficulties caused by the uncertainty, officials in attorney outlined the practical and legal difficulties South Dakota bold widely differing opinions that in determining the status of an accused offender: result in great divergence throughout the State in how arrests of non-Indians are handled. David [T]he problemisalso inseparable with the Vrooman, United States attorney for South Dakota, problcm of what actually constitutes an Indian person. We have again, as I nderstand it, a law. stated his own view that tribal officers do, in fact, case which in effect says that there is a two- possess such authority, although no guidance at that prongedtest:first,isthere a recognizable time (some 4 months after the.decision inOhp )ant) amount of Indian blood, and, second, is he had come from the Department of Justice: acknowledged as an Indian in the community in which he lives? I might say I don't think the Department has Now this is great if you have several months made an opinion yet as .to whether the tribal and a 'ot of time and a lot Of witnesses and the officers have the right to arrest and turn over usual appei:att procedures available to you. But [non-Indians] to the States. My personal opinion it doesn't reaay give any guidance to the police is that based on the Treaty of 1889, that based who are charged with enforcing this, and, I on my understanding of case law which has don't knox'it's part of the whole overriding developed for 100 years, and also based on the problem here. How de you determine what , dissent inOliphant,which I thought very well happens?" mide the point, I think they do have the right to arrest non-Indians.'" Tribal chairmen of the Oglala Sioux and the Cheyenne River Sioux expressed the view that the Philip Hogen, State's attorney for Jackson and tribal court, rather than a police officer, should Washabaugh Counties, whose jurisdiction includes a determine the statiat. of an acct. sed &ffender and portion of the Pi tie Ridge Reservation, was of --the thereforeiin jurisdiction: view that, in light ofOliphant,'tribal police had no authority to arrest non-Indians based on their status Not all white people are bad, ft you know, we as law enforcement officers but could make citizen's have Indians that look like white people too, arrests under South Dakota law for offenses commit- blond hair, blue eyes, soit would be our ted in their presence, with no greater or lesser right opinion, since the,Oliphantthing, is [for the than .,:tier South Dakota citizens.'" police] to make the arrest ana bring them in to a tribal hearing to determine whether they are On the other hand, Tom Tobin, State's attorney Indian or non - Indian.'" for Tripp County, South Dakota, whose jurisdiction includes portions of the Rosebud Reservation for [Y]ou cannot ask a policeman nut tliere when purposes of State government, said he thought it was someoneisbreaking the law to stop and doubtful that.aibal police officers had the authority determine whether or not he is an Indian or a to make citizen's arrests of non-Indian offenders and non-IndianThe policeman has no business that he was not accepting complaints based on such making an assumption of whether or not he has arrests for prosecution in State court.'" - jurisdiction over a person if he is breaking the Also left unanswered law. That is the court's prerogative, and since by Oliphantis whether so- theWheelerdecision that says that the tribal called "victimless crimes," such as speeding, posses- courts are not arms of the Federal courts, I sion of drugs, or driving while intoxicated, commit- believe that the tribal court has.. .to determine ted by non-Indians on Indian reservations fall within its own jurisdiction over any case that comes the exclusive jurisdiction of the State or Federal before it."3 courts or whether jurisdiction is concurrent. ". Lron.ird Anileva testimony. South (Meta Hearing p .1 Vrooman Testimony. tbtd.. p 189 Ind llorse. tesi mum s Mid . p so '" Philp Mogen. testimony. Mid . p 85 ." Wayne l)us hairdos testi:lionshid p 218 '" loot robin. testimony. and . p 168-69 167 178 Leonard Andera, State's attorney for Brule Coun- extent of authority of the tribal police to arrest non- ty, South Dakota, suer ,.ed the difficulties the Indian traffic offenders on the reservation: confusion presents for lavro.,-,ment in Indian country and his own view tha, .he State does not Ithink that, yes, there has got to be law have jurisdiction over minor offenses committed by enforcement....I think there is a lot of misun- derstanding among the people just exactly to non-Indians on Indian reservations: what extent the tribe does have jurisdiction over people or where. .. The difficulty that arises as a practical matter is that if the tribal court does not have "criminal" [I]n view of theOliphantdecision, in view of jurisdiction oVer non-Indians within the bound- the lack of communication of whether or not aries, then who does?And-I can go -aloniwith they-have a working agreement with the coun, the concept that the Federal Governmeni may ty, I feel that these individuals [the tribal police] have jurisdiction for Federal offenles within the do not have the authority to stop me.'59 reservation boundaries, but the thing that the tribes will deal with from day to day are not Conversely, Indian residents of reservations can Federal crimes. They are not major crimes; legitimately ask whether non-Indians are, in effect, they are not the assimilated crimes, but they are above the law because of the uncertainty about tribal instead traffic violations, intoxication violations, disturbing the peace, criminal destruction of arrest. The chairman of the Colville Tribe in private property, simple assaultsthese are the Washington described the tensions there following types of things that they deal with. And in most Oliphant: instances, all Th-Flistances that I am aware of, these would be violations of State law. Now, [A]lI hell has broken loose back on the reserva- we have the question then as to whether the tion between the tribe and county and the State State has jurisdiction to do anything within the court sinceOliphanthas been made public.... kexterior boundaries of an Indian reservation. If these offenses take place off a' tate highway, There had been cross-deputization between the for example, if they take place on the Indian State, county, city municipalities, and the tribal trust land does the State have jurisdiction to say officers. you have violated a section of the State code? My own personalfeelingisthat they do That agreement that was signed by the sheriff not.. .157 and our chief of police is in effect; and yet one ofourofficershasjustbeenarrested Incontrast,theState's attorney for Jackson for.. .unlawful imprisonment. He arrested a County statedhis view that the State of South non-Indian for reckless driving, endangering Dakota has exclusive jurisdiction over offenses life and property.. .. committed by non-Indians anywhere in the State, It looks like the county got this individual to including Indian reservations: sign a complaint against our officer.. . .We are going to make it a tribal fight. ..But I want Within Washabaugh County [thePineRidge to make clear that the individual citizens on the Reservation] I do not consider tha, the State of reservation are as concerned about the situation South Dakota has jurisdiction over anyone that out there as we are. Our officers are the only is an Indian. I consider that, pursuant to the ones that have been able to provide any sort of Oliphantdecision and the law that went before protection out on the reservation. that, the State of South Dakota has jurisdiction over everyone not anIndian.Ithinkthe Now, sinceOliphant, itis wide open.'" Oliphantdecision said we solely would have that jurisdiction.'" Negotiations between tribal governments and local governments about the handliug of non-Indian These uncertainties have exacerbated tensions offenders have been hampered by uncertainty about between Indians and non-Indians. A non-Indian the legal ground rules, particularly the authority of rancher residing within the Pine Ridge Reservation, tribal police to arrest and detain non-Indic n offend- for example, expressed apprehension about the ers and the allocation of jurisdiction between the '" Andera 'restnnony. ibid . p 66 Mel Tonashet. testimony, Hearings on 52502 Before the Senate Select °' Hogen Test:loony, 'bidp 84 Committee oa Indian Affairs. 95th Cong , 2nd secs., Mar 9-10, 1978, pp .5' Marion Schultz. testimony. And p 128-29 230-31 68 oo State and Federal Government for prosecution of MR. BROWN. Well the one thing that happened "victimless" offenses. was that about 8 months ago one of my officers There are currently nine reservation areas located went and stopped a vehicle for a DWI [driving in whole or in part in South Dakota, all occupied by while intoxicated] and when we turned it over to Sheriff Madsenwell, the State's attorney different bands of the Great Sioux Nation. The went and had my officer go ahead and make handling of non-Indian offenders on these reserva- citizen's arrr.it and then went to court up there tions indicates that the Feder. ; Government has not in Kadoka and the person got convicted. played an assertive or effective role, either prior to or subsequent to the Oliphant decision. The effect is COUNSEL. Did your officer testify in the State that reservation public safety has become subject to court? the willingness of local governments to enter into MR. BROWN. Well, yes, thatis what- I and cooperative. afrangements with the tribes for the Sheriff Madsen ;was talking about. That is the handling of nor-Indian offenders. way we worked it out.... Pine Ridge COUNSEL. happens if, for example, you The Pine Ridge Reservation of the Oglala Sioux, would stop an intoxicated driver who turns out the largest reservation in South Dakota, is located in to benon-Indian? How do yOu handle that in the southwestern pOrtion of the State. A population terms of detaining the person? of approximately 11,000 people live on a land base of MR. BROWN....11, I would call Sheriff Madsen nearly 3 m;llion'acres. Following the 1973 occupa- over and have him take the matter. Until he tion of the villageof Wounded Knee and its makes the arrest, I will be the one that signs the aftermath of tribal factionalism and the significant complaint...I will hold him right where we're presence of Federal law enforcement agencies, the at. We have a substation down there where we public has perceived the Pine Ridge Reservation as keep them. And it's just a matter of minutes ari area of.,violence and lawlessness. before Sheriff Madsen can get there. Despite the public view, however, personal work- COUNSEL. Would you like to comment on what ing relationships have developed between some Lieutenant Brown said as far as handling of tribal officials and county law enforcement officials non-Indian offenders, Sheriff Madsen? that have afforded a workable interim arrangement for the handling of non-Indian offenders. MR. MADSEN. Yes. In our area, that is the way Law enforcement for matters under State jurisdic- it works. And like I said, it's working real well tion in the Washabaugh County portion of the between the tribal officers and myself."' reservation is the responsibility of the sheriff of However, no formal cross-deputization exists be- Jackson County. A close working relationship exists tween the tribe and the county. According to the between he Jackson County sheriff and the tribal State's attorney for Jackson and Washabaugh Coun- police lieutenant whose reservation territory lies ties, the tribal police in arresting a non-Indian are adjacent to Jackson County. If the tribal police merely making a citizen's arrest, which would not arrest a non - Indian offender on the reservation, they allow them the immunities ava lable to law enforce- will detain the offender until the sheriff can arrive ment officers,if sued for misconduct.162 Neverthe- and take the person into custody for prosecution. less, the State's attorney accepts for prosecution in Sheriff Arned B. Madsen of Jackson County and the State court complaints from tribal police officers Lieutenant Elliworth Brown of the Oglala Sioux regarding non-Indian offenders, and in his view the Tribal, Police described their arrangement for the informal system works smoothly.163 handling of non-Indian offenders: Similarly,inBennett County, the diminished COUNSEL. Lieutenant Brown, could you tell us portion of the Pine Ridge Indian Reservation where how it's handled if you or one of your officers checkerboard jurisdiction exists, the tribal police observe a non-Indian committing some sort of will transport a non-Indian offender observed com- offense within Washabaugh County on the Pine mitting an offense on trust land.o the county Ridge Reservation? sheriffs office for eventual prosecution in State "' South Dakota Hearing. p 114 ," Ibtd an Hogen Testimony. !bid , p 86 (Ordinarily a law enforcement officer is immune from civil hability if his actions were reasonable and in good faith ) 169 ISO court although, again, no formal cross- deputizatien traffic offenders, despite the fact that such a system agreement exists.'" A tribal officer described the existed in the 1950s before the tribe and the State arrangement: became adversaries in the jurisdictional litigation.'" The gap in law enforcement has apparently led Well, up until now we have arrested the person some non-Indians to believe that their conduct on and produced them at the sheriff's office at which time we sign a complaint and incarcerate Indian reservations is beyond the reach of the law. George Keller,Superintendentof the Rosebud them if it was a jailable offense. . . . Reservation Agency, Bureau of IndianAffairs, We take them to the county court or State court described an incident where a non-Indian traffic or whatever or the magistrate, see the magis- offender had flouted tribal police and the county trate for that matter and dispose of itthat authorities refused to take any action: way. t "5 I would like to point to an instant previous, in Asked if the State's attorney accepted the arrest as fact 2 days ago, where a non-Indian pa:,sed a a citizen's arrest and took the offender to court, the tribal police unit equipped with red lights. The tribal officer replied, "Yes, he does." police unit had a radar -ystem in it. The car that The cooperative working arrangen.ents between passed was exceeding the speed, I don't know, it county and tribal law enforcement officials in regard was well-60, 65 miles an hour She was cited. The ticket was taken to Winner. The tribal to the Pine Ridge Reservation demonstrate that, police officer was disallowed even to sign a despite the jurisdictional complexities, a workable complaint. 