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Full text of "Sovereign immunity : hearing before the Committee on Indian Affairs, United States Senate, One Hundred Fifth Congress, second session : oversight hearing to provide for Indian legal reform"

put: i 



/ S. Hrg. 105-303, Pr. 2 

SOVEREIGN IMMUNITY 



HEARING 

BEFORE THE 

COMMITTEE ON INDIAN AFFAIRS 
UNITED STATES SENATE 

ONE HUNDRED FIFTH CONGRESS 

SECOND SESSION 

OVERSIGHT HEARING TO PROVIDE FOR INDIAN LEGAL REFORM 



APRIL 7, 1998 
SEATTLE, WA 



PART 2 



~ORY 




do 






UNIVERSITY OF 
.__ ILLINOIS LIBRARY 
fl URBANA-CHAMPAIGN 

BOOKSTACKS 



105-303, PT. 2 



HEARING 

BEFORE THE 

COMMITTEE ON INDIAN AFFAIRS 
UNITED STATES SENATE 

ONE HUNDRED FIFTH CONGRESS 

SECOND SESSION 

OVERSIGHT HEARING TO PROVIDE FOR INDIAN LEGAL REFORM 



APRIL 7, 1998 
SEATTLE, WA 



PART 2 

















U.S. GOVERNMENT PRINTING OFFICE 
47-901 CC WASHINGTON I 1998 

For sale by the U.S. Government Printing Office 

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 

ISBN 0-16-057380-7 



COMMITTEE ON INDIAN AFFAIRS 

BEN NIGHTHORSE CAMPBELL, Colorado, Chairman 
DANIEL K. INOUYE, Hawaii, Vice Chairman 
FRANK MURKOWSKI, Alaska KENT CONRAD, North Dakota 

JOHN McCAIN, Arizona, HARRY REID, Nevada 

SLADE GORTON, Washington DANIEL K AKAKA, Hawaii 

PETE V. DOMENICI, New Mexico PAUL WELLSTONE, Minnesota 

CRAIG THOMAS, Wyoming BYRON L. DORGAN, North Dakota 

ORRIN G. HATCH, Utah 
JAMES M. INHOFE, OKLAHOMA 

Gary Bohnee Majority Staff Director 
Patricia M. Zell, Minority Staff Director I Chief Counsel 

(II) 



DOC 






CONTENTS 



Page 

Statements: 

Anderson, Robert, Counselor to the Secretary, Department of the Interior, 

Seattle, WA 7 

Bernal, Roy, Chairman, All Indian Pueblo Council, Albuquerque, NM 56 

Cagey, Henry, Chairman, Lummi Indian Nation, Bellingham, WA 35 

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, Chairman, 

Committee on Indian Affairs 1 

DeLaCruz, Joe, former President, Quinault Indian Nation, Hoquiam, WA 39 
Evans, Hon. Dan, former Governor and former U.S. Senator from Wash- 
ington, Daniel J. Evans Associates, Seattle, WA 5 

Gorton, Hon. Slade, U.S. Senator from Washington 3 

Greenberg, Craig D., Esquire, Huffman, Usem, Saboe, Crawford, and 

Greenberg, Minneapolis, MN 71 

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, Vice Chairman Com- 
mittee on Indian Affairs 2 

Jensen, Jill, Co-President, Citizens for Safety and Environment, 

Enumclaw, WA 16 

Johnson, Col. Caleb H., Hopi Tribal Council Member, Kykotsmovi, AZ 67 

Lawrence, William J., Owner/Publisher, Native American Press/Ojibwe 

News, Bemidji, MN 65 

Montgomery, Alan, Chairman, United Property Owners of Washington, 

Seattle, WA 19 

Morris, Roland, President, All Citizens Equal, Ronan, MT 69 

Pablo, Michael T., Chairman, Confederated Salish and Kootenai Tribes ... 52 

Quintana, Jose, Town Manager, Town of Ignacio, CO 31 

Richards, Howard, on behalf of Clement Frost, Chairman, Southern Ute 

Tribe, Ignacio, CO 33 

Shaffer, Sue, Chairperson, Cow Creek Band of Umpqua Tribe of Indians, 

Roseburg, OR 54 

Shipps, Thomas, General Counsel, Southern Ute Tribe 43 

Sullivan, Jeffrey, Prosecuting Attorney, Yakima County, WA 14 

Taylor, Bill, President, Puget Sound Shellfish Growers Association, 

Shelton, WA 17 

Vance, Christopher, Metropolitan King County Council Member, Kent, 

WA 12 

Williams, Esquire, Susan, Williams and Janov, P.C., Albuquerque, NM .... 37 
Wynne, Mary, Tribal Judge, Confederated Tribes of the Colville, Reserva- 
tion, Nespelem, WA 58 

Appendix 

Prepared statements: 

Anderson, Robert (question with responses) 33 

Bell, John Howard, Director, Legal Department, Puyallup Indian Tribe 

(with attachments) 668 

Bernal, Roy (with attachments) 310 

Cagey, Henry (with attachments) 145 

Chicks, Robert, President, Stockbridge-Munsee Band of Mohican Indians . 686 

Cladoosby, Brian, Chairman, Swinomish Indian Tribal Community 691 

Congdon, Robert, Towns of Ledyard, North Stonington, and Preston, CT .. 708 

Coochise, Elbridge, member, Hopi Tribe 720 

Daniel, Jr., John, Muckleshoot Indian Tribe 733 

DeLaCruz, Joe (with attachments) 208 

de los Angeles, Chairman, Snoqualmie Tribe 745 

(III) 



IV 

Page 
Prepared statements — Continued 

Downes, Bradley G. Bledsoe, Attorney, Hoopa Valley Tribe of California 

and Saginaw Chippewa Indian Tribe of Michigan 747 

Duncan, Pat, Chairwoman, Confederated Tribes of Siletz Indians of Or- 
egon 703 

Echohawk, John E., Executive Director, Native American Rights Fund 

(State Tribal Taxation, Summary, and Documents)) 759 

Evans, Dan 79 

Fee Land Owners Association 1190 

Friends Committee on National Legislation and The American Friends 

Service Committee 1198 

Frost, Clement (with attachments) 121 

George, Jr., Merv, Chairman, Hoopa Valley Tribe, California 1201 

Greenberg, Craig D. (questions with responses and attachments) 578 

Halliday, John D., Muckleshoot Tribal Member 1209 

Hanson, Howard H , President, Citizens Equal Rights Alliance on S. 

1691 1328 

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, Vice Chairman, Com- 
mittee on Indian Affairs 1313 

Jarvis, David L., Osage 1215 

Jensen, Jill 103 

Johnson, Col. Caleb H. (with attachments) 527 

Johnson, Jr., Bender, Chairman, Makah Tribal Council, Neah Bay, Wash- 
ington 1218 

Johnson, Wesley, Towns of Ledyard, North Stonington, and Preston, CT .. 

708 

Joseph, Jason, Chairman, Sauk-Suiattle Indian Tribe (with attachments) 1220 

Julius, Victoria J., Member, Lummi Tribe (with attachment) 661 

Lawrence, William J. (with attachments) 523 

Marshall, Steven, Attorney, Pudget Sound Shellfish Growers 1233 

Montgomery, Alan (with attachments) 115 

Morris, Roland (with attachments) 574 

Mullane, Nicholas, Towns of Ledyard, North Stonington, and Preston, 

CT 708 

Pablo, Michael T. (with attachments) 238 

Pakootas, Joseph A., Chairman, Confederated Tribes of the Colville Res- 
ervation 1243 

Penny, Samuel N., Chairman, Nez Perce Tribal Executive Committee 1255 

Petree, Jack, Bellingham, WA 1259 

Phelan, Michael G., Attorney, Hoopa Valley Tribe of California and Sagi- 
naw Chippewa Indian Tribe of Michigan 747 

Pueblo de Cochiti 1264 

Quintana, Jose, (with attachments) 653 

Ryan, Matt, Former Commissioner, Kitsap County, WA (with attach- 
ments) 1267 

Salt River Pima-Maricopa Indian Community 1286 

Schlosser, Thomas P., Attorney, Hoopa Valley Tribe of California and 

Saginaw Chippewa Indian Tnbe of Michigan 747 

Shaffer, Sue (with attachments) 301 

Shipps, Thomas (newspaper article) 1317 

Shoshone-Bannock Tribes, Fort Hall Reservation 1293 

Sullivan, Jeffrey 95 

Taylor, Bill President, Taylor Shellfish and President Pudget Sound 

Shellfish Growers (with attachments) 108 

Vance, Christopher 77 

Whitefeather, Bobby, Chairman, Red Lake Band of Chippewa Indians 1301 

Williams, Susan, Esquire 193 

Wynne, Mary (with attachments) 319 

Yakama Indian Nation (with attachment) 1309 

Additional material submitted for the record: 

Building Bridges, a resource guide for Tribal/County Intergovernmental 

Cooperation 1492 

Facts on Sovereign Immunity and Tribal Courts 1463 

Miscellaneous letters 1319 

Richards, Sr., Howard D., responses to questions from Senator Campbell . 1315 

Solving Intergovernmental Conflicts, Rudolph C. Ryser 1469 






SOVEREIGN IMMUNITY 

TUESDAY, APRIL 7, 1998 

U.S. Senate, 
Committee on Indian Affairs, 

Seattle, WA 
The committee met, pursuant to notice, at 11 a.m. at the 
Doubletree Guest Suites, 16500 Southcenter Parkway, Seattle, WA, 
Hon. Ben Nighthorse Campbell (chairman of the committee) presid- 
ing. 
Present: Senators Campbell, Inouye, and Gorton. 

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SEN- 
ATOR FROM COLORADO, CHAIRMAN COMMITTEE ON INDIAN 
AFFAHtS 

The Chairman. Good morning. This committee will be in session. 
This committee will be in session. 

This is the second of three hearings on S. 1691 introduced by 
Senator Gorton. Today we will hear testimony from any individuals 
regarding issues — let me start maybe at the last part of my state- 
ment first, and that is this: This is not the U.S. Senate, but it is 
a U.S. Senate hearing, and we expect that the decorum of the U.S. 
Senate hearing to prevail. That means there will be no signs held 
up when we get going. There will be no protesting. There will be 
no protesting in this room for either side. There will be no cheering 
or booing. You can do all of that outside. And if that's not accept- 
able to this group, we will simply recess or adjourn the hearing. 

We're going to do this with the decorum tnat we're supposed to 
according to Senate rules. You have a First Amendment right to 
protest all you want on the issue. Do that outside. You will not do 
that in here. 

And I'll continue. This discussion involves inherent rights of trib- 
al immunity from lawsuits in individual civil and property rights 
to both Indians and non-Indians alike on the reservation. Some 
have alleged that the civil rights of individuals, Indian and non-In- 
dian, are being deprived by tribal governments. The allegations are 
that none of these individuals are with adequate recourse under 
the law because of tribal immunity. 

These allegations include situations involving changes in tribal 
membership and enrollment rules, arbitrary tribal law enforcement 
actions, elections challenges, and other issues. 

In 1968, the Congress enacted the Indian Civil Rights and im- 
posed on tribal governments restrictions on official actions similar 
to those contained in the U.S. Constitution. The Congress recog- 

(1) 



nized financial restraints on tribes and did not require that counsel 
be provided to criminal defendants nor does it require jury trials 
in civil matters. 

In 1978, the U.S. Supreme Court decided in Santa Clara Pueblo 
v. Martinez, holding that the act was unenforceable in Federal 
courts except for writs of habeas corpus. The court observed that 
the tribal court provided a forum where relief could be granted. 

With regards to 1691, section 4 of the bill would amend the Fed- 
eral law to provide Federal courts with jurisdiction in any civil ac- 
tion or claim which arises under the Constitution, laws, or treaties 
of the United States. If enacted, section 4 would legislatively over- 
turn the Santa Clara Pueblo case and would largely eliminate the 
role of tribal courts in these matters. 

In addition, section 7 of S. 1691 would waive tribal immunity for 
purposes of Indian civil rights claims against tribal government. 

Similarly, there are charges that private property rights are 
being deprived by Indian tribal governments, again leaving the in- 
dividuals without legal recourse because of tribal immunity. These 
issues involve access to utilities by non-Indians living on reserva- 
tions, tribal ordinances, and a number of natural resource issues. 

Section 4 of S. 1691 would rule out tribal immunity from suit 
and give Federal courts jurisdiction to civil claims for money dam- 
ages for loss of property. 

As contracts can be considered property, section 4 also provides 
for a waiver of immunity and Federal court jurisdiction in claims 
for damages that involve a contract involving an Indian tribe. 

It is clear that the provisions of S. 1691 constitute wide-sweeping 
fundamental changes in the law involving Indian tribal govern- 
ments. These charges proposed in S. 1691 would unilaterally waive 
the immunity of tribal governments without their consent, dramati- 
cally increase the number of Indian-related cases heard by both 
State and Federal courts, and open the courthouse doors and sub- 
ject Indian tribes to a great deal more of litigation. 

I would hope that somewhere in the middle there is an oppor- 
tunity for increased dialogue with this bill, and I know that we're 
going to hear a few war stories. I like to think that individual war 
stories could be handled without major changes in Federal law. 

But before we begin, I want to reinforce that this is a Senate 
hearing and it will be conducted in that manner. 

And with that, I'd like to turn to Vice Chairman Senator Inouye 
for his opening statement. 

Senator INOUYE. Thank you very much, Mr. Chairman. Looking 
over the crowd and the number of witnesses we have today, first 
I'd like to ask that my full statement be made part of the record. 

The Chairman. No objection. It will be included in the record. 

STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM 
HAWAII, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAHiS 

Senator Inouye. I'm certain that all of us gathered here realize 
that what we are discussing is part of the fundamental law of the 
United States. It concerns sovereignty of our Nation and the sov- 
ereignty of Indian nations. And oftentimes because of equal sov- 
ereignty, there may be some conflict. 



3 

I think we should keep in mind that notwithstanding the opposi- 
tion that one may find in the presentation by Indian nations, our 
nation over the years has conducted ourselves as treaty nations, 
government-to-government relationship. 

We have in our files 800 treaties, treaties very similar to those 
that we enter into with great countries: Germany, with France, 
with Italy, with Japan. On the same basis, our nation has entered 
into treaties with Indian country, 800 of them, very solemn ones, 
many that read: "As long as the sun rises in the east and sets in 
the west, this land will be yours." 

Of the 800 treaties, I'm sorry to report that 430 have never been 
considered. They were just filed away. 370 were ratified by the U.S. 
Senate, and of that number, I'm sorry to report that provisions in 
every one of them have been violated. 

This is not a great record for a great country. We do not wish 
to violate any more provisions in any of these treaties. 

But we are here to listen to you, those who are for and those who 
are against. This is part of the can system. I can assure you that 
I'm prepared if necessary to stay all evening. The chairman has re- 
sponsibilities and he has to leave this afternoon. He has asked me 
to continue presiding over these hearings, and if that be necessary, 
I will be here. 

Every witness on the list will be heard. But I would hope that 
as the chairman has indicated, that you conduct yourself like re- 
spectful American citizens. 

Thank you. 

[Prepared statement of Sen. Inouye appears in appendix.] 

The Chairman. Thank you. 

I would like to reaffirm this is not a football game and we will 
just try and dispense with any of the cheering, booing, any of that. 

Senator Gorton. 

STATEMENT OF HON. SLADE GORTON, U.S. SENATOR FROM 

WASHINGTON 

Senator Gorton. Thank you, 

Mr. Chairman, the question raised by this bill is whether or not 
on the eve of the 21st century there should remain governments 
operating under the American flag and under the jurisdiction of the 
United States that will remain entirely irresponsible for their ac- 
tions, unable to be taken to court by people who feel aggrieved by 
those actions or whether or not that doctrine of immunity from 
lawsuit abandoned almost totally by the United States and by the 
States is not equally an anachronism with respect to Indian tribes. 

The doctrine of sovereign immunity, or immunity from lawsuits, 
is not an Indian doctrine; it's an English common law doctrine 
based on the fact in Medieval England that the king could do no 
wrong and could not be sued. It was adopted by the United States 
with the rest of the common law in 1776 and progressively aban- 
doned in every field except Indian tribes. 

It is not included in any Indian treaty. In fact, it is equally avail- 
able to Indian tribes that are not treaty tribes. The Supreme Court 
of the United States has at least one member who has said that 
it's so anachronistic that it ought to be reversed as unconstitutional 
by action of the Supreme Court itself. The other members of the 



Supreme Court have said that it is a question for Congress to de- 
cide under the Constitution. This bill asks Congress to decide, to 
make exactly that decision. 

At the present time, if the employee of an Indian tribe is engaged 
in an automobile accident, the tribe cannot be sued. If that individ- 
ual were the employee of a county or a city or a State, his or her 
employer could be sued. 

The tribe cannot be sued for an assault that — on an individual 
undertaken by a representative of the tribe. 

And in connection with land use, we have here in the State of 
Washington disputes over the locations of Indian casinos; a theater 
proposal within a few miles of where we are right now; the siting 
of the billboard control acts, again a few miles from where we are 
right now. 

I emphasize that in the case of each of these disputes, I don't 
know whether the ability for aggrieved neighbors to bring lawsuits 
in State or Federal courts would be successful or not. This bill 
doesn't change the law as to whether or not, say, Muckleshoot the- 
ater can be built, but it does offer the opportunity for aggrieved 
neighbors to bring a suit against an Indian tribe exactly as they 
could against a county or a local government if it were engaged in 
that kind of activity. 

The Supreme Court has declared for almost 20 years that trans- 
action taxes between Indians and non-Indians on Indian reserva- 
tions are subject to State taxation. Indian tribes continue to flaunt 
those decisions of the Supreme Court of the United States effec- 
tively because they cannot be sued. 

Finally, of course, one element in this bill deals with the com- 
plaints of members of Indian tribes against their own tribes and 
the protection of their civil rights and it gives minority members 
within the tribe who feel they have been wronged the ability to en- 
force their civil rights in Federal courts exactly as citizens of the 
United States can against the government of United States or 
against the governments of the States and the various municipali- 
ties. 

I emphasize once again that while there are many conflicts relat- 
ing to the substantive law in the relationship between Indians and 
non-Indians, none of those rights, none of those legal obligations, 
are affected by this bill. This bill simply gives individuals who feel 
aggrieved by the action of Indian tribes under the law as it exists 
today, the right to enforce those rights, if indeed they exist in the 
courts of the States and of the United States of America. It gives 
to the people who feel aggrieved the equal protection of the laws 
to whicn they are entitled by the 14th amendment of the Constitu- 
tion. 

The Chairman. Now, before we start with the first panel, I want 
to say one other thing. The testimony I spent almost all day yester- 
day and last night and this morning reading it, some of it is very 
extensive, some running for some witnesses 35 or 40 pages. If you 
divide the number of witnesses we have, which are 20, into the 3- 
hour timeframe, even though the vice chairman has offered to stay 
later, that will tell you that we will not be able to let you simply 
read every word, but every word will be considered ana will be in 
the record for the complete committee. 



These lights up here are to kind of remind you when your time 
is winding down. So if you could at least try and summarize some 
of these very long testimonies and keep it somewhere in about a 
5-minute timeframe, the committee will appreciate that. 

We'll start with panel I, Dan Evans, the former Governor and 
former U.S. Senator from then State of Washington, and Robert 
Anderson, the Counselor of the Secretary, Department of the Inte- 
rior, from Seattle. 

And with that, Governor Evans, just go ahead and proceed at 
your own pace. 

STATEMENT OF DAN EVANS, FORMER GOVERNOR AND 
FORMER U.S. SENATOR, STATE OF WASHINGTON; DANIEL J. 
EVANS ASSOCIATES, SEATTLE, WA 

Mr. Evans. Good morning, Mr. Chairman and distinguished 
members of the committee, and particularly my colleague for many 
years, Senator Gorton, and my colleague and former chairman of 
this committee during the time I had the privilege of acting as Vice 
Chairman, Senator Inouye of Hawaii. 

I serve as Chairman of Daniel J. Evans Associates, a small con- 
sulting firm in Seattle, WA, but I served as the Governor of the 
State of Washington from 1965-77, and as U.S. Senator from 
Washington from 1983-89. I was privileged to serve as a member 
of the Senate Committee on an Indian Affairs during my time in 
the Senate and as a result I suspect I've been on the other side of 
this table more often than on this side. 

My appearance is at the request of the Lummi Tribe but it's also 
voluntary and on my own behalf. I intend to speak on a broader 
perspective than just a single tribe. I'm not a lawyer, I do not in- 
tend to analyze each section of this proposed law, but rather share 
with you the relationships I built with tribes and the tribal leaders 
during the past 40 years of my public life. 

We all tend to forget history. I think it may be helpful to begin 
by reminding citizens that they do have little idea of Indian tribal 
history or the U.S. Government's relationship to tribes. 

As waves of European settlements swept across America, Native 
Americans were viewed as enemies, impediments to progress, or 
simply nuisances to be obliterated. The weight of immigration pre- 
vailed and tribe by tribe, the U.S. Government signed treaties and 
created reservations for Indian survivors of Indian wars. The res- 
ervations set aside were generally of the least productive land, of 
little value to white settlers. They were isolated, and thus difficult 
for the creation of viable industry and infrastructure for reserva- 
tion residents. 

In many respects, the reservations created in the United States 
were similar to the homelands of South Africa, created by the 
apartheid government of that nation for their black subjects. Trea- 
ties and reservation promises were regularly abrogated when they 
inconvenienced settlers and early governments, especially the 
Western States. 

But the signing of treaties did create a special relationship with 
the United States that apparently once again, to some, is proving 
a nuisance to be obliterated. 



6 

The concept of trust relationship and the creation of the Bureau 
of Indians Affairs [BIA] created a dependency of tribes on the Fed- 
eral Government, preventing development of coherent tribal gov- 
ernments in the modern sense. Our Nation in the post World War 
II moved away from reservations toward assimilation and the end 
of reservations. 

During my early years as Governor, both the Nation and the 
State began to recognize the validity of treaties, self-governance, 
and the independence of tribes. The concept of assimilation 
changed to one of building tribal integrity and independence. 

As Governor, I remember vividly the first meeting of the Wash- 
ington State Indian Affairs Commission which I appointed by exec- 
utive authority in 1967. Tribal leaders of the many tribes in Wash- 
ington State gathered and listened solemnly and without expres- 
sion to my initial proposals for closer cooperation and respect. They 
brought with them the century of broken promises and lies which 
represented their previous experience with governmental leaders. 

During the time I was in the Senate, I was proud to be a prime 
sponsor of amendments to the Indian Self-Determination Act which 
we introduced in 1987. The thrust of the measure was to advance 
the ability of tribes to emerge from a BIA-Trustee relationship to 
the creation of modern, independent tribal governments and to 
make their own priority decisions on budgets and programs. And 
I'm pleased that here in Washington State tribes are among the 
first to take advantage of this new law. 

The Lummi Tribe and others have enthusiastically adopted self- 
determination and governance, are building modern police forces, 
economic development measures, and strengthening their intergov- 
ernmental relationships. These new efforts are less than a decade 
old but progress is rapid. 

I believe S. 1691 is a blunt instrument whose effect would be to 
ravage tribal independence at a time when finally, after more than 
a century, Indian tribes have been given an opportunity to create 
modern, independent governments, including responsible court sys- 
tems. Are any changes needed? Perhaps. But relegating tribes to 
a secondary position to the Federal Government, States, and local- 
ities in terms of sovereign immunity is hardly a good place to start. 

I would suggest that in 1993, Congress passed an Indian Tribal 
Justice Act to build a modern tribal court system. The act author- 
ized $57 million for this purpose and not a dime has yet been ap- 
propriated. Full appropriation to build a good tribal court system 
is a far better answer than stealing sovereign immunity. That 
would help build a responsible relationship between two parties to 
treaties wnich have existed for more than a century. 

And I should remind the members of this committee that hun- 
dreds of agreements are signed each year between tribal govern- 
ments and developers, banks, insurance companies, health provid- 
ers, and individuals. In all of these contracts, suitable provisions 
have been reached dealing with the apprehensions of sovereign im- 
munity. As the tribal justice system gains experience and as other 
governments, enterprises, and individual citizens gain respect for 
the independence and integrity of Indian tribes, conflicts should di- 
minish. 



S. 1691, I believe, is a solution seeking a problem which is or 
should be vanishing. I urge this committee to reject this bill and 
instead help provide the leadership to build respect, understanding, 
and friendship between fiercely independent tribal governments 
and the people and the government of the United States. 

The Chairman. Thank you, Governor. 

[Prepared statement of Mr. Evans appears in appendix.] 

The Chairman. Mr. Anderson. 

STATEMENT OF ROBERT ANDERSON, COUNSELOR TO THE 
SECRETARY, DEPARTMENT OF THE INTERIOR, SEATTLE, WA 

Mr. Anderson. Thank you, Mr. Chairman, Mr. Vice Chairman, 
Senator Gorton. 

The Chairman. A little closer. 

Mr. Anderson. How's that? 

Thanks, Mr. Chairman, Vice Chairman, Senator Inouye, and 
Senator Gorton. It's good to see you. 

It's sort of humbling to go after Governor and Senator Evans' 
very articulate remarks that indicate a perspective that the admin- 
istration wholly agrees with. 

I am Robert Anderson, Counselor to the Secretary of the Interior. 
I live here in Seattle, work on a lot of Northwest issues as well as 
national issues. Before coming out here, I was the Associate Solici- 
tor for Indian Affairs in Washington, DC. 

The proposed legislation would provide for a sweeping waiver of 
tribal immunity allowing Federal courts to hear all sorts of actions 
against Indian tribes, under the Indian Civil Rights Act and to ad- 
judicate certain property rights disputes. The administration op- 
poses such a unilateral waiver of tribal immunity. The administra- 
tion supports and recognizes, as the law has for a couple of hun- 
dred years, Indian tribes as one of the three sovereigns within the 
boundaries of the United States. We support the policy of self-de- 
termination and submit that over the past 25 or 30 years, that we 
have been aggressively implementing this policy of self-determina- 
tion, that Indian tribes have made great strides with respect to de- 
velopment of law enforcement, institutions, tribal courts, and other 
institutions within Indian country to address the needs of tribal 
members and non-members alike. We don't think that stripping 
away tribal immunity and thus relegating tribal courts to relatively 
meaningless status would advance or further the cause that Con- 
gress and several administrations, both Republican and Democrat, 
nave supported over the last 30 years. 

Tribal immunity is necessary not only to protect the tribal reve- 
nues, as States and the Federal Government rely on immunity to 
protect their revenues, but also to prohibit undue interference with 
the orderly administration of governmental processes. It's not un- 
known in our modern society for lawyers and those who are dissat- 
isfied with State, Federal, or tribal governments to bring litigation 
simply to tie up action that a party has a right to go forward with. 
Instead of allowing litigation to go forward that would simply delay 
things that people do not like, we submit that the better alter- 
native is government-to-government negotiations. I cite as an ex- 
ample of that out in this region, King County's willingness to sit 
down with the Muckleshoot tribe and negotiate with the tribe over 



various aspects of the amphitheater that the tribe admittedly has 
a right to build. We think that this sort of intergovernmental co- 
operation is essential and a waiver of tribal immunity would sim- 
ply delay negotiations that take place with success and on a wide- 
spread basis now. 

Another example is the Lummi Nation's water-right dispute. 
There has been a sharp dispute over property within Indian coun- 
try of a reservation over the last year. Instead of litigating, the par- 
ties have reached an agreement in principle to resolve this property 
dispute. A waiver of sovereign immunity which exists with respect 
to water rights has simply not had any bearing on that dispute at 
all. 

I'd also like to debunk the notion that individual Indians within 
Indian country are not entitled to the protections of the Bill of 
Rights. The Bill of Rights protects individual Indians from actions 
of State and Federal Governments, respectively, through the Bill of 
Rights directly or through the 14th Amendment. Indian tribes are 
not subject to the Bill of Rights. 

The Indian Civil Rights Act was carefully considered in 1968. 
Congress balanced the interests of tribes and individual members 
and provided for Federal court review in habeas corpus proceedings 
only. 

Likewise, in 1991, the Civil Rights Commission issued a report 
that concluded that it was not advisable to waive tribal immunity 
but, instead, what Congress should do is simply support further de- 
velopment of tribal courts and tribal institutions. 

We are headed down that path. I cited in my written testimony 
a number of cases from the Indian Law Reporter where Indian 
tribes have voluntarily submitted themselves to jurisdiction of their 
tribal courts so that members and nonmembers alike can litigate 
their claims against Indian tribes. 

If anything, I think that Congress should consider engaging 
tribes in a dialog to confirm and clarify the jurisdictional rules 
within Indian country, to confirm, perhaps, tribal jurisdiction over 
members and non-members on fee lands and to engage as part of 
that discussion whether or not some limited Federal court review 
under those circumstances might be advisable. It should be some- 
thing that Indian tribes are actively involved in negotiating. And 
if Congress thinks it appropriate to waive tribal immunity in some 
circumstances, tribes, I think, would be willing to discuss that if 
the quid pro quo were confirmation of tribal jurisdiction over non- 
members on fee lands so that we could avoid the endless litigation 
over when and under what circumstances a tribe has jurisdiction 
over non-Indians on fee lands. 

I'll close with indicating again our opposition to the legislation, 
but express a willingness to discuss all of these issues and ways 
in which we can improve the — the delivery of justice on tribal res- 
ervations for both members and non-members. 

Thank you. 

[Prepared statement of Mr. Anderson appears in appendix.] 

The Chairman. Thank you. Let me just ask maybe a question of 
each of you. 

I just came back from doing a hearing out in California with 
some tribes around Palm Springs and I was amazed at the coopera- 



9 

tion between tribes and the local government in that part of the 
country. I guess all States are different. 

I come from Colorado. We have two land-based tribes, Governor, 
the Southern Utes and Mountain Utes. And although there may be 
some differences of opinion between the local communities and the 
tribes, they've had a terrific working relationship between the 
State and tribes. In fact, in our State, by statute, the Lieutenant 
Governor is the Commissioner of Indian Affairs, and that is the 
only statutory authority that the Lieutenant Governor has in our 
State, to act as a go-between between tribes and the State to iron 
out differences of opinions. 

I wanted to ask you if there were steps that you would rec- 
ommend to Congress to — that would build better relationships with 
tribes so we wouldn't have so much this confrontational and angry 
kind of dialog. 

Mr. Evans. Well, I think that the willingness and the ability to 
treat with respect and equality the leaders of various tribes and 
their negotiations and in their work with the Federal Government 
and the States in which they are located. It's a little bit more com- 
plex in our State, I think, than in yours because we have, I think, 
26 or 27 tribes here in the State. They are scattered; many of them 
small but several with large land bases, and that makes for added 
complexity. 

But I initiated when I was Governor an Indian Affairs Commis- 
sion by executive authority precisely for that reason, to bring to- 
gether this wide variety of interests. And I think we made some 
very substantial progress. And I think believe that's a far better 
way than using a hammer of law. 

The Chairman. Mr. Anderson, let me ask you — I'm not an attor- 
ney, by the way. I guess I'm one of the few left back there that's 
not. I've been blessed. May a person leasing lands from an Indian 
tribe challenge rent increases or cancellation of lease through the 
Department of the Interior? 

Mr. ANDERSON. Yes; they can. There is an elaborate administra- 
tive process that provides for challenges at three different levels 
within the Interior Department, and that action — final agency ac- 
tion — can be challenged in Federal District Court. 

Frequently I get complaints from the other side of the issue that 
people have not made their lease payments and that the BIA was 
not moving quickly enough to get them off the land because of 
these administrative law exhaustion remedies that are available. 

The Chairman. Can non-tribal people — can they bring lawsuits 
at any time a tribe asserts jurisdiction over them? 

Mr. Anderson. They can bring an action under the National 
Farmers Union line of cases to challenge the tribe's actual regu- 
latory authority over them. So if a non-member wants to say, Hey, 
I do not have to be subject to tribal law, they're required in most 
circumstances to proceed through a tribal court proceeding and 
then on to the Federal courts. 

The Chairman. Tribal court and Federal court but not a State 
court. Thank you. 

Senator Inouye. 

Senator Inouye. Governor Evans, in your experience, how would 
the unilateral waiver of the immunity, tribal sovereign immunity, 



10 

impact upon business and commercial relationships that you re- 
ferred to? 

Mr. Evans. Well, think it has to influence it very much. I think 
current law and current circumstances have allowed a wide variety 
of enterprises to be entered in on, and agreements to be reached. 
The Lummi Tribe is proceeding right now on — what could be a 
very, very substantial economic development that they would be 
partners in, and I don't believe that anyone who is involved from 
off the reservation and outside of the tribe believes that the current 
law and the current sovereign immunity is going to keep them 
from moving ahead. I mean, that's up to those who enter into 
agreements to understand what the rules of the game are and to 
make sure that as they enter into agreement, they do it with a 
clear head and clear knowledge of what they're entering into. 

Senator Inouye. Mr. Anderson, if tribal sovereign immunity is 
waived, would the United States as a trustee be a party to legal 
actions brought against the tribes? 

Mr. Anderson. I think we would have to be party to legal ac- 
tions where trust resources were involved, land or water rights or 
other situations where perhaps the United States had some ap- 
proval authority under the various Federal laws. So I think we 
would be drawn into a number of suits. 

I think that in many cases, the tribes would be calling the Inte- 
rior Department for assistance to help them defend lawsuits, 
whether or not we were legally obliged to do that and, I would ex- 
pect that there would be a great deal of political pressure on the 
department to expend resources to provide that sort of assistance 
to Indian tribes if they were being hauled into State and Federal 
courts on a regular basis for actions that they had taken. 

Senator Inouye. Does the United States or your department 
have the resources necessary to litigate these cases? 

Mr. Anderson. No; I can say unequivocally, no. I think the 
amount of litigation that should be brought and could be brought 
would just overwhelm the resources. I don't think the Federal 
courts could handle it either. 

Chief Judge Wallace of the Ninth Circuit just pointed out a cou- 
ple of years ago that the Federal courts could not handle the case- 
load that tribal courts are presently considering and disputes that 
they are resolving. 

Senator Inouye. Do you think the tribes have the necessary re- 
sources? 

Mr. Anderson. No; I don't think so. 

Senator Inouye. Thank you, sir. 

The Chairman. Senator Gorton. 

Senator GORTON. Mr. Anderson, you described a process with re- 
spect to leases on Indian lands pursuant to which the decision of 
the tribal governments could go through three administrative lev- 
els of appeal and the Department of the Interior, did you not? 

Mr. Anderson. I described — it's a decision that the Bureau of In- 
dians Affairs — they are the ones that set the lease. 

Senator Gorton. And then there is — there are three levels of ap- 
peal through the department? 



11 

Mr. Anderson. Actually I think it's a local decision; appeal to 
the area director and then an appeal to the Interior Board of In- 
dian Appeals in Washington, DC, for a final decision. 

Senator Gorton. And if a person feels aggrieved by that deci- 
sion, he or she has the right to go to Federal court? 

Mr. Anderson. That's correct. 

Senator Gorton. Against the Department of the Interior and Bu- 
reau of Indian Affairs? 

Mr. Anderson. That's correct. 

Senator Gorton. Does that mean the United States is not sov- 
ereign? 

Mr. Anderson. No. 

Senator Gorton. Thank you. 

On another question, you pointed out that citizens of the United 
States who feel that their civil rights, their rights under the Bill 
of Rights, have been violated by a State or Federal Government, 
have the right to a civil rights action in the courts of the United 
States. Youve also said that with the exception of habeas corpus 
actions, that right does not apply to an Indian feeling that his 
rights under the Civil Rights Act or the Constitution of the United 
States have been violated by the Indian tribe. I take it it is the po- 
sition of the administration that Indians who feel that their civil 
rights have been violated by their Indian tribes should not have 
the same rights of appeal against that tribe through the courts of 
the United States that all citizens of the United States have 
against their governments. 

Mr. Anderson. In the first instance, the Constitution's limits 
on — limits State and Federal actions, and by its terms the framers 
of the Constitution didn't make those rights applicable to the ac- 
tions of Indian tribes. The administration supports the application 
of the Indian Civil Rights Act in those parts of the Bill of Rights 
that are incorporated into it. And we fund tribal courts to the tune 
of about $20 million a year to assist them in hearing cases. 

Senator Gorton. I think my question was — I think my question 
was pretty simple. My question was, is — the position of the admin- 
istration is that the rights accruing to the citizens of United States 
against the government of the United States or against the States 
should not accrue to Indians feeling aggrieved by the violation of 
the same rights by their tribal governments? 

Mr. Anderson. We support — the administration supports the 
right of individual Indians to bring those cases in tneir tribal 
courts. 

Senator Gorton. But not of the courts of the United States? 

Mr. Anderson. But not the Federal courts. 

Senator GORTON. Thank you very much. 

Senator Evans, is that in your view an appropriate way to defend 
rights, that the Indian shouldn't have the right to challenge — to 
bring a civil rights complaint against his — against his tribe and 
he — even though the tribal government whom he's complaining 
against appoints its courts, that it's quite sufficient for that Indian 
to be subjected to the tribal courts and we shouldn't change the law 
so that a civil rights action could be brought in Federal court? 

Mr. Evans. Certainly that's the place where things should start. 
Whether it should go beyond there or not, I think depends an awful 



12 

lot on whether there is an evil to be corrected and I'm not so sure 
there is. 

Senator Gorton. Thank you, Mr. Chairman. 

The Chairman. I thank both witnesses for appearing today. 

We'll now start panel II, and that will be Christopher Vance, 
Metropolitan King County Commissioners, Kent, WA; Jeffrey Sulli- 
van, Prosecuting Attorney for Yakima County, WA; Miss Jill Jen- 
sen, Co-president, Citizens for Safety and Environment; Bill Tay- 
lor, President of Puget Sound Shellfish Growers Association; and 
Alan Montgomery, Chairman of United Property Owners of Wash- 
ington from Seattle. 

And we'll proceed in that same order that I read your names, if 
you would. And I would also remind you that all of your testimony 
will be included in the record. If you could abbreviate it to about 
5 minutes, we would appreciate it. 

Mr. Vance first. 

STATEMENT OF CHRISTOPHER VANCE, METROPOLITAN KING 
COUNTY COUNCIL MEMBER, KENT, WA 

Mr. Vance. Thank you, Mr. Chairman. 

Mr. Chairman and members of the committee. My name is Chris 
Vance, and I am the Vice Chairman of the Metropolitan King 
County Council. Welcome to King County and to Council District 
13, which I represent. 

I would like to thank you for the opportunity to testify before you 
today on the American Indian Equal Justice Act. I bring to you 
today the perspective of an official of one of the largest local gov- 
ernments in the United States. King is the 12th largest county in 
the Nation, with a population approaching 2 million residents, a 
number that grows year after year. 

We are bordered on the west by Puget Sound and on the east by 
the crest of the Cascade Mountains. King County contains the city 
of Seattle and 37 suburban cities within its extensive metropolitan 
area. In addition, King County is still home to vast tracts of rural 
timber and farmlands. 

King County is also home to Muckleshoot Indian Reservation, a 
portion of which is in my district, to the south of us. The proximity 
of the reservation to the urban core of our State is a source of in- 
creasing controversy and frustration. 

I want to thank and congratulate Senator Gorton for introducing 
this bill and thank the committee for holding this hearing. 

Passage of the American Indian Equal Justice Act would help 
solve many of the conflicts I experience regularly as a local govern- 
ment official. 

Commercial activities, such as casino gambling and the sale of 
cigarettes and fireworks undertaken by the Muckleshoots and other 
tribes have a dramatic effect throughout our county. The things the 
tribes do affect us all, but non-tribal members have no political 
ability to influence those activities. We should at least have what 
this bill offers: the right to go to court and be compensated for 
damages. 

Now another even more important area of local government re- 
sponsibility is being undermined by tribal activity; the area of land 
use planning and the protection of property rights. 



13 

In 1991, as a member of our State House, I participated in the 
passage of the second of two landmark bills which were cumula- 
tively known as the Washington State Growth Management Act. 
This legislation directs all local governments to enact binding com- 
prehensive plans for the expected economic and population growth 
in this State. From 1994 to 1997 I chaired the County Council's 
Growth Management committee, and served on the multi -jurisdic- 
tional Growth Management Planning Council. After years of re- 
search, hearings, debate, and hard work, we were able to adopt a 
set of visionary and bipartisan comprehensive plans and policies for 
King County. As a result, the environment and rural lands are pro- 
tected, yet housing construction and business activity in the urban 
area can continue. 

The plan is law, and citizens who do not comply with that law 
are subject to criminal and civil sanctions. Indian tribes, however, 
assert that even though they have a right to testify and lobby on 
growth management issues — a right they exercise regularly and 
vigorously — the Growth Management Act doesn't apply to them un- 
less they allow it to. In effect, this has created thousands of acres 
of land within King County where the delicate balance of our com- 
prehensive plan has been upset. 

No clearer example of that exists than the 23,000 seat amphi- 
theater being constructed by the Muckleshoot tribe just a few miles 
southeast of here. This massive project is being constructed in the 
middle an area designated agricultural and rural by King County's 
comprehensive plan. In fact, the people of King County voted to tax 
themselves, to raise their property taxes to purchase agricultural 
development rights so this area will be permanently preserved for 
rural and agricultural uses. 

If the amphitheater is built and utilized to the extent that the 
tribe plans, massive — massive traffic jams will occur on two-lane 
rural roads, degradation of the White River will result, and the 
rural character of the land around it will be for forever changed, 
all in direct violation of our adopted plans and policies. 

This project will affect everyone in the region, but it will have 
a devastating impact on the people of the city of Auburn, in my dis- 
trict, and on the Enumclaw Plateau adjacent to the amphitheater. 
They will suffer impassable roads, noise from concerts, and a dra- 
matic decrease in their property values and quality of life. 

And there is absolutely nothing they can do about it. They can't 
vote out the politicians who did this to their neighborhood, they 
can't gather signatures on an initiative, and they can't even sue to 
make themselves whole. The neighboring citizens around the am- 
phitheater can be brought to Federal, superior, or municipal court 
by the Muckleshoots, but the tribe cannot be challenged in those 
same forums, even if the harm occurs off reservation. 

Asking Americans to accept this level of impotence is a violation 
of the basic tenets of our civil culture. And it is simply wrong. 

The American Indian Equal Justice Act will help correct the 
problem. This bill does not challenge a tribe's right to govern itself. 
This bill simply provides those who feel they have been wronged 
by tribal actions with a fair and impartial court of law to settle 
those grievances. 



14 

Tribal leaders demand to be recognized as equal governments, 
and I'm willing to accept that, but they must accept the respon- 
sibility that comes with that status. 

King County — believe me, I know — King County and other local 
governments are frequently taken to court by citizens and the 
tribes. Tribal governments should expect the same if they truly 
want to be regarded as equal governments. When activities on land 
they control hurt others beyond their boundary, they should be 
held responsible for those damages. 

In conclusion, Mr. Chairman, I know this is a difficult and con- 
tentious issue, but the increasing friction generated by tribal ac- 
tions is too significant to ignore. If the tribes continue to refuse to 
voluntarily respect the rights of their neighbors, then those citizens 
need to be allowed to go to court in order to protect themselves. 

Thank you again for the opportunity to testify on this bill. I'd be 
happy to answer any questions you may have. 

[Prepared statement of Mr. Vance appears in appendix.] 

The Chairman. Thank you. 

Mr. Sullivan. 

STATEMENT OF JEFFREY SULLIVAN, PROSECUTING 
ATTORNEY, YAKIMA COUNTY, WA 

Mr. Sullivan. Thank you, Mr. Chairman, Mr. Vice Chairman, 
and Senator Gorton. It's my pleasure to be here. 

I am Jeff Sullivan, Yakima Prosecuting Attorney. I've been the 
elected prosecutor since 1974. 

I believe — that S. 1691, the American Equal Justice Act, should 
be passed. General sovereign immunity as applied to tribal govern- 
ment is wrong and the Congress should act immediately to correct 
it. 

As the committee is aware, many of States have passed laws, as 
we did in Washington, to do away with general sovereign immu- 
nity. In many States, however, it was done by the judges and done 
by judicial fiat. 

In California, Justice Traynor in 1961 said: "After reevaluation 
of the rule of government immunity from tort liability we have con- 
cluded that it must be disregarded — or discarded as mistaken and 
unjust." 

The rule of governmental immunity for tort is without rational 
basis. None of the reasons for its continuance can withstand analy- 
sis. No one defends total governmental immunity. 

In Illinois, the Supreme Court, in 1959, stated it a different way 
in dealing with a school district issue. And quoted — again, as a 
quote from New Mexico and said, as was stated by the one court, 
"The whole doctrine of governmental immunity from liability for 
tort rests upon a rotten foundation." 

On August 2, 1946, after nearly 30 years of congressional consid- 
eration, drafting and redrafting, the Federal Tort Claims Act of 
general applicability was adopted. 

Justice Jackson, writing for the U.S. Supreme Court in Feres lv. 
United States, stated as follows: 

The Tort Claims Act was not an isolated and spontaneous flash of congressional 
generosity. It marks the culmination of a long effort to mitigate — against — unjust 
consequences of sovereign immunity from suit. 



15 

As the Federal Government expanded its activities, its agents caused a multiply- 
ing number of remediless wrongs, wrongs which would have been actionable it in- 
flicted by an individual or corporation but remediless solely because their perpetra- 
tor was an officer or employee of the government.. .The primary purpose of the act 
was to extend a remedy to those who had been without.... 

The same should happen here by passage of this bill. 

The only places where this archaic and, in my opinion, unjust 
and totally indefensible legal maxim exists are on reservations. 
While the United States could abolish this doctrine, it has been re- 
luctant to do so. 

In 1968, with the adoption of the Indian Civil Rights Act, I think 
many people, including many of the tribal members who are here, 
thought that Congress had provided that authority, to redress the 
wrongs in court. However, the U.S. Supreme Court ruled otherwise. 

You can correct that decision. Congress has that right. This as- 
pect of tribal sovereignty like all others is subject to the superior 
and plenary power of Congress, but without congressional author- 
ization the Indian nations are exempt from suit. 

It has been 52 years since Congress passed the Federal Torts 
Claim Act. It has been over 30 years since governments at all lev- 
els in this State have been responsible for their wrongful acts. 

During that time, none of the dire consequences predicted by 
those governments has come to pass. None of them has ceased to 
exist. None of them has gone bankrupt. And while many of them 
have had to buy liability insurance, so nas everyone else. 

Additionally, the advent of liability has made all of us in govern- 
ment more responsive and accountable. Frankly, as an attorney 
who represents local government in this era of shrinking budgets, 
I would love to have sovereign immunity back; however, that would 
not make it right. 

In my experience, the tribal governments of this State and else- 
where ask to be treated as equal governments. They ask that they 
be dealt with on a government-to-government basis; however, they 
want all of the rights and none of the responsibilities. 

I find it inconceivable that the Congress of the United States by 
its inaction, authorizes tribal governments to blatantly destroy the 
civil and property rights of United States citizens. The "king can 
do no wrong^' has no place in the 21st century. The Congress 
should pass the American Indian Equal Justice Act and recognize 
the value and rights of all its citizens. And let me suggest one 
thing that I did not put in my written remarks. Maybe there is a 
middle ground. Maybe the Senate should shoulder the leadership 
in this area, do what the tribes want, fund their courts, and then 
allow an appeal from those courts to the — to the Federal courts of 
this land and the Federal district court and the courts of appeal. 

Think about it. Every decision made by the simplest justice of 
the peace in America can be — that decision can be appealed to the 
U.S. Supreme Court. 

The decisions of the tribal court rule in many cases; there is no 
appeal. And some cases there is an appeal to the tribal council. 
And the cases that do have appeal beyond that, there is no review 
by any other court. 

And so maybe there is a middle ground. 

Thank you. 

[Prepared statement of Mr. Sullivan appears in appendix.] 



16 



The Chairman. Thank you. 
Ms. Jensen. 



STATEMENT OF JILL JENSEN, CO-PRESIDENT, CITIZENS FOR 
SAFETY AND ENVIRONMENT, ENUMCLAW, WA 

Ms. Jensen. Good morning. My name is Jill Jensen, and in addi- 
tion to myself I am here this morning representing my husband, 
Rob, and our three daughters. Together we own a small family 
farm on the rural Enumclaw Plateau, where our children, who are 
active in 4-H, tend their own flock of Suffolk sheep. Soon our old- 
est daughter, Kara, will earn her first license to drive. 

In addition to my family, I'm also before you representing over 
8,500 citizens and 120 local businesses, members of the grass roots 
non-partisan group, Citizens for Safety and Environment. 

We are gravely concerned about the construction of the 23,000 
seat White River amphitheater being built on land owned by the 
Muckleshoot Tribe. We are alarmed because we fear the amphi- 
theater will cause unmanageable traffic jams, intrusive noise lev- 
els, delayed emergency response services, increased trespassing, de- 
stroyed salmon habitat, and eroded property values. 

Who will be responsible when our air becomes polluted by 10,000 
idling cars? When our loved ones are injured on roads ruled by in- 
toxicated concert-goers? When we become prisoners in our homes 
to blaring music and vandalism? These are all valid concerns. 
Under normal circumstances, we would have the means available 
to us; laws, policy, and guidelines, if you will, that would address 
our worries. But because this facility is being built on tribal lands, 
our hands are tied. 

To date, despite many violations of land use, zoning, and regu- 
latory laws, construction continues without comprehensive review 
by King County, the State of Washington, or our Federal Govern- 
ment. CSE has pursued all of the proper channels. We've written 
letters to elected officials, met with county leadership, asked ques- 
tions of all appropriate agencies, and asked to meet with the 
Muckleshoot tribal council. 

We now have 34 separate Federal, State, and local elected offi- 
cials, agencies, and municipalities who have stepped forward ask- 
ing for environmental review. I would like to submit a collection of 
those letters to you today as part of my testimony. 

The Chairman. No objection. They will be included. 

Ms. Jensen. Thank you. 

The Chairman. Any additional information you have will be in- 
cluded. 

Ms. Jensen. Thank you. 

Yet 1 year later, we still do not have an environmental impact 
statement; 1 year later, we are still citizens without representation, 
shut out of our right to due process. 

CSE's goal of environmental review has nothing to do with who 
is building this project. A few years ago local residents successfully 
halted plans by a private developer to construct an amphitheater 
called Diamond Claw. While the community was busy fighting one 
amphitheater, the tribe was busy planning theirs. They already 
knew that opposition existed to their idea. Diamond Claw failed. It 
failed because the legal and environmental policies and laws in 



17 

place which most citizens must abide by fell short. Just as with Di- 
amond Claw, the opposition to the White River amphitheater is a 
land-use issue only. 

The Muckleshoot Tribe has chosen to cloak themselves in a blan- 
ket of sovereign immunity, which means they do not have to follow 
the law. The tribal council entered into this project knowingly 
evading national environmental policy act guidelines. Is this fair? 
Sovereign immunity places the tribe above the law. It limits any 
legal recourse citizens or local governments may have to enforce 
compliance with land-use laws or hold the tribe accountable for any 
negative consequence resulting from this project. Immunity renders 
citizens and government powerless to mitigate, stop, or be com- 
pensated for any damage, no matter how severe or obvious. 

We need a tool in our government-to-government mandated rela- 
tionship which will hold all parties accountable for their decisions. 
Had such policy already been in place, we would most certainly not 
be embroiled in the current amphitheater dilemma. 

I would like to relate to you a story I was told this week by a 
retired employee of a major corporation and that organization's 
age-old decision to stop business transactions with tribal govern- 
ments. Why? Because if there was an occasion of non-payment or 
non-compliance with contracts, the company had no recourse to col- 
lect fees or repossess equipment as immunity protected the tribe. 

No one wins in this situation. Every one loses. In today's complex 
workaday world, we need rules to simplify how business is con- 
ducted. Many tribal governments have become extremely successful 
in their goal of economic self-sufficiency. They are experiencing the 
power that financial success can bring and the excitement of realiz- 
ing the growth and development of their resources. The tribes' fu- 
ture successes should not hinge on past wrongs. It's time for the 
slate to be wiped clean. 

In closing, it is not our group's intent to threaten the 
Muckleshoot Tribe government's right to self-determination. It is 
undeniable that the predicament we and many other communities 
face exist due to a lack of uniform rules and guidelines which all 
U.S. citizens must follow. 

The true benefit of this bill is the guarantee that all citizens will 
have representation, thereby creating accountability and respon- 
sible decisionmaking. 

S. 1691 will ensure that we are good neighbors to one another. 
Let us recognize that everyone in this room is here because we 
have concerns. Everyone here deserves to get answers to their 
questions. Everyone's concerns will be answered if such sound pol- 
icy exists. 

Thank you very much. 

[Prepared statement of Ms. Jensen appears in appendix.] 

The Chairman. Thank you. 

We'll now proceed with Mr. Taylor. 

STATEMENT OF BILL TAYLOR, PRESIDENT, PUGET SOUND 
SHELLFISH GROWERS ASSOCIATION, SHELTON, WA 

Mr. Taylor. Thank you, Mr. Chairman, Mr. Vice Chairman, Sen- 
ator Gorton. 



18 

At 45 minutes after midnight on January 19, 1995, my family's 
beach in southern Puget Sound was invaded by about a dozen 
members of neighboring Indian tribe. As a large part — as a part of 
a larger tribal workforce of 60 to 80 who were digging clams on an 
adjacent State beach, they were accompanied by two armed tribal 
enforcement officers. My foreman, who belongs to that tribe, told 
one of the tribal officers they had no right to be on our property, 
but the officer refused to stop them. In fact, our boundary was 
clearly marked every 10 to 20 feet, but the tribe's diggers ignored 
and even destroyed our markers. They went up to 70 feet onto our 
property, dug 2,000 pounds of clams worth $4,000, and caused 
other damage. 

If my family had not cultivated and seeded that beach, there 
would have been few or no clams there. Instead, our clams were 
much more dense than on the State beach. 

Obviously the tribe sanctioned the event that led to this injury, 
and obviously the tribe allowed it to stand. We asked the tribe for 
reimbursement. To this day, my family has never been com- 
pensated. 

My name is Bill Taylor. I'm a farmer of shellfish. My family has 
grown shellfish on the shores of Puget Sound and Hood Canal for 
four generations. 

I want you to know that my family's always enjoyed good rela- 
tions with our Indian neighbors. We share more than a community 
with the tribe. We hold common values, especially love of our envi- 
ronment. We bear no ill will toward our neighbors. 

The reason we were denied justice is my family and I are merely 
American citizens, and therefore we have no legal recourse against 
the tribe. Congress continues to allow tribes to hide behind an ar- 
chaic concept that no other government than America accepts. That 
legal barrier is absolute sovereign immunity. Elsewhere it is re- 
served to dictators and monarchs. In America it is unjust. 

I'm also President of the Puget Sound Shellfish Growers, a group 
representing about 130 independent businesses, mostly small and 
family-run. 

Mr. Chairman, I understand you appreciate the risks that under- 
lie every farmer's existence. Like ranchers, we risk nature's whims, 
falling prices, rising regulations, and changing tastes. We invest in 
research and we are acquainted with failure. When pollution harms 
our sensitive crops, we have to fight for clean water. As growers, 
our concern with sovereign immunity extends well beyond this loss 
of property. You see, some tidelands my family farms today, and 
many tidelands belonging to our fellow growers, have been in our 
family for generations. 

In fact, when local Indian tribes signed the treaties in the 1850s, 
they agreed to protect the growing shellfish industry with the com- 
mitment that stated: "Provided however, that the tribes shall not 
take from beds staked or cultivated by citizens." 

In 1989, however, without any complaint to us over 130 years, 
several Puget Sound Indian tribes sued under the treaties, claim- 
ing one-half of our shellfish. Since then, we have not known wheth- 
er they are going to keep the shellfish we grow or just some por- 
tion. 



19 

For nearly all of the families who grow shellfish, their entire ex- 
istence is tied up in their beaches in this lawsuit — and in this law- 
suit. Some face total ruin. A principal reason this immense unfair- 
ness was visited upon us after seven generations is because the 
tribes enjoy the legal haven the Congress and every State in Amer- 
ica has rejected as unjust: absolute sovereign immunity. 

We have yet to take our case to U.S. Supreme Court, but if the 
case remains as it stands today, a tribe could demand half of the 
natural background production from my lands. That will force me 
to try to prove what the natural production was before the cultiva- 
tion ever began. This is unfair and an impossible burden. My great- 
grandfather is dead and so is everyone else who might know these 
answers. 

Mr. Chairman, did you ever keep records on the native grasses 
you plowed under? The deer or the antelope your cattle displaced? 
Could you prove to a judge what existed 40 years ago, let alone 
140? Finally, we face future jeopardies that should be equally offen- 
sive to any American. If in the future the tribes can legally sponsor 
a taking of shellfish on our land, but they allow their members to 
take too much or to damage my property again, we cannot sue the 
tribes for compensation. Our lawyers have raised the frightful pos- 
sibility that the tribes could arrest us on our own beaches for alleg- 
edly violating their rights. If they did, would we have no mutual 
recourse against tribes for false arrest for damages? 

Further, only tribes can sue us and not we them to determine 
whether any future business decision of ours is acceptable. They 
can — they can wait another seven generations and tney can sue 
again. 

It is not just us. If they win the shellfish case, they can sue to 
undo the development of tens of thousand of acres of developed 
tidelands, affecting hundreds of thousands of citizens. No citizen 
can bring the issue. 

We respectfully suggest to you that the absolute sovereign immu- 
nity is unwise, unfair, and un-American. Americans do not bow to 
kings, so why do we allow certain citizens the rights of kings? Give 
us all equal access to justice. Let the tribes have the same immu- 
nity that states and Federal Government retain. That is all Sen- 
ator Gorton's bill would do. 

On behalf of all the families whose livelihoods depend on the 
Puget Sound shellfish industry, I urge the committee to support 
Senator Gorton's bill. 

Thank you. 

[Prepared statement of Mr. Taylor appears in appendix.] 

The Chairman. Thank you. 

Mr. Montgomery. 

STATEMENT OF ALAN MONTGOMERY, CHAIRMAN, UNITED 
PROPERTY OWNERS OF WASHINGTON, SEATTLE, WA 

Mr. Montgomery. Good morning, Mr. Chairman and members of 
the committee. 

I'm Alan Montgomery. I'm the Chairman of United Property 
Owners of Washington, which is a group that represents over 
60,000 primarily residential private property owners in Western 
Washington. We are a big group of home owners. 



20 

Some of our members own waterfront private property homes 
many miles from Indian reservations, while others are fee land 
owners whose homes are located within the boundary of an Indian 
reservation, but which are not trust lands or otherwise owned by 
the tribal governments. 

All of our members share the belief that we are entitled as home 
owners to a right of reasonable privacy and security in our homes, 
but we all know that occasionally that privacy and security can be 
violated by governmental action. 

Maybe the most memorable example of that is the occasional 
mistaken police raid on the wrong house that might result in dam- 
ages to the home, perhaps to personal injuries to the innocent occu- 
pants. 

If the negligent government that sponsored that activity is a 
local, State, or Federal Government, then the innocent victim has 
the right to go to court and compel that government to compensate 
him for the damages that it caused. And that comports with our 
modern sense, the public sense, of what the justice system should 
do. If a government does wrong, it ought to make things right. 

Not only does the public see that justice is done, but usually by 
holding the government accountable for wrongdoing, it becomes 
more careful. It reviews its procedures. It takes steps to make sure 
that kind of damage doesn't occur again. 

Most importantly, when the public sees the government becom- 
ing more accountable, then public confidence in that government 
and the trust in and respect for it increases. So it actually 
strengthens the government rather than tearing it down. 

That's why the members of the United Property Owners of Wash- 
ington enthusiastically endorse the passage of S. 1691. Our under- 
standing is that this bill simply applies to tribal governments the 
same standards of fairness and accountability that already apply to 
our local, State, and Federal Governments, as it should be. 

We think there are specifically two situations affecting home 
owners which require the passage of this bill or a bill like it to rea- 
sonably protect home owners' rights. 

The first one relates to the private waterfront property owners 
who are also involved in the shellfish proceeding that Bill Taylor 
described for you. And that case is still ongoing. We don't know yet 
how it's going to turn out. But it may be that private waterfront 
property owners will be compelled involuntarily to open their resi- 
dential properties to tribal governments to exercise recently ex- 
panded shellfish treaty rights. 

That may ultimately involve allowing access down private drive- 
ways, across side yards of private residences to get to the shellfish 
beds that are like the front yards of these waterfront homes. It 
could involve bringing equipment to harvest and transport the 
shellfish from the site. All of these activities increase the risk of 
damage to the homeowner's property and perhaps personal inju- 
ries. If motor vehicles are operated in a negligent fashion, perhaps 
someone could be injured. 

Since these home owners may be compelled involuntarily to have 
this transaction with a tribal government, they need a real viable 
remedy if in fact these kinds of damages occur. Having recourse 
against individual tribal members is not a realistic remedy. First, 



21 

it may be difficult or impossible for a home owner to prove which 
particular individual was responsible for the damage. And even if 
you can prove that, that person may or may not be financially re- 
sponsible, may not have the resources to pay the damages. The 
tribal governments clearly do have the resources to pay those dam- 
ages and in fairness ought to be the ones who pay them because 
they are responsible for organizing and supervising those shellfish 
harvest activities in a safe fashion. 

The other situation relates specifically to the home owners who 
are fee land owners. Their lands are private property. They are not 
trust property, are not subject to jurisdiction of tribal governments, 
yet with increasing frequency some of the tribal governments 
threaten these fee land owners with having utilities shut off, hav- 
ing roads blocked so that they cannot access and use their prop- 
erties. They're even threatened occasionally with what we feel are 
illegal arrest and incarceration simply for using their property in 
a manner that's completely legal under all applicable local, State, 
and Federal laws. 

Those types of activities raise serious questions about violation 
of legal rights and civil rights of these owners, and presently they 
feel they have no adequate remedy to use against it. 

In short, that's why we so strongly endorse the passage of this 
bill. Unless the victims of tribal government wrongdoing have a 
real, viable remedy that can be asserted directly against the offend- 
ing tribal government, it's extremely unlikely that that government 
will ever correct its behavior. 

Thank you. 

[Prepared statement of Mr. Montgomery appears in appendix.] 

The Chairman. Thank you. 

Let me ask a question of each of you. Mr. Vance first. 

Maybe you're the wrong person I'm addressing this to, but I 
thought you might tell me since you spoke at length about damages 
and the — this land that is supposedly being put in place for the 
Muckleshoot amphitheater. 

Do you know if that land was purchased and then put in trust 
or was it — was it always within the reservation boundaries? 

Mr. Vance. My understanding, Mr. Chairman, the land it is 
being built on is so-called fee land purchased and then put into 
trust. 

The Chairman. Was it contiguous to this reservation? 

Mr. Vance. I believe it was. 

Ms. Jensen. Excuse me? May I comment on that? 

The Chairman. Yes. 

Ms. Jensen. The land originally was owned by the tribe. It was 
then allotted off. It was owned for a number of years by a non-In- 
dian member of the community. It was then purchased back, but 
it has not been put into trust status. It is still fee land. 

The Chairman. Mr. Vance, is the — King County party to the ac- 
tion that's being pursued by the Citizens for Safety and Environ- 
ment? 

Mr. Vance. No; unfortunately, Mr. Chairman, my government is 
very divided over this issue. The council members who represent 
the districts surrounding the amphitheater are obviously con- 
cerned. Other council — we're a very big government and other 



22 

members and other politicians farther away from that amphi- 
theater don't share that concern. The executive doesn't share that 
concern. 

So no, they are not. In fact, that's one of the reasons why we 
need this bill, Mr. Chairman, in my view. In this case, the citizens 
were not protected by their elected officials. My understanding — 
and Mr. Sullivan can speak to this — is local governments actually 
have the ability to enact local land-use regulations on so-called fee 
land. Most local governments do that here in the West. King Coun- 
ty chose not to. 

The citizens are actually suing us for not doing that. They are 
also — but they can't sue the tribe. It makes very little sense. 

The Chairman. I see. Thank you. 

Mr. Jensen, in your testimony you suggested there may be some 
type of insurance provided as a way to address claims of the kind 
we're talking about today. Would you elaborate on that just a little 
bit for me. 

Oh, excuse me. That was Mr. Sullivan. I intended that question 
for Bill Jensen. Let me ask Bill Jensen that question. 

Mr. Sullivan. Sure. 

The Chairman. Jill Jensen. I apologize, 80-hour weeks will do 
you. 

Ms. Jensen. I'm sorry. Could you please repeat your question. 

The Chairman. Yes; you talked about some type of insurance 
that might be provided as a way to address the claims that you 
were addressing, did you not? I have that in my notes. 

Ms. Jensen. One of our — one of the ideas is an idea that Mr. Sul- 
livan had previously brought up was the — was the notion of provid- 
ing Federally backed liability coverage so that — for tribes who do 
not have the resources available to them, that they would still have 
that as an opportunity for — for themselves. 

The Chairman. Okay. I apologize. I guess I should have asked 
that of Mr. Sullivan in the first place. 

Let me go back to you. As a county prosecutor, what has your 
relationship been with tribal governments on law enforcement, as 
an example? 

Mr. Sullivan. In the law enforcement area, Mr. Chairman, we 
have a very good relationship. My relationship with the tribal po- 
lice and the tribal council in that area has been very, very good. 
For years, as I indicated initially — I've been the elected prosecutor 
since 1974. 

However, in recent years, as the law changed in Washington and 
we got to the issue of signing mutual aid agreements, which is a 
method by which we all — all local government is trying to share 
the responsibility for law enforcement, we had an indemnity clause 
in all of the mutual aid agreements. And unfortunately, the Yak- 
ima Indian Nation would not sign that agreement, even though we 
had for years cooperated with the joint commissions and those 
kinds of things. But when we asked the tribe to sign this interlocal 
agreement that would say, "We will indemnify you if one of our of- 
ficers in enforcement of county or State law makes a mistake," and 
they refused to do it because they did not want to waive sovereign 
immunity. 