169 arrangement for the handling of non-Indian offend- ers is possible if all parties approach the matter in Mr Keller said that, in his view, the failure of the good will and good faith. The personal and nomnsti- county and the tribe to reach an agreement for the tutional nature of the arrangements, however, ren- handling of non-Indian offenders indicated that a ders them vulnerable to changes of circumstances system of Federal prosecution was necessary to and changes of personnel in the official positions of protect the public safety on the reservation. the counties and the tribe. I don't like to make an issue of these things, but Rosebud I am in fact continually faced with them every day and night, and I am pushing to try to get In the .early1970s, the Rosebud Sioux Tribe some agreement set up. We are willing to meet entered into litigation against the State of South in every respect with the State and try to get Dakota regarding the boundaries of its reservation. something worked out and with the tribe too. This culminated in a ruling by the U.S. Supreme We are caught somewhat in the middle. The Court in 1977 that the various allotment acts had tribe did pass a resolution indicating they would like to have a Federal magistrate stationed at diminished the exterior boundaries of the reservation Rosebud, which in effect would answer a lot of to one of the four counties that constituted the these questions)" original reservation created by treaty in 1889.166 The remaining portion of the reservation, Todd County, Sisseton is attached to adjacent Tripp County for purposes of After pr'otracted litigation initiated by a reactivat- county and State administration. ed eribal government in the early 1970s, the U.S. Sincthe Oliphant decision, the Rosebud Sioux, Supreme Court held that the Lake Traverse Reser- the Bureau of Indian Affairs, and the county vation ;.f the Sisseton-Wahpeton Sioux Tribe in government have not worked cut a cooperative northeastern South Dakota had in fact been termi- arrangement for handling non-Indian offenders, and nated by the allotment process.'7t The tribe itself no cross-d. Unitization agreement exists.'" Ur Ake was not terminated and retained its Fedei al recogni- Jackson and Bennett Counties, the State's attorney tion, but the result of the decision was that the for Tripp County has declined to accept for prosecu- Federal Gok ernment and the tribe retained jurisdic- tion complaints issued by tribal police to non-Indian tion only ok er the rt.maining trust land within the Antelope Testimony. Mid . pp 114-1c "Ibid p 158 Ibid p 114 '" George Keller test mom. !hid p Rosebud Sioux Frtbe v Kneip. 4101 S 584 (1977) Ibid . p 110 "' Scuth Ual of Hearing pp 157 Cik 1)eCote..io sDisinst Criimis C owl. 420 U 42' t 197s) 170 !Si former reservation area, with non-Indian-owned In contrast, there exists a longstanding, pervasive land under the jurisdiction of the State. Trust land jack of trust and cooperation between the tribal and land under state jurisdiction are intermingled in government and county government in R3berts a checkerboard ,at.ern of jurisdiction. County, the site of the town of Sisseton and the The undiminishedtrustlandportions of the tribal headquarters, that has adversely affected the Sisseton-Wahpeton Sioux Tribe lie within five coun- quality of law enforcement and the relations be- ties in northeastern South Dakota. In 1976 and 1977 tween Indians and non-Indians,, despite efforts at Eugene Trottier, Assistant Area Special Officer, mediation and conciliation by Federal officials. Bureau of Indian Affairs,in recognition, of the Prior to the late 1960s, the tribal government of particular law enforcement problems occasioned by the Sisseton-Wahpeton Sioux was relatively unor- checkerboard jurisdiction, convened a series of ganized and inactive. In the early 1970s, an activist informal meetings between tribal and county offi- tribal government came into existence and, utilizing cials in an attempt to facilitate cross-deputization grants and contracts made available under the agreements. Mr. Trottier explained why cross-depu- Federal policy of Indian self-determination, under- tization is necessary for effective law enforcement in took programs that generated rivalry and clashes an area of checkerboard jurisdiction: with the county government and the non-Indian _business community."' During the period of litiga- There were many times that in an accident tion in DeCoteau v. District Court, the uncertainties situation it took us a half hour or more, either as to whether the tribe or the county government, with the sheriffs department or the highway patrol, trying to determine whose jurisdiction had jurisdiction exacerbated tensions between Indi- actually it was on. Without cross-deputization, I ans and non-Indians and created chaos in law felt law enforcement officers just couldn't do enforcement. Tribal Chairman Jerry Flute described their jobs... . the situation in Sisseton while the DeCoteau case made its way through the courts: I am convinced that the only way to have effective law enforcement is for the officer who During this period of time, the tribe, because of observes the violation to be able to take the jurisdictional problems, and these were caused action and to get the successful prosecution." primarily by a number of lawsuits that were filedinthe State and Federal courts and The tribe entered into a formal cross-deputization ultimately resultedinthe U.S. Supreme Court agreement with IV trshall County, me of the five decision that ruled the reservation boundaries counties. Tribal police officers are cross-deputized had been terminated and the reservation was as Marshall County deputies and Marshall County diminished to those parcels of trust land. depyties are deputized as tribal officers, with the [P]rior to the Supr^ re Court decision when the r,Isuh that all law enforcement officers can function lower courts were ruling on the issue, we went in both State and tribal jurisdictions in the county. through a period of about 2 months where there According to both tribal and Marshall County law was absolutely no law and order for the Indian enforcement authorities, the cross-deputization ar- people on the reservation. The State courts had ruled and the ,npeals courts had ruled the State rangement has functioned well. Sheriff Ralph Olau- did not have jurisdiction over any Indian people son of Marshall County reported: anyplace within the boundaries of the reserva- tion, and this left the tribe and the community in Since this new cross-deputization went in effect, a chaoticsituationthatthetribe was not we haven't had any real problems. Most of the preparedfinanciallyormanpower-wiseto arrests that tribal police have made was speed- quickly put into effect the judicial system or ing violations. There has been a few drunken court systeaz driver violations. There was one question that went to court where the white man they had The court rulings forced us to do this. It was arrested for drunk driving, he didn't feel they the long-range plan of the tribe to eventually do had jurisdiction, and as the State's attorney this in a staged process. The lower court rulings explained to him, we had cross-deputization and forced us into this. This caused many problems he accepted that.'" within the community. When the case was '" Eugene Trottier. testimony. South Dakota Hearing, pp 19 and 28 '" Jerry Flute. testimony. Mid . pp 35-36 '" Ralph Olauson. testimony. ibid . p 28 171 82 finally resolved by the U.S. Supreme Court and ton-Wahpeton Sioux Tribe and Roberts County the decision was that the boundaries had been terminated and that the tribe had jurisdiction officials. The Community Relations Service of the only over its own members on trust land again, Department of Justice, through officials from its we went through a chaotic period of time when Denver regional office, attempted over an 18 -month no one really knew who had jurisdiction, where period to bring about a tross-deputization agreement law enforcement started, where somebody else and to form a human relations commission to took over, whatever the situation was.'" address the tensions between the Indian and non- Indian communities in The deteriorating relations between the tribal Sisseton. Leo Cardenas, govern mert and the county government and non- Regional Director of the Community Relations Indian business community resulted in the tribe's Service, expressed optimism that keeping lines of communication open might eventually bring about moving its headquarters from Sisseton to trust land a resolution of the differences. He acknowledged, outsidethe town, which further increasedthe isolation between the two communities."" Although however, that the efforts of the Community Rela- tions Service had yet to produce results: "We have countyofficials attended some of the informal not. . meetings arranged by Mr. Trottier of the Bureau of .seen positive results, you know, that we could take to the yank today.'"" Indian Affairs in an attempt to work out across- Officials f: om the Bureau of Indian Affairs have deputization agreement, the Roberts Countycom- also been ,unsuccessful in their attempts to mediate missioners ultimately voted not to enter into a cioss- between tribal and county officials an arrangement deputization agreement with the tribe.'" During this . for the prosecution of non-Indian offenders on trust period, the tribe began to assert criminal jurisdiction over offenses committed by non-Indians on trust land. Walter V. Plumage, Area Special Officer in the land after the county terminated the previous Aberdeen Area Office of the Bureau of Indian ar- Affairs, described his responsibility as rangement of accepting complaints from tribal offi- a Federal cers in the county courts.'" official to help develop a working agreement be- tween the tribe and the county for the handling of Following theOliphantdecision, the climate of ill non-Indian offenders: feeling between the tribal government andcounty government resulted in the county's refusal to enter into any sort of cooperative arrangement for the [W]e at the area level. . .generally do not get handling of non-Indian offenders. The county sheriff involved unless it is requested. We had the local holds the view that tribal police lack authority after Sisseton agency try to work out an agreement Oliphant with the County of Roberts as far asprosecu- to arrest non-Indians who commit minor tion of non-Indians, because they were not offenses on trust land, and the State'sattorney has being prosecuted. So, therefore, we stepped in, declinedto accept such complaints from tribal in an attempt to set up a meeting with officials police for prosecution.'" Thomas DeCoteau, chief at the county. ...Nothing was resolved from of police of the Sisseton-Wahpeton Sioux Tribe, the meetings. said: Like I say, we as a Bureau feel like it isour We ain't doing nothing now. We catchnon- responsibilitythat when thelife of Indian Indians violating laws on the trust land, usually people are involved, there is a possibility they for traffic. We usually just stop them and let are going to be hurt or somebody is going to be them go, because we attempted to file charges killed, then itis our responsibility to move in and the State court- -State's attorney wouldn't and see if we can get things going in the right accept it.'" direction.'" Efforts at mediation and conciliation by Federal He said that his attempts at mediation hadno officers at the local and regional level have proved further utility, however, because of the apparent unsuccessful in bringing about an agreement for the unwillingness of State and local officials to workout handling of non-Indian offenders between the Sisse- an agreement with the tribe: '" Itml '" Ibid . p 23 !bid Dm! '"I wilier Testimony and Neil I orig. testimony. oid. pp 19-21 " Leo Cardenas. testimony. NJ. p 234 "' Thomas I3eCoteau. testimony Mul. pp 22-21 "1 Walter Plumage. testimony. Mid. pp 177-78 172 a S ii I kel. .that we as a Bureau, also as [''.e] tribe, County in southern New Mexico, a mountainous have, attempted to work out an agreement. We area crossed by two State highways. Substantial are rot getting the response of the State's att-rtley, local sheriffs, [or] the State of South non-Indian traffic passes on these highways through Dakota attorney general's office. They don't the reservation, and the tribe operates a ski resort want to work out an agreement. If they do, they that attracts non-Indian tourists. In the