23 

So on the whole, we've got a very good relationship, but this 
issue comes up over and over again. 

The Chairman. Is there a cross-deputization, for instance, of the 
police officers? 

Mr. Sullivan. We did for years, although in recent years we 
have not because of this issue of indemnity and the agreement to 
hold each other harmless. And the tribe's refusal to do that because 
they — in order to do that they would have to voluntarily waive sov- 
ereign immunity and they just don't feel that they want to do that 
and take the risk that they could be sued. 

The Chairman. I'm going to go back to Mrs. Jensen. I'm writing 
notes on everybody's testimony here. 

Did you say that the Muckleshoot development was in violation 
of EPA guidelines? 

Ms. Jensen. No; I did not. 

The Chairman. In violation of EPA? 

Ms. Jensen. The issue for us has been that the land which has 
fee status was — and this is in the words of the Muckleshoot tribal 
attorney lawyer lara Lavi — the land was intentionally not trans- 
ferred into trust status because in doing so, they would be subject 
to all national environmental policy act guidelines. 

And so we don't have the opportunity to see that this project does 
meet those guidelines. 

The Chairman. Okay. Sorry I got that mixed up. 

Mr. Taylor does your land border the reservation or is that State 
land that you lease? 

Mr. Taylor. It is State land. 

The Chairman. It's State land. And there are other owners also 
suffering, as you put it, the same problems? 

Mr. Taylor. I m not sure if there are other owners, that I'm 
aware of, that have similar problems as to what we've had. 

The Chairman. You mentioned you estimated it cost you $4,000 
at one time. Has that been the only time that's happened. 

Mr. Taylor. It's the only time where a number of — a number of 
tribal members — a large number of tribal members crossed over 
the border, tribal — or the property line. 

The Chairman. Thank you. 

And Mr. Montgomery, the extent of tribal rights under the Ste- 
vens Treaty is in litigation; is that right? 

Mr. Montgomery. That's correct. 

The Chairman. Would you have this committee do something be- 
fore the courts rule on the appeal in that case? 

Mr. Montgomery. Not with respect to that case. I think every- 
one has to wait until the appeals are final before anybody knows 
what the next step will be. 

The Chairman. Okay. I think I also heard you say that at one 
time that — that people actually were arrested by tribal police and 
incarcerated and there was a seizure of property. 

Mr. Montgomery. I mentioned situations of fee land owners 
being arrested and incarcerated for using their property under per- 
mits issued by 

The Chairman. Arrested by whom? 

Mr. Montgomery. By tribal police. 

The Chairman. And incarcerated? You also used that word. 



24 

Mr. Montgomery. Yes. 

The Chairman. They incarcerated non-Indians in tribal jails is 
what you are saying? 

Mr. Montgomery. That's exactly right. 

The Chairman. And the what was the seizure of the property? 
Who seized it? 

Mr. Montgomery. There was no seizure of property. The — the 
owner who was operating, I think, a gravel pit under permits 
issued by local government, county government, was told that he 
needed permits from tribal government, and he said, No, I don't, 
I'm not a member of the tribe. You're not my government. I've got 
the proper authority. 

And my understanding was that he was arrested and incarcer- 
ated and had no remedy for that. As far as we know, that was com- 
pletely illegal. 

The Chairman. If you have any documented proof of that, would 
you turn that in to this committee? 

Mr. Montgomery. We certainly will. 

The Chairman. I thank you. 

Senator Inouye. 

Senator Inouye. Thank you. 

The subject matter being discussed is a bit complicated here. 

Mr. Vance and Mr. Sullivan, I presume both of you are lawyers. 

Mr. Vance. No, sir; I'm not. 

Senator Inouye. I'm certain we all agree that tribal lands do not 
own the fee, that the fee is held in trust by the Federal Govern- 
ment. Is that correct? 

Mr. Sullivan. Senator, I don't believe so. Normally when we — 
when we talk about lands on the reservations in the West, pri- 
marily we talk with trust lands which are held in the name of the 
Federal Government in trust for the tribe. And fee lands are those 
lands which — to which a deed has been issued and are owned by 
both tribal members, by non-tribal members, and by the tribe 
itself. Those lands can be freely alienated by each of the people 
who own them, just as you and I own property. 

Senator Inouye. But those lands held in trust by the Federal 
Government cannot be alienated. 

Mr. Sullivan. No; they cannot. That's correct. 

Senator INOUYE. If sovereign immunity is waived, would the 
State cause jurisdiction over these trust lands? 

Mr. Sullivan. I think that if— if sovereign immunity were 
waived, then we would look to the normal rules dealing with juris- 
diction, and the lawsuit would then be brought probably in Federal 
court because that would be of primary Federal interest because 
they are the owner of the property. So the — so if the tribal lands 
were involved — just as if I were to bring an action against the Sen- 
ate of the United States for some reason, I wouldn't be able to 
probably do that in State court; I would have to do it in Federal 
court because of the rules dealing with diversity. 

Senator Inouye. Can you bring it to the Federal court if the Fed- 
eral Government does not waive its sovereignty? 

Mr. Sullivan. We cannot bring any action against any tribal 
government unless the Federal Government waives immunity. The 



Federal Government — we can sue the Federal Government because 
it waived immunity in 1946, but we 

Senator Inouye. If it waives its immunity? 

Mr. Sullivan. If it waives immunity today against the — so that 
the tribal — if the Congress were to allow suits against tribal gov- 
ernment, then we could bring that action in Federal court as soon 
as the — as soon as the President signed the bill. 

Senator Inouye. Is the Muckleshoot tribal lands trust lands? 

Mr. Vance. Senator, we dealt with that in the earlier question. 
The land that is actually being built is on fee land, not trust land. 

Senator Inouye. Who holds — you mean the — the Government of 
the United States is not a trustee to those lands? 

Mr. Vance. It's a different status: Fee land versus trust land. 

Senator Inouye. But if they were trust lands, could you sue the 
Federal Government? 

Mr. Vance. Not presently. Under the bill I think we could. 

Senator Inouye. Even under the bill, could you? 

Mr. Vance. Yes. 

Senator Inouye. You can if the Federal Government should 
waive its sovereign immunity. 

Mr. Vance. The Federal Government has waived sovereign im- 
munity long ago. 

Senator Inouye. Against the Muckleshoot land? 

Mr. Vance. No, no, no. That's the point of the bill. 

Senator Inouye. Would the State of Washington be able to exer- 
cise jurisdiction over military lands, Mr. Jensen — Mr. Sullivan? 

Mr. Sullivan. The State of Washington does not exercise juris- 
diction over military lands, although there are limited instances in 
which we have some control. The military, for example, with re- 
spect to death investigation — I have a large military reservation in 
my county in which 

Senator Inouye. With an agreement? 

Mr. Sullivan. Well, I'm not sure it's with agreement. The fact 
is that there is no ability. The death investigation within the State 
of Washington is done by the county coroners and there is no equal 
entity within the Federal Government. 

But for the most part, you're correct. We have no jurisdiction 
over the Indian — excuse me — over the Federal reservations that 
are owned by the Federal Government. 

Senator Inouye. Yakima County has a cooperative arrangement 
with the Yakima Tribes or law enforcement; isn't that correct? 

Mr. Sullivan. That's correct. 

Senator Inouye. Do you have any problems that you would need 
a waiver of sovereign immunity to carryout this agreement? 

Mr. Sullivan. Yes; right now my sheriff is — is refusing to sign 
the mutual aid agreement which we've had for a number of years 
because of the tribe's refusal to sign the indemnity agreement. We 
have had a number of operations in which there were joint oper- 
ations with the sheriff and the tribal police acting in concert in 
good law enforcement. And — and then what happened — and then 
the citizen who feels aggrieved because they didn't think that we 
did it the right way has brought suit against Yakima County. The 
tribe has said, Oh, well, we can't be sued. So they're immediately 
out of the suit and we're left with the entire responsibility for the 



26 

liability if the decision by that tribal officer is wrong, when the au- 
thority is given to him by the sheriff. And so under that basis, 
we're now having a problem where we didn't have it for a number 
of years. 

All we're saying is if you do away with immunity, then the tribal 
government is on the same plane and has the same responsibility 
for its actions as Yakima County does and its employees. And we 
just think it's a fairness issue as it relates to law enforcement 
throughout the entire Nation, just not in our county. 

Senator Inouye. Coming back to the initial question. If you are 
hoping to sue lands held in trust by the United States reservation 
lands, you would have to get the government of the United States 
to waive its sovereign immunity; isn't that correct? 

Mr. Sullivan. I think it's two separate issues. The Federal Gov- 
ernment has already waived its immunity and if we could find that 
the primary responsibility is with the Federal Government as op- 
posed to tribal government, I think we could sue today. We could 
sue the Federal Government as it relates to the actions it takes. 
But to actually be able to execute on the land, for example, which 
are now held in trust, yes, I think that we would have to have this 
bill passed. 

And so it's clear that sovereign immunity has been waived in 
order for us to be able to bring an action at least — not necessarily 
to bring action against the government but to execute against the 
Federal — these lands. 

Senator Inouye. Well, will this bill waive the sovereign immu- 
nity of the U.S. Government? 

Mr. Sullivan. Well, again, I think that — in some respects to the 
extent that they are able to stand in the place of the tribe, yes. I 
can't think of a circumstance in which that will happen, but I think 
that's possible. 

Senator Inouye. So it will not. 

Mr. Montgomery, you have posed the specter that Indian tribes 
are going to have the right to come on private lands to harvest 
shellfish and they may be — there may be significant damage to pri- 
vate property, but is it true that the District Court has specifically 
ruled that tribes cannot come on or to cross private property with- 
out consent of the owner? 

Mr. Montgomery. That's the posture of the case right now, but 
that issue has been consistently appealed by the tribes. And I think 
all parties to this suit expect it to be appealed to and ultimately 
decided by the U.S. Supreme Court. 

Senator Inouye. So you are suggesting that even in this period 
they are crossing your lands? 

Mr. Montgomery. Not during this period because — because the 
present ruling at the Ninth Circuit Court of Appeals level would 
only give them the right to do that if a hearing — if it was preceded 
by a hearing in which they demonstrated there was a need for it. 

Senator Inouye. In other words, at this moment you are not suf- 
fering any damage? 

Mr. Montgomery. I think generally that is true. 

Let me qualify that by saying the access to shellfish beds can be 
inherently damaging to property because you dig for clams and if 
the holes that you dig are not properly restored, the shellfish bed 



27 

can look like a moonscape with craters in it and be effectively de- 
stroyed for future cultivation. 

So those types of damages are right now a real issue for tideland 
owners. 

Senator Inouye. Mr. Taylor, you have referred to the uncertainty 
of what tribal rights are as they refer to shellfish. Isn't it true that 
the District Court has ruled that the tribes do not have the right 
to harvest shellfish you have cultivated? 

Mr. Taylor. That again is — the tribe — or the court has said that 
those shellfish that are on our property that are from our efforts, 
the tribe does not have rights to harvest at the present time. How- 
ever, those shellfish that were there as a natural background prior 
to beginning cultivation, that they do have rights to those shellfish. 

Senator Inouye. There is no uncertainty as to the rights, then? 

Mr. Taylor. I wish it was — I wish it was very clear-cut. The 
problem is that a lot of these lands were taken up over 100 years 
ago. There was no records taken at that time, or at least that I am 
aware of, as to what was on those beds. We're being asked — or told 
by the court that we have to go back and prove what existed at 
that time. I don't have at this point in time any way to do that or 
do I know anyone that can to come up with what was actually 
there for shellfish, if there was any at that time. So it's one of those 
things that time has gone by and there has been no — no one has 
said anything and we've continued in our businesses for 100 years 
or longer. 

Senator Inouye. But before you began your cultivation, the 
tribes had rights to take shellfish; isn't that correct. 

Mr. Taylor. You know, when — when the beds were taken up, no 
one — no one said anything whether it was tribal members or — or 
anyone — any other officials. We were allowed to go in, work the 
beds, farm the beds. We've done that, taken care of them, you 
know, killed predators, fought — had lawsuits over pollution. Farms 
seeded the beds, you know, done numerous activities for 100 years. 
In many cases changed those beds substantially from their natural 
condition. We've put gravel on them. We've diked them. We've done 
numerous things. And at this time, you know, it's difficult for us 
to go back and resurrect what would have been there — what was 
an actual background 100 or 140 years ago. 

Senator Inouye. Are Indians harvesting your cultivated shell- 
fish? 

Mr. Taylor. Not outside of the incident that I related to you. 
They have not been harvesting cultivated shellfish on — on growers' 
properties at this time. 

Senator Inouye. So the ruling of the District Court brings about 
certainty as to your rights, then? 

Mr. Taylor. I would — I would not say that I feel a lot of cer- 
tainty at this point in time. Trying to determine what this back- 
ground amount is and trying to determine then what rights the 
tribes have. If you have crops also besides the — we oftentimes grow 
a couple of crops; where there might be a crop of oysters, say, on 
top of a crop of clams that is underlying that bed. 

It's — it's difficult to say who has the rights, who has the — the 
right to those shellfish and at what time they have the right to 



28 

those shellfish. And those are things that obviously will have to be 
worked out through the courts. 

Senator Inouye. Isn't the court trying to do that now? 

Mr. Taylor. We're still in the — we're in the appeals phase, Ninth 
Circuit. I — this is something that will probably end up having to 
be done through some implementation portion of the lawsuit. 

Senator Inouye. So you've been able to do this even without the 
waiver of sovereign immunity? 

Mr. Taylor. Can you repeat that again, please? 

The Chairman. Please, now, let's not have the applause, please. 

Mr. Taylor. Can you repeat the question again? 

Senator INOUYE. You've been able to go to the district court and 
now to the Ninth Circuit without tribes waiving the sovereign im- 
munity. 

Mr. Taylor. Yes; I understand your question now. 

Yes; actually I'm a defendant in the case. We actually — we — we — 
in fact, we were very concerned because we weren't — the State 
didn't have a very good record winning lawsuits against the tribes. 
And so as growers, we were very concerned that our rights — what 
will happen to our rights. And so we went in — I can't remember the 
word, but we went in and applied to the court for standing in the 
court and were granted that. 

Senator Inouye. Thank you, Mr. Chairman. 

The Chairman. Senator Gorton. 

Senator Gorton. You were a defendant in the lawsuit? It wasn't 
one that you brought, isn't it? 

Mr. Taylor. That's right. 

Senator Gorton. But when you had the invasion of your prop- 
erty, you couldn't sue the tribe? 

Mr. Taylor. We — no, we couldn't. 

Senator Gorton. Did — Mr. Chairman, with all respect to my 
longtime friend Jeffrey Sullivan, I think I can answer Senator 
Inouye's question perhaps a little more clearly than he did. The 
United States has waived its sovereign immunity, as he pointed 
out. You can sue the United States for all kinds of things. People 
do that every day. They get judgments against the United States 
every day, but they can't enforce those judgments by seizing the 
Washington Monument. 

And if this bill were to pass, an individual could sue the Yakima 
Indian Nation. Mr. Sullivan could under certain circumstances, but 
he couldn't enforce the judgment by seizing trust land. He would 
have to have the judgment satisfied in some other fashion. The 
ability to bring the lawsuit is separate from the way in which any 
judgment could be enforced. And this bill would no more give him 
the right to seize trust land than the Tort Claims Act gives a citi- 
zen the right to seize the Washington Monument. 

A question for both Mr. Vance and Ms. Jensen. I trust you were 
deeply comforted by the remarks of the representative of the Sec- 
retary of the Interior that you had all of the rights that you needed 
because certain negotiations are — are now going on involving the 
tribe and the county. 

Mr. Vance. Senator, I wish I could say I was comforted. To my 
knowledge, there are no meaningful negotiations going on. Negotia- 
tions imply that both sides are dealing with each other as equals 



29 

to mitigate impacts as to whether or not the amphitheater is going 
to be built. I think what County Executive Simms is negotiating 
with the tribes is terms of surrender. There's no real negotiations 
going on that any of the citizens groups are a party to or know any- 
thing about. 

And the fact about this project is its very existence is such a total 
violation of the Growth Management Act and King County's adopt- 
ed plans and policies, you can't mitigate the impacts. The only 
way — one example, the only way to mitigate the traffic impact, 
under our Growth Management Act projects are not allowed to go 
forward until they get a certificate of concurrence demonstrating 
that the road network is sufficient to handle the traffic generated. 
Basic law of land-use planning. 

The only way to mitigate the traffic would be widen Highway 164 
which leads to the amphitheater. Highway 164 goes through the 
rural area. It is a violation of the Growth Management Act and 
King County's adopted plans and policies to have a road at urban 
standards going through the rural care. Therefore, it's absolutely 
impossible to mitigate the traffic impacts of the amphitheater. 
There is nothing to negotiate. The amphitheater is a total, blatant 
violation of the adopted State Growth Management Act and King 
County's plans and policies. 

County Executive Sims' so-called negotiations are nothing but 
window dressing and trying to keep a campaign promise he made 
before the election. 

Senator Gorton. Mrs. Jensen, your group is not a part of those 
negotiations? 

Ms. Jensen. That's correct. I would like to say that our group 
went before the King County Council on five separate occasions 
starting last June. We were promised right before Mr. Sims' elec- 
tion that we would become a part of that negotiating process. The 
day after the election, we have not heard from him since and we 
are very upset about that. 

Senator Gorton. I want to get — a little more narrow. Your group 
is not a part of any negotiations at this point? 

Ms. Jensen. The point is that, no, we are not and those promises 
have been broken. Currently he's working on plans to do — to pro- 
tect the salmon habitat and yet this project has had a landslide on 
it that has blocked a salmon-bearing stream. So on the one hand, 
where he's working diligently to try to save the White River, land- 
slides are destroying it. 

He has also stated publicly that he wants the amphitheater to 
be put in place and that the goal is to mitigate the problems later. 

Senator Gorton. Excuse me. My point is a somewhat different 
one. You're not a part of those negotiations? 

Ms. Jensen. Absolutely not. 

Senator Gorton. You cannot sue the tribes for any violations of 
law you think may exist. And so you aren't particularly comforted, 
I take it, by the statement of the person who works for your gov- 
ernment of the United States and the Department of the Interior 
that everything is really okay and you don't need any additional 
rights. You don't take a great deal of comfort from that statement, 
I gather. 

Ms. Jensen. No; I do not. 



47.001 OS . -> 



30 

Senator Gorton. Thank you. 

Mr. Sullivan, just wanted to make it very clear. You as the rep- 
resentative, the legal representative of Yakima County, defend nu- 
merous lawsuits brought against Yakima County by citizens of 
your county and elsewhere, I take it. 

Mr. Sullivan. That's correct. 

Senator Gorton. And you've been sued by members of the Yak- 
ima Tribe and I suspect by the tribe itself on occasion, have you 
not? 

Mr. Sullivan. We have, yes, sir. 

Senator Gorton. But you cannot sue the tribe? 

Mr. Sullivan. No; we cannot. 

Senator Gorton. And that's what this bill is designed to accom- 
plish, an even playing field. 

Mr. Sullivan. This bill is designed to a accomplish that on be- 
half of individual citizens and on behalf of the county and both 
members and non-members of the tribe. It will allow them to ad- 
dress the violations of their civil rights in a court of law. 

Senator Gorton. Mr. Montgomery, let's assume that ultimately 
the Supreme Court in this shellfish lawsuit determines that Indi- 
ans have no right to access to tidelands over the uplands, over 
the — the drylands. 

Well, let's assume that. Then that is the situation through the 
Ninth Circuit, is it not? 

Mr. Montgomery. That's correct. 

Senator GORTON. And let's assume that that set of rights is vio- 
lated consciously by representatives of one of the Indian tribes. 

What recourse would you have to enforce a right granted to you 
by the Supreme Court? 

Mr. Montgomery. I don't feel that we obviously would have any 
legal recourse against the tribal governments, but perhaps if the 
Supreme Court rules that that is not a right that is a treaty right, 
we can enforce State trespass laws by calling our local sheriffs and 
asking for their protection. 

Senator Gorton. But you would not be able to sue the tribe to— 
and enjoin it from preventing or authorizing its members to go on 
the property. 

Mr. Montgomery. That's right. And in many of our members' 
situations, they may be 50 miles from the closest law enforcement, 
so the — they are effectively denied any remedy unless they can pre- 
vent the — the occurrence at the time, but they can't do anything 
about it after the fact. 

Senator Gorton. Okay. Thank you. 

I thank you, Mr. Chairman. 

The Chairman. Okay. I thank this committee very much. I ap- 
preciate your appearing. 

We'll now go to Panel II-B: Jose Quintana, Town Manager, Town 
of Ignacio, Ignacio, CO; Clement Frost, Chairman, Southern Ute 
Tribe of Ignacio; Henry Cagey, Chairman of the Lummi Indian Na- 
tion, Bellingham, WA; Susan Williams, Esq., Williams and Janov, 
Albuquerque, NM; and Joe DeLaCruz, Former President of 
Quinault Indian Nation. 

If you could come and take your seats to where the other commit- 
tees^ — they can sit anywhere they want, but I'd like to start in the 






31 

order — first Mr. Quintana, then Clement Frost, then Henry Cagey, 
then Miss Williams, and then Joe DeLaCruz last. You can speak 
in that order, but you can sit anywhere you want. 

I take it Chairman Frost did not come. 

As with the other panels, all of your testimony will be included 
in the record. If you could keep your verbal comments to down 
somewhere around 5 minutes or so, just summarize them, we 
would appreciate it. 

We'll start with Jose. 

STATEMENT OF JOSE QUINTANA, TOWN MANAGER, TOWN OF 
IGNACIO, COLORADO 

Mr. Quintana. Thank you, Chairman Campbell. 

With me today is Mayor Jihardo Silva. We have checked with 
your staff and we're kind of probably going away from protocol 
somewhat. And he brought you a little gift that he'd like to present 
to you. We believe it reflects the makeup of the community very ac- 
curately, and it's just a very simple gift of appreciation for you al- 
lowing us here today. 

Mr. Silva. Good morning, Senators. Just a few seconds and then 
we'll turn it over to the Town Manager. But I just wanted to give 
you these shirts as a quick symbol to show you how our unity for 
97 years has been through the community of the town of Ignacio 
with the government of the Southern Ute Tribe also working to- 
gether for the past 97 years and we look for working together with 
the tribe into a peaceful solution and to live together and work in 
harmony for the next 97 years and beyond. 

The Chairman. We will probably have to leave those there. I 
don't know, frankly, the rules of the Senate hearing, but I have a 
hunch that receiving gifts, even if it's a T-shirt, in a Senate is prob- 
ably inappropriate. 

Mr. Silva. Okay, Mr. Chairman. We wondered about that. 

Mr. Campbell. Well, I'll just rule on that, but thank you very 
much. 

Mr. Quintana. Thank you, Senator. 

Good afternoon, Chairman Campbell, Senator Inouye, Senator 
Gorton. 

With me today, as I said, is Mayor Silva and Town Attorney, 
Dirk Nelson. My name is Jose Quintana. I'm the Town Manager. 
Mr. Chairman, you know me as Belty. I'm the Town Manager of 
the town of Ignacio. 

Chairman Campbell, on behalf of the town of Ignacio, Mr. Silva 
and I would like to thank the committee for affording us the oppor- 
tunity to testify before you today. 

The town of Ignacio was incorporated in 1913 and it's surrounded 
by lands of the Southern Ute Tribe in Southwestern Colorado. 

Our Native American neighbors are a very important part of our 
largely tri-ethnic community and we value their numerous con- 
tributions to our community. 

For the most part, over the past many years we've been able to 
work local agreements between the town and the local government. 
Recently, however, we're facing problems associated with the doc- 
trines of Native American Government immunity. 



The Chairman. Pull that microphone over a little closer, will you, 
please? 

Mr. QuiNTANA. That negatively impacts our town in relations 
with our neighbors. We do not believe that the tribe is doing any- 
thing that is not within what is allowed by law, but we believe that 
the field is tilted to favor them, a very rich and powerful nation. 

Living on a ranch as you do, Senator Campbell, I know you un- 
derstand the saying, "good fences make good neighbors." 

We are before you today asking that you work toward developing 
public policy that would serve to assist our two communities to bet- 
ter work together. 

Mr. Chairman, we are citizens of the town of Ignacio in the State 
of Colorado. We are also citizens of the United States of America. 
The majority of our fellow citizens support self-government and 
self-determination for our neighbors in the Southern Ute Tribe. We 
also believe that while being citizens of other tribes, our neighbors 
should be citizens of America and if they live within the boundaries 
of State of Colorado and our town, should be citizens of those two 
entities as well. 

We also understand that developing a clear, concise policy which 
is equitable to all concerned will not be an easy task. While as a 
Nation we have been committed to the general concept of Native 
American sovereignty, the Supreme Court has struggled to define 
the concept for over 170 years. 

Beginning with the era of Chief Justice John Marshall, the guid- 
ing principles of the Marshall trilogy, have resulted in a paradox 
of tribal sovereignty. The U.S. Government recognizes American 
tribes as sovereign nations, but the U.S. Congress is recognized as 
having the right to limit the powers of sovereignty. 

Because of this paradox, the rights and responsibilities of the 
town and tribe are not always clear and workable in a manner 
which promotes good relations. Some examples of problem areas 
are: No. 1, land acquisition by a tribe and put into the U.S. Gov- 
ernment trust. This action not only serves to remove land from 
local property tax rolls and land-use requirements, but also opens 
the door for U.S. Government representation on the part of the 
tribe, which further unevens the field when a grievance surfaces 
between the tribe and small local governments such as ours. 

No. 2, jurisdiction. When laws are violated within the boundaries 
of our town and we are compelled to treat individuals different, it 
becomes next to impossible to have equal justice. Tribal court does 
not recognize our police officers as officers under their judicial sys- 
tem. There is no requirement for tribal members to have auto- 
mobile liability insurance even when driving on State highways 
within the exterior boundaries of the reservation. 

The revocation of a driver's license is also an issue which consist- 
ently draws the communities apart. The lower State court has 
ruled that Ignacio officers have no legal right to stop a tribal mem- 
ber for a traffic infraction in Ignacio. Thus probable cause for stop- 
ping tribal members which could be involved in more serious crime 
is effectively eliminated. 

We have submitted additional written testimony with your staff 
which more further — which further explains our concerns. And we 
would be glad to answer any questions that you may have. 



33 

[Prepared statement of Mr. Quintana appears in appendix.] 

The Chairman. Your complete testimony will be included in the 

record. 
For the record, since you're speaking for Chairman Frost, will 

you identify yourself by your full name for the record. 

STATEMENT OF HOWARD RICHARDS, ON BEHALF OF CLEM- 
ENT FROST, CHAHIMAN, SOUTHERN UTE TRD3E, IGNACIO, 
CO 

Mr. Richards. Mr. Chairman and members of the committee. I'm 
Howard Richards, Council Member with the Southern Ute Indian 
Tribe of the Southern Ute Indian Reservation, speaking on behalf 
of Mr. Clement Frost, who turned ill yesterday and could not take 
part in the testimony. We appreciate your invitation to participate 
in these proceedings and hope that will assist the committee. You 
have requested that I address civil rights and property rights in In- 
dian country. In doing so I must call upon my own experience and 
that of my tribe. 

Our reservation is a checkerboarded reservation consisting of ap- 
proximately 700,000 acres in Southwest Colorado. Almost one-half 
of the reservation is owned by the United States in trust for the 
tribe. Additionally, we own several mineral estates reserved in pat- 
ents issued by the United States to homesteaders between 1909 
and 1938. Because of the landownership patterns, non-Indians are 
often close neighbors of members of my tribe. 

The small town of Ignacio, which is a tri-ethic community of His- 
panics, Anglos, and Utes, is located within the reservation not far 
from my tribal headquarters. 

For many years members of our tribe and other members of the 
community lived in harmony, attended public schools together, 
helped one another, and respected each other. For a number of rea- 
sons, our relationships have become strained. Respect has been re- 
placed by resentment. Mutual concern for one another has often 
turned to distrust and suspicion. As a person and as a tribal lead- 
er, I'm saddened by the increasing tensions that continue to grow. 
While many Indians and non-Indians seek to save the cooperative 
spirit of the past, racism and ethnic division are spreading on all 
sides. Racism is evil and destructive. It is born in ignorance and 
nurtured by fear and greed. 

One factor leading to the decline in our relationships has been 
the tribe's success. With the frequent encouragement of Congress, 
we have actively pursued economic improvement. Where 25 years 
ago we were poor, we have taken advantage of the energy resources 
underlying our lands. Today the tribe's payroll exceeds that of any 
other employer in La Plata and Archuleta Counties. We employ al- 
most 1,000 residents of the Four Corners. Our tribally owned natu- 
ral gas company is the fourth largest producer in the State of Colo- 
rado. In partnership with KN Energy, we are the majority owner 
of a gas-gathering and treating system that collects and transports 
natural gas from hundreds of wells located within our reservation. 

While energy-related revenues account for more than 90 percent 
of our annual general fund, we also receive revenues from a small 
casino which we own and manage in accordance with our compact 
with the State of Colorado. 



34 

We are proud of our accomplishments and have a right to be. 
This committee should also take pride in our accomplishments. Our 
success, however, has also fostered jealousy and envy by area resi- 
dents who do not understand the barriers we faced in reaching our 
goals and objectives. They liked us better when we were poor. 

In 1972, Congress passed legislation authorizing our tribes to sell 
land and to purchase lands within our reservation. Under that law, 
purchased lands are to be titled in the name of the United States 
in trust for the tribe. Increased tribal revenues have permitted us 
to make occasional purchases of reservation land. While initially 
purchased by the tribe in its own name, we have followed proce- 
dures set forth under Federal regulations to have the lands taken 
into trust. Acquired lands have been used for a variety of purposes, 
including expansion of educational programs and other facilities 
that have served not only our tribal members but other residents 
as well. 

Fueled by concern that these few purchases signal reacquisition 
of the entire reservation, local officials feared that we would be de- 
stroying the local property tax base. In response to those fears and 
in settlement of litigation regarding taxation, in 1996 we nego- 
tiated a taxation compact with the State of Colorado and the coun- 
ty government. Under the compact our tribe agreed to make volun- 
teer contribution to the county government to help offset negative 
tax consequences associated with our purchases. The lost tax reve- 
nue associated with our acquired tracts is less than $5,000 per year 
in a county with an annual operating budget of more than $30 mil- 
lion. 

More significant but seldom mentioned is a fact that energy-re- 
lated tax revenue derived from tribal lands provides La Plata 
County with approximately one-fourth of its annual tax revenue. 

The fear that the tribe will reacquire all lands within the res- 
ervation are grossly exaggerated. As a chairman of the committee 
will attest, many non-Ute residents within the reservation have no 
interest in selling their lands, and we certainly cannot force them 
to do so. Yet acquisition of five small tracts of land within a town 
of Ignacio and their placement into trust has spurred a panic 
among town officials who have appealed to the Interior Board of In- 
dian Appeals. 

As elected leaders of our tribe, we hear from and listen to our 
tribal member constituents. Over the past 2 years, we have heard 
repeated allegations of excessive force against our tribal members 
by town police officers. Those reports include assertions that offi- 
cers beat tribal members and in some cases held loaded revolvers 
against the heads of members already restrained by handcuffs. The 
allegations were frequent and appeared to be verified by witnesses. 
We met with town officials and proposed creation of a citizen re- 
view panel to investigate complaints of police abuse brought 
against town and tribal police. Our suggestions were rejected yet 
the allegations persisted. 

We support law and order, but there is nothing more damaging 
to community relationship than repeated police brutality. In order 
to end those abuses, we authorized our attorney to file a lawsuit 
against officials and officers of the town for civil rights violations. 
The filing of that lawsuit has further widened the gulf between In- 



35 

dian and non-Indian citizens in our area. We make no apology for 
filing the lawsuit. However, we remain hopeful that the lawsuit 
will be settled in a manner that will provide all citizens, Indian 
and non-Indians alike, with the assurances that town police are not 
above the law and are there to serve and protect all members of 
the public. 

Because of the checkerboarded nature of our reservation, juris- 
diction is complex. In an effort to help remove some of that confu- 
sion, we have worked with State and local officials to resolve issues 
that have led to lengthy litigation on other checkerboarded reserva- 
tions. The compromises we reached were approved by Congress in 
1984, with the enactment of Public Law 98-290. That Act con- 
firmed the boundaries of our reservation, disclaimed tribal jurisdic- 
tion over non-Indians and on non-Indian lands, and confirmed the 
town of Ignacio's criminal jurisdiction over tribal members. 

New town officials who have moved to Ignacio from other States 
do not understand the long and complex history that 

The Chairman. I need you to start summarizing here. 

Mr. Richards. [continuing]. Led to the legislative compromise. 
We hope that our presence here today will mark a new day in our 
relationship with a town in which constructive discussion can re- 
place litigation. 

And in conclusion, our governmental status as an Indian tribe is 
very important to us. We intend to maintain our tradition and our 
differences. We have been promised those rights and have earned 
them. For our sake and the sake of our children, our differences 
should be respected and not serve as the basis for hatred or jeal- 
ousy. 