past, Bureau are not coming forward and showing they want of Indian Affairs police were cross-deputized as to do this.'" eeputy sheriffs, and they enforced State traffic laws when non-Indian violations occurred on the reserva- Mr. Plumage said it was his conviction that the tion, by citing them before State magistrates. Be- Department of Justice must act to protect the safety cause of the satisfactory nature of this arrangement, of Indian communities such as Sisseton where efforts the Mescalero Apache Tribe never attempted to have failed to work out a cooperative arrangement exercise criminal jurisdiction over non-Indians prior with local officials for the handling of non-Indian to the Oliphant decision.'86 offenders: Following Oliphant, however, the attorney gener- I felt it was our responsibility first.I feel now al for New Mexico issued an opinion withdrawing we have done all we can do... .1 feel now the authority of BIA and tribal officers to enforce that,if we can't do anything, then the U.S. State traffic laws. The tribe filed suit in the United Attorney's office should attempt to enforce theStates district court requesting an injunction that assimilated crimes law or attempt to set up a would require Federal law enforcement agencies to Federal magistrate. ... enforce traffic laws against non-Indians pursuant to the Assimilative Crimes Act. Over the objections of I would sooner see us work it out locally. If we can't, I feel it should be done at the Washington the Department of Justice, the court issued an level, at the Department of Justice. The Attor- injunction mandating Federal enforcement for a 10- ney General has the authority to look into these day period surrounding the Christmas holidays. matters.'" According to the BIA's Special Officer for the Mescalero Agency, the injunction served its pur- As the situations at the Rosebud and Sisseton pose: Reservations show, the efforts of individual Federal officials to act as mediators in the development of The enforcement of thetrafficregulations, cooperative law enforcement arrangements have utilizing the Federal authority, has served its been ineffective without the ability to invoke Feder- purpose of a deterrent factor and for both the al prosecution of non-Indian offenders when State Christmas and New Year's holiday weekends. and local governments have fi-led to do so. In South As a result of strict enforcement of the traffic regulations, there were no reports of any serious Dakota the lack of a Federal response has, in effect, vehicle traffic mishaps.'" subjected public safety on reservations to the will- ingness of local officials to enter into cooperative The New Mexico State Legislature has subse- arrangements for the handling of non-Indian offend- quently taken action to restore the cross-deputiza- ers. That the Federal role, active or passive, is of tions for Bureau of Indian Affairs police assigned to critical importance is shown by other examples of the Mescalero Agency, so that non-Indian offenders thehandling of non-Indian offendersafterthe can again be handled within the State system.'"" The Oliphant decision. point, however, was the critical role played by Cooperative arrangements that exist between a Federal law enforcement in the period during which tribe and local government are always vulnerable to no cooperative arrangements existed. change, as demonstrated by the recent litigation A contrast to the essentially passive role displayed brought by the Mescalero Apache Tribe against the by the Federal Government in South Dakota fol- United States.'" lowing the Oliphant decision is found in Arizona. The Mescalero Apache Tribe occupies a reserva- The United States attorney there undertook to use tion located entirely within the boundaries of Otero his good offices to secure cooperative arrangements "" Ibid . pp 178 79 '"Id. defendantbrief '" Ibid . p 178 '" Id motion for %timmary judgment MesLilero ApaL he !title Bell. No 78 926C (1) N M tiled be" 14. '" If 112. N M 14th I tip% 1%t %ti%% (I 9; I'.78) 173 among tribal and local governments for the handling public commitment that the peace and safety of of non-Indian offenders on the 17 Arizona Indian Indian reservations would be ensured by whatever reservations. He found that such arrangements means necessary: "worked well in those Indian nations who have long-standing good working relationships with local [T]here must be a clear indication from the and state governmental officials outside their bord- Department of Justice. that the Department ers."' considers the protectioi. 01 the peace and safety Where it was not possible to secure cooperative of Indian communities to be a matter of the highest priority. Both Indians and non-Indians arrangements withlocalofficials,however, the know when the Justice Department means United States attorney made other arrangements: business and when itis taking a pro forma first, to cross-deputize tribal police officers, tribal position, and I'm sure that you are aware of the fish and game officers, and BIA law enforcement perception of Indians thatinthepast the officers as Federal officers, and, second, to authorize Department has not taken a clear stand in favor "issuance of citat. ons into U.S. Magistrate's Court of Indians. Surely such a stand is called for here for certain misdemeanor violations by non-Indians where the federal responsibility is unambiguous. committed in Indian country."'" The Federal pos- This step alone, if taken effectively, would have a powerful deterrent effect and would likely ture in Arizona thus provided what was lacking in result in better protection for Indian communi- South DakotaFederal prosecution of non-Indian ties [than] we have reason to expect at the offenders in the event State and local authorities fail present time.192 to enter into a cooperative arrangement with tribal authorities. The "clear indication" sought from the Depart- ment of Justice has not been forthcoming, and Mr. Implications for Future Jurisdictional Issues Deloria's prediction has unfortunately been accu- rate, as demonstrated by Sisseton and Rosebtb., that The Passive response or "non-response" of the "those places where relations between Indians and Federal Government to the problem of handling the surrounding communities are the worst will be non-Indian offenders after the Oliphant decision the very places where law enforcement will be leaves Indian tribes hostage to potentially or actually lacking."123 hostile local governments. Indeed, the Federal re- Of course, the legal and political attacks on tribal sponse to Oliphant car; into question the commit- jurisdiction will not end with the ruling by the ment of the executive branch, particularly the Supreme Court on tribal criminal jurisdiction over Department of Justide, to the Federal trust responsi- non-Indians. The Court in Oliphant was silenton the bility for Indian tribes and the stated Federal policy issues of whether tribes may exercise civil regulatory of Indian self-determination. jurisdiction over the conduct or property of non- The implications of the Supreme Court's decision Indians on Indian reservations. in Oliphant on March 9, 1978, for the the public The issues of civil regulatory and taxing authority safety of Indian communities and the need for a of Indian tribes is critical to the continued viability Federal response was immediately apparent to Indi- of the Federal policy of Indian self-determination. an tribes and leaders. Philip S. Deloria, former The ability of an Indian tribe to exercise control director of the American Indian Law Center, on over its territorial and economic base through land April 24, 1978, wrote to the Deputy Attorney use planning and taxation is essential to its political, General, Department of Justice, saying, "[W]e must economic, od cultural autoromy. A commentator recognize that the Court has presented us all with a has stated the significance of this issue: situation where the tribes cannot protect themselves and where the reality of the case is that other With such jurisdiction [to exerciv la:i1use jurisdictions have not filled the gap."'" He called planning and zoning controll,a tribe may upon the Department of Justice to make a forthright regulate or prohibit the development of reserva- '" Hawkins Statement. Washington. D C, hearing. vol II. pp 7-8 difficulties occasioned by Ohphant include a fragmented deusionmaking "' Ibid process within the Department of Justice in regard to Indian ma.ters. a "' Phtltp SDelona. letterto Benjamin Civiletti. Deputy Attorney dispute between the Department of Justice and the Department of the Genera). Department of Justice (Commission files) Interior regarding the allocation of jur ediction hemeeil the Federal '" Ibtd Government and the States for victimless .rimes. and the la( k in general of "' IbidFactors affecting the lack of a response to the law enforcement a coherent Federal Indian policy 174 tion lands, and thus exercise a measure of Or the Feaeral Government could continue its controlover the future ofitsreservation. stated policy of Indian self-determination, but also Without zoning jurisdiction, most tribes would continue its passive role displayed in the wake of be forced to submit to the judgments of non- Oliphantand in effect leave tribal self-determination Indians about the uses of reservation lands.' vulnerable to potentially or actually hostile State No doubt the issue of tribal civil jurisdiction over and local governments and their non-Indian citizens. non-Indians will soon be presented to the Supreme The conflict over jurisdicti" iispolitical and Court. A'ready, a Federal court in the Western economic. As a commentator summarized: District of Washington has ruled, bated onOliphant, The ultimate lesson, however, is that jurisdic- that tribes do not have the authority to zone fee land tional doctrine cannot be understood apart from owned by non-Indians within the boundaries of a the historical, political, and institutional frame- reservation.'" On the other hand, a Federal district work within which it is applied. Jurisdictional Oliphantnotwithstand- rules may be framed in terms of sovereignty, court in Arizona has ruled, but they evolve as prevailing assumptions about ing, that the Navajo Tribe has the authority to tax the functions of power change, and as the non-Indian interest in leased land on the reserva- consequences of the exercise of that power tion.'" change as well.'" /A. number of courts, as discussed previously, have hkld that non-Indians and their property within Findings reservation boundaries are subject to tribalcivil regulatory and taxing ordinances. Regulationis Federal Law Enforcement meaningless, however, without the authority of 1. Through the historical development of trea- ties, statutes, and case law derogating tribal func- enforcement against those who choose to defy the tions, the Federal Government has assumed primary regulating jurisdiction.Oliphanthas brought into responsibility for law enforcement in Indian coun- question the ability of tribes to enforce civil regula- try. tions against non-Indians within reservation bound- 2.The United States attorneys of the various aries. Federal districts containing Indian land have pri- It appears clear that the Federal Government will mary responsibility for the prosecution of serious be called upon to ensure that the Federal policy of criminal offenses occurring in Indian country. Indian self-determination does not become meanin- 3. Through custom and historical circumstances, gless rhetoric in the face of opposition by non- the Federal Bureau of Investigation has assumed Indians and State governments. Already, Federal primary responsibility for the investigation of serious criminal statutes exist that provide Federal prosecu- felcny offenses occurring in Indian country that fall tion for violations of certain tribal civil regulatory under the Major Crimes Act (18 U.S.C. §1153). laws.'" In the event that the Supreme Court denies 4.Many facets of Federal law enforcement in to tribes enforcement authority for tribal taxing and Indian country have received widespread, repeated, landuseofregulationsagainstnon-Indians, and justifiedcriticism from public and private Congress will be called upon to provide the jurisdic- organizations over the past decade. tional mechanism for Indian self-determination. 5.The statistics kept by the Federal Govern- Congress has the plenary authority to authorize ment regarding law enforcement on Indian reserva- tribal court jurisdiction over all persons within tions do not permit accurate analysis or systematic reservation boundaries, including non-Indians, for monitoring of the quality of law enforcement. any and all violations of tribal criminal and civil 6.The FBI's role in investigating criminal of- regulations. An alternative would be for Congress to fenses in Indian country, for the most part, re;,ults in grant to Indian tribes the authority to prosecute civil delays and duplication of the efforts of Bureau of violations in Federal court. Indian Affairs and tribal investigators. "" Comment. Jurisdiction to Zone Indian Reservations Washington Law '" For example. 18 U S C §1159 (misrepresentation of products as Indian Renew, vol 53 (1978). pp 677-78 made). §1161(triballiquor laws). §1165 (tribal hunting and fishing "" Trans-Canada Enterprises vMuckleshoot Indian Tribes, No C77- regulations) (1976) 882M (W D Wash 1978). 5 Indian Law Rep Sec F-153 '" Carole Goldberg. "A Dynamic. View of Tribal Jurisdiction to lax Non- v '" SaltRiver Project Agricultural Improvement and Power Dist Indians." Law and Contemporary Problems. vol 40. no I (1976). p 189. Navajo Tribe of Indians. No 78-352 (D Ariz July II. 1978).5 Indian Law Rep. F-I16 175 186 7.The current level of FBI resources available 18.The Federal Government hasnot taken for the investigation of criminal offenses in Indian sufficientaction to ensure the safety of Indian country is insufficient. reservations from non-Indian crime. 8.The FBI provides no specialized training for 19. The Federal Government has not sufficiently its agents assigned to investigatory duties is Indian asserted the legitimacy of the exercise of govern- country. mental powers by Indian tribes. 9.Indian perceptions of FBI agents as "outsid- ers" hampers their investigative efforts in Indian Recommendations country; FBI agents are perceived widely in the Indian communities as biased against "militant" Law Enforcement Indians and Indian organizations. I.The Department of the Interior should con- 10. Procedures for investigating allegations of duct a review and provide itsfindings to the agent misconduct are inadequate in the following Department of Justice on the status of law enforce- ways: ment on all Indian reservations, identifying those No regulated, publicly promulgated, com- areas of difficulty in the arrest and prosecution of plaint-intake procedure exists. non-Indian offenders. Complainants are not notified of the disposi- 2.In light of the Oliphant decision, the Depart- tion of their complaints. ment of Justice, through the Attorney General, The monitoring of complaint procedures and should publicly state its commitment to the protec- compilation of data are inadequate. tion of public safety on Indian reservations from 11. Federal law enforcement in Indian country is non-Indian offenders by whatever means are neces- extremely difficult because of the enormous geo- sary and effective. graphical distances and the cultural separation be- 3.The Department of Justice should undertake the following steps to implement its commitment to tween Indian communities and the nontrihal prose- public safety on Indian reservations, in consultation . cutorial and judicial systems. with affected tribal governments: 12 The disproportionately high rate of Federal declination of prosecutions in Indian country ad- Employ the good offices of Department offi- cials, including the U.S. attorney and the Commu- versely affects public safety in Indian communities. nity Relations Service, to encourage the develop- 13.' The Federal Government is providing insuf- ment of a cooperative working arrangement be- ficient prosecutorial resources to n ,:et the responsi- tween tribal and local governments for the arrest bilities it has assumed in Indian country. and prosecution of non-Indians committing of- 14. There is no coordination or systematic moni- fenses on Indian reservations. toring within the Federal bureaucracy of Federal Inthe event that arrangements cannot be law enforcement responsibilities in Indian country. developed for prosecution of non-Indian offenders 15.The lack of a coordinated Federal approach in the State system, a directive should be issued by results in individual rather than institutional deci- the Department of Justice through the Manual for sionmaking, inefficient use of resources, and failure United States Attorneys that non-Indian offenders to take advantage of lessons learned by past experi- be prosecuted in U.S. district court or magistrate's ences in the performance of Federal law enforce- court. ment functions. In those situations where there is reason to 16.The decision of the United States Supreme believe that State or local authorities are discrimi- Court in Oliphant v. Suquamish Tribe, which held natory in failing-to prosecute non-Indian offenders that Indian tribes lack jurisdiction to try and to committing offenses on Indian reservations, the .punish non-Indian offenders, has caused substantial Civil Rights Division of the Department of Justice law enforcement problems on those reservations should investigate and seek appropriate injunctive wheresignificantnumbers of non-Indiansare relief in the U.S. district court under Title II of the present. Indian Civil Rights Act. 17.In some areas, tribes and local governments 4.The Department of the Interior, in consulta- have been able to work out cooperative arrange- tion with the Department of Justice and tribal ments for the handling of non Indian offenders. governments, should undertake a program to up- 176 grade tribal police forces so that all State require- reservations similarlyto the ways itis utilized in ments for cross-deputization can be satisfied. other governmental jurisdictions, such as in the 5.Congress should enact legislation permitting investigation of generally .applicable Federal stat- Indian tribes, at their option, to assume criminal utes. jurisdiction over allpersons within reservation 10.The FBI should be directed, and should be boundaries, in compliance with the limitations and provided with adequate resources, to train BIA and procedural guarantees specified by the Indian Civil tribal investigators in Inv estigativ e techniques. Rights Act. 11. United States attorneys should be directed to 6.The FBI charter should be amended to accept referrals for prosecution directly from BIA provide the following types of checks on agent and tribal investigators. misconduct: 12.Federal officials assigned responsibilities in Oversight responsibility of the House and Indian country should be given specialized training Senate Judiciary Committees, assignedinthe in Indian law and culture. proposed charter for the FBI (S.1612, 96 Cong.; 13.Additional assistant United States attorneys 2nd sess.), should specifically provide both com- and Federal judges should be assigned to Federal mittees with full access to information about FBI districts containing Indian country to assure ade- internal investigations of allegations of miscon- quate prosecutorial and judicial resources to meet duct. the Federal responsibility. A civil right of action for recovery of damages for violation of the charter's mandate should be 14.The jurisdiction of tribal courts should be included. expanded to include offenses committed by Indian and non-Indian defendants with maximum sanctions 7.The FBI should provide complainants who allege misconduct by FBI agents with information of imprisonment for I year or a 51,000 fine. about the disposition of their complaints. 15.The Department of Justice and the Depart- 8.The Department of 'Justice,in consultation ment of the Interior should establish an interagency with the Department of the Interior, should establish coordinating committee on Federal law enforcement a uniform system for the collection of statistics by effort in Indian country to monitor statistical pat- reservation on criminal complaints and their disposi- terns of criminal offenses on individualIndian tion. reservations; to determine what Federal law en- 9.The FBI ,hould be relieved of its primary role forcement, prosecutorial, and/or judicial resources for investigating major crimes occurring in Indian or training are necessary or desirable to improve the country, and this responsibility should be assumed quality of criminal justice on particular reservations, by the Bureau of Indian Affairs and tribal investiga- and to examine local experiences w ith Federal low tors, w ith the FBI prov 'ding back-up support as enforcement in Indian country to ascertain what requested. The FBI should also be utilized on innovativ e practices may be useful on a wider scale. 177 . . %. . ...**. . Il...... :...... 1111 il) ".:.::** '...... *:'\ . ,.. . .;.1I SIM \ .'. to ... .:::...... ;t , r// /1111:n ,ii/ ..1. ,Ili 0 /1 i . .4:M r--z.-- ::.--r '" r.: ...1k ..It...4'--,.1---.--*---:- III 1111 1111 1111.ill II II III II .. "I :11, \ (.1 -.:,01111.11 11111 III 111 11 111 1111 II ohl 11111 h 11 I I I 1111111;1. 'MI I I lifill!:11 liii 1111'1111111' I'll' ..1101111111 111-11111 178 i8j Chapter 6 Findings/and Recommendations z Summary that the climate. for conflict' between Indian rights This report traces the role of State, tribal, and and the interests of the larger society, or a particu- Federal governments in some of the major conflicts larlyvocal or powerful segment of the larger that exist between Indian tribes and non-Indians. society, will continue for the foreseeable future. These conflicts have attracted much notoriety and Conflict is inherent in the nature of the relationship have been considered significant factors in what has between the United States and the tribes. Indians been perceived as a backlash against Indians over still retain power and resources that are periodically the past decade. Although the so-called "backlash" coveted by various elements in the larger society. wts more a change in the public view than any The clashes have been and will continue to be significant change in Indian and ,non-Indian rela- played out in many arenas, including the courts, the tions, these conflicts and the manner in which they legislative and executive branches of the Federal are resolved have profound implications for the civil Government, and, to some extent, the international rights status of American Indiins. human fighpr community. In all of .hese situations, the role of the Federal Much of the impetus for this report came from the Government has been a crucial one. The origins of perceptions of many people that an ominous back- the conflicts occurred decades or even centuries lash against Indians and Indian rights was occurring before the label "crisis" was attached. Throughout nationally. Chapter Idelineates the atmosphere in the development of these complex situations. critical which the so-called backlash occurred, indicating actions have been taken Sometimes events tran- that most Americans have very little understanding spired without any governmental recognition of of 'Indians. Legal decisions or other governmental,. their significance and opportunities for resolutions actions that are consistent with a century of prece- -1 were missed. More often, however, the key factor dent seem unusual or even deviant in a milieu of seems to have been nonaction on the part of the ignorance. Complicating this basic lack of vital Federal Government, the seeming inability of the information about Federal Indian law, and the Iniled States to implement effectively the promises/ history of Indian tribes on this continent isthe and commitments it has historically made to tribes'. persistence of racial stereotypes. It is in this context For example, in the instance of the eastern land of ignorance and stereotypical thinking that recent claims, a series of Federal treaties and acts of events occurred, and the resulting emotionalism Congress were completely ignored. In addition, no became a basis for the perception of a backlash. effective apparatus existed at that point for monitor- Although Indians have had periods of tribal ing Federal commitments or for putting them into activism, and were correspondingly the subject of practice. much ptiblic attention, the period t of the 1950s There are lessons to be learned from the way the through much of the 1960s waso?of relative current problems hav,e been managed. It is obk ious dormancy. The energies of many trats and Indian 179 i80 4 individuals were frequently devoted to coping with tribes, abrogation of Federal treaties with tribes, the Federal policies of termination, reloLation, and particularly those ins olv ing. fishing rightsbegan to jurisdictionaltransfer. At this Jimt.i the Federal receive fairly widespread publicity. Government was attempting to "get out of the The anti-Indian arguments were often miscast in Indian business." Some tribes were terminated and psuedo-Liv it rights terms. For example, although the their assets removed from trust protection status and law states to the, contrary, honoring treaty rights often sold.States were given greatly enhanced with respect to salmon fishing was alleged by power and jurisdictionin reser% ation areas, and opponents in this debate to violate the constitutional Indian individuals by the thousands were encour- rights of non-Indians who fished.Indians were aged toleas ereservation communities for the pejorativ ely labeled "supercitizens." LegislatiVe pro- . phantom promise of job training and employment in posals that reflected these viewpoints were promi- urban areas. nent in the 95th Congress (1977-1978). Foremost This quiescent era ended in the sixties w hen a among the proposals, in terms of publicity and the variety" of activities and mos ement occurred on attention it received, was the Ind:an.Equar Opportu- many fronts. Activist Indians occupied significant nity Act of 1977, a bili that would have abrogated symbolic sites such as Alcatraz, Wounded Knec, and treaties and terminated reservations. It did not pass, the headquarters of the Bureau of Indian Affairs in nor did any of the other so-called backlash legisla- Washington, D C NationalIndian organizations tion. The 95th Congress instead produced some were created or expanded, and they began to play a reasonablypositive Indian legislation. When the more active rolein promoting Indiani.'terests. proposals associated with the "backlash" failed to Indian college and professional school enrollments achieve any success, the ,attention and publicity and graduations increased significantly. The execu- surrounding the "backlash" began to diminish. tive branch repudiated the policy of termination and The issues in contention and the antagonists, successive administrations adopted, a poky of Indi- however, remain in place. To evaluate these con- an self-deterMination a policy fasioring Indian con- flicts, a fundamental understanding