I hope that the committee will not turn its back on the promises 
they have made to the Indian people. Our sovereignty should not 
be diminished. At the same time, however, we will remain willing 
to discuss ways in which the rights and expectations of non-Indians 
can be accommodated without sacrifice of our governmental status. 

Again, we thank you for the opportunity to appear before you 
today, Mr. Chair, Vice Chair, Mr. Gorton, and I will be happy to 
answer any questions. 

[Prepared statement of Mr. Frost appears in appendix.] 

The Chairman. Thank you. 

Mr. Cagey. 

STATEMENT OF HENRY CAGEY, CHAIRMAN, LUMMI INDIAN 
NATION, BELLINGHAM, WA 

Mr. Cagey. Thank you, Mr. Chairman. My name is Henry Cagey, 
Chairman of the Lummi Nation, and also President of Affiliated 
Tribes and Northwest Indians. 

We'd like to present our views on S. 1691. And for the record, 
the Lummi Nation opposes this bill and feels that there has to be 
other solutions and remedies for this committee to look at before 
this bill is even considered to go forward. 

Let me begin by explaining to the committee that the — that the 
Lummi Nation signed the Point Elliot treaty in 1855. And in the 
early 1960's and 1970's, over half of the reservation was lost to 
non-Indians. For the last few years now the reservation — the tribe 
has been able to acquire over 80 percent of the reservation; it's ei- 



36 

ther owned by the tribe or the tribal government. What's happen- 
ing today on the reservation is that we have a mixture of non-Indi- 
ans and tribal members within our reservation. And what we see, 
Mr. Chairman, is a lot of the non-Indians support what the tribes 
are doing on the reservation. 

We have with us — we're aware that Tom Richardson, one of the 
property owners who lives on the reservation, has submitted testi- 
mony expressing his concerns over 1691. And we ask that the com- 
mittee take a look at his testimony and review what's happening 
from his views as a non-Indian on the reservation. 

What we see on our reservation is a small minority of individ- 
uals, non-Indian property owners who live up at Sandy Point. And 
this is — what we see is also — this is an age-old story of non-Indians 
wanting more and more of our land and more and more of our re- 
sources. 

What we see right now, Mr. Chairman, is that — in our testimony 
you'll see, for the record, a flyer that we picked up from Sandy 
Point. And in it, you'll see a Lummi signed water pact. And this 
is something that I think we need to — to explain to the committee 
and Mr. Gorton and different individuals that — that the water 
agreement was brought together on a government-to-government 
understanding. And what we've tried to do is really ensure that the 
integrity and all of the non-Indians and all of the members were 
reassured water for existing homes on the reservation. We've done 
this for the last 4 or 5 years and now working to resolve this prob- 
lem on the reservation. Water is a big issue for the people. But if 
it's not protected and it's not managed well enough, we're not going 
to go anywhere. 

But within this agreement on the water pact, what happens if 
the State of Washington or the property owners don't honor this 
pact? What happens is the government becomes victims. We're 
blamed for things that the State of Washington or the people at the 
table should be negotiating in good faith. 

These are the things that we'd like to have individuals under- 
stand. A lot of these things aren't caused by the tribal government. 
They are acts by either good old-fashioned greed or good old-fash- 
ioned reaping of the resources. Non-Indians want more and more. 
And we see it every day. I also want to share with you, Senator 
Gorton and Senator Campbell, of an example of what's happening 
on the reservation today. In the 1970's, we began to construct a 
water and sewer treatment plant for the reservation. This treat- 
ment plant was constructed by the tribe using Federal, State, and 
tribal resources, and it was built over 14 years ago — 16 years ago. 
I'm sorry. And in the last 16 years there's only been one appeal to 
this water and sewer board. And that appeal was done by one of 
our former — current county council member, Marlene Dawson. And 
she went through the system and went through the tribal court 
and chose not to go any further because — that was just it. She 
chose to just go that far. 

And also, Mr. Chairman, we'd also explain that this board is 
made up of Indian and non-Indian members. And it is working and 
people are satisfied with the treatment they are getting from 
their — from their system. 



37 

One of the issues on property rights, Mr. Chairman, is we have 
an issue with property owners up at Sandy Point today. What's 
happening is that we have a problem with a — lease agreements. Up 
in our reservation our reservation is surrounded by water. And 
what's happening right now is that the non-Indians that are using 
the beaches, using the channels, have really chosen not to go into 
lease agreements that compensate the tribe for the use of those 
tidelands. And this has been an ongoing issue with the Lummi Na- 
tion and the property owners up at Sandy point. 

And if this committee is going look at due process and look at 
equal justice, that these non-Indians really need to take a serious 
look at honoring their own, I guess, integrity of themselves. What 
we've seen so far in the last several years is this isn't happening 
on our reservation, and something needs to be done about it, I 
agree. But I think both property rights and treaty rights, both need 
to be protected and preserved. But I think in order to do this, all 
governments, all individuals, have to have high integrity, honesty, 
and the ability to resolve problems. 

With me, Mr. Chairman and Mr. Gorton, is that this legislation 
does nothing more than destroy the tribe's integrity and honesty. 
What you see behind me is some of our children on the reservation. 
And this bill leaves nothing more for these children to look at into 
the future. 

You mentioned the new millennium. This bill is not going to 
leave nothing for these children, nothing for the elders. 

I urge this committee not to do anything with this bill until fur- 
ther solutions and remedies can be come up with. 

Thank you. 

[Prepared statement of Mr. Cagey appears in appendix.] 

The Chairman. Mr. DeLaCruz. You can proceed. 

Excuse me. I did skip you Ms. Williams. You were next on the 
list there, phase proceed. 

STATEMENT OF SUSAN WILLIAMS, ESQUIRE, WILLIAMS AND 
JANOV, P.C., ALBUQUERQUE, NM 

Ms. Williams. Good afternoon, Mr. Chairman, Vice Chairman, 
and Senator Gorton. 

My name is Susan Williams. I have represented Indian tribes for 
almost 17 years and I'm here to testify in opposition to S. 1691 for 
really two simple reasons. One is that the parade of horribles that 
has been described by a number of the witnesses here today in my 
experience just is not happening on Indian reservations throughout 
this county. I have to tell you 

The Chairman. Okay. That's enough of that, please. 

Ms. Williams. I have to tell you that there are examples in 
which wrongdoings have occurred. Just like in State governments 
and Federal Government forums, I would not be credible if I sat 
here today and said there are no problems here that need solution. 
However, the problems that have been described are not predomi- 
nant on the Indian reservations and it's very important at this 
time and at this juncture in history that this U.S. Government pro- 
ceed very, very carefully in looking at its time-honored, long-stand- 
ing obligations in the treaties that they signed with the United 
States— United States signed with the Indian tribes. To modify 



38 

those treaties lightly I think would do this government a great dis- 
honor. 

This U.S. Government does not go around entering into treaties 
with foreign nations and then abrogating them lightly. That is not 
what this government's honor is all about, and I would not like to 
see that happen in the case here before us. 

And let me come back to my — my concession, Mr. Chairman, that 
there are problems on Indian reservations that may not have been 
solved. And I want to come back to that in a moment. But before 
I do, I want to address a number of the misstatements of law that 
have been made in this hearing in order to have a clear and correct 
record for this committee to make its decision. 

First of all, it is not true that the U.S. Government has com- 
pletely abrogated its own sovereign immunity from suit. It's not 
true that the States have completely abrogated their sovereign im- 
munity from suit. And that's exactly what this legislation would do 
with respect to Indian tribes. Rather than focusing on the real 
problems facing the Indian communities, this legislation is a blun- 
derbuss when in fact what we need is a surgeon's knife to really 
look at these problems and try to solve them in a way that's fair 
to all of the citizens of this United States. Because we, after all, 
are all citizens of the United States. Some owe some allegiance to 
States. And in the case of Indian tribes, we owe some of our alle- 
giance to our Indian nations. But all of that was contemplated in 
the constitutional plan of this country. 

There have been numerous legislation that Congress has passed 
to terminate the existence of Indian tribes; and then in another 
era, to support tribal sovereignty. We are in an era in which the 
U.S. Government recognizes its treaty obligations to protect tribes' 
rights to govern their own reservations. 

Let me start with the Federal Government's sovereign immunity. 
There are at the present time many, many immunities which the 
U.S. Government continues to enjoy, and it's very important to the 
success of the U.S. Government to continue with these varying im- 
munities. 

Similarly, with respect to States — in fact, there are at least 10 
States that haven't waived any sovereign immunity at all. There 
are many other States that waive sovereign immunity only to the 
extent of a very limited insurance policy. There are many other 
States that don't waive sovereign immunity for so-called discre- 
tionary functions. 

I could go on and on and on to demonstrate that the Federal 
Government and the State governments have very much retained 
the doctrine of sovereign immunity. Now, let me say that that doc- 
trine is increasingly in disfavor. I will concede that; that is, the 
Federal Government is increasingly waiving its sovereign immu- 
nity from suit, as are the States. That is the trend indeed. And in 
fact, Senators, that is the trend on the Indian reservations as well. 

If you look on a national basis, you will see that increasingly, 
like the State and Federal Governments, Indian governments are 
waiving their immunity. In contract actions, in tribal laws, there 
are APA-type forms of relief offered by Indian tribes under current 
law. Some tribes have in their constitutions waivers for Indian 
Civil Rights Act claims, waivers of tribal sovereign immunity. And 



39 

the stories and the actions by Indians tribes waiving their own im- 
munity are countless out there. 

And that's exactly why we think that that trend should be al- 
lowed. We've not suggesting that the United States should waive 
any more of its immunity. We're not suggesting that the States 
should. And similarly, the tribes should be given the right to waive 
their immunity. 

Now, I said that there are situations and there are stories that 
we've all heard where there hasn't been a solution to the problem 
found. And what do we do about that? Well, let me just say, given 
the 5-minute timeframe that we have, there isn't any possible way 
we could have a very good dialog on those situations. 

I would turn you to the testimony that I have submitted for the 
record. It's much more lengthy on this issue. But this is the issue 
that the non-Indian citizens sitting here in this room have at their 
heart. And I want to say I understand and I sympathize with their 
concern. 

It is a bit of an oddity in this Federal system that a non-Indian 
can live on an Indian reservation and not have the right to vote, 
not participate in tribal juries, and not have what they call a fair 
and neutral forum because they cannot go outside of the tribal 
court system. 

Those are serious concerns that have been created by U.S. policy 
inviting them on the reservations. I must say they did come onto 
the reservations knowing full well that they were coming onto In- 
dian land and that there was an Indian government there, and 
there should be no sympathy for anyone who says, You know, I 
don't — I'm not — I don't — I don't have any allegiance to a tribal gov- 
ernment. They knew about it at the time. 

I suggest that one option the Congress might want to consider 
is resolving their concerns by providing a Federal court forum for 
limited Indian Civil Rights Act appeals from the tribal courts in ex- 
change for confirming and clarifying tribal sovereignty, both crimi- 
nal and civil, over all non-Indians on the reservation. 

I would suggest that this bill initially be on a voluntary basis so 
that a tribe could opt in and get that jurisdiction back that the 
U.S. Supreme Court has taken away because of the concerns about 
nonparticipation in tribal elections and the lack of so-called fair 
and neutral forum. 

Much debate still needs to occur and I encourage that to be 
taken in the light of day and not in the context of appropriations 
riders where we cannot have a full and fair policy debate on some 
very real issues here. 

Thank you. 

[Prepared statement of Ms. Williams appears in appendix.] 

The Chairman. Mr. DeLaCruz. 

STATEMENT OF JOE DeLaCRUZ, FORMER PRESIDENT, 
QUINAULT INDIAN NATION, HOQUIAM, WA 

Mr. DeLaCruz. Mr. Chairman, members of this committee, Sen- 
ator Inouye, and Senator Gorton. I've been sitting in these hearings 
for a long time. And I want to thank the Senator, Senator Gorton, 
for sending out the flyer and inviting a lot of the people here. I 
think it's important to point out to people that it was only three 



40 

decades ago that Indian leaders were able to come before a commit- 
tee in Congress and tell our side of the story. 

And although I have 5 minutes, I'm going to try to walk us 
through five minutes of history from our perspective of what hap- 
pened to our people. 

We have a history of bad legislation. And I have a prompter; one 
of my tribal members put a map up. There's bad legislation and 
good legislation. And we have a history of bad legislation. 

In 1855, the Quinault Indian Nation signed a treaty with the 
U.S. Government called the Treaty of Olympia. Later on, an execu- 
tive order set up — set aside the defining of the Indian reservation 
boundary. If you will look at that map. The treaty of the executive 
order said exclusively for the use and occupation of Quinault In- 
dian people. In 1891, when the United States completed a survey 
of the reservation, they diminished 17,000 acres. That was the first 
violation of their own contract with us. 

In 1887, the United States passed the Dawes Act, and it was 
called the "conquer and divide law," and was to make farmers out 
of the Indians. Again, Indian people weren't at the table. 

Non-Indian people, if you look back from treaty times, are going 
to their congressmen, to their local politicians — I call it "from the 
courthouse to the White House politics" — saying to allot Indian 
people, Give them this land; 25 years they'll no longer be Indians. 

Quinault Indian Nation, when the United States finished plot- 
ting that land in 1907—1905, by 1932 they had allotted the total 
reservation. The lake and the fire tower was all that was left for 
the tribe. There was a couple of lawsuits that opened the reserva- 
tion for continued allotment when the tribe stopped it for forestry 
land. 

Then we ended up with the Reorganization Act in 1934 to 
strengthen tribal governments again. The tribe gained back a few 
acres at that time. From the Dawes Act up through the RIA Act, 
even though that was allotted, people went to their congressmen 
and got similar contracts to be laid out in the 30-year contract. And 
there is a long history of that. Indian people didn't have a lot to 
say about it. 

Indian people and non-Indians got along pretty well. Even we 
were logging together, working together, and fighting together. We 
never had any problems until 1953, when Congress passed Public 
Law 280 and we had Concurrent Resolution 108 to terminate In- 
dian people. 

And when that happened, States looked into moving jurisdiction 
into Indian country. That's the first time I came on the scene with 
a bunch of other young people. I think the Senator was a young 
man back then. 

And the State of Washington passed HP-404 in 1957 to assume 
certain areas of jurisdiction into Indian country. In 1963, they did 
some events to further come into Indian country. And I put into my 
report by the American French Services Committee of the night- 
mare that was created when these conflicting jurisdictions because 
of Public Law 280, when you talk about law and order and some 
of the things that have been spoken about. But the other thing that 
happened, when you look at the swarm of reservations — now, we 



41 

were mostly all on Indian land, originally allotted. The executive 
order said all Indians. We had a lot of Indians there. 

But after 1953, the Termination Act comes along, it appears that 
people that were pushing this law were lined up at the border. The 
Bill turned so much land in then years it was amazing. All of the 
land in white now belonged to timber companies and speculators 
and people that have come into the reservation. Tribes didn't have 
any say about it. 

From 1953-65, the tribe lost and Indian people lost 50,000 acres. 
That's a story across Indian country. This could be any tribe's story 
that had a land base. 

And where the real problems begin with this — it wasn't with the 
timber companies; we were suing them and they were suing us. 
We've been sued a lot, Quinault has. There's been a lot of lawsuits. 
It was the real estate developers. And we have a couple of plots 
that were approved back in the 1960's. The Quinault tribe was 
working with the Grays Harbor County. Regional Planning Com- 
mission was responsible for planning for that area. We were not 
avoiding but developing our zoning ordinances, but the county hap- 
pened to approve some plots on the reservation in 1962, 1964, 
1967, and 1969. 

That's a later map there. There's some good legislation. This is 
bad legislation. I'll get to that. 

That was — that was the turnaround since 1988 on — on return of 
the north boundary by Senator Evans. Do you see the change in 
the contrast to the map to try to purchase back 50,000 acres by 
people trying to help the tribe? Remember, I'm speaking about now 
the plat that was developed where the problems ended up for Indi- 
ans and non-Indians alike. 

The tribe objected to that plat because there was no sewer sys- 
tem planned on it. It's a slide area. It's clay. That why clam beach- 
es are there. 

But the county went ahead and approved the plat. The devel- 
opers went ahead. By 1968, they sold — from 592 lots they sold 75 
of them. The county stamped their septic tanks "Subject to ap- 
proval of the Quinault Indian Nation." We couldn't approve those — 
approve those septic tank systems. And no septic tank systems; no 
development. 

So tney turned on the tribe as the bad guy. They were victims 
as we were victims. And they organized, Quinault property owners. 
I followed this — this — I call it an anti-Indian movement. Port Madi- 
son, Lummi. 

The Chairman. Your 5 minutes are up, please conclude. 

Mr. DeLaCruz. And it went on and on, anti-Indians because of 
what happened there. 

And in researching this testimony, I found out that — and I don't 
know; it could be further facts for research for Gorton. I'm assum- 
ing he was part of the Green Acres Development Association that 
developed that — some of the property of those tribes. Because they 
couldn t develop most of it, those lots diverted to the company or 
the people there. 

To me, the only ones that can solve that problem would be the 
ones, the tribes, put the best foot forward and let things happen. 
There would be 600 raw septic tanks run into our clam beaches. 



42 

Quinault Nation and county together, we worked with Grays Har- 
bor and Jefferson County. We tried to cover all aspects of people's 
rights. We've never had a problem. We've been sued. There are 
suits by Seacrest, by Snow, by Harden for different things. We've 
never avoided people in court. There's due process. 

Before tribal front, people appealed to the Federal court, Federal 
court sent things back to the tribal court. People could exhaust 
their remedies. 

Some of these things I hear here today, I probably could go on, 
but I know you're 

The Chairman. All of your testimony will be included. 

Mr. DeLaCruz. The other thing, Mr. Chairman, I want you to 
have, because I have a record of tribes in this State working with 
industry and environmentalists and everything else. What we do in 
TFW. This is another about 2-year project. 

The Chairman. Okay. It will go in with your written testimony. 

Mr. DeLaCruz. That's responsible governments working with 
other governments. I want that on the record. 

[Prepared statement of Mr. DeLaCruz appears in appendix.] 

The Chairman. Okay. Let's — let me ask a few— a couple of ques- 
tions. I was looking — I'm going to start with Howard Richards — 
and the attachment that you also submitted on behalf of Chairman 
Frost. And the attachment is Tribal Economic Contributions to the 
Regional Economy and Human Service Programs in the area of 
Ignacio and La Plata County. And I was struck by the numbers, 
the amount of money; for instance, $8 million tribal payroll, which 
includes Indian and non-Indian; $11 million for a wastewater treat- 
ment that handles water for the town; charitable contributions. 
And it goes on and on. $260,000 for Head Start and on. Great deal 
of money. 

I have to tell you that I'm really struck with this amount of co- 
operation, because I'll bet every single one of them required some 
kind of a dialog with the — back and forth between the tribe and the 
town. I can't believe that you could go through all of that work to 
reach some kind of an agreement that's equitable for both the tribe 
and the community and you can't find a solution to the problem 
with law enforcement. Let me ask you — first of all, I'll tell you that 
as I understand it, there are less than 10 communities nationwide 
that are landlocked within reservations, less than ten. I may be 
wrong, but that's what I've heard. 

There are some Indian tribes that are landlocked within others, 
like the Hopis are landlocked within the Navajos. Certainly there 
are Indian tribes surrounded by State lands and other lands, too. 
But only 10 or less communities that can't grow beyond the border 
that they have, whatever acreage they have, because they are land- 
locked. And obviously the ways to get in and out are through State 
highways or Federal highways or something else. 

So let me ask you a couple questions, maybe both of you. In deal- 
ing with, first of all, hot pursuit. When you talk about law enforce- 
ment, what kind of an agreement does the town of Ignacio have 
with the surrounding counties? Or since that's only a few miles 
from the New Mexico border, what happens if a city policeman — 
you know, a car comes blowing through town and the city police- 



43 

man gets after him and follows him, with these other jurisdictions, 
like county and State and so on? What happens? 

Mr. Quintana. If it's a non-tribal member, we can pursue 
through the hot pursuit. 

The Chairman. How do you know — how do your policemen know 
when they are chasing a car? 

Mr. Quintana. We don't. 

The Chairman. So do they go ahead and pursue them or not pur- 
sue them? 

Mr. Quintana. We pursue until we make a stop. And at that 
point in time, we have no jurisdiction if it's determined that it's a 
tribal member. 

The Chairman. Does that mean you call a tribal policeman or do 
you let them go? 

Mr. Quintana. Our current procedure and arrangement with the 
tribe is that we call the tribal officials, if it's a tribal member. 

The Chairman. Let me ask Mr. Richards. 

Does the tribe have any agreement with the State or tribal rule 
and regulations dealing with licenses? Having a valid driving li- 
cense or insurance on the vehicle? 

Now, the city manager said tribal members don't have to have 
licenses or insurance. 

Mr. Richards. Mr. Chairman, on the Southern Ute Reservation, 
any tribal member or Native American who is subject to jurisdic- 
tion of the tribal court through the State of Colorado is issued a 
driver's license to operate a motor vehicle. 

The Chairman. Is it a State driver's license or a tribal driver's 
license? 

If you'll identify yourself for the record. You might know more 
about this since it's a legal matter. 

STATEMENT OF THOMAS SHIPPS, GENERAL COUNSEL, 
SOUTHERN UTE TRIBE 

Mr. Shipps. Mr. Chairman, my name is Thomas Shipps. I'm a 
general counsel for the Southern Ute Indian Tribe, and I have been 
there for about 18 years. 

With respect to driver's licenses, tribal members as citizens of 
the State of Colorado are entitled to apply for and obtain Colorado 
driver's licenses. 

The Chairman. They take the same test as anyone else? 

Mr. Shipps. Same test everybody else does. With respect to 
drive — use of their driving privileges off of the reservation, they are 
required just like any other citizen to comply with State law. Once 
they are in Indian country, however, unless the — unless Congress 
has authorized or unless the tribe has conceded or ceded its civil 
jurisdiction over the regulation of its members within the bound- 
aries of that Indian country, then the civil laws of the State of Col- 
orado do not necessarily have applicability. And in that regard 
there have been several cases that were referred to by the town in 
which 

The Chairman. What is the disposition if a Federal or State 
highway goes through the reservation? 

Mr. Shipps. The answer is the same with respect to a Federal or 
State highway. With respect to the regulation of non-Indians, it 



44 

may have a much different result. But with respect to regulation 
of tribal members, that's — that is the result that would follow by 
strict application of law. 

Now, there have been cooperative arrangements between the 
tribe and the State patrol, for example, in which there have been 
shared powers or recognition that a State officer can come in and 
testify or file a complaint in tribal court for that substantive viola- 
tion. 

[Prepared statement of Mr. Shipps appears in appendix.] 

The Chairman. If a tribal member is off the reservation, as I un- 
derstand your testimony, if he accumulates points for speeding or 
whatever, his license — his State license can be taken away? 

Mr. Shipps. Certainly. 

The Chairman. But then can he still drive without that State li- 
cense on the reservation? 

Mr. Shipps. Unless the tribe requires that a State license be ob- 
tained or 

The Chairman. What does the Southern Ute Tribe require? 

Mr. Shipps. The Southern Ute does require that State driver's li- 
cense be issued to have driver's privileges on the reservation. 

The Chairman. So that means even on — if he has his license 
pulled off the reservation, technically he can't drive on the reserva- 
tion unless it's pulled? 

Mr. Shipps. Not without being in violation of tribal law. I believe 
that's correct, Mr. Chairman. If it's different 

The Chairman. Would that also apply within the community, 
too? 

Mr. Shipps. I beg your pardon? 

Tha Chairman. Does that also apply to a community within the 
reservation? If he's in Ignacio 

Mr. Shipps. Yes. 

The CHAlRMAN[continuing]. If he goes through with an invalid li- 
cense? 

Mr. Shipps. No; because the — then you have a difficulty in the 
enforcement provisions and the State's civil regulatory authority. 
The tribal — driving without a license within the — within the 
boundaries of the reservation under tribal law may be something 
quite different than affirmatively delegating to State officials the 
authority to impose their own civil standards, even though the 
standards themselves may be identical. And that's where these 
issues become very complex. 

The Chairman. If your people if your city police chase somebody 
to the New Mexico border, can you go into New Mexico under the 
hot pursuit law? 

Mr. QuiNTANA. I don't believe I'm qualified to make that state- 
ment, Senator. I've got legal counsel here if you — I could have him 
answer that. 

The Chairman. I'm don't want to get too far into that area, but 
I would like you to provide that information to the committee on 
what kind of jurisdictional agreements you have, because there's 
something like nine jurisdictions, as I understand it, in that area: 
county police, State police, city of Ignacio, tribal police, and so on. 
I would like the committee to know more about that. 



45 

Susan, you are an attorney. Did you — one of the committee peo- 
ple asked, didn't you testify in the first hearing on taxation in 
Washington a few weeks ago? 

Ms. Williams. No; I did not. 

The Chairman. You did not. 

Ms. Williams. But I have testified previously, I think a year ago, 
on this same subject. 

The Chairman. Okay. You talked about waiving sovereignty. Do 
you've know how many times tribes have waived sovereign immu- 
nity? I understand it's a considerable amount. 

Ms. Williams. Every single one of the tribes that we represent — 
and that's probably 15 to 20 tribes — have waived their sovereign 
immunity. 

The Chairman. What is the advantage to the tribe to waive sov- 
ereign immunity? 

Ms. Williams. There is a great advantage in commercial agree- 
ments because you have more interest in pursuing economic devel- 
opment on the reservation. But it's just that, a tribal waiver and 
a tribal choice. 

The Chairman. That means if a company wanted to sign some 
contract or agreement with the tribe, that they will — they will be 
worried about lawsuits, so they might enter into an agreement 
with the tribe. If the tribe wouldn't waive, they simply wouldn't get 
the factory built. 

Ms. Williams. That's correct. 

The Chairman. I see. 

Ms. Williams. These waivers are rather routine, Senator. I just 
want to say, ten years ago there was a lot of concern by tribes not 
waiving their immunity, just like there was concern with the 
United States and State governments about not waiving immunity. 
But that for at least 10 years now is not the trend. I — it's very rou- 
tine to have a sovereign immunity waiver in commercial agree- 
ments and tribal law. 

The Chairman. In the case of this — the Seminole decision, which 
was basically dealing with gaming. But I was wondering, can — can 
Congress waive State immunity? 

Ms. Williams. The United States has the power to abrogate 
State immunity in certain contexts. What is very clear is that in 
the context of the Indian Gaming Regulatory Act, the Supreme 
Court has said that the States' sovereign immunity stands and 
there will be no lawsuits authorized against the States. That is a 
serious sovereign immunity problem. There's one for the Congress 
to tackle. 

The Chairman. We're trying. It's tougher than this one, believe 
me. 

And the last question, could you explain to the committee why 
legal distinctions concerning tribal members are not considered ra- 
cial classifications in the Supreme Court? 

Ms. Williams. In 1974, the U.S. Supreme Court in the case of 
Morton v. Mancari said that when the United States deals with In- 
dian tribes, it is not making racial classifications, these are politi- 
cal classifications; therefore, judicial scrutiny is much diminished 
with regard to Congress's power to deal with Indian tribes. 



The Chairman. Let me ask Mr. DeLaCruz. Does the Quinault 
Tribe include — I heard you say something about local — local bodies. 

Does the Quinault Indian tribe include non-Indians in any gov- 
ernment — governance policies or administrative bodies? 

Mr. DeLaCruz. When the tribe — when the Quinault Nation was 
working out the planning — land-use planning for the Quinault Na- 
tion back in the 1960's was Grays Harbor original planning com- 
mission. We had non-tribal members on that planning commission. 
In fact, one of the gentlemen who chaired it for years was a non- 
tribal member. 

And we still have non-tribal members on that planning commis- 
sion and there are landowners on it. They are appointed by the 
tribe just like the county appoints their planning commission. 

I asked a couple of them on the record to submit for the record 
their tenure and their experience on there. They've moved. They 
live in Montana and other places, but I've contacted them. 

The Chairman. How do the Quinaults handle this — you have a 
checkerboard reservation. How do you handle the jurisdictional 
problem that the police have? 

Mr. DeLaCruz. It's been a long history and a complicated one. 

The Chairman. I don't want a long history answer. 

Mr. DeLaCruz. The Quinault Nation has maintained that there 
is nowhere that Congress of the United States can show us that we 
gave up our power to govern our territory, meaning exterior bound- 
aries. And there's been a lot of court cases over that and we won't 
get into them. 

But we've maintained that and we try to, you know, keep in 
mind other people, landowners. 

The Chairman. Does that mean you have — the Quinaults have 
no agreement with any outside jurisdictions? 

Mr. DeLaCruz. We have agreements with the county. It's kind 
of interesting when you ask county people questions because things 
are political. We tried to work for years with the cross-deputization 
of sheriffs. 

The Chairman. You cross-deputize now? 

Mr. DeLaCruz. Well, sometimes politicians are like wind socks. 
It depends where the wind is before they'll go into the agreement. 
We've had them off and on. 

The Chairman. Okay. I think that — I've probably used up more 
time than I should have. 

Mr. INOUYE. 

Senator Inouye. Thank you very much. Just for clarification 
now. As you know, we're hearing — this hearing is on property 
rights and civil rights and the impacts of what S. 1691 would have 
upon them, these two rights. Listening to the testimony of Ignacio 
town and the Southern Utes, it's not quite clear. 

Are you in favor of the passage of S. 1691? 

Mr. Quintana. Are you speaking to the town, Senator? 

Senator Inouye. Yes. 

Mr. Quintana. We did not come here in support of that bill. We 
are in support of establishing public policy that will work toward 
helping us live together. Whatever that policy may be, if it sim- 
plifies things, it would be great. It's a very difficult issue and I — 
we certainly don't claim to be any kind of experts on the complex- 



47 

ities of tribal law, but whatever you folks can do to simplify our 
abilities to work and have better relations would certainly be ap- 
preciated. 

And, no, we are not here to formally support the bill. 

Mr. Shipps. Mr. Chairman, the Southern Ute tribe opposes 1691 
in its written format. 

Senator Inouye. Miss Williams, can the State court assume ju- 
risdiction over tribal lands that are held in trust by the United 
States Government if the government of the United States doesn't 
waive the sovereign immunity? 

Ms. Williams. No; they cannot. 

Senator INOUYE. Thank you. In the interest of time, Mr. Chair- 
man, I will ask no more questions. 

The Chairman. Senator Gorton. 

Senator Gorton. Chairman Cagey, you have in your written tes- 
timony about half a page on the subject of tort claims. And the first 
sentence of one of those paragraphs reads: "This New Tort Claims 
Procedure" — that is, S. 1691 — "ignores the fact that Congress has 
already effectively dealt with the problem of tribal government li- 
ability for tort damages." And then you go on with certain expla- 
nations of that. 

Does that mean that the Lummi Tribe can — can be sued in a 
Federal court for any tort in which the United States could be sued 
under the Tort Claims Act? 

Mr. Cagey. Well, I don't claim to be an attorney, Mr. Gorton, but 
I — but we do know — what I do understand as a councilman is that 
we are covered with the Tort Claim Act, and why we're covered 
through that is that we have 638 contracts and we have a self-gov- 
ernment compact, and within that we do have that coverage. 

I do have my attorney here so she can help me answer this ques- 
tion. But what we do understand, Senator, is that, yes, we do have 
insurance and people can have the ability to sue the tribe. 

Senator Gorton. To the same extent that they could sue the 
United States under the Federal Tort Claims Act? 

Mr. Cagey. Can I have Sue help me answer that. 

Senator Gorton. Sure. 

Would you identify? 

Ms. Williams. The answer is that the insurance carrier can be 
sued in any court of competent jurisdiction. It cannot raise the sov- 
ereign immunity defense. 

Senator Gorton. And is that coextensive with 

Ms. Williams. With the types of liability, yes. 

Senator Gorton. The types of liability that are under the Fed- 
eral Tort Claims Act? 

Ms. Williams. Yes. 

Senator GORTON. So for all practical purposes insofar as this bill 
relates to tort claims, the tribe would be no worse nor no better off 
if the bill were to pass. 

Ms. Williams. Right. Yes, the problem with— Senator, with 1691 
is that it goes far beyond 638, because 638 limits the tribal liability 
for tort to the insurance coverage and your bill would not do that. 

Senator Gorton. All right. So they have certain limitations on 
liability, but those are limitations on liability that don't apply to 
the United States under the Federal Tort Claims Act? 



48 

Ms. Williams. There are many, many limitations on Federal li- 
ability. 

Senator Gorton. But 638 limitations. 

Ms. Williams. They are very similar. 

Senator Gorton. Pardon? Mr. Cagey, I thought, answered that 
question. 

Mr. Cagey. You know, Senator, I was — I just was concerned over 
the remark that was just made, you know, that this bill wouldn't 
make any difference. What we understand with this bill is that — 
it puts the tribes really — assets and things at risk. 