of the constant trol Over decisionmaking and promoting !riba' inter- factors in Indian and non-Indian relations is neces- ests. Important legislation developed that wi.. favor- sary. The backlash in many senses appears to have able to the tribesthe restoration of the pri:v iously been no more than the heating up of the long term terminated Menominee Tribe, the Indian Health conflict inherent in Indian and non-Indian relations. Care and improvement Act, and the Indian Self- Were it not for the underlying lack of knowledge Determination Act Significant legal victories were about Federal- Indian relations and Indian law and also obtained in the courtrooms. Decisions favoring the persistence of racial stereotypes, itis unlikely tribal sovereignty were rendered an areas involving that these events would have been regarded as a taxation, land use controls, and ,rgulation of rtser- backlash. vation affairs. Treaty rights of the trititsin the Chapter 2, Context For Evaluation, is divided into I emotion- :iarged, controversial area of hunting and four sections. Historical Overview, Legal, Tradi- A fishing were recognized by the courts. On reserva- tional Cavil Rights Problems, and State-Tribal Gov- tions, tribal governments were operating in expand- ernment Relations. The historical overview traces ingareas. which in some casFs had been the the major events in Federal-Indian relations and a province of the Bureau of Indian Affairs. provides a brief analysis of their significance. Feder- By the middle of the,sev enties, non-Indians on and al Indian policy hits its origins in the colonial policies - near reservations had organized local, State, and,of the various European countries that,inthe national organizationsThese grioups, particularly process of "dist.oxermg and settling" this continent, the Interstate Congress for Equcil Rights and Re- evolved legal theories and policies for dealing with sponsibilities, were widely viewed as the backbone the Indian nations already in residence. The United of a _visible backlash against Indials Generally these States Constitution and the earliest acts of Congress organizations were formed in reaction to a tribal take into account .the existence of Indian tribes and legal victory, an assertion of tribal gov ernmental the need . for a protective policy toward them. power, or the threat of an exercise of tribal powers. Federal policy tau Id .xaciliate over the next two The goals promoted by these orgimizations fermi- centuries from thi osture Aif proteLtion,of tribes nation of reservations, ending die trust status of and thur separatio , pollues strenuously advocat- N 180 ,./ L // , , ing termination of the Federal protective relation- In the last three decades, the Nation has focused ship and assimilation, both enc.mraged ant forced, Increased attention on the civil rights problems of It of Indians into American society aA values. different minority groups. Various studies of the The legal section of the chapter delineates broad Federal Government document that Indians have concepts unique to Federal Indian law the govern- faced and continue to face the whole spectrutk of mental status of tribes,the United Statestrust ,civil rights problems, including pervasive discrimi- relationship to the tribes, the Inherent nature of nation in voting rights, educational opportunitits, tribal government powers, the limitations of State the administration of justice, and, the provision of power within Indian reservations, and the plenary social se:V.:es. There is, however, some ambiva- power of Congress over Indian affairs. As Federal lence amoJig Indians about pursuing their civil rights Indian law is a unique and distinct field, so is the because they fear that in the process their separate' status o f Indians as minorities. In some instances tribal rights will be sacrificed. Indians can, be defined as a racial minority, and in The fourth and final section of chapter 2 concerns other settings they are a political grouping. When the relations between tribal governments and State the Federal Government is dealing with Indians as and local governments. These entities have been part of its special relationship and responsibility to longtime adversaries. Much of their relationship is tribes, Indians are considered a political grouping. It institutional and perhaps always will be to some! is not, therefore, unconstitutional racial discrimina- extent. This adversarial relationship has its origins in tion to provide an Indian preference employment the early history of the United States. A guarantee policy within Federal age1 c,es designated to krvice the tribes received from the Federal Government in exchange for their lands and friendship was protec- tribes. IChowever, a lbc1 or State government or governmental unit outsile of the special ".trust tion against local non-Indians. The inability of the Colonies to control violations against Indian territo- relationship excluded Indians from voting or held 'ry and rights under the, Articles of Confederation Indians to. more stringeht bail requirements than was a factor in the centralization of authority in tl,e non-Indians, such action's', are viewed as unconstitu- Federal Government. tional racial discrimination. In effect, the presence of the Federal Government The third portion of chapter 2 explores traditional in Indian affairs has been to protect the tribes against civil rights problems faced by Indians, historically the States and their non-Indian citizens. Through and currently. The development of Indian civil many vacillations and changes in Federal Indian rights activism has been distinctly different from that policy, however, the United States/Government has ----of other minorities. Other minorities are not political contributed to the potential for /conflict between entitiesgovernments--and their primary goal has States and tribes. For example, the Federal policies been to make the existing system include them and of cutting tribal lands Into individual ix- reels and work for them. Indians, on the other hand, are--opening the "surplus" for homesteading by non- political entities whose primary objective has been Indians has significantly contributed to many cur- to preserve their* own institutions and associated rent conflicts. The reservations affected are jurisdic- value systems. Their political distinctness, however, tional checkerboards that now contan significant has not prevented racism, the same condition facing non-Indian populations. other minorities, from permeating Indian policy and There are many levels of conflict today between working serious and long term effects on the tribes. tribes and their non-Indian neighbor governments Expressions of the racial inferiority of Indians that involve the entire range of civil jurisdiction, recur with unfortunate frequency in the debates on particularlythe power totax,competitior.for Indian policy in the not so .distant past. Although funding, and the use of scarce resources. Some of such racism today is rarely as blatant as in the past this conflict wmict exist even if none of the govern- and is no longer considered acceptable public policy, ments involved were 1-Ban; such competition also the impression still lingers in the public mind that occurs with some fr luency between non-Indian Indians are not entitled to the same legal rights as governments. Within this framework of intergovern- other citizens in this country. Beneath the surface of mental competition, however, are also opportunities a public policy committed to Indian self-determina- for cooperation and joint projects. Some localities tion, the effects oScenturies of racism persist and States have made positive efforts to advance 4 181 i52 4 these possibilities, and coalitions of Indian tribes and destroyed fisheries for Indians as well as others. The local government are actively exploring avenues for Federal Government also missed opportunitiesto cooperation. It is clear however, that not allareas coordinate fishing activities so as to makemore fish lend themselves easily to negotiation. Protracted available for tribal catches in terminalareas. litigation and acrimonious conflict are possible in As the fishing effort grew and the environmental many of these issues, and the role the Federal damage took its toll, there were fewer and fewer fish Government plays' will determine the direction and to go around. Hatcheries were looked to as a way to . outcome of many of these potential battles. Water save the resource and to support the overcapitalized, rights is a crucial area where this role is currently non-Indian commercial fishing efforts. Drawbacks being determined. to artifical propagation of fish and potential environ- Chapter 3 concerns the conflict between Indians ental. hazards were played down. and non-Indians over fishing rights, a conflict that Indians protested the taking of their rights, and began in the late 1800s. The rights involved, how- some went to jail for fishing/in accordance with ever, stem from treaties negotiated in the 1850s Federal treaty rights but in violation of State law. through which tribes in the WaShington Territory Occasionally,Indians were successfulin court, relinquished their claims to vast land areas in return stopping some of the more extreme State interfer- for a number of 'Federal promises. One of these, ence with their rights, but aside from piecemeal founded in a recognition of Indian fishing rights,was litigation, there was not full recognition of their a promise that Indians could continue to fish where rights or a serious effort to protect them untilthe they always_ had fished, exclusivelyon reservation United States sued in Federal district court in 1970. and in common with the citizens of the territoryat The resulting decision by the Federal judiciary in the Indians' usual and accustomed grounds and 1974 changed much of what had been assumed about stations off reservation. State power over treaty Indian fishing. The court Indians were the unchallenged fishcatchers of the found that Indians did have separate rightsto a area until events made non-Indian, qi.antity fishing significant share of the fish and, further, that the profitable. At about this time, Washington becamea State not only had to refrain frOm interfering with State and began to exercise the exclusive rights it those rights, but also had to protect them. Tribes believed it had over all fishing, including that of were recognized as having fishery management Itodians. Largely, this meant encouragingcommer- rights of their own. cial fishcatOhers and creating few restrictions. This clear victory for Indianswas a severe shock As the State's population grew and Stategovern- to non-Indians, and they were not about to accept it ment developed in size and strength, and as the: without a fight. Private, non-Indianfishing interests supply of fish was being noticeabl: reduced, the violating Federal court orders and State institutions State became more active in the process of regulat- r fusing to accept Federal judicial decisions com- ing fisheries. The regulation was political, desigt.r; bined to produce a crisis that called fora response at to favor non-Indians and, within that category, the national level. The crisis included vilification of particular groups of non-Indians. 13y preventing the Federal trial judge, and it was fueled by the most river net fishing for salmon, non-Indian deep conviction of many non-Indians that his decision water fishing methods were encouraged, and by honoring treaty fishing rights was wrong. If it were preventing commercial sale of steelheador methods right, how could the huge non-Indian fishery have of catching them other than hook and line,non- been permitted to develop? Why had traditional Indian sport fishing for that speciewas protected. Indian fishing been preventedor minimized for so Instead of controlling fishing in a way that would many years? Indeed, these are good questions whose allo\W Indians and non-Indiansto share the resource, answers are found in [he policies established by the State effectively elii,linated traditional Indian previous generations that had ignored treaty fishing fishing methods by making them unlawful. rights. Had Indian treaty fishing rights been honored The United States did little to keep the State from and protected by the Federal Government in line effectively taking the fish resource from the Indian with its clear responsibility throughout thecentury, tribes. Some arms of the Federal Governmentwere the situation could not have developedto a point participatingin the destruction of theresource where non-Indians saw treaty rights as functionally through dam construction and other activities that meaningless. Nevertheless, the decisionwas viewed 182 i 9d as a denial of non-Indian rights and an unfair would be acceptable to all parties in the conflict, if windfall to Indians. It was not generally viewed as possible, and, it not possible, at least to those with the law, and it was regarded as justifiable to disobey the political power to require a resolution. it. Although efforts to enforce the 1974 court deci- The Members of Congress from Washington State sion through Federal agencies were Increased to saw a' need to do something about the crisis. As a compensate for a total State default in enforcement result of their request, a Federal task force was late in 1977, the regional team was not suggesting established at the cabinet level in Washington, D.C., strong enforcement as part of its strategy. As it with counterparts at the Federal regional level in turned out, the regional team wanted to create a new Seattle. Its mission was to find a solution that would system to replace existing methods of governing the stop the open confrontation. Through its regional fish resource and a new way of defining Indian team, a negotiation process was begun :n which"the rights to that resource. team and its staff negotiated with the tribes and non- The regional team approached the task as though Indian fishing groups individually. it involved several groups, Indian and non-Indian, It was unclear throughout the process what each with a legitimate claim to part of the fish authority and power had been -delegated to the resource. A series of trades and compromises were regional team. Neither the tribes nor the non-Indian suggested, and then a settlement.plan was proposed fishermen knew to what extent the regional teams' negotiation effort might be linked with the very to which, it was hoped, everyone involved %,trould agree. No consideration was given to the propriety different roles its members had in the onging Federal litigation. It was also unclear whether the regional of taking away treaty rights or to any need to "team would interact with Congress in a manner that compensate tribes for any rights taken. might force a solution through legislation or affect The solution proposed reflected the judgment that funding forfederally-assistedprojects, such as all parties should compromise in order to settle the hatcheries or even unrelated programs. matter. This view overlooked the fact that the tribes The task force and its. regional team had both were not the cause of the problems faced by non- positive and negative aspects. They provided a Indians, but rather that governmental mismanage; possible means for getting tribes, non-Indian fishing ment in conjunction with the ignoring of treaty groups, and he State to reconsider their positions fishing rights had produced an untenable situation. and move toward some common ground that, by Yet the tribes were expected to compromise and to agreement, would solve the controversy while recast their rights for the sake of order. giving effect to treaty fishing rights. They were also Although there was no acceptance of the settle- entities created of whole cloth, unknown in this ment plan finally offered, there now exists a propos- dispute previously, yet possessing the potential to alfor a "solution" to the controversy, several suggest a wide range of Federal actions that couid, if hundred pages in length, which represents over a acted upon, greatly alter existing rights and relation- year of Federal effort. It is available for use entirely ships. To the tribes, successful implementation of or in part to those in the legislative and executive their treaty rights with the aid of this group was seen branches in a position to consider further approaches as a possibility, but there was also the possibility that to the controversy. ,this would detract from tribal victories in court. Even while the regional team was looking for Once again. tribes were defending their rights. Mier options, more litigation was being processed in State they had won in the conventional court system, a and Federal courts in which the State and its new entity was created, and they were back in the recalcitrant, non-Indian fishcatchers were working fray with few ground rules to define the perimeters hard to get the Federal district court decision of the new battle. dismantled. The nature of the judicial battle changed Several factors Were considered by the regional from emphasis on an interpretation of treaty rights team. These included. the need to stop the open to a conflict between Federal and State judiciaries, defiance of Federal authority, the need to reduce the in which treaty rights became a secondary issue to stress on the fish resource caused by uncontrolled some of the litigating parties. Several cases moved illegal fishing, the need to reduce and, preferably, to into a position one step on the judicial ladder before eliminate the ongoing Federal presence in a way that reaching the U.S. Supreme Court. 183 194 The tribes wanted their rights enforced without ble for the northern location of the border with risking yet another redetermination of what rights Canada. The Indian Trade and Intercourse Act of they possessed. They opposed further judicial re- 1790, known as the Nonintercourse Act, was de- view The non-Indian fishing groups saw their signed to keep friendly relationships with the tribes chance to get the decision they had been resisting and to protect them as allies. It provides that: for the last 5 years before the Supreme Court, which they believed would certanly overturn it. The State No purchase, grant, lease or other conveyance wanted to regain control over its fishecies on its own of lands, or any title or claim thereto, from any terms, and so it was eager for review. The Federal Indian nation or tribe of Indians, shall be of any Government was interested in getting order back validity in law or equity, unless the same be into the fisheries so it could remove the extra forces made by treaty or convention entered pursuant to the Constitution. it had deployed to deal with the open defiance of the Federal court. Federal representatives reasoned that Shortly after the Congress enacted this legislation, the resistance would stop if the treaty rights were the tribes began to lose land in violation of the act. upheld by the highest court in the land. Of course, if Congress had not established any mechanism for the treaty fishing rights decision of the lower court enforcement of the rights protected. States justified were overturned, there would still be no need for their actions on the fact that the Federal Govern- large scale Federal enforcement because the State ment was neglecting eastern tribes and upon a would be back in control and Indian rights would be dubious legal theory known as the "Thirteen Origi- reduced. nal States doctrine," which held that these States All the dynamics were again unfavorable to the had special rights and relations with tribes. By the tribal position of staying out of court, and the case middle of the19th century most of the land was heard on appeal over tribal objections. In July transactions now at issue had occurred, and without 1979 the U.S Supreme Court rendered a decision the required Federal supervision. In fact, by mid- rejecting the views of the non-Indians. The Court 19th century the Federal Government was acting as upheld the Federal district court almost completely. if there were no Indian tribes in the eastern United Indian rights had again been vindicated. The matter States. is now pending in the congressional forum. When the claims activity began in seriousness in Chapter 4 concerns Eastern frialan land claims, the 1970s, it was discovered that a 1966 statute of which has been the "sleeper" among Indian rights. limitations concerning Indian trespass claimswas The pervasive public ignorance of Indian issues, and about to run out. This provoked a flurry of filings. the attitude of State officials for centuries that they Congress has acted several times since to extend the could do whatever they wanted with respect to deadline in order to deter lengthy and extensive Indians, set up a situation ih which the claims litigation and to facilitate negotiations. Although seemed extraordinary when finally brought. The most of the land claims have been filed under the basic land claimisthatIndian, landsinStates Nonintercourse Act of 1790, each one is different formerly constituting the the originnl Thirteen Colo- and has an individual history. nies were invalidly transfered to non-Indians be- The Maine land claim of the P issamaquoddy and Cause the Federal Government did not superviseor Penobscot Tribes is the largest and perhaps best approve the transactions, which by statute it had known of the claims. The Passamaquoddys discov- pledged itself to do. When the tribes began to ered among some old papers a purported treaty of present their claims, they were greeted with disbe- 1794 whereby they and the Penobscots had ceded lief; their offers of negotiation were spurned. After vast quantities of what is now Maine. This "treaty" several court victories that, although not determina- occurred without Federal supervision. The tribe first tive, did demonstrate the seriousness of the legal attempted to discuss the matter with Maine officials; claims, serious effort at negotiation of the claims it was not taken seriously. It then took the tribe began. nearly a dLcade to obtain legal representation. Once The United States has had an unhappy history that was obtained, substantial research was under- witl. the easterntribes,several of whom were taken on the complex issues surrounding it. The important allies in the Revolutionary War. The results were published as a law journal article in Maine tribes, for example, were primarily responsi- Maine, a tactic to educate the Bar of Maine, and the 184 tribes 'requested the'United Statesto represent them reached some preliminary conclusions in their claim against the State. as to defenses The United States and the cstablishment orb prima faciecase in 1976, turned down the' tribal request, claimingthat the negotiations between cooperative tribes were not federally recognized. State, tribal, and The tribes Federal officials commenced. Asettlement was sued. The Federal district court foundthat the reachedin March 1978. Congressappropriated Nonintercourse Act createdan obligation for the funds to carry out the 1,800 United States and the UnitedStates -acre settlement and could not deny President Carter promptly signed the this obligation solely measure. on the ground that it had not Not all the land claims have proceeded acknowledged its trust relationship as amica- to the tribe. bly or speedily as the Narragansetts'. Subsequent litigation strengthened the tribalposition Negotiation, on the substance of the claims by dismissing the however, has become the keyprocess for eastern land claims. The negotiation defenses popularly thought to. be available. process has had a After a somewhat uncertain history because portracted negotiation process, the Maineclaim was the Federal Government did not have a settled policy settled and enacted into legislation in late1980. to deal with the claims, and the States resisted Another major land claim involves theOneidas in efforts at New York State. This claim is basedboth on the negotiations. Tribes generally have beenin favor of Nonintercourse Act and specific treatiesof the tribe negotiation through the period of theclaims con- flict. with the United States. There is evidencein the case that New York State knew allalong that its land Chapter 5 concerns law enforcementissues on dealings with the tribewere n direct violation of Indian reservations. Thepower of Indian tribes to Federal law but persistednon theless. A portion of deal with serious crimes committedon reservations the case was litigated to determinewhether New has been limited by the U.S. SupremeCourt and the York or Federal law would determinethe outcome. U.S. Congress. Consequently, the FederalGovern- The answer was clearFederallaw controlled ment now bears the primary responsibility forlaw Indian land transactions wherever theyoccurred. enforcement on Indian reservations. It isa responsi- The local district court has indicatedits preference bility, however, that is not being fullymet. for a political solution as opposedto litigation While procechfrei for investigatingserious felony involving approximately 315,000acres claimed by offenses v &ry on different reservations,a general the Oneidas, the Cayugas, and the Mohawks. pattern exists.. Tribal police departments usually A case that has attracted national prominenceis share the day-to-day responsibility forreservation Mashpee, and it is the only claimto have gone to a law enforcement with BIA police andwith BIA jury trial. The Mashpees lost theircase at the trial special officers, who are trained criminalinvestiga- level when a Boston jury determinedthat the tors. When a crime is committed, a tribal officeror Mashpees were not a tribe during thetransactions in BIA patrol officer is ordinarily firston the scene. question. Mashpee is bothan Indian community and After determining that an offense isserious, the an incorporated township on Cape Cod, Massachu- officer calls in a BIA special officer whoconducts setts. The township had been,,Indian controlledfor the initial investigation and then notifiesthe FBI. over a century until the Cape experienceda real The FBI generally conductsan independent investi- estate boom in the 1960s and non-Indians movedinto gation and presents thecase to the U.S. attorney for the area in vast numbers. The Indians lostpolitical prosecution. N control of the town, the common landareas, access Primary responsibility for criminalprosecutions to fishing, and other traditional activities. A newly rests with individual U.S. attorneys whose exercise incorporated tribal entity formed, bringingsuit to of discretion is not limitedor monitored to any great recapture lands lost in the 19th century. The trial degree within the Department of Justice.Because of was expensive and time consuming, and the entire the penalty restrictionson tribal courts, no serious situation racially polarized the community. action ordinarily will be taken againstan offender if Other claims involve the Schaghiticoke Tribeand the U.S. attorney fails to doso. Western Pequots in Connecticut, the Catawbas in Federal law enforcement in Indiancountry has South Carolina, and the Narragansetts in Rhode generated criticism from. manyquarters. Studies by Island. The