If we would have had some of our children standing up here look- 
ing at what was happening is that it's the tribal future, I think, 
that you are putting at risk with this bill. And what we'd like to 
come up with — and we've been talking to different people within 
the — in your — your office and within this committee — is that there 
has to come with some better solutions here to deal with conflict. 
And I heard it come from each one of the Senators up here, is that 
there is a lot of conflict and misunderstanding of the tribal govern- 
ment. There is a lot of misunderstanding of what — who the peo- 
ple — Indian people are. 

This bill does not do that. This is bad legislation and there's got 
to be better solutions to deal with this issue. 

Senator Gorton. You do not object to the tribe being held re- 
sponsible for its actions in — for its actions in tort. 

Mr. Cagey. No, sir; we have high integrity for our tribal govern- 
ment. We have high integrity for our tribal court. 

Senator Gorton. On the next page of your testimony, on a sepa- 
rate subject, Chairman Cagey, you have a table listing under the 
title "We Are Not Tax Evaders", and listing payments in 1997, you 
know, of taxes under five categories there. Aren't most or all of 
those taxes Federal taxes? 

Take number one, the employer portion of payroll taxes. Those 
are Social Security taxes, are they not, and perhaps unemployment 
compensation taxes, unemployment taxes? 

Mr. Cagey. That's true. One of the things we're responding to, 
in our testimony here, is that — you know, we were back in the 
hearing of March 11th and we watched the Petroleum Marketing 
Association, we watched the convenience store owners call the 
tribes tax evaders. We became very concerned that the perception 
that these property owners are creating about tribal governments 
is that we don't pay our taxes. 

And the point we are trying to make here is that the tribes do 
pay taxes. And there is a lot of misunderstanding amongst the gen- 
eral public; there is a lot of misunderstanding on the Hill. That 
tribes do pay their taxes. 

Senator Gorton. I don't think anyone is — held the proposition 
that the tribes don't pay their Federal taxes, because of course they 
have no immunity from the Federal tax collector; they do have im- 
munity from the State tax collector. And I was just wondering 
whether any significant portion of this $2 million worth of taxes 
paid last year was paid to the State as against the Federal Govern- 
ment. 

Mr. Cagey. Well, as you can see — to the State? 

Senator GORTON. Yes. 



49 

Mr. Cagey. Well, as you see with the fuel tax, we have $308,000 
we paid for the fuel tax. 

Senator Gorton. Well, there's both a Federal and State fuel tax. 

Mr. Cagey. That goes back to the State. And with the cigarettes, 
we have over $180,000 that was paid back to the State through the 
stamp that I think that we have to have in selling the cigarettes. 

Senator GORTON. Okay. So in your tribe at least, you put the 
State tax stamp on all of the cigarettes that you sell to non-Indi- 
ans? 

Mr. Cagey. That's correct. 

Senator GORTON. Very good. Then you're certainly not in viola- 
tion of the law there. And under those circumstances, the loss of 
sovereign immunity to the Lummi Tribe for payment of the State 
taxes would have no effect on it. You wouldn't be paying any more. 

Mr. Cagey. That's correct. 

I think the other point we wanted to make here, Senator, is that, 
you know, all tribes pay this tax. We're talking about a small mi- 
nority of tribes that have some problems in getting to the coopera- 
tion and getting to the table and getting to the State to deal with 
the government-to-government efforts in good faith. 

Senator Gorton. Well, that seems rather curious, Chairman 
Cagey, when the newspapers have reported in the last 6 weeks a 
huge number of seizures of non-taxed cigarettes that — headed for 
Indian reservations in the State of Washington. 

Mr. Cagey. Do you know that they were going to reservations? 

Senator Gorton. Yes. 

Mr. Cagey. Do you know? 

The Chairman. If I would interject: Our last hearing dealt pri- 
marily with taxes and contracts. 

Senator Gorton. Yes; that's a — that's appropriate. I don't 
think 



The Chairman. Well, no, I was just going to add 

Senator Gorton. I don't think the prosecutor of Yakima County 
would agree with the statement that all tribes are paying for it. 

The Chairman. But some States did testify last time that there 
may be as much as $65 million a year not being paid to States. 
That shouldn't be a catchall, that all tribes are not paying. 

Senator Gorton. Evidently, according to Chairman Cagey, he is 
paying, and I commend him for that. 

One other set of questions. Is the Lummi Tribe a party to the 
shellfish litigation that the previous panel discussed? 

Mr. Cagey. Yes. 

Senator Gorton. And in — connected with the testimony of Mr. 
Montgomery there was a table apparently taken from that — from 
that litigation about Federal Government support of Indian tribes 
who were parties to that litigation, based on audits for the years 
either 1991 or 1992. It indicates for your tribe that the Federal 
Government payment to the tribe was something over $11 million. 
At the time there were 531 households on the reservation. 

Would you say offhand that's an accurate — that's accurate? I pre- 
sume it came from — from you all. Would that be approximately the 
level of support from the Federal Government for the tribe in the 
early 1990's per year? 



50 

Mr. Cagey. I don't understand your point, Senator. I guess 
I'm 

Senator Gorton. My question is how much money do the Fed- 
eral taxpayers, the Federal Government, pay to the tribe for the — 
the conduct of tribal governmental and social and other activities 
a year? Is the $11 million figure here for 1991 roughly accurate? 

Mr. Cagey. That's roughly accurate, yes, sir. 

Senator Gorton. And is it out of that 

Mr. Cagey. Say that again, Senator. I'm sorry. 

Senator Gorton. Is it out of that payment that you pay for your 
attorneys in that shellfish litigation? 

Mr. Cagey. Some of it, yes, sir. And — yes. 

Senator Gorton. And does — does the Department of the Interior 
also represent the position of the tribes in that litigation? 

Mr. Cagey. Well, I'm getting into legal sort of questions here, 
Senator, and I'm going to have to defer to Sue and Judy here to 
help me answer these questions. 

Senator Gorton. Okay. Well, I'd be happy to have them do that. 

Ms. Williams. Senator, if I followed the first question, it was 
how much does the Lummi Nation get. And you suggested a figure, 
and I guess — we don't have that information here. But let me just 
say that assuming it was 11 million, under the self-governance 
compact, that is money that the United States is paying the tribes 
to do the United States' job. Okay? That's what's going on here. 

And so we — we get the money that you would spend for your offi- 
cials doing your job protecting trust resources and it's just given to 
the tribe under the self-governance legislation does it itself. 

Senator Gorton. That's a novel description of what the money 
goes for, but I'll accept it as your view. 

My question simply was whether or not portions of that money 
are used for the legal representation, and specifically in this shell- 
fish case, and whether or not a similar position is also taken by the 
lawyers of the Department of the Interior. 

Ms. Williams. Again, we don't have any actual figures of how 
much of that — whatever money 

Senator GORTON. I'm not asking how much it was. I asked 
whether that's the source for the payment of the lawyers. 

Ms. Williams. No; typically tribes have to compete for very, very 
scarce Federal dollars to get Federal money for attorney fees. Those 
are separate accounts and those are not — they don't come nec- 
essarily as part of that package. 

Senator GORTON. I'm sorry I didn't ask this question of the pre- 
vious panel. 

But my point was that these sovereign nations have their law- 
yers paid for by the Federal Government; the shellfish owners and 
the property owners pay for their own lawyers out of their own 
pockets. 

Ms. Williams. And that's there because of the trust resources 
that the U.S. Government is responsible for. 

Mr. Shipps. Senator Gorton. 

The Chairman. Do you have a comment to add to that? 

Mr. Shipps. Senator Gorton, on behalf of the Southern Ute In- 
dian Tribe, I can say that in situations where the tribe's opinions 
have differed with those of the Department of the Interior, the 



51 

tribe has been forced to spend millions of dollars of its own funds 
not only against other litigants but also against the United States 
as well. 

And it's also very, very difficult to sue the United States in those 
contexts because of the United States' sovereign immunity. 

Senator Gorton. But not as difficult as it is for an individual cit- 
izen to sue the Southern Ute Tribe, which is impossible. 

The Chairman. Just for the record, identify yourself, too. 

Mr. Shipps. Tom Shipps. 

Senator Gorton. Miss Williams, you did testify I guess about 1 
year and a half ago before this committee on similar issues. I didn't 
find this testimony in your — in your formal written statement here 
today, but I want to ask you whether or not 1V2 years later this 
still represents your point of view. 

Is your policy point of view, as against your legal point of view, 
that — that you think that tribes should have unquestioned sov- 
ereignty over all persons on their reservations and their territories, 
criminal and civil? 

Ms. Williams. That's correct. 

Senator Gorton. Okay. I just wanted to get that in context for 
the — for the audience here. 

In other words, that they should be and for all practical pur- 
poses, not the — the domestic dependent sovereigns that the Su- 
preme Court has described but full sovereigns inside their own ter- 
ritories? 

Ms. Williams. Well, when tribes signed treaties, the State of the 
law was that States had no jurisdiction whatsoever on Indian res- 
ervations in the United States and the tribes had exclusive juris- 
diction. We think that makes sense. That's the back to basics that 
this Congress should reinstate. It's just too difficult, Senator, you 
can well imagine, to have three or four sovereigns trying to govern 
land use and policies of water use, et cetera, on Indian reserva- 
tions. Tribes have to have that primary authority. 

Senator Gorton. So there should only be one sovereign? 

Ms. Williams. That's correct. 

Senator Gorton. Now, how does that accord with Washington 
with the treaties signed with the tribes here in the State of Wash- 
ington which — all of which say, I believe — the — said — said the 
tribes — that the tribes agree to abide by the laws of the United 
States? Is that not — is that not correct? 

Mr. DeLaCruz. Well, Mr. Chairman, there's a — the question is 
on cost of legal stuff. I have a chronology of cases Quinault has 
been in since 1880 I want to submit for the record. And we are pay- 
ing for the attorneys, the tribe protecting itself on different issues 
and rights that are challenged since about 1880. The only time we 
got help is when we convinced the United States — they had — as a 
trustee they had to help us when they came into the Boldt Deci- 
sion. We were paying for it. 

Senator Gorton. I've got two more questions — one more ques- 
tion, I think for Mrs. Williams. 

You correctly point out that the waiver of sovereign immunity on 
the part of the United States and the States is not total. It applies 
in some areas and does not apply in others. 



52 

Would you accept a bill of this sort at least related to sovereign 
immunity from suit in the courts of the — in the Federal courts if 
it were precisely coextensive with the waiver of sovereign immunity 
of the United States for suits against itself? 

Ms. Williams. No, Senator; I think that Indian tribes should be 
given the opportunity to make those decisions themselves, just like 
the United States and States make those decisions for themselves. 

Senator GORTON. And finally, you based much of what your — 
your position on the nature of tribal treaties. Would it be appro- 
priate to treat differently Indian tribes that are not treaty tribes, 
that have no treaty relationships with the United States at all? 

Ms. Williams. U.S. policy has long, long gone beyond that and 
has treated Indian tribes throughout the country in a very similar 
fashion with or without treaties. 

Senator Gorton. So we're not dealing with something that re- 
lates in treaties and we're dealing with public policies? 

Ms. Williams. In many, many instances we are dealing with 
something that relates to treaties. 

Senator Gorton. But there should be no distinction? 

Ms. Williams. There should be no distinction. The same kind of 
honor, the same kind of respect. In fact, the court cases have found 
that the United States mysteriously took Indian land into trust 
with or without treaties. So that's your obligation now. 

Senator Gorton. Thank you. 

The Chairman. And I thank this panel. We have to — while the 
next panel is being seated, the recorder is going to have to change 
her tape. So I'll go ahead and call you to the witness table. 

And thank you for appearing, this panel. 

The panel, III-B 

If you keep the discussion down, please, so we can seat the panel. 

The panel will be Colonel Caleb Johnson — my apologies. We 
skipped one here. 

This will be Michael Pablo; Sue Shaffer; Roy Bernal; and Mary 
Wynne. 

As with the other panels — we're only about halfway through, so 
we're going to have to move this along a little bit. 

This one will deal with civil rights. And we'll start in the order 
that I said, and that will be Chairman Pablo, followed by Sue 
Shaffer, followed by Roy Bernal, followed by Mary Wynne. 

And if you would proceed. And all of your testimony will be in- 
cluded in the record, if you could abbreviate your comments. 

Before we do, we need to have order. I don't want to clear the 
room, but we will if we have to. We need to have it quiet in here 
so the people who are testifying can be heard. 

Chairman Pablo, please proceed. 

STATEMENT OF MICHAEL T. PABLO, CHAIRMAN, 
CONFEDERATED SALISH KOOTENAI TRD3ES, PABLO, MT 

Mr. Pablo. Mr. Chairman and Mr. Vice Chairman, the Honor- 
able Senator Gorton. 

I'm Michael Pablo, Chairman of the Confederated Salish and 
Kootenai Tribes of the Flathead Reservation in Montana. The 
first 

The Chairman. Pull that microphone a little closer. 



53 

Mr. Pablo. Sorry. 

Michael Pablo, Chairman of the Confederated Salish and 
Kootenai Tribes of the Flathead Reservation in Montana. 

And I apologize to the committee. When my testimony was cop- 
ied, they copied an earlier draft and not the final, so if you kind 
something to grill me on, pretend it's not in there. 

Mr. Chairman, in 1942, the Ninth Circuit Court of Appeals ruled 
that the Flathead Tribes owned the beds and banks of Flathead 
Lake. And then in 1982, the Ninth Circuit again confirmed the 
tribes owned the beds and banks of Flathead Lake. And in order 
to implement those regulations, the tribal council at that time ap- 
pointed a seven-member board, four tribal members and three non- 
tribal members. The tribal — non-tribal members picked at that 
time were the Lake County commissioners. Tribal council felt if the 
Lake County commissioners were there, non-Indians would have 
an opportunity to have an election for the non-member participants 
and regulation of tribal property. 

Also we — as a Stevens Treaty tribe, we have the exclusive right 
of taking the fish on the reservation. In order to protect that habi- 
tat, we have an Aquatic Lands Conservation Ordinance 87A. That's 
the regulation — regulatory board for that is the same board as the 
Shoreline Protection Board. Since the implementation of those two 
ordinances, Shoreline Protection has approved 1,707 permits for 
structures on the south half of the lake. 1,601 of those permits are 
to nonmembers. On the Aquatic Lands Conservation Ordinance, 
there have been 891 permits issued, 267 to non-members, 156 to 
other tribal programs, 39 to State agencies, 48 to counties and 
towns, and 286 to other government agencies. And there is no 
charge for those permits. 

When we contracted under Public Law 93-638, Mission Valley 
Power of the electrical distribution system on the reservation, 
which distributes power to all homes and businesses on the res- 
ervation plus some off-reservation, we established a utility board 
and a consumer council for operation of the utility and for setting 
regulations for rates. Those are our nonmember and member par- 
ticipants on those boards. 

We also have cooperative law enforcement agreements between 
the tribes, State of Montana, all cities on the reservation, and with 
three counties on the reservation except one. Lake County refused 
to the sign that agreement. This agreement went into effect in 
1994 and provides for cross-citation authority, stop-and-detain pro- 
visions, and emergency powers for law enforcement officials. Our 
tribal officers are also cross-deputized with the Montana Highway 
Patrol. This agreement is working very well as evidenced by the 
enclosed article from the Missoulian of April 26, 1996. As stated by 
Captain Richard Chase of the Montana Highway Patrol's Missoula 
office: "The program is working exceptionally well for: us." 

Mr. Chairman, knowing that government action will necessarily 
impact activities permitted on the reservation and in recognition of 
the fact that many non-tribal members live on our reservation, we 
have taken steps to provide everyone the opportunity to play an ac- 
tive role in promulgation and implementation of our governmental 
regulations and ordinances. 



Our Tribal Administrative Procedures Ordinance provides for di- 
rect public participation in the regulation process, access to the 
governmental information similar to the Federal Administrative 
Procedures Act, and provides anyone who believes an agency has 
caused them injury the right to appeal that action to an adminis- 
trative law judge. We have repeatedly changed proposed tribal reg- 
ulations because of the non-Indian input in the public review proc- 
ess. 

We have utilized tribal funds to greatly expand and improve our 
justice system by development of an independent prosecutor's of- 
fice, a defender's office. And all of those are attorneys. We provide 
counsel for civil and criminal matters. We've expanded our appel- 
late court. The appellate court has three panels of attorney justices 
who are all licensed by the Montana bar. The three attorneys are 
non-Indians and we have two tribal members who are lay justices. 
In 1995, we also adopted Tribal Governmental Immunity Act, an 
ordinance which provides limited waivers of immunity for injunc- 
tive, declaratory, or mandamus relief for tribal government in- 
fringement of any civil and constitutional rights arising under the 
tribal constitution and bylaws for any civil rights act or so forth. 

And Mr. Chairman, we are very familiar with the distrust, 
anger, and fear associated with lost property and property rights. 
When we signed the Hellgate Treaty of 1855, we ceded to the 
United States 21 million acres which was known as Western Mon- 
tana and reserved the reservation for ourselves. However, since 
that time, the Flathead Allotment Act has been amended approxi- 
mately 80 times and each time we lost more and more. So with 
that, Mr. Chairman, I'd like to request the committee carefully con- 
sider this issue and to consider tribal sovereignty by giving tribal 
governments the resources necessary to build more protections into 
government and not to tear down tribal sovereignty by removing 
sovereign immunity. Mr. Chairman, let's continue to follow Presi- 
dent Ronald Reagan's Indian policy statement of 1983 to strength- 
en tribes 

By removing the obstacles to self-government and by creating a more favorable 
environment for the development of nealthy reservation economies. Tribal govern- 
ments, Federal Government and the private sector will all have to play a role. Our 
policy is to affirm dealing with Indian tribes on a government-to-government basis 
and to pursue the policy of self-government for Indian tribes without threatening 
termination. 

I'll conclude by saying I've also included for the record a procla- 
mation from our Governor, Marc Racicot, recognizing tribal sov- 
ereignty 

The Chairman. No objection. That will be included in the record. 

[Prepared statement of Mr. Pablo appears in appendix.] 

The Chairman. Chairperson Shaffer. 

STATEMENT OF SUE SHAFFER, CHAIRPERSON, COW CREEK 
BAND OF UMPQUA TRIBE OF INDIANS, ROSEBURG, OR 

Ms. Shaffer. Thank you for allowing me to speak here today on 
behalf of the Cow Creek Tribe 

The Chairman. You have to speak right into that microphone, as 
we've found. 

Ms. Shaffer. On behalf of the Cow Creek tribal government and 
to be a voice for other tribal governments as well. However, it's 



55 

saddens me, saddens me greatly to be here to testify today under 
such bleak circumstances. 

S. 1691 forces tribal governments to step forward to defend 
themselves against this brutal attack on tribal sovereign immunity. 

I wish to thank you, Chairman Campbell, for conducting these 
hearings which allows the voice of Indian country to be heard. I 
ask at this time that my oral comments be entered into the record 
speaking in opposition of S. 1691. 

I want to quote from our Honorable Senator Mark Hatfield from 
the great State of Oregon in a speech that he made in 1987, which 
was honoring our Tribal Chief Miwaleta, and I quote: 

There has been justice denied for many generations; stains on the history books 
of our Nation which relate to the Cow Creek Band of the Umpqua Tribe.. .but the 
wonderful thing is, even though we cannot remove those stains on our history, we 
can rewrite history. And we have the freedom, and the privilege, and the respon- 
sibility to rewrite history to correct the wrongs of the past, to compensate through 
restitution and other methods that are open to us for the things that have happened 
in our country and in our history for which we are not very proud. 

Presidents Nixon, Carter, Reagan, Bush, and now President Clin- 
ton have all recognized and strongly supported the rights of sov- 
ereign tribal governments. 

In an attempt to erase the past injustices, President Nixon was 
a driving force behind self-determination for Indian people. Tribal 
governments were included in the humanitarian efforts of Presi- 
dent [sic] Carter. 

After 128 years of the U.S. Government ignoring the Cow Creek 
Band of the Umpqua Tribe of Indians, President Reagan signed 
into law our Restoration Act in 1982. 

President Bush further recognized tribal sovereignty in his 
March 3, 1992, proclamation stating, and I quote: 

This year gives us the opportunity to recognize the special place that American 
Indians hold in our society, to affirm the right of Indian tribes to exist as sovereign 
entities, and to seek greater mutual understanding and trust. 

President Clinton in his strong support invited tribal leaders to 
the White House, affirming the government-to-government rela- 
tionship between the U.S. Government and sovereign tribal govern- 
ments. 

The actions of our past five presidents demonstrate their aware- 
ness of the need to lift up the conscience of America as it relates 
to Indian people and their sovereign governmental rights. 

S. 1691 has been said — stated to be the American Indian Equal 
Justice Act, as if sovereignty is not workable between tribal govern- 
ments and other levels of government. 

Cow Creeks are proof that sovereignty works. It works. We have 
negotiated numerous contracts and agreements with the EPA, the 
State of Oregon, and the Tribal State Compact, the Oregon State 
Police for regulatory oversight, the Oregon Department of Trans- 
portation, the Douglas County Building Department, Douglas 
County Forest Protective Association, the city of Canyonville, local 
fire departments, and countless vendors, builders, and service con- 
tracts. 

At the present time the tribe is very active in supporting a child 
care center in our small town. We're working with not only our city 
but the surrounding cities to finish a much needed child care and 
learning center. 



56 

In addition to these formal agreements that we have had, our 
reputation has allowed this tribe to conduct many sizable business 
transactions, including property purchase on a handshake and our 
word. 

Again, I State sovereignty works. Those who are elected to the 
United States Senate hold a high office, and each and every one 
must be responsible to the needs and the rights of every citizen, 
and that includes the rights of Indian people. 

In Senator Hatfield's statement, he mentioned the stain on the 
history of America. I would hope and truly pray, truly pray, that 
we not darken that stain but rather that we eliminate it. 

I must speak in opposition to S. 1691. 

Thank you. 

[Prepared statement of Ms. Shaffer appears in appendix.] 

The Chairman. Chairman Bernal. 

STATEMENT OF ROY BERNAL, CHAIRMAN, ALL INDIAN 
PUEBLO COUNCBL, ALBUQUERQUE, NM 

Mr. Bernal. Chairman Campbell and Honorable Members of 
Senate Committee on Indian Affairs. 

My name is Roy Bernal. I'm the Chairman of the All Indian 
Pueblo Council, the prehistoric alliance of the 19 Pueblos located 
in what is now the State of New Mexico. I appreciate the oppor- 
tunity to appear before the committee to share some of the observa- 
tions and concerns of the Pueblo tribes of New Mexico. I am not 
going to go over verbatim with my statement. I will be skipping be- 
cause — for the sake of time. 

The Pueblo peoples have lived in the Southwest region the North 
American continent for thousands upon thousands of years. Since 
time immemorial, our peoples have lived in well-organized commu- 
nities. When the Spanish colonizers entered the region in the 
1500's, there were well over 40 independent Pueblo Nations living 
along the great Rio Grande River. 

The significance of Indian self-government was acknowledged 
from the outset of European contact. The Pueblos hold as evidence 
of their sovereign powers, the Canes of Authority, presented to the 
autonomous Pueblos by the governments of Spain in 1620, by Mex- 
ico in 1821, the United States of America in 1863, and the State 
of New Mexico in 1990 — 1980. The Lincoln Cane, presented to the 
Pueblos in 1863 by the United States, symbolizes to all of the world 
the perpetual acknowledgment and commitment of the United 
States to honor our sovereignty, protect our resources, and enhance 
our welfare, in the spirit of trusteeship, honesty, and equality. And 
likewise, our Pueblo Canes are symbols to our peoples that all 
power and authority exist in their own form of government, that 
their government is responsible to the people, and that they own 
allegiance to the United States of America. 

The existence, independence, and sovereignty of Indian govern- 
ment was recognized not only in the U.S. Constitution but also in 
various commonwealth documents predating the Constitution, such 
as the Articles of Confederation. 

In the Wheeler case, the U.S. Supreme Court observed that tribal 
sovereignty does not consist of delegated powers granted by express 
acts of Congress, but rather of "inherent powers of sovereignty 



57 

which has never been extinguished." For Congress to contemplate 
interfering with his ancient doctrines, great caution should be em- 
ployed. 

Doubtless certain persons have complained about having being 
treated unfairly by tribes and have asked Congress to step forward 
and take drastic action. A few disgruntled persons should not carry 
the day. We submit that these complaints are unique and not the 
status quo. 

Let us remember, in any controversy or case there are at least 
two sides. Any non-prevailing party is usually angered and some- 
times embittered. He will continue to attack nis opponent, his op- 
ponent's lawyers, and his own lawyer. He will attack the system 
as being unjust, immoral, and unconstitutional. He will allege 
unblushingly that the trier of facts have been bribed, is in league 
with the devil, or both. 

To heed a few disappointed persons such as those complaining to 
Congress and other authorities with their wrongful assertions or 
inevitable exaggerations, would Congress upset existing tribal sov- 
ereignty, the concept of self-governance, and the necessary inde- 
pendence that tribes enjoy? Are non-tribal courts better, fairer, 
more learned, better informed, more conversant with Indian tradi- 
tion? The answers to these queries are, of course, a resounding no. 

It is a sad fact that multitudes of persons who live — who believe 
they have been treated fairly and even-handed by tribes do not feel 
compelled to come forward. 

Without any command from Congress, tribes have already dealt 
with issues of property rights and civil rights. Because of the di- 
minishing Federal dollars, the New Mexico Pueblos must pursue 
businesses aggressively to generate funds to provide services to 
their members and to protect tribal lands. Our businesses include 
gaming enterprises, Indian arts and crafts shops, tribally owned 
truck farms with patrons harvesting for themselves, and other re- 
tail operations. Business judgments are exercised on the basis of 
practicality rather than Congressional mandate. A member of the 
public patronizing a tribally-owned business, who suffers an injury, 
typically a slip-and-fall instance, expects care. We clearly under- 
stand the denial of responsibility involved in the denial of property 
right. The insurance companies providing liability coverage are in- 
structed by tribes to deal with such cases and not raise any immu- 
nity defenses. If these cases are not settled amicably — the vast ma- 
jority are — they are arbitrated and the arbitrations are enforced by 
tribes. We submit that Congress should acknowledge that the 
tribes have a sense of priority which is at least equal to that of the 
United States. One — one need not speculate as to the harmful ef- 
fects of removing sovereignty. From 1968 to 1978, the United 
States Tenth Circuit Court of Appeals adopted the view that the 
1968 Civil Rights — Indian Civil Rights Act permitted such suits 
against tribes by aggrieved plaintiffs alleging violation of civil or 
property rights. Lawyers artfully characterized many causes to fall 
into these categories. 

During this decade, brought to close by the holding by the Su- 
preme Court in Santa Clara Pueblo v. Martinez case, there were — 
there was a proliferation of cases in Federal courts which assumed 
immediate jurisdiction (the plaintiff not having first to proceed 



58 

through any other court systems, including tribal court, the logical 
forum). These matters included contract disputes, routine person- 
nel matters, brief incarcerations by police, et cetera. 

I'm sorry that we have a time limitation to this. But the pro- 
posed forum of S. 1691 would — would involve the condemnation of 
tribal properties by other governments ranging from the United 
States to local utilities. Not only would tribal lands be threatened, 
but also the integrity of the boundaries would be ignored. And I 
would like to conclude by saying that Congress must not strip 
tribes of tribal immunity. This would be the antithesis of the gov- 
ernment-to-government relationship, the announced national policy 
of the United States, and would be an exercise of unbridled power 
over reason. 

I would like to say officially, too, that the All Indian Pueblo 
Council of New Mexico adamantly opposed this particular legisla- 
tion. 

Also I would like to conclude further by saying, in all fairness, 
I think it would be good if the committee and the Chairman would 
consider holding a hearing in the Southwest so that you all can get 
a different perspective on these issues. 

Thank you. 

[Prepared statement of Mr. Bernal appears in appendix.] 

The Chairman. Normally — I might tell you that normally there 
are two hearings done, one in Washington and one somewhere in 
the field, but because of the magnitude of this bill, we've expanded 
that to three. We probably won't be able to put another one in be- 
cause we have some budgetary constraints, too, with the committee 
traveling. But certainly any additional information from people in 
the Southwest will be included in the record if they will send that 
in. 

Judge Wynne. 

STATEMENT OF MARY WYNNE, TRIBAL JUDGE, CONFED- 
ERATED TRD3ES OF THE COLVDXE RESERVATION, 
NESPELEM, WA 

Ms. Wynne. Good afternoon, gentlemen. My name is Mary 
Wynne. I'm the Chief Judge of the Colville Confederated Tribal 
Court. And I want to start out by extending you greetings from the 
National Indian Court Judges Association, where I'm the Vice 
President, and the Northwest Tribal Court Judges Association, 
where I am the President. 

I'm here today to speak against S. 1691 and to present my views 
on property and civil rights in Indian country. And I want to start 
out by saying I only have five minutes. I am a lawyer. I'll admit 
that. And I am an Indian, and that means that I'm incapable of 
saying anything in 5 minutes, even though I tried a bunch of times 
last night in front of the mirror. 

I'm also a judge, and so I prefer to approach monumental issues, 
which I consider this one to be, based on the facts and not on indi- 
vidual war stories. 

So the net result of that, Mr. Chairman, is that you have a huge 
packet of materials in front of you that I personally put together 
and sent to you containing those facts. I'm going to touch on those 



59 

very, very briefly, and then when that light turns yellow, I'm going 
to turn to something else. 

The facts are that tribal courts are dealing with civil rights and 
property rights every day and they are dealing with them as fair 
and impartial forums, capable of adjudicating justice in Indian 
country. 

Contained within your packet is the case count of the Colville 
tribal court. It's one of 350 tribal courts, but you can see from that 
case count that the Colville tribal court handles 3,000 to 4,000 
cases a year. Of those, 30 percent handle cases involving non-mem- 
bers those are folks who vote with their feet. They come into tribal 
court and they appear and they adjudicate their issues and resolve 
their disputes, and they include the State of Washington, who 
comes in and appears in the Colville tribal court. Of that 30 per- 
cent, the case count that my clerks did showed that about 50 per- 
cent of those non-members are winning. 

Included also in your packet is the system — that by which we 
pay for adjudicating those disputes. The Colville Tribe gets about 
one-sixth of the budget of the nearest county court to adjudicate 
those cases and a fraction of the budget of the nearest Federal 
court. 

If, in fact, you are considering turning over the caseload at 
Colville to the nearest county court, you better be considering turn- 
ing over more than $1 million to them to handle those cases and 
over $4.6 million to the nearest Federal court, as well as answering 
to your constituency, who will have to travel farther to get those 
same disputes adjudicated and who were perfectly willing to come 
into court before and get them handled. 

You also have in your packet the Colville Tribal Civil Rights Act 
and the cases interpreting and applying that. Under that act, you 
will see that civil rights are alive and well and being adjudicated 
every day in tribal courts. You're going to see where the court 
awards both civil and criminal judgments based on that Civil 
Rights Act. You're going to see where the court has certified class 
and enjoined the Colville Tribes from raising rents on their tribal 
housing. The court has instituted employees back into work. The 
court has granted money damages to employees. The court has liti- 
gated cases against the Colville Tribes and is able to provide im- 
partial — an impartial forum that provides justice, including non- 
members. And I do mean the community and not just members. 

And finally, when you're looking at your package — that light 
turned orange; I'm going to switch — the one thing that you need to 
remember out of all of the things that I've said is that I did not 
get an opportunity to say nearly enough. 

And when I was standing at my archaic fax machine at the tribal 
court trying to make it get all of those pages through to — to Sen- 
ator Campbell and praying that they would, it occurred to me that 
I had not said nearly enough. 

The packet that I put together for you, gentlemen, contains the 
stories of the people who walk through that tribal court. And it 
does so through the cases, through the laws, and through the opin- 
ions that are in that packet. I attempted to put together a packet 
that would allow you to choose to stand in a tribal courtroom for 
1 day, to walk in the moccasins of a tribal court judge for 1 day. 



60 

And it occurred to me after I was faxing it off, that it wasn't 
enough, so I searched and searched and I found a quote that I want 
you to keep in mind as you review that packet. And it was from 
a — an address to the New York Bar Association, which is a strange 
place to get a quote, but it applies equally well. Here it is. 

We expect courts to encompass every reach of the law and we expect the law to 
encircle us in our earthly sphere and to travel with us to the alien vastness of outer 
space. We want courts to sustain personal liberty, to end our racial tensions, to out- 
law war, and to sweep contaminants from the globe. We ask courts to shield us from 
public wrong and private temptation, to penalize us for our transgressions, and to 
restrain those who would transgress against us, to adjust our private differences, 
to resuscitate our businesses, to protect us prenatally, to marry us, to divorce us, 
and if not to bury us, at least to see to it that our funeral expenses are paid. 

Tribal courts are no different than any other court. We are doing 
our best. 

When you are considering S. 1691, I ask you to consider the fact 
that you have the power to start a national dialogue related to trib- 
al courts and what can be done with the limitations that they face 
every day in trying to adjudicate the disputes of all of the people 
who walk in the courthouse doors. 

When you are considering that, look at the solutions contained 
in your packet, fund them adequately, enact legislation that sup- 
ports them, not disembowels them. Aiid in that way, you will jus- 
tice in the Indian country throughout this Nation. 

Thank you. And I'll be pleased to answer questions. 

[Prepared statement of Ms. Wynne appears in appendix.] 

The Chairman. I'll pass my questions in the interest of time. 

Senator Inouye. 

Senator Inouye. All of you agree that sovereignty works, that 
there is no need for passage of additional legislation such as S. 
1691? 

Thank you. 

The Chairman. Senator Gorton. 

Senator Gorton. Mr. Pablo, you indicate — I'm on page 4 of 
your — of your written testimony — that your tribal government has 
exercised a limited waiver in connection with civil rights actions? 

Mr. Pablo. Yes, sir. 

Senator Gorton. Does that mean under some circumstances at 
least, you allow an appeal from a tribal court to a Federal court 
based on the Indian Civil Rights Act? 

Mr. Pablo. What we do is, anything that goes through after the 
waiver of the sovereign immunity under the ordinance, that can be 
tried through tribal court, and from tribal court, it goes to our ap- 
pellate court system. It does not go into the Federal court. 

Senator Gorton. Oh, I see. 

So that you have not waived sovereign immunity so as to be sub- 
ject to suit or appeal outside of the tribal court system? 

Mr. Pablo. Correct. Just like the State, within the State court 
system, we as the tribe deal with that in the tribal court system. 

Senator Gorton. I see. Thank you for that clarification. 

Chairman Bernal, you are — I'm on page 5 of your testimony — 
when you speak directly to immunity, you talk about the fact that 
the Tenth Circuit for roughly 10 years interpreted the Indian Civil 
Rights Act as — as authorizing lawsuits and — in Federal court until 
the Martinez case was decided, correct? Do you see where I'm at? 



61 

And you say parenthetically there that — first you say that there 
was a proliferation of cases in Federal courts. And then the plain- 
tiff not having first to proceed through any other court system in- 
cluding tribal court the logical forum. 

Would your view on enforcement of the Indian Civil Rights Act 
and, for that matter, the Bill of Rights in Federal courts be any dif- 
ferent if the — if the complaining party first had to go all of the way 
through the Indian court system itself? 

Mr. Bernal. Senator, I'd like to answer that question, but I'm 
not a lawyer and I think you're phrasing this question a certain 
way, so I'd like to turn to someone else 

Senator Gorton. Sure. 

Mr. Bernal [continuing!. And perhaps someone else that can 
help me respond to that. 

The Chairman. Will you identify yourself for the record again. 

Ms. Williams. I'm sorry, Senator. Could you please repeat the 
question? 

Senator Gorton. Well, let me read what his statement says. 

"During this decade," — that is, the time that the Tenth Circuit 
was allowing Indian civil rights actions to be brought in Federal 
courts — 

There was a proliferation of cases in Federal courts which assumed immediate ju- 
risdiction (the plaintiff not having first to proceed through any other court system, 
including tribal court, the logical forum). 

I was asking the Chairman whether his views of — of the propo- 
sition that cases brought under statutes of the United States — that 
is, the Indian Civil Rights Act or the Constitution of the United 
States, the Bill of Rights — if his view would be any different if the 
claimant had to exhaust all remedies of the tribal courts first and 
only to the appeal thereafter to Federal courts. 

Ms. Williams. I think the view of the Pueblos certainly has been 
that the tribal forums are fair. They may look a little different in 
some instances than the State and Federal forums, just like a lot 
of State courts look very different, depending on which State you're 
in. But it is our view, that they are fair forums. They are very mis- 
understood in our country. A lot of people don't use them or they 
use them and get an answer they don't like, so they criticize them. 
And that's wholly unfair. 

We do acknowledge that the tribal courts are very, very much op- 
erating at a deficit. A lot of the tax base on Indian reservations just 
isn't there. It's already overtaxed by the States and the counties. 
It gives us very little revenue stream to fund our courts. That's 
why the Indian Tribal Court Justice Act was so important to us to 
so they can improve their performance. We think that if that were 
done, people would begin to see that the tribal forums are fair. 

Now, as I have suggested earlier in my testimony — it's only my 
personal view; it is not the view of any of my clients — that this 
problem of not being able to appeal out of the tribal forums is one 
that U.S. Supreme Court has noticed, and I think has — has decided 
that perhaps there are some areas where tribes may not have regu- 
latory authority over non-Indians because our courts and our fo- 
rums look so different. 

Well, if that's the case, and we're going to be subject to Federal 
court review of our tribal court decisions, it seems to me, Senator, 



47-901 98-3 



62 

in fairness, the tribes' sovereignty over non-Indians, civil and 
criminal, should be restored as part of that process. 

Senator Gorton. Okay. That's a — that is the answer you gave 
me IV2 years ago. It wasn't an answer to the question that I asked, 
but 

Ms. Williams. I was saying I do not think that just simply pro- 
viding an exhaustion requirement alone is enough. 

Senator Gorton. All right. That was the question that I asked. 
Thank you very much. 

And Judge Wynne, yours is an impressive record here of the 
Colville courts. I'd like to ask you the question, in how many of the 
cases that you list here as your caseload in which a non-Indian ap- 
peared as a voluntary plaintiff, I gather, in the tribal court, in how 
many of those cases could that non-Indian plaintiff successfully 
have brought such a — such a lawsuit in either the State or Federal 
courts? 

Ms. Wynne. I'm sorry, Senator. I didn't do that analysis. I had 
1 week I had very limited clerks and I didn't do that type of analy- 
sis. 

Senator Gorton. Okay. Maybe I'll try to make the question a lit- 
tle bit easier, then. 

Were the non-Indians there in — in that court because it was the 
only forum they had, that if they had sued in State courts, the sov- 
ereign immunity doctrine would have been imposed and the court 
would have been barred from hearing the case? 

Ms. Wynne. I can clearly answer that. No; they were not all 
there because they couldn't file at any other court. One of — one of 
the groups of people who appears regularly in the Colville tribal 
court is the State of Washington Office of Support Enforcement. 
And they're capable of suing in other forums on child support 
issues, but they appear in Colville tribal court. There are numerous 
instances where that occurs, including banks coming on reservation 
and suing out on loans. They usually choose to use the tribal court 
because of improved chances at recovering on a judgment, which, 
as you know, is a whole separate issue after getting the judgment. 

Senator Gorton. And nothing in S. 1691 would prohibit that 
from continuing. 

Ms. Wynne. S. 1691 is the most destructive piece of legislation 
in the sense that it scoops up those cases from tribal court where 
tribal courts normally hear those cases and places them in a for- 
eign jurisdiction. 

Senator Gorton. I don't believe it does. My question was that 
these cases that you've described, where either a State agency or 
an individual could have brought the action in the State court but 
chooses to come to your court would not be affected at all by S. 
1691. They would still be able to choose your court if they wish, 
would they not? 

Ms. Wynne. You could choose to look at only a small percentage 
of cases where that was true and in fact that statement would be 
correct. 

Senator Gorton. Okay. So the cases at issue here are the ones 
in which the non-Indians have come to your court because it's the 
only place that they could possibly go; tney'd be barred by statute 



63 

and by sovereign immunity from bringing the case in any other 
court. 

Ms. Wynne. You're misstating the record, Senator. You asked me 
whether or not any of the folks who walked into that court had 
other available forums. 

Senator Gorton. I'm sorry. I don't mean to be misleading you. 
I think what you said, some of the people are there because they'd 
rather be there than another court. 

Ms. Wynne. That is correct. 

Senator Gorton. Some are there because it's the only court they 
can go to. 

Ms. Wynne. That's correct. 

Senator Gorton. I'm now speaking about the latter group. I'm 
now speaking about the latter group. They are there because they 
would be barred — at least most of them would be barred — by sov- 
ereign immunity from bringing the suit in a State court or a Fed- 
eral court; is that correct?. 

Ms. WYNNE. I'm sorry. Can you restate your question? You lost 
me on some of the people and some of the people and there there. 

Senator Gorton. You've told me that some of your caseload are 
cases brought by non-Indians in the tribal court even though they 
could have brought those cases somewhere else. 

Ms. Wynne. Yes. 

Senator Gorton. And some of them are brought in tribal court 
because it's the only place they could have been brought. 

Ms. Wynne. Yes. 

Senator Gorton. Okay. In the latter case, I assume the reason 
for that answer is that the tribe, if the tribe was the defendant, 
would have interposed the defense of sovereign immunity had the 
case been brought somewhere else. 

Ms. Wynne. You're asking me about cases where there's no sub- 
ject matter jurisdiction in Federal or State court? 

Senator Gorton. No; I'm asking whether or not — maybe I — put- 
ting it simple. 

Are none of these cases in which the defendant is the — is the — 
is the Colville Tribe? 

Ms. Wynne. Oh, yes, there are cases where the defendant is the 
Colville tribe. 

Senator Gorton. If the defendant is the Colville Tribe and the 
case were brought in the superior court in Okanogan, the tribe 
would interpose sovereign immunity as a defense, would it not? 

Ms. Wynne. Oh, I see what you're getting. 

Yes; in the materials submitted to you, Senator, there is a case 
where, for instance, a non-Indian sued the tribe and recovered both 
a money judgment and being reinstated as an employee of the 
tribe. And in that particular case, the tribes had waived sovereign 
immunity for that case to be filed in tribal court. Is that what you 
are asking about? 

Senator Gorton. No; I was asking if that case had been brought 
in the superior court in Okanogan County — the State court in 
Okanogan County, the tribe would have entered the defense of sov- 
ereign immunity and the case would have been dismissed, would 
that not be the case? 



64 

Ms. Wynne. As a former Assistant U.S. Attorney, if I were rep- 
resenting the government in any case in a State or Federal court, 
I would — I would look at the defense of sovereign immunity. As a 
judge, I would tell you that I will not enter a judgment on behalf 
of a State or a Federal judge. Those are issues that those judges 
need to look at. 

Senator GORTON. All right. I thought my question was easier 
than — simpler than what it appeared to be. 

But in — in any event, in those cases where the only forum is the 
tribal court, because sovereign immunity would be invoked if the 
case were brought in State or Federal court, what is the difference 
when you're telling a non-citizen of the tribal — you know, of the — 
of the Colville tribe that they must pursue a cause of action even 
though it may have arisen outside of the reservation in the tribe? 
What's the difference between that and — and a doctrine saying that 
if you want to sue Airbus over an accident in the United States, 
you can only sue them in France? 

Ms. Wynne. I don't practice international law. I practice — I sit 
in tribal court system. 

The Chairman. Okay. 

Ms. Wynne. And you're asking me international law questions. 
I know that 

Senator Gorton. No; let's stipulate to this point, that if you sue 
Airbus, you would sue it in the United States, that France can't 
say, This is a French Government matter, we have sovereign im- 
munity, you can only sue us in France. 

I just want to know why forcing citizens of the United States to 
go into a court in which they aren't represented, in a tribal court, 
is any different than a doctrine that says we would have to go to 
France to sue a French corporation doing business in the United 
States. Is there a difference? 

Ms. Wynne. People who come into the tribal court come into the 
tribal court because they have — under regular rules, they have en- 
tered into contracts on the reservation, they have sufficient con- 
tacts on the reservation, they are doing business on the reserva- 
tion, or they have some way consented to the authority of the tribes 
by coming into the tribes, coming into that government and doing 
business or undertaking some transaction. And for that reason, 
they end up in those tribal courts, which I submit to you is a prop- 
er forum for them. 

And I also would like to direct you to the materials that have 
been submitted to you, Senator. In those materials it does provide 
on these civil cases that nonmembers are entitled to jury trials, 
and on those jury trials they are entitled to select from all of the 
members of the reservation community, not just members. 

So in fact, the implication of your question that I'm hearing, 
which is that the nonmember would come in and face only mem- 
bers, is — is not correct. 

Senator Gorton. I thank you very much. 

Ms. Williams. Mr. Chairman, if I could just say one thing. 

Senator a State only waives its immunity into its own State 
court; it does not waive its immunity into another State's court. 

I don't really follow the question, but let me just put that on 
there, if I followed the question. 



65 

Senator Gorton. I don't follow your answer, so we're dead even. 

Ms. Williams. So we're both in the dark. 

The Chairman. We have no further questions. I appreciate your 
attending today. 

We'll now proceed to the last panel. 

Col. Caleb Johnson, Hope Tribal Council Member; William Law- 
rence, owner and publisher of the Native American Press; Roland 
Morris, President of All Citizens Equal, Ronan, Montana; Craig 
Greenberg from Huffman, Usem — I can't read this whole thing 
without my glasses, but I'm sure Mr. Greenberg is here. 

If you will take your seats. We will continue in that order — John- 
son, Lawrence, Morris, and Greenberg — as we did with the other 
committees. 

The Chairman. Colonel Johnson is a little bit late, so we'll go 
ahead and start with Mr. Lawrence. As with the other committees, 
all of the testimony will be included in the record. And you are en- 
couraged to abbreviate and watching that light. 

If you'd like to go ahead, Mr. Lawrence. 

Mr. Lawrence. Mr. Chairman, members of the committee, good 
afternoon. 

My name is Bill Lawrence. 

The Chairman. Could you keep your voices down. If you'd like 
to talk, if you can go outside the room here, we'd appreciate it. 

Go ahead, Mr. Lawrence. 

STATEMENT OF WILLIAM J. LAWRENCE, OWNER/PUBLISHER, 
NATIVE AMERICAN PRESS/OJEBWE NEWS, BEMEDJI, MN 

Mr. Lawrence. I'm an enrolled member of the Red Lake Band 
of Chippewa Indians in Northern Minnesota. 

I'm here in Seattle on my own time and at my own expense. I'm 
not on any Federal or tribal payroll. 

I have worked 30 years in Indian affairs at the tribal, State, Fed- 
eral, and private levels. For the past 10 years I have been the 
owner and publisher of the Native American Press/Ojibwe News, a 
weekly newspaper published in Bemidji, Minnesota. 

The greatest injustice the Federal Government has imposed on 
Indian people during the 20th century is to make us citizens, but 
deny us most of the basic rights of citizenship. 

In 1968, Congress recognized this injustice and enacted the In- 
dian Civil Rights Act. But in 1978, the U.S. Supreme Court in the 
poorly considered Santa Clara v. Martinez decision ruled, in effect, 
that it's up to each tribal government to decide if and to what ex- 
tent reservation Indians have any civil rights. 

S. 1691 would, among other things, correct this injustice by 
amending the Indian Civil Rights Act so that we can hold tribal 
governments accountable when they deny us our rights. 

Democracy is not simply the existence of free and fair elections, 
which I would argue often do not exist in tribal elections. Democ- 
racy is also defined by limiting the powers of government by such 
things as a rule of law, separation of powers, checks on the power 
of each branch of government, equality under the law, impartial 
courts, due process, and protection of the basic liberties of speech, 
assembly, press, and property. These do not exist on Indian res- 
ervations. A given tribal government may claim these protections 



66 

do exist, but closer analysis usually reveals that claim to be cha- 
rade. And where one tribal government may extend some rights to 
its citizens, the next regime may not be so kind and can instantly 
reverse or ignore any tribal law or tribal constitutional protection 
they want, in the name of self-determination, and with the defense 
of sovereign immunity. James Madison, a founding father and sign- 
er of the U.S. Constitution, said that government with no separa- 
tion of powers and no checks and balances is the very definition of 
tyranny. That is what we have on America's Indian reservations. 
Tribal government opposition to a free press in Indian country is 
very strong. Over one-naif of Minnesota's tribal governments do not 
allow the Native American Press/Ojibwe News to be sold on their 
reservations, and tribal interests have harassed and attempted to 
intimidate our advertisers and retail outlets. The paper has been 
confiscated from newsstands on numerous occasions. 

We are currently in State court fighting charges of trespass 
against one of our reporters for attending a meeting of the Min- 
nesota Chippewa Tribe at a casino on the Mille Lacs Reservation. 
He was arrested, handcuffed, and put in jail until the meeting they 
did not want him reporting on was adjourned. The State recognizes 
and enforces tribal police actions such as this. 

Tribal sovereign immunity gives Indian people less rights and 
more government corruption, unaccountable— discord, and abuse of 
power. 

With the Indian Gaming Regulatory Act, which has overlaid a 
multi-billion dollar cash industry on top of an unaccountable gov- 
ernment, the abuse of power has taken on new ferocity. 

Federal Reserve Chairman Alan Greenspan said recently: "The 
guiding mechanism of a free market economy is a Bill of Rights en- 
forced by an impartial judiciary." There can be no denying that the 
lack of civil rights, the lack of legitimate courts, and the lack of 
government accountability is the single biggest reason there is so 
little economic activity on America's reservations. 

I first exposed the abuses of the Red Lake tribal court in 1972 
in a Law Review article. Even after the U.S. Civil Rights Commis- 
sion put the BIA on notice of these abuses, the BIA's only response 
was to increase funding to the tribal courts. 

Since then, I've personally been the victim of the Red Lake Trib- 
al Council's use of the sovereign immunity defense on five occa- 
sions. 

On four separate occasions, I have tried to get tribal financial 
statements which, according to our constitution, are supposed to be 
available to tribal members. The tribal officials would order hear- 
ings to be postponed seconds before they were scheduled to occur, 
switch judges without notice, deny a right to a jury, change from 
a scheduled pretrial hearing to a full trial without notice, deny an 
opportunity to call witnesses, and come to the first day of trial with 
a typed decision already in hand. Needless to say, I was denied my 
right to see tribal financial records. 

In 1994, three tribal members asked me to represent them in 
Red Lake tribal court in an election dispute. Despite my legal back- 
ground and eligibility in every way, the tribal council denied me a 
license to represent people in my own court. They were afraid I 
would take cases against the council for violating people's rights. 



67 

The 1990 U.S. Civil Rights Commission Report was published with- 
out one word about the abuses in the Red Lake court, in spite of 
the fact that their investigation resulted in a 31-page description 
of civil right problems at Red Lake. They left it out of the final re- 
port because the Red Lake government didn't want it made public. 
Former Washington Congressman Lloyd Meeds wrote a well- 
thought-out dissent to the 1977 American Indian Policy Review 
Commission Final Report, in which he said: 

If Indian governments are to exercise governmental powers as licensees of the 
United States, it is imperative that they be fully answerable for the improper exer- 
cise of those powers. Tribal sovereign immunity. ..should not be allowed to interfere 
with Federal court enforcement of Federally protected civil rights. 

And a 1989 report of the Senate Select Committee on Indian Af- 
fairs made the following accurate observation: 

Since Congress has the ultimate responsibility for Federal Indian policy, we in the 
Senate and House must accept the blame for failing to adequately oversee and re- 
form Indian affairs. Rather than becoming actively engaged in Indian issues. Con- 
gress has demonstrated an attitude of benign neglect... By allowing tribal officials to 
handle hundreds of millions of dollars in Federal funds without stringent criminal 
laws or adequate enforcement, Congress has left the American Indian people vulner- 
able to corruption. 

Let it be said right now that sovereign immunity has nothing to 
do with Indian culture or tradition. It's a concept that developed 
in the Roman Empire and was used by European monarchs to pro- 
tect them from challenge or criticism. Tribal sovereign immunity 
has essentially told a generation of tribal leaders that once they 
are in office, they are above the law and can do whatever they 
please. The only culture that tribal sovereign immunity is protect- 
ing is a culture of corruption, oppression, and unaccountability. 

In closing, I would like to quote a great American, the late Dr. 
Martin Luther King. He said: "Injustice anywhere is a threat to 
justice everywhere." 

Thank you. 

[Prepared statement of Mr. Lawrence appears in appendix.] 

The Chairman. Why don't we go ahead with Colonel Johnson 
since he was on the list to speak first, and then we'll go on with 
Mr. Morris. 

STATEMENT OF COL. CALEB H. JOHNSON, HOPI TRIBAL 
COUNCIL MEMBER, KYKOTSMOVI, AZ 

Colonel Johnson. Good afternoon, Mr. Chairman and the com- 
mittee. 

I am Caleb H. Johnson 

The Chairman. Pull the microphone over close to you, Colonel 
Johnson. 

Colonel Johnson. I am Caleb H. Johnson, a member of the Hopi 
Indian Tribe in Arizona. I am now serving my third 2-year term 
on the Hopi tribal council as a representative from the Village of 
Kykotsmovi. I was certified — I was a certified candidate for Chair- 
man of the tribe in its election of late 1997. 

I am a graduate from UCLA. I also have a master's degree from 
Princeton Theological Seminary. I have served in the U.S. Army for 
28 years on active duty and in the Reserves. I retired as a full 
Colonel in 1989 at Fort Huachuca, AZ, with full military honors. 



68 

Before I make my comments, let me make it absolutely clear that 
I'm not speaking on behalf of the Hopi tribal council. I'm here as 
an individual citizen of the United States whose rights of due proc- 
ess have been violated by the Hopi tribal court. I'm here to testify 
to the fact that I have filed a complaint against the Hopi election 
board and in the U.S. District Court of Arizona for the violation of 
my rights under the Indian Civil Rights Act of 1968. My complaint 
against the Hopi election board results from their conduct of the 
previously mentioned tribal chairman election. Severe irregularities 
occurred in the conduct of the election, so severe that I went from 
being one of the leading vote-getters, to not even making it into the 
runoff election. A copy of my complaint is attached to my testimony 
and I request that it be included in the hearing record. 

The Chairman. No objection. It will be included. 

Colonel Johnson. In discussing my complaint with my legal 
counsel, Richard M. Grimsrud, I have been advised that it will 
most likely be dismissed due to the doctrine of sovereign immunity 
claimed by the Hopi tribal government. The fact of the matter is, 
that if that should occur, then I will have no legal remedy. Despite 
the fact that the Fifth Amendment of the U.S. Constitution guaran- 
tees that no person shall be deprived of life, liberty, or property 
without due process of law. 

When I was in Vietnam from June 1968-69, with the 17th Com- 
bat Aviation Group in I Corps, some 400 to 500 military personnel 
were dying each month defending the U.S. Constitution and its Bill 
of Rights. It's rather ironic when I consider my situation today, 
that the Indian Civil Rights Act was enacted into law in the same 
year, but here I am today being denied my civil rights some 30 
years later. What this situation tells me is that something is abso- 
lutely wrong and that something needs to be corrected expedi- 
tiously. 

I have no knowledge of how tribal courts operate in other Indian 
tribes, but I do know how it operates in the Hopi tribe. My com- 
plaint makes it very clear that the tribal court deliberately delayed 
stamping my complaint filed until 30 days had passed so that the 
court would dismiss it as not being filed on a timely basis. 

I'm also very confident that the legal counsel for the election 
board will argue before the Federal District Court that my com- 
plaint be dismissed because of the doctrine of sovereign immunity 
of the Hopi tribe, leaving me again without any legal remedy for 
the violation of my rights of due process under the Indian Civil 
Rights Act of 1968. 

It is for these reasons that I'm here today to support section 7 
of Senator Gorton's legislation, which would waive tribal sovereign 
immunity so that actions may be brought by Federal — in Federal 
court under the Indian Civil Rights Act. 

In addition, I would like to make two recommendations for your 
consideration. First, I recommend that the word "original" be in- 
serted before the word "jurisdiction" on page 10, line 14 of the bill. 
Second, I recommend that this section be enacted into law by the 
Congress and the President of the United States, who is my Com- 
mander in Chief. 



69 

In conclusion, I'm deeply grateful to Senator Gorton, who made 
it possible for me to bring this matter to your attention. Thank you. 
And God bless the United States. 

[Prepared statement of Colonel Johnson appears in appendix.] 

The Chairman. Thank you. 

Mr. Morris. 

STATEMENT OF ROLAND MORRIS, PRESIDENT, ALL CITIZENS 
EQUAL, RONAN, MT 

Mr. Morris. Good afternoon, Mr. Chairman and members of 
committee. 

My name is Roland Morris, Sr. I'm a board member of the Citi- 
zens for Equal Rights Alliance [CERA] and President of All Citi- 
zens Equal. Although opposition has labeled these groups harshly, 
both are grass roots, multicultural racial groups dedicated to the 
promotion of equal rights for all citizens within Indian country. 

I am a full-blooded Anishinabe American citizen. Originally from 
the Leech Lake Band of Minnesota Chippewa, I now live in Mon- 
tana. 

Thank you for the opportunity to appear before you to testify on 
American Indian Equal Justice Act. It is my hope that you will dis- 
cern the truthfulness of my message by examining both my heart 
as well as my words. 

I believe current Federal Indian policy coupled with tribal gov- 
ernment behavior is taking a bigger toll on tribal members than 
most people admit. On the reservation, State and Federal constitu- 
tional rights can be denied me. I become a second-class citizen. On 
a reservation there is no guarantee the U.S. Constitution and the 
Bill of Rights will control. There is no guarantees of the Civil 
Rights Act legislation against age or gender discrimination will be 
honored. There is no guarantee the Veterans Preference Act, no 
Civil Service classification to protect tribal government employees, 
no guarantees of Americans with Disabilities Act, no guarantees 
against blanket nepotism or a fair and orderly process concerning 
access to reservation housing, no guarantee of freedom of press or 
freedom of speech. In other words, basic human rights other Ameri- 
cans take for granted, that allow people to live in dignity with their 
neighbors, are not guaranteed on Indian reservations under the 
present version of sovereignty. 

Second, are dependent upon Federal Government help. Through 
this dependency, many tribal governments have become corrupt 
with unchecked power and money. Because of corruption and un- 
willingness to let go of power and money, tribal governments them- 
selves, in some cases, are keeping their people in the bondage of 
poverty and oppression. 

It cannot be denied that Federal current policy is such that tribal 
governments financially benefit from the general membership's 
poverty level staying as it is. The plight of the average Native 
American is what keeps money flowing from the coffers in a large 
tribal government. 

Thus, tribal government needs to keep in control of its members, 
even to extent of demanding from Congress that "the tribe shall re- 
tain exclusive jurisdiction over any... Indian child..." as it is written 



70 

in the Indian Child Welfare Act, which States further that tribal 
interests are "independent of the interests of birth parents." 

Now, Indian Civil Rights Act mandates that no Indian tribe in 
the exercise of powers and self-government shall violate various 
basic civil rights. However, when there is no separation of power 
within tribal governments and tribal sovereign immunity protects 
tribal governments from civil rights claims, tribal members are left 
without a recourse. 

And many tribal members say nothing publicly. Cronyism, nepo- 
tism, and ballot box rigging are all part of political reality on many 
reservations. Everyone seems to accept it as a given. And because 
tribal governments control tribal jobs, HUD housing, tribal loans 
and land leases, many members are reluctant to speak up. Tribal 
government controls most everyone's strings, not to mention the ju- 
dicial system. 

Getting on the bad side of the government can mean a loss of 
jobs or home. Some have even been threatened to have their home 
members lose their jobs. 

Further disabling, to membership outcry is the manipulation 
used to keep control. I have seen tribal governments pressure 
members to rally for their cause and political goals through misin- 
formation, bullying, even bribes. I have had many tribal members 
come to me in confidence and relate their concerns and fears. I 
even had a tribal council member come to me to discuss these 
issues. 

But I see tribal elders feeling defeated. Many of those within 
local government won't listen to the elders. Seeing this disrespect 
it is hurtful to me and pains many other tribal members that these 
things are going on. 

It is no wonder that many Indian people are tired and depressed. 
Not only do many feel alienated from the United States Govern- 
ment and the rest of society, but many tribal governments can't be 
trusted either. This situation has become a hopeless fact of life, 
along with poverty and other factors, has bred depression and loss 
of trust. 

Senator Gorton's bill, the American Indian Equal Justice Act, is 
wonderful news for anyone, either tribal or non-tribal. By providing 
Federal District Courts jurisdiction over civil cases brought under 
the Indian Civil Rights Act, tribal governments will be held ac- 
countable for these actions. This bill will not hurt tribal members, 
it will only hurt corrupt tribal government. 

While nonmembers all over the country are gathered in support 
of this bill, this is actually one of the best bills that can happen 
for the tribal members, This is bill will give members the right to 
sue tribal government when they are denied their members' rights. 

If tribal government looks on the plus side of this bill, it will also 
improve the economy for everyone on our reservation. And that's 
industry 

The Chairman. I've tried to be lenient with this, but just we 
need to move on. 

Mr. Morris. Industry will be willing to come and build busi- 
nesses on the reservations. Our relationship with the so-called out- 
side world will improve. If tribal government looks at the plus side 



71 

of the bill, it will see that it will provide encouragement and hope 
for everyone on the reservation. 

I thank you. 

[Prepared statement of Mr. Morris appears in appendix.] 

The Chairman. Mr. Greenberg. 

STATEMENT OF CRAIG D. GREENBERG, ESQUIRE, HUFFMAN, 
USEM, SABOE, CRAWFORD AND GREENBERG, MINNEAPOLIS, 

MN 

Mr. Greenberg. Thank you. Let's see if I can say something new 
after 3V2 hours. 

Good afternoon, Mr. Chairman, members of the committee. 
Thank you for the opportunity to speak to you about these very im- 
portant issues. 

My name is Craig Greenberg, and I am an attorney in private 
practice in Minneapolis, MN. I have been in practice for 10 years, 
concentrating on business, employment, and real estate matters. I 
have also somehow developed an Indian law practice representing 
people with legal problems associated with tribes, tribal corpora- 
tions, and in particular tribal sovereign immunity. I did not specifi- 
cally set out to become involved in this area of law. Prior to 1993, 
I had no knowledge or expertise in this area. Furthermore, I had 
no personal grievances with any tribal governments or tribal mem- 
bers. 

However, in the summer of 1993 a client came to my office, after 
he had sold his business, a bus tour business, to a Minnesota tribe. 
The tribe quickly breached the agreement and refused to pay my 
client sizable compensation under the contract. 

There was also a very serious discrimination issue involved in 
that case. Insiders in the tribe informed my client that his business 
was bought and put out of business in order to actively try to keep 
black and Asian customers from visiting that particular casino. I 
was shocked. Even though the contract in that case contained clear 
written waiver of the immunity defense, 3 years of litigation per- 
sisted over that issue and only that issue. 

We were successful in winning that case, and we received a rel- 
atively rare decision from the Minnesota Court of Appeals. But 
once that case was reported in the media, my phone began to ring 
off the hook. I received calls from around the country. In the last 
4 years, since that initial case, I have received hundreds of calls 
from Indians and non-Indians alike with legal problems associated 
with tribal sovereign immunity that have been absolutely across 
the board. Every imaginable type of legal claim, I've heard about. 

These cases include civil rights claims, injury claims, and con- 
tract claims. And in order for any of these people to address their 
rights, number one, they had to call a hundred law firms before 
they could find someone like me to even talk to them, because no 
one is interested in representing people with claims against Indian 
governments. And number two, they have to be prepared to litigate 
sovereign immunity for two to 3 to 4 years. 

The vast number and variety of the calls to my office, my one 
small law office, together with the abnormally egregious nature of 
many of these cases, have led me to an unavoidable conclusion: 
there is a severe systemic problem with tribal sovereign immunity. 



72 

Abuse and corruption occur at an alarming rate because tribal sov- 
ereign immunity and the associated sense of being above the law 
or outside the law create a safe haven for the proliferation of legal 
wrongs against tribal members, employees, and patrons of tribal 
businesses. 

The root cause of this problem is not the people, not the tribal 
people; it's a governmental system which does not demand account- 
ability. 

The problem is also growing as we speak. Along with the expan- 
sion of tribal gaming and tribal gaming industry, we are experienc- 
ing an exponential increase in contacts between non-tribal mem- 
bers and tribes. 

In Minnesota, tribal casinos constitute the ninth largest em- 
ployer group in the State, yet the employees have no civil rights 
protection, no protection of employment laws, and they have no- 
where to legitimately bring their cases. I have brought cases in 
tribal court. After being in State court I was told to go to tribal 
court. Once I got in tribal court, after the tribe had asked me to 
bring the case in tribal court, they raised the sovereign immunity 
defense even in the tribal court. My clients have no recourse. 

I currently have a handful of cases. One lady was shot in the 
head sitting in a casino parking lot. I'm just starting that case. And 
we're in for a battle. 

I have another gentleman, who is a 60-year-old Native American, 
with a very, very valid age discrimination case. He works at a ca- 
sino. He has to bring his case in tribal court and he has not found 
anybody willing to represent him in tribal court. Most of the law- 
yers admitted in that particular court represent the tribe. 

I also am I just starting my representation of a family whose 
daughter was killed on a reservation. 

And presently I have one case pending at the U.S. Supreme 
Court. It's entitled Gavle v. Little Six. It's the most egregious em- 
ployment and civil rights case that I've personally seen as an attor- 
ney. Miss Gavle was an employee of a tribal casino operation, and 
we applied to the Minnesota courts for redress and were denied 
even though the corporation in — the tribal corporation in this case 
had clearly waived sovereign immunity. The Minnesota Supreme 
Court in that case said this: 

While the time may well come or even be upon us now that a tribal-owned cor- 
poration operated for profit should as a matter of fairness and equity be subject to 
the same liabilities as a non-tribally-owned operation, it is not for this court to make 
that decision in absence of some change in Congressional policy or direction from 
the U.S. Supreme Court. 