Narragansett claim is the onlyone that the American Indian Court Judges Association, has been quickly settled. After the initial the litigation Department of Justice Task Forceon Indian Mat- 185 i96 ters; and the American Indian Policy Review Com- felonies were not treated as a priority by the FBI,. mission have identified a number of problems. which was slower to respond in such cases, and the A nationwide study by the American Indian report also noted that there was clften a difference in Court Judges Association in1974found confusion the FBI's response to a reservation crime when the and lack of coordination among the Federal agencies victim was a non-Indian. involved and deep dissatisfaction within the Indian Although the Task Force recognized BIA inade- 'Communities receiving Federal law enforcement quacies in providing police services to reservations, services. it found the BIA's criminal investigative capacity Following the Wounded Knee incident on the wabi not inferior to that of the other agencies the Pine Ridge Reservation in South Dakota, the De- Justice Department regularly dealt with. As a result, partment of Justice convened an intra-agency task the Task Force recommended that the FBI assume a force to examine the execution of its responsibilities supportive rather than a primary role in the investi- toward Indians. In October1975the Task Force gation of major crime's on reservations and that U.S. issued itsreport, which found that the issue of attorneys accept referrals for prosecution directly reservation law enforcement has long been neglect- from BIA criminal investigators. This recommenda- ed. The report termed the problem "of major tion was never implemented, and the Task Force proportion crossing many bureaucratic and jurisdic- ceased to exist with the change in administrations in tional boundaries" and found it "particularly embar- 1976.The problems, however, remain. rassing that the present problem exists in an area of The availability and allocation of FBI resources is primarily Federal responsibility." one factor affectingitsperformance on Indian The American Indian Policy Review 'Commis- reservations. At the national level, the Department sion, established by Congress to evaluate Federal of Justice sets priorities for the allocation of investi- policies and programs in relation to Indians, was also gative and prosecutorial resources based on which highly critical of Federal investigation and prosecu- kinds of criminal activity have the greatest impact tion of offenses in Indian country in its1976report. on society. At present, investigations of organized This report corroborates, for the most part, the crime, white-collar crime, and national security findings anthrecommendations made 4 years earlier violations are top priority, and Investigations of by the Department of Justice Tail( Force. The crimes on Indian reservations are the lowest priori- problems fall into three categories: ty. As a result, there Are inadequate FBI resources at ,(1)Statistics: The statistics kept by the Federal the local level with which to serve the reservations. Government regarding law enforcement on Indian When the national priorities for investigation of reservations do not permit accurate analysis or Federal offenses were being established, the United systematic monitoring of the quality of law enforce- States attorney for Arizona wrote the Director of ment. the FBI requesting that investigation of crimes on (2) Investigation: The FBI's investigatory role Indian reservations receive top priorityin those 'results chiefly in delay and duplication of work done Federal districtsthat contain reservations, since by BIA and tribalinvestigators, and the FBI's there was no effective alternative to Federal prose- effectiveness is hampered by the widespread percep- cution of major crimes. The FBI Director denieJ the tion of Indians that the FBI is working to suppress request and later explained that It was not granted militant political activity. becauseitwas "inconsistent with our effort to (3) Prosecution: U.S. attorneys are slow to identify those types of offense which have the respond when crimes under their jurisdiction have greatest impact on our society." At the same time, been committed on reservations, and .such a high the total amount of FBI resources on a national level percentage of eases are declined for prosecution that is being decreased for budgetary reasons, and this crimes in Indian country go virtually unpunished. cannot help but cause a reduction in the availability The Department of Justice Task Force concluded of FBI investigative services on Indian reservations. that the FBI's investigatory role in reservation law The FBI's performance is affected also by its enforcement was at best duplicative and, in fact, credibility in the Indian community. A number of often impeded effective and spec iy law enforcement complaints have arisen, particularly from the South by lengthening the time between the crime and the Dakota reservations, about the conduct of FBI prosecution. The Task Force found that less serious agents. Many Indians believe that the mission of the 186 i 9/ FBI is to supress dissent and radical political activity Indian reservations and increasing tribal responsibili- by Indians, rather than to act as an itnpartial ty for this activity. The problem is not conceptual; it investigative agency, and that the FBI's response to is the willingness of the Federal Government to a crime depends on the identity of the victim. undertake the commitment necessary to ensure both The lack of accurate statistics makes it difficult to quality law enforcement and tribal self-determina- assess the contertion of disparate treatment by the tion. Continuing an- essentially passive or reactive FBI. Moreover, because complainants are not noti- fied of the disposition of the complaints, the FBI role tends to exacerbate problems rather than solve does nothing to dispel any false impressions within them. ,.. the Indian community about FBI misconduct or to A recent example of this lack of a coherent and assure the community that appropriate action has coordinated Federal law enforcement policy is the beOn taken when misconduct is found. hiatus created by the decision of the Supreme Court There is no question that Federal prosecution of of the United States in Oliphant v. Suquamish Indian cases arising in Indian country presents unique Tribe that Indian tribes lacked jurisdiction to try and difficulties, including logistical problems suchas punish non - Indians for criminal offenses committed transporting defendants and witnesses great dis- on reservations. Although theinitial emotional tances, language and cultural problems leading to reaction to the Oliphant decision has died down, uncooperative or unresponsive witnesses, and prob- problems remain on many reservations. Some ques- lems stemming from the large percentage of alcohol- tions raised by the decision are whether tribal police related offenses. The Department of Justice Task may lawfully arrest and detain non-Indian offenders Force found that allthese factors affected the on the reservation and hold them for submission to exercise of prosecutorial discretion by U.S. attor- local authorities, how to determine whether an neys, who understandably found it difficult, given the competing demands on their resources, ip justify accused offender is an Indian or a non-Indian, and great expenditures of time on cases they were whether and under what circumstances the State or unlikely to win. As Indian spokespersons have the Federal Goverment has jurisdiction over an pointed out, how6fer, it was the Federal Govern- offense. ment, not the Indian tribes, that rook the initiative to As a result of the confusion and the inability of the assume Federal jurisdiction over serious felony Department of Justice to form and implement policy offensesoAn Indian country and to deprive tribes of quickly and effectively, at the time of the investiga- the authority to exact meaningful sanctions. The tion by the U.S. Commission on Civil Rights, Federal Government, therefore, should bear the practices of State, Federal, and tribal officials varied. burden of providing sufficient resources for an For example, on the Pine Ridge Reservation in adequate prosecutorial effort. South Dakota the problems had been solved by a In addition to encouraging antisocial behavior, the close working relationship between tribal and coun- failure to prosecute a crime engenders communal ty law enforcement officials. Although no cross- anger and a breakdown of the social ,structure. deputization exists, an informal system of citizen's Beyond that, whatever trust the Indian community arrests was working smoothly. The parties involved has in the good faith of the Federal Government is have demonstrated that it is possible to handle non- shattered. .4 ,Indian offenders if the matter is approached in good . Although law enforcement on Indian reservations is fraught with problems, they are not insurmount- faith and wiih good will. On South Dakota's able. Where participants in the system are flexible, Rosebud Reservation, by contrast, no cooperative improvements are possible. Innovative programs in arrangement for handling non-Indian offenders has Arizona and on the Pine Ridge Reservation in South been worked out. The State's attorney for Tripp Dakota, for e7ample, have demonstrated that there County declined to accept for prosecution com- is a more positive role for Federal law enforcement plaints issued by tribal police to non-Indian traffic in Indian country. offenders, although such a system existed in the For years, several organizations and agencies have fifties. Consequently, according to a BIA official, advocated a nationally coordinated, approach to lawlessness has been encouraged among some non- improving the Federal role in law enforcement on Indians. 187 r V.> Findings State and Local Governments I.Since they represent primarily non-Indian General Findings constituencies, State governments may be expected 1. Federal policy concerning Indian tribes has to continue promoting non-Indian interests in mat- vacillated between fostering Indian assimilation and ters of conflict. supporting tribal autonomy. Current Federal policy 2.Some States have played a direct role in supports Indian self-determination. fostering conflict and resistance when Indians assert- 2.A lack of information about the history, law, their rights., and culture of the various Indian tribes distorts 3.States and tribes have varied greatly in their citizen and government perceptions of issues be- responses to situations of conflict and common tween Indians and non-Indians and affects Federal problems. State actions run the gamut from actively decisionmaking. pursuing cooperative agreements with tribes to 3. A legacy of racial stereotypes continues to influence Federal Indian policy and hampers imple- using physical force against Indians. mentation of the national policy of Indian self- 4.Recently, some State and local> governments determination. have taken a collective approadh to conflicts with--- 4.The existing Federal system for protecting various Indian tribes by working through established Indian rights has significant limitations: national organizations of government. Although this ---sThe trust_ relationshiphas been based on development is" promising for the negotiation of assumptions of Indian cultural many issues,i1 could also have the potential of The United States has a conflict of interest in increasing State power at the expenseof tribal rights . acting as an agent for the tribes while performing and tribal governments. in its various other governmental capacities., Judicial recognition of the extraordinary con- gressional power concerning Indian affairs con- Fishing Rights tinues to limit the enforcement of Federal obliga- I.Indian tribes have been in conflict with the tions to tribes. States over fishing rights throughout this century. Even where courts aphold Indian claims (for 2.The Federal Government as guarantor of example, with respect to treaty fishing rights), far Indian fishing rights has not effectively protected greater commitment and cooperation than now and assured these rights. existsbetweentheexecutive andlegislative 3.Throughout this century, the State of Wash- branches is required for effective enforcement. ington has utilized its governmental authority in Coherent executive branch mechanisms for such a manner as to deprive Indians of their fishing determining and implementing policy are lacking. rights. Civil Rights Violations 4.Indian tribes have been blamed erroneously for the crisis concerning the scarcity of fish. I.Recent conflicts over Indianrights have 5.The fishing rights conflict, which is a dispute exacerbated the continuing equal protection prob- over property rights, has racial dimensions. lems Indians face. 6. 2.Non-Indians have erroneously attacked and The Federal Government has played the characterized Indian rights as unlawful discrimina- following contradictory roles in the fishing conflict: tion against non-Indians. counsel for tribes in much of the litigation; Indians'civilrightshavebeenviolated mediator inthe fishing crisis through the throughout history. establistx ent of a Federal task force; Civil rights violations are promoted by public regulator of the fishery; and ignorance of Indian rights and by the failure of financer of State fishery programs. appropriate parties to respond promptly 4o any 7.By establishingataskforce designed to infringement of Indian rights. renegotiate treaty rights, the United States.failed .to Although Indians face civil rights problems act as trustee, operated with a substantial conflict of similar to those of other minorities, the context in interest, and subjected thetribesto a political which these occurunique. process in which the trib'al position was weakened. 