Now, it is my sincere hope that the American Indian Equal Jus- 
tice Act is in fact the change that the courts have been asking for. 
I've thoroughly reviewed the proposed legislation, and as a lawyer 
I find it directly on point. 

This legislation is a legal necessity. Civil rights must be applied 
equally for all citizens, all disputes must be resolved through unbi- 
ased court systems. 

As a member of the bar and as a United States citizen, I fully 
support the American Indian Equal Justice Act, and I urge the 
committee and Congress to approve the same finally make civil 



73 

rights and accountability in government the law of the land every- 
where in the United States. 

And one final note. I know that by passing this bill, my little 
subspecialty in Indian law will fade away into mainstream legal 
practice and you will essentially be putting me out of the Indian 
law business. This is a result that I will willingly accept in the 
name of justice for all. 

Thank you. 

[Prepared statement of Mr. Greenberg appears in appendix.! 

Senator Gorton. We don't want to put you out of work. We need 
a lot more lawyers. 

The Chairman. Let me make an observation since we're on our 
last panel before Senator Gorton asks some questions. 

I would like to make this observation. First, I'd like to com- 
pliment everyone in this room who has observed the decorum of the 
Senate hearings so our witnesses could be heard. I think very 
frankly that people of goodwill really need laws because they sub- 
scribe to a higher order, something called the 10 Commandments. 

But clearly, we can't pass a law to make you love your neighbor. 
Nobody can do that. The piece of paper written by anyone who 
forms a government, no matter how smart they are, can mandate 
that you agree or love your neighbor. 

I know that there are some shrill voices that will tell you that 
there's got to be a winner and a loser, that there's no equitable an- 
swer for people, and only fits our needs of we win or you lose, 
whichever side you are on. But I would hope that the quieter, more 
thoughtful voices will tell you different. And I really believe that 
we as an American people, if we can go to stars, for crying out loud, 
we can go across the street to our neighbors. 

We face a lot of problems in America, as you probably know. And 
I might mention a couple that you are all aware of. 

We have major problems with giving a quality education to our 
children; all of our children, not the Indian kids at the expense of 
the non-Indians or the non-Indians at the expense to the black kids 
or something else, but all of them. We have to improve our health 
care opportunities for all Americans, regardless of their station, re- 
gardless of their color, regardless of where they come from. 

And certainly drugs doesn't have any racial preference, kills ev- 
erybody with equal indiscrimination. 

And Colonel Johnson, I'm glad you wore your uniform here. I 
was a military man myself. And I know, as you do, that soldiers 
who protect our freedoms come in all sizes, shapes, and ethnic 
backgrounds. And when they are on a field of battle, whether it's 
in Southeast Asia or the sands of Kuwait, when they die, the blood 
that runs out of their veins is all the same color. And I'm glad 
you're here. 

Colonel Johnson. Thank you. 

The Chairman. We have a very, very interesting form of govern- 
ment. It's kind of a grand experiment. It's only 209 years old. Most 
of you know that. That's really in it's infancy compared to some 
cultures. 

I live near a place called Mesa Verde in Colorado about 40 miles 
east of what's called cliff dwellings. People lived in the cliff dwell- 
ings and on the mesas surrounding them when Christ walked this 



74 

Earth 2,000 years ago. They were there. It was centuries old before 
Columbus arrived, as most of you know. And they lived there four 
times longer than we've had a form of government in the United 
States. 

And for centuries they raised their crops, they prayed to their 
lord, they raised their kids, and they died and returned to the 
earth with every decade. And now if you go there where once 
40,000 people lived, only stones and spirits remain. Forty thousand 
people. There were four times more people then, 1,000 years ago, 
than live in that part of Colorado than live there now. What hap- 
pened to them? Historians will tell you that first the crops failed; 
then it got worse because their leaders disagreed; and then it 
began to collapse when they began to blame each other for their 
problems. And now, 800, almost 900 years later, since they all left 
that area, only ruins remain where a vibrant people once were. 

I just point that out to you to tell you in all honesty to all of you, 
I would nope that all of you take care that this American culture 
doesn't suffer the same future. 

With that, Senator Inouye, did you have any questions or com- 
ments? 

Senator Inouye. I just want to commend you, Mr. Chairman, for 
your fine statement. 

The Chairman. Senator Gorton. 

Senator GORTON. Mr. Greenberg, one question for you. The peti- 
tion for certiorari in the Gavle case has as its sole issue or sole 
grounds for granting certiorari the right to challenge sovereign im- 
munity on constitutional grounds? 

Mr. Greenberg. We're — we're challenging — the primary issue in 
that case is really the reach of tribal sovereign immunity off res- 
ervation. My client actually worked for this tribally owned corpora- 
tion off the reservation. 

They had in addition filed, as most foreign corporations do, as a 
foreign corporation in Minnesota, obtained the authority to do busi- 
ness in the State, agreed in writing to be bound by all of the laws 
of the State, and agreed to be subject to the jurisdiction of the 
courts in the State. 

To me with my limited knowledge of waiver of sovereign immu- 
nity, that to me looked like a pretty good case. So that's the 

Senator Gorton. So you're not — youre not in this case challeng- 
ing the entire doctrine but simply its applicability to an off-reserva- 
tion, Indian-owned corporation? 

Mr. Greenberg. I could add that there is a companion case, one 
that I'm not handling, that was filed 3 months ago with mine with 
the same casino defendant. That's an injury case. And their attack 
has been much broader in line with economically based arguments. 

Senator Gorton. Well, Mr. Chairman, I want to thank you. I 
want to say, here I think we see in the real world the impact of 
the illustration of this abstract legal doctrine on real people. 

In the case of Colonel Johnson, a feeling that an election was 
held unfairly. We don't know whether it was held unfairly or not. 
He wants the opportunity to have a neutral court to make that de- 
cision. 

Mr. Lawrence, I gather, wants to protect primarily his First 
Amendment rights to publish a newspaper and allow people to pur- 



75 

chase it and — that newspaper, among other things. Mr. Morris, I 
think, spoke more in general terms, but basically that you're more 
likely to be successful in a society that's ruled by laws that are ob- 
jective and universal than you are otherwise. 

And Mr. Greenberg, representing clients who, I think it's safe to 
say, could not have received justice for the claims that they make 
in the tribal court, which was a part of an organization that com- 
mitted the alleged wrongs. 

I want to join with the Chairman, as we terminate this — this 
hearing, in thanking this very large and interested audience, obvi- 
ously on both sides of the issue, for the courtesies that they've ex- 
tended to us and to — and to the witnesses who were here. 

And to say my own friends in the audience, that the Chairman 
of the committee and I may disagree on a few issues, we probably 
agree on more than we disagree on. But he's very sensitive to these 
issues. He recognizes that there are — there are problems. 

By saying that, I may commend him to you and I may put him 
in trouble with some other people whose regard he seeks as well. 
But he is an extremely fair person. 

And I can say as the host for the Senator from — from Hawaii, 
who is frequently here in Seattle, he knows about — I've told him 
privately — there is no member of the U.S. Senate with whom I dis- 
agree more and like better. He is a magnificent member of the Sen- 
ate, a hero, and a patriot. And we've always been able to carry on 
our disagreements in a sharp but, I think, first-rate fashion in the 
American tradition. 

I believe firmly that the fundamental constitutional doctrines 
under which the United States is based should offer, and should 
offer, every citizen of the United States the right to enforce the 
laws of the United States in the courts of the United States, and 
every citizen of the state of Washington to enforce the laws of the 
State of Washington in the courts of the State of Washington. 

Nothing can be more fundamental to our free society than that. 
And it is that — at that — or for that purpose that this bill is offered. 

Thank you, Mr. Chairman. 

The Chairman. We — to all of those who testified in this panel 
and other ones, we may ask you questions in writing. If you could 
get answers back to us. And for those of you in the audience who 
may have something you would like to submit, the record of this 
hearing will stay for two weeks. If you want to submit it, we'll 
make sure it's included in record. 

With that, thank you for appearing. And this hearing is ad- 
journed. 

[Whereupon, the committee was adjourned, to reconvene at the 
call of the Chair.] 


















' 
















































APPENDIX 



Additional Material Submitted for the Record 



Prepared Statement of Chris Vance, Vice Chairman, Metropolitan County 

Council, Washington 

Mr. Chairman and members of the committee. 

My name is Chris Vance, and I am the Vice Chair of the Metropolitan King Coun- 
ty Council. Welcome to King County, and to council district 13, the district I rep- 
resent. I would like to thank you for the opportunity to testify before you today on 
the American Indian Equal Justice Act. 

Before I comment on the legislation at hand, let me briefly describe King County 
and the government I serve in. I bring the perspective of an official of one of the 
largest local governments in the United States. King is the 12th largest county in 
the Nation with nearly two million residents, a number that continues to grow year 
after year. We are bordered on the west by Puget Sound and on the east by the 
crest of the Cascade Mountains. King County contains the city of Seattle and 37 
suburban cities within its extensive metropolitan area. In addition. King County is 
still home to vast tracts of rural timber ana farm lands. 

King County is also home In the Muckleshoot Indian Reservation, a portion of 
which is in my district. The proximity of the reservation to the urban core of our 
State is the source of increasing controversy and frustration. I want to thank and 
congratulate Senator Gorton for introducing this bill, and thank the committee for 
holding this hearing. Passage of the American Indian Equal Justice Act would help 
solve many of the conflicts I experience regularly as a local government official. 

Commercial activities, such as casino gambling and the sale of cigarettes and fire- 
works, undertaken by the Muckleshoots and other tribes have a dramatic effect 
throughout our county. The things the tribes do affect all of us who live here, but 
non-tribal members have no political ability to influence those activities. We should 
at least have what this bill offers — the right to go to court and be compensated for 
damages. 

Now, another, even more important area of local government responsibility is 
being undermined by tribal activity; the area of land use planning and protection 
of property rights. 

In 1991, as a member of our State House, I participated in the passage of the 
second of two landmark bills which are cumulatively known as the Washington 
State Growth Management Act. This legislation directs all local governments to 
enact binding comprehensive plans for the expected economic and population growth 
in this State. 

From 1994 to 1997 I chaired King County's Growth Management committee, and 
served on the multi-jurisdictional Growth Management Planning Council. After 
years of research, hearings, debate, and hard work, we were able to adopt a set of 
visionary and bipartisan comprehensive plans and policies for King County. As a re- 
sult the environment and rural lands are protected, yet housing construction and 
business activity can continue. The plan is law, and citizens who do not comply with 
that law are subject to criminal and civil sanctions. Indian tribes, however, assert 
that even though they have a right to testify and lobby on growth management 

(77) 



78 

issues — a right they exercise regularly and vigorously — the Growth Management 
Act doesn't apply to them unless they allow it to. In effect this has created thou- 
sands of acres of land within King County where the delicate balance of our com- 
prehensive plan has been upset. 

No clearer example of what I'm talking about exists than that of the 23,000 seat 
amphitheater being, constructed by the Muckleshoot Tribe just a few miles east of 
here. This massive project is being constructed in the middle of an area designated 
agricultural and rural by King County's comprehensive plan. In fact, the people of 
King County have voted to tax themselves in order to purchase agricultural develop- 
ment rights so that this area will be permanently preserved for rural and agricul- 
tural uses. If the amphitheater is built and utilized to the extent the tribe plans, 
massive traffic jams will occur on two lane rural roads, degradation of the White 
River will continue, and the rural-character of the land around it will be changed 
forever — all in violation of our county's plans and laws. 

This project will affect everyone in the region, but it will have a devastating im- 
pact on the people of the city of Auburn, in my district, and of the Enumclaw pla- 
teau adjacent to the amphitheater. They will suffer impassable roads, noise from 
concerts, and a dramatic decrease in their property values and quality of life; and 
there is absolutely nothing they can do about it. They can't vote out the politicians 
who did this to their neighborhood, they can't gather signatures on an initiative, 
and they can't even sue to make themselves whole. The neighboring citizens around 
the amphitheater can be brought to Federal, superior, or municipal court by the 
Muckleshoots. But the tribe cannot be challenged in those same forums — even if the 
harm occurs off reservation. Asking Americans to accept this level of impotence is 
a violation of the basic tenets of our civil culture. And it is simply wrong. 

The American Indian Equal Justice Act will help correct the problem This bill 
does not challenge a tribe's right to govern itself. This bill simply provides those 
who feel they have been wronged by tribal actions with a fair and impartial court 
of law to settle those grievances. Tribal leaders demand to be recognized as equal 
governments, and I am willing to accept that, but they must accept the responsibil- 
ity that comes with that status. King County and other local governments are fre- 
quently taken to court by citizens. Tribal governments should expect the same if 
they truly want to be regarded as equal governments. When activities on land they 
control hurt others beyond their boundaries, they should be held responsible for 
those damages. 

In conclusion Mr. Chairman, I know this is a difficult and contentious issue. But 
the increasing friction generated by tribal actions is too significant to ignore. If the 
tribes continue to refuse to voluntarily respect the rights of their neighbors then 
those citizens need to be allowed to go to court in order to protect themselves. To 
deny them that right is simply un-American. Thank you again for the opportunity 
to testify on the American Indian Equal Justice Act. I'm happy to try to answer any 
questions you may have. 















79 






DANIEL J. EVANS 



TESTIMONY ON S 1691 












U.S. SENATE COMMITTEE ON INDIAN AFFAIRS 
APRIL 7, 1998 












80 

Testimony on S 1691 

American Indian Equal Justice Act 

Good morning Chairman Campbell and distinguished members of 
the committee. I am Daniel J Evans, Chairman of Daniel J. Evans 
Associates, a small consulting firm in Seattle, Washington 

I served as Governor of the State of Washington from 1965 to 1977, 
and as United States Senator from Washington from 1983 to 1989. I was 
privileged to serve as a member of the Senate Committee on Indian Affairs 
during my time in the Senate, and thus have been on the "other side of the 
table" more frequently than on this. 

My appearance is at the request of the Lummi tribe, located in 
Northwest Washington State, but I intend to speak from a broader 
perspective. I am not a lawyer, and do not intend to analyze each section 
of this proposed law, but rather share with you the relationships I have built 
with tribes and tribal leaders during the past 40 years. 

We all tend to forget history and many citizens have little idea of 
Indian tribal history or the United States government relationship to tribes. 
As waves of European settlement swept across America, native Americans 
were viewed as enemies, impediments to progress, or simply nuisances to 
be obliterated. The weight of immigration prevailed and tribe by tribe, the 
United States government signed treaties and created reservations for 
Indian survivors of the Indian wars. 

The reservations set aside were generally of the least productive 
land of little value to white settlers. They were isolated, and thus difficult 
for the creation of viable industry and infrastructure for reservation 
residents. In many respects, the reservations created in the United States 
were similar to the homelands of South Africa, created by the apartheid 
government for their black subjects. Treaties and reservation promises 
were regularly abrogated when they inconvenienced settlers and early 
governments, especially of Western states. 

But the signing of treaties created a special relationship with the 
United States that apparently once again, to some, is proving a nuisance 
to be obliterated. 

The concept of trust relationship and creation of the Bureau of Indian 
Affairs created a dependency of tribes on the federal government, 



81 



preventing development of coherent tribal governments. Our nation in the 
post World War II era moved toward assimilation and the end of 
reservations. 

During my early years as Governor, both the nation and the state 
began to recognize the validity of treaties, self governance and the 
independence of tribes. The concept of assimilation changed to one of 
building tribal integrity and independence. 

As Governor, I remember vividly the first meeting of the Washington 
State Indian Affairs Commission which I appointed by executive authority 
in 1967. Tribal leaders of the many tribes of Washington State gathered 
and listened solemnly and without expression to my initial proposals for 
closer cooperation and respect. They brought with them the century of 
broken promises and lies which represented their previous experience with 
governmental leaders. It took several years to build the trust and respect 
which I now cherish. 

As United States Senator, I asked to join the Special Committee on 
Indian Affairs and I was proud to be a prime sponsor of amendments to the 
Indian Self-Determination Act, introduced in 1987. The thrust of this 
measure was to advance the ability of tribes to emerge from a BIA - 
Trustee relationship to the creation of modem independent tribal 
governments and to make their own priority decisions on budgets and 
programs. I am pleased that tribes here in Washington State were among 
the first in the nation to respond to this act. building sophisticated 
governmental structures including a modem tribal court system is an 
essential part of true self determination. The Lummi tribe and others have 
enthusiastically adopted self determination and are building modem police 
forces, economic development measures, and strengthening their 
intergovernmental relationships. These efforts are less than a decade old 
but progress is rapid. 

S 1691 is a blunt instrument whose effect would be to ravage tribal 
independence at a time when finally after more than a century, tribes have 
been given the opportunity to create modem independent governments, 
including responsible court systems. 

Are any changes needed? Perhaps, but relegating tribes to a 
secondary position to the federal government, states, and localities in 
terms of sovereign immunity is hardly a good place to start. 



82 



Instead, we should recognize that in 1993 Congress passed the 
Indian Tribal Justice Act to enable the necessary resources to build a 
modern tribal court system. The act authorized 57 million dollars for this 
purpose, but not a dime has yet been appropriated. Full appropriation to 
build a good tribal court system is a far better answer than stealing 
sovereign immunity that would help build a responsible relationship 
between two parties to treaties which have existed for more than a century. 

Hundreds of agreements are signed each year between tribal 
governments and developers, banks, insurance companies, and health 
providers, among others. In all of these contracts, suitable provisions have 
been reached dealing with the apprehensions of sovereign immunity. As 
the tribal justice system gains experience and as other governments, 
enterprises, and individual citizens gain respect for the independence and 
integrity of Indian tribes, conflicts should diminish. 

S 1691 is a solution seeking a problem which is or should be 
vanishing. I urge this committee to reject S 1691 and instead help provide 
the leadership to build respect, understanding and friendship between 
fiercely independent tribal governments and the people and government of 
the United States. 









83 



STATEMENT OF ROBERT T. ANDERSON 
COUNSELOR TO THE SECRETARY OF THE INTERIOR 

Before the Committee on Indian Affairs 

United States Senate 

Regarding Tribal Sovereign Immunity 

April 7, 1998 

Seattle, Washington 



Mr. Chairman and members of the Committee, thank you for the opportunity to put forth 
the views of the Department of the Interior on issues of civil rights and property rights in Indian 
country and their relationship to tribal sovereign immunity. My name is Robert Anderson and I 
am Counselor to Secretary of the Interior Bruce Babbitt. I live and work in Seattle. Before 
moving to Seattle, I was the Associate Solicitor for Indian Affairs and as such was the lead 
Indian law officer for the Department. 

The Administration opposes S. 1 69 1 's sweeping waiver of tribal sovereign immunity. 
There are many avenues currently available to deal with many, if not all, of the property and civil 
rights concerns occasionally raised by members and non-members subject to tribal jurisdiction. 
Tribal courts are dynamic and growing institutions that are increasingly well equipped to deal 
with grievances of members and non-members alike. Even a cursory review of the Indian Law 
Reporter reveals the broad range of grievances resolved in modem tribal courts. In 1995, Chief 
Judge Wallace of the Ninth Circuit Court of Appeals noted that federal courts would not be able 
to absorb the large caseload handled by tribal courts, stating that "we should respect and 
appreciate the tribal courts for the tremendous amount of work they do to resolve disputes." 

1 



84 



Wallace, A New Era of Federal-Tribal Court Cooperation. 79 Judicature No. 3 at p. 152 (1995). 
Likewise, a 1991 report of the Civil Rights Commission concluded, after 13 days of hearings, 
hundreds of field interviews and exhaustive staff research over five years, that a waiver of tribal 
sovereign immunity to allow for federal court enforcement of the Indian Civil Rights Act should 
not be adopted. The Indian Civil Rights Act, A Report of the United States Commission on 
Civil Rights (June 1991). Instead, the Commission called for increased federal support for the 
improvement of tribal court systems in order that the administration of justice might be advanced 
in Indian country. Sfifi H.R. Rep. No. 103-205, 103d Cong. 1" Sess. 5-6, reprinted in 1993 U.S. 
Code Cong. & Ad. News 2426 (citing with approval to the Commission Report and quoting: 
"[the] Commission hopes the current trend towards the narrowing of tribal jurisdiction will be 
reversed."). 

Nevertheless, this hearing provides an opportunity to discuss not only the issue of tribal 
sovereign immunity, but also the need for congressional action to clarify and confirm the 
jurisdiction of tribal governments over their members and territory. Commentators have in the 
past discussed the possibility and appropriateness of limited federal judicial review of tribal court 
decisions. gee C. Wilkinson. American Indians. Time, and the Law at 1 1 1-1 19 (1987). Any 
such discussion, however, must include consideration of the quid pro quo of congressional 
confirmation of tribal jurisdiction over non-members present within Indian country. The 
Supreme Court recently observed that such confirmation is within the province of Congress. Sfi£ 
Strate v. A-l Contractors . 117S.Ct. 1404, 1409(1997). 

This discussion must take place against the backdrop of the well-settled jurisprudence 
recognizing Indian tribes as the third type of sovereign within the United States. United States v. 

2 



85 



Wheeler . 435 U.S. 313 (1978)(Double Jeopardy Clause of Fifth Amendment not violated by 
successive prosecutions of tribal member by federal and state governments), citing Talton v. 
Maves . 163 U.S. 376 ( 1 896)(tnbes act as separate sovereigns, not as part of the federal 
government). Indian tribes are immune from suit by states and states are immune from suits by 
Indian tribes. Blatchford v. Native Village of Nnatak . 501 U.S. 775. 783 H991 V As Alexander 
Hamilton stated: "It is inherent in the nature of sovereignty, not to be amenable to the suit of an 
individual without its consent." The Federalist No. 81, pp. 548-549 (J. Cooke ed. 1961). In 
contemporary jurisprudence, the reasons supporting this general rule go far beyond the notion 
that "the King can do no wrong." 

The Supreme Court, citing various congressional acts, has noted that tribal immunity 
serves the purpose of promoting the "goal of Indian self-government, including [the] overriding 
goal of encouraging tribal self-sufficiency and economic development." Oklahoma Tax 
Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma. 498 U.S. 505, 510 
(1991)(intemal quotations omitted). See also Santa Clara Pueblo v. Martinez . 436 U.S. 49, 64 
(1978). States, unlike tribes, may not have their immunity waived by Congress pursuant to its 

Commerce Clause power. Seminole Tribe of Florida v. Florida . 517 U.S. , 1 16 S. Ct. 2028 

(1996). States have generally waived their immunity from suit only in their own courts and even 
then, subject to strict limits on the amount of permissible recovery. See, e.g.. Nevada v. Hall . 
440 U.S. 410, 412 n.3 (1979)(quoting Nevada statute limiting compensatory damages in tort 
actions against the State to S25.000 and barring the award of exemplary or punitive damages). 
Similarly, the Federal government has protected its sovereignty by limiting the extent to which it 
may be sued. See , e.g.. 28 U.S.C. § 2680 (limiting waiver of sovereign immunity in tort suits). 

3 



86 



This is undoubtedly due to the potential deletenous effect of large monetary awards against the 
public fisc. ?ee Quern v. Jordan . 440 U.S. 332. 338-39 (1979V Tribal governments deserve, and 
should be accorded, the same treatment. They should be able to determine whether and under 
what circumstances their immunity from suit should be waived. 

The Department's view is that the evidence supporting a sweeping waiver is often 
anecdotal and heard from quarters that are unaware of or unwilling to use available tribal, 
federal, or state institutions for dispute resolution. Indeed, the volume of complaints is little 
more than is directed against other types of governments by interests who resist regulation or 
taxation by any sovereign. In short, the record simply does not provide a factual basis to support 
legislation such as S. 1691. 

Civil Rights Issues 

The Indian Civil Rights Act, 25 U.S.C. § 1302, (ICRA) makes many of the provisions 
found in the Federal Bill of Rights applicable to Indian tribes enforceable in federal court 
through a writ of habeas corpus. Id- § 1303. Santa Clara Pueblo v. Martinez . 436 U.S. 49 
(1978). Congress passed ICRA after seven years of hearings conducted by the Senate Judiciary 
Subcommittee on Civil Rights and other committees of both Houses. The legislative history 
reflects careful consideration of the need to balance tribal rights to self-government and 
individual rights. See Comment. The Indian Bill of Rights and the C onstitutional Status of 
Tribal Governments . 82 Harv. L. Rev. 1343, 1355-60 (1969). The Supreme Court noted the dual 
purposes embodied in ICRA of protecting the rights of individuals subject to tribal authority on 



87 



the one hand and furthering tribal self-government on the other. Out of respect for tribal 
government, the ICRA is enforceable primarily in tribal government forums, including tribal 
courts. 

Partly to enable fulfillment of the Bill of Rights values in the ICRA, many Indian tribes 
have waived their immunity from suit. Recent reported tribal court decisions fmd that the tribal 
government and its officials are not immune from suit based on tribal court applications and 
interpretations of ICRA or tribal law. S££, e^g., Blaze Construction. Inc. v. Crownpoint Institute 
of Technology . 24 Indian L. Rep. 6254 (Nav. Sup. Ct. 1997); Pazienza v. Mashantucket Pequot 
Gaming Enterprise . 24 Indian L. Rep. 6219 (Mash. Peq. Tr. Ct. 1996)(immunity waived to allow 
invasion of privacy claim to proceed); Wells v. Ft. Berthold Community College . 24 Indian L. 
Rep. 6157 (Ft. Berthold Tr. Ct. 1997Xwaiver found in sue and be sued clause of tribal 
institution); Tomahawk Enterprises. Inc. v. Ft. Totten Housing Authority . 24 Indian L. Rep. 
6091 (Spirit Lake Sx. Tr. Ct.l997Xsame); Works v. Fallon Paiute-Shoshone Tribe . 24 Indian L. 
Rep. 6033 (Inter. Tr. Ct. App. Nev. 1997XICRA abrogates tribal immunity); Atcittv v. District 
Court for the Judicial District of Window Rock . 24 Indian L. Rep. 6013 (Nav. Sup. Ct. 
1996)( tribal housing authority not immune from due process claim). Kakwitch v. Menominee 
Tribal Enterprises . 21 Indian L. Rep. 6112 (Men. Sup. Ct. 1994Xfinding waiver of tribal 
immunity in tribal constitution); Bordeaux v. Wilkinson. 21 Indian L. Rep. 6131 (Ft. Berthold 
Tr. CL 1993Xwaiver found in tribal constitution for ICRA claims); Davis v. Keplin . 18 Indian L. 
Rep. 6148 (Turt Mtn. Tr. Ct. 1993); Francis v. Wilkinson. 20 Indian L. Rep. 6015 (N. Pins. 
Intertr. Ct. App. 1993Xuibal council subject to ICRA claims); Gonzales v. Allen . 17 Indian L. 
Rep. 6121 (Sho. Ban. Tr. Ct. 1990Xsovereign immunity bars back pay, but not injunctive relief); 

5 



88 



Murphv v. Standing Rock Sioux Election Comm'n . 17 Indian L. Rep. 6069 (St. Rx. Tr. Ct. 
1990)(permitting action against tribal election commission); Oglala Sioux Tribal Personnel Bd. 
V. Red Shirt . 16 Indian L. Rep. 6052 (Ogl. Sx. Tr. Ct. App. (1983Xsovercign immunity not a bar 
to ICRA claim); Hudson v. Hoh Indian Tribe, d/b/a the Hoh Tribal Business Committee. 21 
Indian L. Rep. 6045, 6046-47 (Hoh Ct. App. 1992)(finding limited waiver of immunity). 1 

These tribal court decisions illustrate the rapid growth in tribal court jurisprudence and 
reflect the relatively recent development of codified tribal law on a widespread basis. See , e.g.. 
Colville Tribal Civil Rights Act, Chapter 1-5 (waiving immunity of the Confederated Tribes of 
the Colville Reservation); Quinault Tribal Code, § 99.02 (waiving tribal immunity under some 
circumstances). 

These tribal court developments are in part a response to the advent of what some have 
called the modem era of Indian law that was ushered in 1959 with the Supreme Court's ruling in 
Williams v. Lee . 358 U.S. 217 (1959). C. Wilkinson, supra , at 1 . In that case, the Court set out 
the principle that Indian country is a place where tribes have the power to make their own laws 
and be ruled by them - recognizing the essential principle of self-determination for Indian 
peoples. Consequently, the Court ruled that state courts generally lacked jurisdiction over 
Indians within Indian country. Since then, tribal civil authority over members and non-members 
on trust land has been routinely upheld, while the exercise of tribal authority over non-members 



'The foregoing cases were taken from papers prepared by Douglas B.L.Endreson, Esq. and 
Colin Cloud Hampson, Esq. of the law firm of Sonosky, Chambers, Sachse & Endreson. Mr. 
Endreson's paper is part of this Committee's record for its September 24, 1996 Hearing on Tribal 
Sovereign Immunity. Mr. Hampson's paper was presented at the Federal Bar Association Indian 
Law Conference on April 2-3, 1998. 



89 



has likewise been affirmed in a number of cases. Tribal courts are central to implementation of 
this rule of law within Indian country. The proposed legislation would be a step backward. 

Property Rights Issues 

Property disputes within Indian country usually fall into three categories: 1 ) allegations 
that a tribe lacks power to regulate, e^g., zone, non-Indian fee land; 2) disputes over lease terms 
for the occupancy of Indian lands and the correct boundaries of Indian and non-Indian land; and 
3) disputes over the ownership of land and rights to use water. 

In the case of challenges to tribal regulatory power, non-members are afforded the 
opportunity to challenge the existence of such authority as a matter of federal law, but before 
raising such questions in federal court, generally must exhaust tribal court remedies. National 
Farmers Union Ins. Co. v. Crow Tribe of Indians. 471 U.S. 845 (1985); Brendale v. 
Confederated Tribes and Bands of the Yakima Nation . 492 U.S. 408 (1989). Courts have ruled 
that Tribal court determinations of federal law may then be reviewed de novo by the federal 
courts. Sfifi Mustang Production Co. v. Harrison . 94 F.3d 1382 (10th Cir. 1996), cjal denied . 
1 17 S. Ct. 1288 (1997) (upholding tribal tax on non-Indian engaged in oil production on allotted 
land); FMC v. Shoshone-Bannock Tribes . 905 F.2d 131 1 (9* Cir. 1990), S£&. denied . 499 U.S. 
943 (1991Xtribal regulation of employment practices permissible); see also Strate v. A-l 
Contractors . 1 17 S. Ct. 1404 (1997)(tribal adjudicatory jurisdiction no broader that regulatory 
jurisdiction). In addition, and as shown above, in many instances tribes have waived their 
immunity from suit to hear challenges against the exercise of tribal power over both trust and fee 
simple property. 

7 



90 



Second, tribal immunity is often not a bar to resolution of property disputes when federal 
action is required for tribal action to take effect, or where federal action determines the rights of 
Indian and non-Indian parties. This is the case with respect to leases of Indian lands subject to 
Secretarial approval, or where actions of agencies such as the Bureau of Land Management have 
the effect of setting boundaries of property owners on Indian reservations. 

For example, non-member lessees of the Swinomish Tribe and individual owners of trust 
allotments have been embroiled in a dispute for several years over the appropriate annual rent for 
residential properties. Appraisers employed by the Bureau of Indian Affairs are responsible for 
ensuring that rates in the leases are consistent with the Secretary's trust responsibility. The 
Secretary may not approve leases for less than fair market rental. 25 C.F.R. 162.5(b). That value 
may be reviewed every five years as explicitly provided in the lease terms. When the non-Indian 
lessees disagree with the BIA appraisals, they are free to appeal to the BIA Area Director and 
then on to the Interior Board of Indian Appeals in Washington D.C. Finally, they may bring an 
action in federal district court to challenge the administrative determinations. The same process 
may be followed with respect to BLM surveys setting boundaries of Indian and non-Indian land. 

Finally, it has long been the law that disputes over federal reserved water rights are 
subject to state court jurisdiction in some circumstances. Sfig Arizona v. San Carlos Apache 
Tribe . 463 U.S. 545 (1983). These cases can be very lengthy and expensive as they involve 
thousands of parties and the federal, state, and tribal governments. $££, e.g.. In re the General 
Adjudication o f All Rights to Use Water in the Big Horn River System. 899P.2d 848 (Wyo. 
1995)(case commenced in 1977). Many tribes are willing to explore the possibility of settlement 



91 



of water rights disputes, rather than proceeding immediately to court. Making it easier to 
proceed to litigation would not further the hope of negotiated settlements. 

For example, the Lummi Nation and several non-Indian water associations on the Lummi 
Reservation have been in conflict for several years over the allocation of groundwater on the 
Lummi Reservation. All agree that there is an insufficient amount of groundwater to satisfy the 
future needs of either the Nation, or the non-Indians. There is sharp disagreement over who has 
the legal right to the use of this limited resource. The Nation, supported by the Interior 
Department, claims the right to all unused groundwater and a substantial portion of that being 
used by non-Indians at present. The non-Indian associations are equally adamant in the view that 
they have the right to all of the reservation groundwater they presently use, as well as at least a 
portion of the available yield for future use. 