188 Land Claims 6.The FBI's role in investigating criminal of- L The failure of the Federal Government to fenses in Indian country, for the most part, results in implement effeCtively its statutory commitmentsto delays and duplication of the efforts of Bureau of tribes resulted in the Indian land claims. Indian Affairs and tribal investigators. 2.Both the United States and the individual 7.The current level of FBI resources available States initially refused to take tribal claims seriously, Mr the investigation of criminal offensesin Indian thus missing opportunitiesfor negotiations and country is insufficient. ultimately escalating the conflicts. 8.The FBI provides no specialized training for 3.The United States after initial efforts that its agents assigned to investigatory duties in Indian were unsure and unsuccessful, has adopted a case- country. by-case approach to negotiation as ameans to solve 9.Indian perceptions of FBI agentsas "outsid- land *claims. Some of the principles established ers'. hampers their investigative efforts in Indian include the following: country; FBI agents are perceived widely in the Good faith negotiations must have been at- Indian communities as biased against "militant" tempted before a claim may be litigated. Indians and Indian organizations. If necessary, the United States will litigate 10. Procedures for investigating allegations of - __meritorious claims. agent misconduct are inadequate in the following . Affected Federal agencies and the "injured'' ways: tribe determine what they will accept in lieu of No regulated, publicly promulgated,com- court action using a task force approach. plaint-intake procedure exists. 4.Tensions arising from the land claims have Complainantg are not notified of the disposi- exacerbated racial -animosities in affected communi- tion of their complaints. ties, especially where State and rocal officials have - The monitoring-of_ complaint_procedures and been unwilling either to take the claims seriouslyor compilation of data are inadequate. to negotiate. 11. Federal law enforcement in Indian country is 5.For tin. zastern tribes, land claims providea extremely difficult because of theenormous geo- potential for future economic and cultural survival. graphical distances and the cultural separation be- tween Indian communities and the nontribal prose- Federal Law Enforcement cutorial and judicial systems. 1.ThrougFibe historical development ortrea- 12.Tile disproportionately high rate of Federal ties, statutes, and case law derogating tribal func- declinatioti of prosecutions in Indian country ad- tions, the Federal Government has assumed primary versely affects public safety in Indian communities. responsibility for law enforcement in Indiancoun- 13.Th Federal Government is providing insuf- try. ficient prosetotal resources to meet the responsi- 2.The United States attorneys of the various bilities it ha assumed in Indian country.- Federal districts containing Indian land have pri- 14. Th re is no coordination or systematicmoni- mary responsibility for the prosecution of serious toring wjt/hin the Federal bureaucracy of Federal criminal offenses occurring in Indian country. law enforcement responsibilities in Indiancountry. 3.Through custom and historical circumstances, 15.The lack of a coordinated Federal approach the Federal Bureau of Investigation has assumed results in individual rather than institutional deci- primary responsibii y for the investigation of serious sionmaking, inefficient use of resources, and failure felony offenses occurring in Indian country that fall to take advantage of lessons_learned by_ past- experi under the-Major Crimes-Act (18 U-.S.C11153). ences in the performance of Federal law enforce- 4.Many facets of Federal law enforcement in ment functions. Indian country have received widespread, repeated, 16. .The decision of the United States Supreme and justifiedcriticismfrom public and private Court in Oliphant v. Suquanush Tribe, which herd organizations over the past decade. that Indian tribes lack jurisdiction to try andto 5.The statistics kept by the Federal Govern- punish non-Indian offenders, has caused substantial ment regarding law enforcement on Indian reserva- law enforcement problems on those reservations tions do not permit accurate analysisor systematic wheresignificantnumbers of non-Indiansare monitoring of the quality of law enforcement. present. 185 2 0 . 17. In some areas, tribes and local governments mine those issues that couldATeet Indian rights or have been-able to work out cooperative arrange- that have significant potential for conflict. ments for the handling of non-Indian offenders. 5.Congress should either establish an indepen- 18.The Federal Government has not taken dent go% ernmental entity or contract with nongo- sufficient action to ensure the safety of Indian % ernmental entities to provide mediation, concilia- reservations from non-Indian crime. tion, and arbitration services forettling disputes 19.The Federal Government has not sufficiently between tribes and the Federal, Ste, or local asserted the legitimacy of the exercise of govern- governments. powers by Indian tribes. Civil Rights Violations Recommendations 1. An Office of Indian Rights should be reestabl- ished, with an adequate-staff, within the Civil Rights ,General Recommendations Division in the Department of Justice. 1. To encourage the opportunity for self-deter- 2.Community Relations .Service personnel of mination,viability, and effectivefunt.tioning of the Department of Justice should be more available tribal governments, Congress should recognize Indi- to help ...ommunities resolve conflicts involving an tribes on thC same basis as it recognizes States and Indian tribes. their subdivisions for purposes of general funding. -Congress-should support the preservation and State and Local Governments promulgation of Indian culture, arts, crafts, and 1., Congress should support efforts by tribal and values throughtheestablishment of a national non-Indian go% ernmental leaders to negotiate con- institute. flicts and reach cooperative agreements. Any broad 3. Congress should provide for an independent jurisdictional waiver of rights by tribes to effect counsel authority to furnish legal re_presenta such agreements should be accompanied by an tion to Indian tribes in cases 'w here the Federal adminisiratie reNiew process that protects tribal Government has a conflict of interest that precludes rights within the Department of the Interior. . it from effectively representing tribal interests. 4.The performance of the Federal Government Fishing Rights in implementing and protecting Indian rights would I.Congress should provide for enhancement of _beimproved by: the salmon resource, diminution of the inflated non- Creation of a joint Congressional 0% ersight Indian fishery, the development of tribal, fishery Committee on Indian Affairs. management capacity, and increased coordination Submission of an Indian trust impact statement betweenthe cariousStale,tribal,and Federal to such a joint congressional committee whenever entities with jurisdictional responsibility. action contemplated by the executive branch 2.In the absence of an effective Federal, tribal, could significantly affect protected Indian tights, and State management mechanism,acontinued such as treaty rights, rights of self-go% ernment, strong Federal presence, such as that currently and rights to natural resources. provided by the Federalcourt,is*requiredto Enhanced coordination at the White House implement and enforce treaty fishing rights. level of Indian policy throughout the executive branch. Land Claims Provision for special staff within the office of 1. Theprelitigationtaskforce approach,in the Attorney General to coordinate the arious which the United States and thetribes jointly ongoing responsibilities for Indian affairs within determine au accepLablc settlement prior to full the Justice Department. litigation of the claim and before bringing Congress, Special consideration of Indian issues in the the Stan., and local communities into the process, annual review t t the Office of Management and should Be maintained for eastern land claims. Budget level with particular attention to natural resources, taw enforcement, and social services. Law Enforcement Development of an effective monitoring sys- I.The Department of t:.e Interior should con- tem in the Department of the Interior to deter- duct are% iewand provideitsfindingsto the 190 U] Department of Justice on the statues of law enforce- Oversight responsibility of the House and ment on all Indian reservation's, identifying those Senate Judiciary Committees, assigned in the areas of difficulty in the arrest and prosecution of proposed charter for the FBI (S.1612, 96 sCongl, non-Indian offenders. . 2nd sess.), should specifically provide bbthcom- , 2.In light of the Oliphant decision, the Depart- mittees with full access to information about FBI ment of Justice, through the Attorney '.General, internal investigations of allegations of miscon- should publicly state its commitment to the protec- duct. tion of public safety on. Indian reservations from A civil right of action for recovery of damages non-Indian offenders by whatever-means areneces- for violation of the charter's mandate should be sary and effective. included. ,. 3.The Department of Justice should undertake 7.The FBI should provide complainants who the following steps to implement its commitment to allege misconduct by FBI agents with information public safety on Indian reservations, in consultation about the disposition of their complaints. with affected tribal governments: 8.The Department of Justice, in consultation Employ the good offices of Departmentoffi- with the Department of the Interior, should establish cials, including the_U.S.Iitteiney and the Commu- a uniform system for the collection of statistics by nity RelationiService, to encourage the develop- reservation on criminal complaints anu their disposi- ment of a cooperative working arrangement be- tion. tween tribal and local governments for the arrest 9.The FBI should be relieved of its primary role and msecution of non-Indians committing of- for investigating major crimes occurring in Indian --fenses on Indian reservations. country, and this responsibility should be assumed In the event that arrangements cannot be by the Bureau Of Indian Affairs and tribal investiga- developed for prosecution of non-Indian offenders tors, with the FBI providing back-up support as in the State system, a directive should be issued by requested. The FBI should alsoIleutilized on the Department of Justice through the Manual for reservations similarly to the ways it. is,utilized in United States Attorneys that non-Indian offenders other governmental jurisdictions, suchas in the be proSecuted in U.S. district court or magistrate's investigation of generally applicable Federal stat- court. utes. In those situations where there is reason to 10.The FBLshould be directed, and shot:IJ be provided with adequate resources-, to train BIA and believe that State or local authoritiesare discrimi- tribal investigatqrs in investigative techniques. natory in failing to prosecute non-Indian offenders 11.Unitedttates committing offenses on Indian reservations, the attorneys should be directed to Civil Rights Division of the Department ofJustice accept referrals for prosecution directly from BIA and tribal investigators. should investigate and-seek appropriate injunctive 12.Federal officials assigned responsibilities in relief in the U.S. district court under Titlell of the Indian country should be given specialized training Indian Civil Rights Act. in Indian law and culture. 4.The Department of the Interior, in consulta- 13.,Additional assistant United States attorneys tion with the Department of Justice andtribal and Federal judges should be assigned to Federal governments, should undertake a program to up- districts containing Indian country toassure ade- grade tribal police forces so that all State require- quate prosecutorial- and judicial resources to meet ments for cross-deputization can be satisfied. the Federal responsibility. 5.Congress should enact legislation permitting_ it The-jurisdiction of- tribal- courts(should -be- Indian tribes, their option, to assume criminal expanded to include offenses committed by Indian jurisdiction over allpersons within reservation and non-Indian defendants with maximum sanctions boundaries, in compliance with the liTitations and of imprisonment for 1 year or a $1,000 fine. procedural guarantees specified by the Indian Civil 15.The Department of Justice and the Depart- Rights Act. ment of the Interior should establish an interagency 6.The FBI charter should be amended to coordinating committee on Federal la'w enforcement provide the following types of chezkson agent effort in Indian country to monitor statistical pat- misconduct: terns of criminal offenses on individualIndian 91 2:1-') t. reservations; to determine what Federal law en- and to examine local experiences w ith Federal law forcement, prosecutorial, and/or judicial resources enforcement in Indian country to ascertain w hat or training are necessary or desirable to inrrnine the innoatiie practices may beill on a wider scale. quality of criminal justice on pat tieular reservations; 00 fr. 192 S GOV FRNMI I PRINTL416 (11.1 ICE .