This is a dispute that could be litigated and indeed, there has been talk of it by all parties. 
The State of Washington could commence a general stream adjudication and hale the United 
States and the Lummi Nation into state court. On the other hand, the United States or Nation 
could bring an action in federal court to determine the rights to use of the groundwater. Instead, 
however, the federal government, the State, the Lummi Nation and non-Indian water associations 
have spent their energy negotiating an agreement in principle to satisfy future water supplies for 
all on the reservation. While no final agreement has been reached, and a good deal of work 
remains to be done, the parties have made real progress and are hopeful that a negotiated 
outcome will be achieved. 

This is uniformly the case with respect to water rights controversies within Indian 
country. Forums in which to litigate are available, but there is little enthusiasm to do so. 

9 



92 



Conclusion 

The case simply cannot be made that a sweeping waiver of tribal sovereign immunity is 
necessary or advisable. Tribal courts are well equipped to deal with issues related to both civil 
rights and property rights within Indian country. An increasing number of tribes are providing 
for judicial review through waivers of tribal immunity in tribal courts. Existing avenues for 
federal judicial review of the many actions requiring Secretarial approval of tribal action also 
provide additional opportunities for review. Rather than legislating a one-sided waiver of tribal 
immunity, Congress should engage the tribes in a discussion of possible confirmation and 
clarification of tribal jurisdiction over all land within their reservations. Such an inquiry could 
fairly include consideration of whether congressional action to ensure the protection of rights of 
all those subject to tribal jurisdiction is necessary. 

10 




93 



United States Department of the Interior 

OFFICE OFTH1-: SECRETARY 
Washington. DC - . 20240 



August 4, 1998 



Honorable Ben Nighthorse Campbell 

Chairman 

United States Senate 

Committee on Indian Affairs 

Washington, D.C. 20510-6450 



Dear Chairman Campbell: 



Thank you for the opportunity to testify before the Committee on Indian Affairs regarding S. 
1691. Set out below are my responses to the follow-up questions you have asked me. 

1 . Your testimony indicated the Administration feels government-to-government 

negotiations are the better alternative to the kind of litigation S. 1691 would encourage, 
citing the Muckleshoot-King County case and the Lummi water rights dispute. What 
suggestions do you have to encourage the negotiation option? 

Negotiations of disputes within Indian country frequently require congressional 
authorization and appropriation of funds. While we understand that funding for particular 
settlements cannot be promised in advance of review of the merits of a settlement, it is important 
that meritorious settlements presented to Congress be authorized and funded. There is no better 
inducement to reasonable settlements of disputes than a track record of congressional approval of 
negotiated agreements. Congress has such an opportunity before it in S. 1899, the Rocky Boys 
Water Rights Settlement Act, which enjoys bipartisan support from the Montana congressional 
delegation as well as support from the State of Montana and the Administration. It is very 
helpful to on-the-ground negotiators to be able to point to success in moving a settlement through 
Congress, especially given the lengthy negotiations that always precede introduction of a Bill in 
Congress. 

Furthermore, we support the creation of a Joint Tribal-Federal-State Commission on 
Intergovernmental Affairs similar to that provided in section 105 of S. 2097. This provision and 
our recommendations are set forth in the Testimony of Assistant Secretary Kevin Gover before 
this Committee (July 15, 1998). We believe the goal of all parties should be to provide for the 
use of intergovernmental agreements to foster good long-term relations among governments. We 
should also endeavor to make Alternative Dispute Resolution services available in order to 
approach particular disputes that may arise among tribes and their non-tribal neighbors. 






94 



2. We have heard from non-Indians living on Indian reservations and their complaints about 
not being permitted to vote in tribal elections, for instance, but nevertheless being subject 
to tribal jurisdiction. Would you support a legislative clarification of tribal jurisdiction 
provided there was recourse to Federal court review of final tribal court decisions? 

At the outset, it is important to note that individuals are now afforded federal court review 
of some tribal actions through habeas corpus proceedings. 

We think that it would be worthwhile for Congress to consider confirmation of tribal 
regulatory and adjudicatory jurisdiction over non-members on fee lands within reservations. 
Such a proposal might include federal appellate court review of federal law issues that arise in 
such matters before the tribal courts, with a clear error standard of review for facts. Such federal 
appellate review would ensure compliance with due process and other protections of the Indian 
Civil Rights Act. In addition, it is critical that Congress support the development of strong tribal 
court systems through adequate funding for Interior and Justice Department programs that 
benefit tribal courts and other institutions. 

We think that a dialogue on this subject would be useful to determine the interest among 
tribal leaders in substantive changes in the law. 

3. Would you support amendments to the Indian Civil Rights Act so that tribal members 
would be assured to rights of counsel in criminal matters? 

Tribal members are currently guaranteed the right to be represented by counsel in 
criminal matters, although Congress did not in this Act require that the Indian tribe provide such 
counsel, and Congress has never appropriated funds specifically for that purpose. [25 U.S.C. § 
1302(6)] We believe that the decision of whether tribes should provide counsel for tribal 
members in criminal matters is best left to the individual tribes and should not be legislated by 
Congress. I understand that a number of tribes have established public defender offices that 
provide counsel for indigent defendants. 

4. I believe a comprehensive, national survey of the health of tribal courts and 
administration of justice in Indian country is necessary. Would the Administration 
support such a survey - both rhetorical as well as financial commitments? 

We believe that substantial study of the operations of tribal courts has occurred in recent 
years - beginning with the Civil Rights Commission study completed in 1992 and more recently 
with the Bureau of Indian Affairs survey of tribal justice systems and Courts of Indian Offenses, 
which was contracted out to a third party. Rather than spending time on more studies, we believe 
Congress should fund programs designed to support and, where necessary improve, the operation 
of tribal courts. For example, the Indian Tribal Justice Act of 1992 contains recommendations 
worthy of implementation and funding, but Congress rejected the Administration's request that 
implementation be made available. We would appreciate the opportunity to work with you and 
the appropriations committees on implementation of the Tribal Justice Act. 

Thank you for the opportunity to respond to your questions. Please let me know if I can 
be of further assistance. 

Sincerely, 



Robert T . Anderson 
Counselor to the Secretary 





TESTIMONY 






OF 






JEFFREY C. SULLIVAN 





PROSECUTING ATTORNEY 

YAKIMA COUNTY, WASHINGTON 

BEFORE THE COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

CONCERNING S. 1691 THE AMERICAN INDIAN 

EQUAL JUSTICE ACT 

PRESENTED ON 

APRIL 7, 1998 

I am Jeffrey C. Sullivan, Yakima County Prosecuting Attorney. I have been the 
elected prosecutor since 1974. 

Yakima County is the second largest county in the state of Washington and is one 
and a half times the states of Rhode Island and Delaware combined. The Yakama Indian 
Reservation contains 1.3 million acres, one million of which are in Yakima County. The 
reservation has a population of approximately 30,000, 23,000 which are non-indians. I 
have appeared twice before the United States Supreme Court on issues involving tribal 
rights and responsibilities. I currently have a case pending before the Washington 
Supreme Court involving Indian Hunting Rights. 

I believe S. 1691, the American Indian Equal Justice Act, should be passed. 
General Sovereign Immunity as applied to tribal government is wrong and Congress 
should act immediately to correct it. 

STATE IMMUNITY 

Mr. Justice Traynor in Muskopf v. Corning Hospital District, 359 P. 2d 457 
(1961) at pages 458, 459 and 460 states as follows: 

"After a re-evaluation of the rule of government immunity from tort liability we 
have concluded that it must be discarded as mistaken and unjust ... 



96 



The shifting fortune of the rule of governmental immunity as applied to hospitals 
is illustrative of the history of the rule itself. From the beginning there has been 
misstatement, confusion, and retraction. At the earliest common law the doctrine of 
"sovereign immunity" did not produce the harsh results it does today. It was a rule that 
allowed substantial relief. It began as the personal prerogative of the king, gained 
impetus from sixteenth century metaphysical concepts, may have been based on the 
misreading of an ancient maxim, and only rarely had the effect of completely denying 
compensation. How it became in the United States the basis for a rule that the federal and 
state governments did not have to answer for their torts has been called 'one of the 
mysteries of legal evolution.'' Borchard, Governmental Responsibility in Tort, 34 Yale 
LJ1.4. 

The rule of county or local district immunity did not originate with the concept of 
sovereign immunity. The first case to hold that local government units were not liable for 
tort was Russell v. Mem of Devon, 100 Eng.Rep. 3 SO. The case involved an action in tort 
against an unincorporated county. The action was disallowed on two grounds: since the 
group was unincorporated there was no fund out of which the judgment could be paid; 
and "it is better that an individual should sustain an injury than that the public should 
suffer an inconvenience." 100 Eng.Rep. 3S9, 362. The rule of the Russell case was first 
brought into this country by Mower k Inhabitants of Leicester, 9 Mass. 247, 249. There 
the county was incorporated, could sue and be sued, and there was a corporate fund out of 
which a judgment could be satisfied. Ignoring these differences, the Massachusetts court 
adopted the rule of the Russell case, which became the general American rule. 

If the reasons for Russell v. Men of Devon and the rule of county or local district 
immunity ever had any substance they have none today... 

The rule of governmental immunity for tort is an anachronism, without rational 
basis, and has existed only by the force of inertia... 

None of the reasons for its continuance can withstand analysis. No one defends 
total governmental immunity.'* 



97 



The Illinois Supreme Court in Molitor v. Kaneland Community Unit District 
302, 18 111 App. 2d II, 163 N.E.2d 89 (1959) in doing away Illinois sovereign immunity 
stated at pg. 94 as follows: 

"We are of the opinion that school district immunity cannot be justified on this 
theory. As was stated by one court, "The whole doctrine of governmental immunity from 
liability for tort rests upon a rotten foundation. It is almost incredible that in this modem 
age of comparative sociological enlightenment, and in a republic, the medieval 
absolutism supposed to be implicit in the maxim, 'the king can do no wrong/ should 
exempt the various branches of the government from liability for their torts, and that the 
entire burden of damage resulting from the wrongful acts of the government should be 
imposed upon the single individual who suffers the injury, rather than distributed among 
the entire community constituting the government, where it could be borne without 
hardship upon any individual, and where it justly belongs." Barker v. City of Santa Ft, 
47 N.M. 85, 136 P.2d 480,482. Likewise, we agree with the Supreme Court of Florida 
that in preserving the sovereign immunity theory, courts have overlooked the fact that the 
Revolutionary War was fought to abolish that "divine right of kings" on which the theory 
is based. 

The other chief reason advanced in support of the immunity rule in the more 
recent case is the protection of public funds and public property. This corresponds to the 
"no fund" or "trust fund" theory upon which charitable immunity is based. This rationale 
was relied on in Thomas v. Broadlands Community Consolidated School Dist., 348 
111. App. 567, 109 N.E.2d 636, 640, where the court stated that the reason for the 
immunity rule is "that it is the public police to protect public funds and public property, 
to prevent the diversion of tax moneys, in this case school funds, to the payment of 
damage claims." This reasoning seems to follow the in that it is better for the individual 
to suffer than for the public to be inconvenienced. From it proceeds defendant's 
argument that school districts would be bankrupted and education impeded if said 
districts were called upon to compensate children tortuously injured by the negligence of 
those districts' agents and employees. 



98 



We do not believe that in this present day and age, when public education 
constitutes one of the biggest businesses in the country, that school immunity can be 
justified on the protection-of-public-funds theory." 

The Supreme Court of Florida led the way in judicial abolishment of sovereign 
immunity. In an opinion authored by Justice Thomal, the Court in Hargrove v. Town of 
Cocoa Beach, 96 So. 2d 130 (1957) which as a case involving a jailer who left a prisoner 
unattended while the cell filled with smoke, resulting in the prisoner's death. The trial 
court, following prior Florida law, dismissed the suit based on sovereign immunity. The 
Florida Supreme Court realized this was unjust and stated at page 1 3 1 as follows: 

"We are here faced squarely with an appeal to recede from our previously 
announced rule which immunizes a municipal corporation against liability for torts 
committed by police officers. The rule against municipal liability for torts has been the 
subject of thousands of pages of learned dissertations. We are told that since 1900 well 
over two hundred law review articles alone have been written on the subject 
Innumerable textbooks have made their contribution, most of them adversely critical. 

Immunization in the exercise of governmental functions has been traditionally put 
on the theory that the "king can do no wrong but his ministers may". In applying this 
theory the courts have transposed into our democratic system the concept that the 
sovereign is divine and that divinity is beyond reproach. In preserving the theory they 
seem to have overlooked completely the wrongs that produced. our Declaration of 
independence and in the ultimate resulted in the Revolutionary War. We, therefore, feel 
that the time has arrived to declare this doctrine anachronistic not only to our system of 
justice but to our traditional concepts of democratic government. 

The immunity theory has been further supported with the idea that it is better for a 
individual to suffer a grievous wrong than to impose liability on the people vicariously 
through their government. If there is anything more than a sham to our constitutional 
guarantee that the courts shall always be open to redress wrongs and to our sense of 
justice that there shall be a remedy for every wrong committed then certainly this basis 
for the rule cannot be supported." 



99 



In the State of Washington, this issue was dealt with by the legislature in 1961. 
RCW 4.92.090 Chapter 136 91961) 

The State of Washington, whether acting in its governmental or proprietary 
capacity, shall be liable for damages arising out of its tortuous conduct to the same extent 
as if it were a private person or corporation. " 

In 1967, this principal was extended to all local government entities. RCW 
4.96.010. 

FEDERAL IMMUNITY 

On August 2, 1946, after nearly thirty years of congressional consideration, 
drafting and redrafting, a federal tort claims act of general applicability was adopted. In 
basic outline, this act is simple. It subjects the United States to liability in the federal 
courts for money damages ... for injury or loss of property or personal injury or death 
caused by the negligent or wrongful act or omission of any employee of the government 
while acting within the scope of his office or employment, under circumstances where the 
United States, if a private person, would be liable to the claimant in accordance with the 
law of the place where the act or omission occurred. 

Mr. Justice Jackson, writing for The United States Supreme Court in Feres v. 
United States, 71 S.Ct. 153 (19S0) states at page 1 56 as Mows: 

"The Tort Claims Act was not an isolated and spontaneous flash of congressional 
generosity. // marks the culmination of a long effort to mitigate unjust consequences of 
sovereign immunity from suit. While the political theory that the "king could do no 
wrong" was repudiated in America, a legal doctrine derived from it that the Crown is 
immune from any suit to which it has not consented was involved on behalf of the 
Republic and applied by our courts as vigorously as it had been on behalf of the Crown. 
As the federal government expanded its activities, its agents caused a multiplying number 
of remediless wrongs-wrongs which would have been actionable if inflicted by an 
individual or corporation but remediless solely because their perpetrator was an officer of 
employee of the government. . . The primary purpose of the act was to extend an remedy 
to those who had been without. .." 



100 



Mr. Justice Frankfurter in Indian Towing Company v. United States, 350 U.S. 
61, 76 S.Ct. 122, 100 L.Ed 41 (1958) at page 68 and 69 stated: 

The broad and just purpose which the statute was designed to effect was to 
compensate the victims of negligence in the conduct of governmental activities in 
circumstances like unto those in which a private person would be liable and not to leave 
just treatment to the caprice and legislative burden of individual private laws." 

It should be noted that England in 1947 passed the Crown Proceedings Act which 
was similar in scope to the Federal Tort Claims Act passed in 1947. 

TRIBAL IMMUNITY 

The only places where this archaic, unjust and totally indefensible legsl maxim 
exist are on Indian Reservations. While the U.S Supreme Court could abolish this 
doctrine it has been reluctant to do so. In The bo v. Choctaw Tribe of Indians, 66 Fed. 
372 (189S) the 8* Circuit held that "It may be conceded that it would be competent for 
congress to authorize suit to be brought against the Choctaw Nation upon any and all the 
causes of action in any court it might designate" 

However, the court determined that congress had not done so and therefore the 
tribe could not be sued. 

In United States v. 17.5. Fidelity and Guaranty. Co. 106 F.2d 804, the 10* Circuit 
Court of Appeals stated at page 810: "...The Indian tribes like the United States, are 
sovereigns immune from civil suit except when expressly authorized" 

In 1968 with adoption of the Indian Civil Rights Act many people through 
congress had provided that authority. The right to redress wrongs in court However, the 
United states Supreme Court in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 36 L Ed 
106, 98 S.Ct 1670 (1978) ruled otherwise. 

"Indian tribes have long been recognized as possessing the common-law 
immunity from suit traditionally enjoyed by sovereign powers. Turner v. Unites States, 
248 US 354, 358, 63 Lid. 291, 39 S.Ct 109 (1919); United States v. United States 
Fidelity a\ Guaranty Co. 309 US 506, 512-513, 84 L.Ed 894. 60 S.Ct 653 (1940); 
Puyailup Tribe v. Washington State Department of Game, 433 U.S. 165. 172-173, 53 



101 



L.Ed.2d 667, 97 S.Ct 2616 (1977). This aspect of tribal sovereignty, like all Others, is 
subject to the superior and plenary control of Congress. But "without congressional 
authorization," the "Indian Nations are exempt from suit" United State v. United States 
Fidelity A Guaranty Co., supra at 5 12, 84 L.Ed 894, 60 S.Ct 653. 

It is settled that a waiver of sovereign immunity "cannot be implied but must be 
unequivocally expressed." United Stales v. Teston , 424 U.S. 392, 399, 47 L.Ed.. 2d 1 14, 
96 S.Ct 948 (1976), quoting, United States v. King, 39S U.S. 1, 4, 23 L.Ed.2d 52, 89 S.Ct 
1501 (1969). Nothing on the face of Title I of the ICRA purports to subject tribes to the 
jurisdiction of the federal courts in civil actions for injunctive or declaratory relief. 
Moreover, since the respondent in the habeas corpus action is the individual custodian of 
the prisoner, see, e.g., 28 USC § 2243 [28 USCS § 2243], the provisions of § 1303 can 
hardly be read as a general waiver of tribe's sovereign immunity. In the absence here of 
any unequivocal expression of contrary legislative intent, we conclude that suits against 
the tribe under the ICRA are barred by its sovereign immunity from suit." 

It has been 52 years since Congress passed the Federal Tort Claims Act. It has 
been over 30 years since governments at all levels in this state have been responsible for 
their wrongful acts. In other states it has been over 40 years since mis archaic legal 
maxim has been nullified. 

During that time none of dire consequences predicted by those governments has 
come to pass. None of them have ceased to exist and while they may have had to buy 
liability insurance, so has everyone else. In fact, as stated in MolaorV Kaneland, supra, 
"The public's willingness to stand up and pay the cost of its enterprises carried out 
through municipal corporations is no less than its insistence that individuals and groups 
pay the cost of their enterprises. Tort liability is in fact a very small item in the budget of 
any well organized enterprise." 

Additionally, the advent of liability has made all of us in government more 
responsive and accountable. Frankly, as an attorney who represents local government in 
this era of shrinking budgets, I would love to have sovereign immunity back, however, 
that would not make it right 



102 



In my experience, the tribal governments of mis state ask to be treated as an equal 
government. They ask that they be dealt with on a government to government basis. 
However, they want all of the rights and none of the responsibility. In every interlocal 
agreement executed by political subdivisions in this state there are indemnity agreements 
to hold each other harmless The tribes will not agree in most instances to this clause 
because they don't want to waive immunity. 

Whether you are a Native American or a non-native, having a government whose 
decisions cannot be reviewed first by a disinterested magistrate and then by the Courts of 
Appeal can only be described as unjust If a tribal government decides to build a 
slaughter house next door to your home, the county or state ought to be able to challenge 
that decision in court. If the tribe will not issue you a well permit, you ought to be able to 
challenge that decision in court. If the tribe builds a casino next door to your home, you 
ought to be able to challenge that decision in court If the tribes builds a casino and 
doesn't make provisions for the traffic problems it causes, you ought to be able to take 
them to court 

Whenever the county is considering a land use decision on the Yakama Indian 
Reservation, the tribe is given notice. They participate fully in all hearings whether its 
before the planning department, the planning commission, the hearing examiner or the 
Board of County Commissioners. They are consulted as are other units of government 
within the county. If they don't agree with the decisions that are made, they challenge 
those decisions in Court which is their right to do. Yakima County has been sued more 
than one by the Yakama Indian Nation because of its land use decisions. On the other 
hand, the tribe gives no one notice of it's land use intentions. 

I find it inconceivable that the Congress of the United States stands by its inaction 
authorizes the tribal governments to blatantly destroy the civil and property rights of 
United States citizens. The "king can do no wrong" has no place in the 21" century. The 
Congress should pass The American Indian Equal Justice Act S. 1691 and recognize the 
value and rights of all its citizens. 



103 



TESTIMONY OF JILL JENSEN 
CITIZENS FOR SAFETY AND ENVIRONMENT 

BEFORE THE COMMITTEE ON INDIAN AFFAIRS 
UNITED STATES SENATE 

TRIBAL SOVEREIGN IMMUNITY 
PRESENTED TUESDAY, APRIL 7, 1998 

Honorable Committee Members, 

My name is Jill Jensen. Thank you very much for the opportunity to convey to you our 
considerable concerns as they relate to the White River Amphitheater project being 
developed by the Muckleshoot Indian Tribe in partnership with a California promoter, Bill 
Graham Presents. 

The White River amphitheater, a project that would allow up to 23,000 people and up to 
1 0,000 vehicles to trample upon the Enumclaw Plateau every weekend from April to 
October, is under construction upon fee-simple land in a rural, primarily agricultural area 
halfway between the cities of Enumclaw and Auburn in King County. Despite many 
violations of land use, zoning, and regulatory laws, construction proceeds without 
adequate lawful jurisdictional oversight by King County, the State of Washington, or the 
government of the United States of America. 

Citizens for Safety and Environment is a grass-roots community action group with over 
8.500 constituents. We have been fighting this amphitheater project for nearly a year, 
without the benefit of adequate support and interdiction by any governmental entity. We 
are demanding the proper and rightful enforcement of legal and environmental laws by all 
governmental entities responsible for protecting the rights of all citizens of the community, 
both on an off the Muckleshoot Indian Reservation. 

The American Indian Equal Justice Act, S. 1691, is precisely the type of legislation needed 
to begin to properly address complex issues relating to business and commerce involving 
American Indian tribes. This Act is a fundamental building block for future legislation 
that will be necessary to define tribal legal and sovereignty issues and subsequently 
clarify relationships, such that both tribal governments and other political 
subdivisions of the United States may conduct our affairs with the proper dignity, 
integrity, and respect 

This proposed legislation begins to define a set of rules and guidelines that is necessary for 
more comprehensive business and governmental relationships. This will make all parties 



104 



more comfortable in an area mat has heretofore been too complex for most people to 
navigate. The ultimate result will be an elevation of tribal governments and 
enterprise to their proper standing within our economic and societal systems. 

This project is a very large scale commercial operation involving a large facility upon 
which construction has already begun. The issue of immunity from lawsuit as relates to 
this project is choking almost all efforts to resolve many problems, if indeed solvable at all, 
before the project is allowed to continue construction. Nobody at any level or 

government ha* had th» fortitude to talc* on this mil* primarily h#**an«r nf their 

fear of the sovereign immunity threat. This is totally unacceptable! 

We all know that despite the best intentions of architects, design engineers, and 
construction companies, perfect results are never guaranteed. Additionally, despite the 
best intentions of the operators and/or managers of such a large scale endeavor, security 
may be lax or overzealous, medical treatment may be insufficient or untimely, traffic 
mitigation attempts may not be sufficient therefore increasing potential for injury accidents, 
and many other potential impacts may endanger the public safety and/or property. 

Consequently, the legal system properly has within it the "tort" system. A tort is, 
according to the Random House Dictionary of the English Language, a wrongful act, not 
involving a breach of contract or trust, which results in injury to another's person, property, 
reputation, or the like, and for which the injured party is entitled to compensation. 

As a result of the Indian Reorganization Act of 1 934, Indian tribes have claimed they have 
a degree of sovereign immunity not unlike that of states, counties, and cities. Among the 
protections immunity offers, a very significant one is immunity from lawsuits that result 
from torts. 

Immunity has practical purpose at times when self government, and other matters within 
any jurisdiction need protection from constant and/or frivolous int e rfere n ce with the 
governmental process. However, "blanket immunities" have been removed by all 
governmental entities except those which Indian tribes purport to have. Non-Indian 
governmental entities have waived immunity from lawsuit on all but the most absolutely 
necessary issues because of the lawful need for accountability of those who have power 
over others, whether from the business community or government. 

The assumed immunity by Indian tribes may have validity for many internal issues 
but becomes a significant problem as tribes become more active in business activities 
that are patronised by non-Indians and Indians alike. This is of especial import when 
the business is one such as the amphitheater. The large outdoor concert industry is known 
to be at high risk as to injuries and all too often, deaths of patrons. 



105 



Indian tribes often waive immunity when entering into significant contracts with non- 
Indians. This allows both parties to the contract to have reasonable access to the same 
non-tribal court system wherein they may seek relief from damages which may have been 
caused by the other party to the contract. It is highly likely that Bill Graham Presents, the 
general contractor, financial lenders, as well as others who have contracts for the proposed 
amphitheater have sought and been granted a waiver of immunity by the Muckleshoot 
Indian Tribe. 

If the business people that believe so strongly in the success of the amphitheater have 
waivers of immunity, it only seems to make sense that at a minimum, families of patrons, 
patrons, and neighbors of the project have the same access to the courts to seek relief 
should "injury" occur. 

It is inexcusable that a facility that may contain up to 23,000 citizens of the region, both 
Indian and non-Indian alike may be built with out proper and sufficient oversight and 
without proper access to non-tribal courts for relief should injury to persons and/or 
property occur. 

Citizens of the surrounding area have no recourse within the legal system to compel 
the Muckleshoot Indian Tribe to be in compliance with land use, zoning, and 
regulatory requirements normally associated with a project of this scale and impact 
The issue of assumed tribal immunity from law suits is ever present, inhibiting the 
due process that is demanded of this business endeavor. 

The issue is further complicated by the typical tactic of tribes to join suits against non- 
Indian partners and contractors on the basis that the tribe is a "necessary and 
indispensable** party since their economic well being is being attacked. The result is that 
the courts then dismiss the suits on the basis that tribes are assumed to be immune from 
law suit. CSE's current federal legal action against the Bureau of Indian Affairs, the 
Muckleshoot Indian Tribe, and the contractors has had volumes of material generated by 
the defendants in an attempt to have the case dismissed since the Tribe is "necessary and 
indispensable" but immune to lawsuit. The issue of immunity has become a panacea for 
the tribes whenever they seek to escape accountability. Senate Bill 1691 would eliminate 
this legal shell game, and give citizens their Constitutionally guaranteed access to due 
process. 

Ever since the Indian Reorganization Act of 1934, non-Indians and non-members of the 
reservation tribes, even though they comprise nearly S0% of residents of reservations 
nationwide, are not granted the right to vote in tribal elections, or the right to participate in 
the making of tribal law and regulations, including, but not limited to, land use and zoning. 



3 



106 



Consequently, they must depend on the underlying jurisdiction as their representative 
agency of government, in which they put their full faith and trust that they will have the 
right to due process of law protected. All too often, cities, counties, and states can't 
protect non-tribal citizens' interests because of the ever-looming immunity problem. 

The basic civil rights of these non-Indian and non-member Indian residents of the 
Muckleshoot Indian Reservation living within unincorporated King County, must be 
guaranteed by the government of the United States of America. 

In 1971, the State of Washington published a booklet entitled "Are You Listening 
Neighbor?" which was a report of the state's Indian Affairs Task Force. Many of the Indian 
tribes of Washington contributed. One of the outcomes was that many tribes of 
Washington State strongly requested that they be recognized as a "public agency" 
such as cities and counties for the purpose of inter-local agreements and other 
government-to-government issues. An amendment to Title 39.34.020 of the Revised 
Code of Washington codified this recognition. This recognition gave the tribes many 
rights and privileges to enable more self-sufficient and empowered government, but the 
state and King County have failed to recognize the associated obligations of this 
status, such as compliance with the state's Growth Management Act and compliance 
with the State Environmental Policy Act. 

Indian reservations have an interesting governmental form, perhaps best described as a 
"city-state". A city because of their relationship to the state, counties, and other cities. A 
a state because of their unique relationship to the federal government, not unlike that of 
states. There is little question that this status needs clearer definition such that all of us 
may have better jurisdictional relationships. 

As recognized governmental entities, dependent upon the United-States, and subject to the 
Constitution and statutes of the United States, as acknowledged in treaties and the 
Muckleshoot Constitution, it is confounding that Indian tribal governments, which 
resemble both state and local governments, should think themselves uniquely exempt from 
the Environmental Laws of the United States and the State of Washington. Especially 
considering the treaty promises by the Indian tribes and bands to be friendly warn citizens 
or in other words, their neighbors, yet relentlessly demanding full compliance by their 
neighbors. 

Over the last thirty or so years the United States and the States have come to understand 
the sensitive and important relationship of their peoples to the land, nature, and one 
another. As a result of this critical understanding, our country has created the National 
Environmental Policy Act, (NEPA), and the State of Washington has adopted the State 
Environmental Policy Act, (SEPA), which in many instances is more restrictive than 
NEPA. These very significant laws have become our good neighbor laws. They define 

4 



the importance of understanding and implementing statutes that always consider the 
actions of one entity as to its impacts on all other neighboring entities. 

These environmental laws span jurisdictions, and become the tools for conflict resolution, 
a "voice of reason" if you will, in that virtually no one is exempt. 

As relates to Indian Reservations, the Bureau of Indian Affairs demands that NEPA 
regulations be complied with when considering federal actions wherein a "fee to trust" land 
conveyance is applied for by a tribe. The BIA also recognizes the jurisdiction of states, 
counties, and cities over fee simple land regardless of ownership by an individual Indian or 
by a Tribe. BIA regulations specify that these jurisdictions be allowed to comment as to 
lost taxes, lost land use controls, and lost assessments, whenever considering fee to trust 
conveyances. 

It is our hope that the Committee on Indian Affairs consider adding to S. 1691 the 
requirement that should no other jurisdiction assert compliance with NEPA or state level 
environmental laws, that the requirements of NEPA be the minimum mandates for projects 
being developed by Indian tribes. This should be the case whether on fee-simple lands or 
those defined as "Indian Country" (as specifically defined in the February 25, 1 998 
unanimous U.S. Supreme Court opinion 'Alaska vs. Native Village of Venetie Tribal 
Government et. al. '). The U.S. Environmental Protection Agency could be the lead 
NEPA agency for all such projects. 

As one last footnote, many people are concerned that Indian tribes would be unduly 
impacted by the burden of potentially large compensatory legal claims. Many tribes are 
still economically disadvantaged and would be at significant financial risk. It is our firm 
belief that this should not hinder the application of due process. All too many victims of 
negligence, abuse, and illegal activity are often ruined financially when no one can be 
held accountable. It would be appropriate for the federal government to subsidize or 
underwrite liability insurance for tribes with financial need. 

Again, thank you for your consideration of our issue. We know that many other 
communities have similar problems and are as frustrated as the citizens of our community. 
Please do all in your power to pass this critical piece of legislation. 



• 



TESTIMONY OF 

BILL TAYLOR, 

PRESIDENT, TAYLOR SHELLFISH 

and 

PRESIDENT, PUGET SOUND SHELLFISH GROWERS 

BEFORE THE COMMITTEE ON INDIAN AFFAIRS 
UNITED STATES SENATE 

CONCERNING S. 1 69 1 THE AMERICAN INDIAN EQUAL JUSTICE ACT 






PRESENTED ON 

APRIL 7, 1998 

TUKWILA, WASHINGTON 



At 45 minutes after midnight in the wet chill darkness of January 19, 1995, my 
family's beach in Chapman's Cove in southern Puget Sound was invaded illegally by 
about a dozen members of the Squaxin Indian Tribe. As part of a larger tribal 
workforce of 60 to 80 who were digging clams on an adjacent state beach, they were 
accompanied by two armed tribal enforcement officers. My foreman, who happens to 
belong to that Tribe, told a tribal officer they had no right to be on our property, but 
the officer refused to stop them. In fact, our boundary was clearly marked every ten 
to twenty feet, and the Tribe's diggers ignored and even destroyed our markers. They 
went up to 70 feet onto our property, proceeded to dig 2,000 pounds of clams worth 
$4,000, and caused other damage to our property. If my family had not cultivated 
and seeded that beach, there would have been few or no clams there. Instead, the 
clams were much more dense than on the state beach. And if we had harvested them 
later, as we had planned, they would have been worth even more. 

Obviously the Tribe sanctioned the event that led to this injury, and obviously the 
Tribe allowed it to stand. We asked the Tribe for reimbursement. To this day, my 
family has never been compensated. 

The reason we were denied justice is my family and I are merely American citizens, 
and therefore we have no legal recourse in state or federal court against the Tribe. 
Congress continues to allow Tribes to hide behind an archaic concept reserved 
elsewhere to dictators and monarchs, but that no other government in America 
accepts. That legal barrier is absolute sovereign immunity. And it is unjust. 



109 



Testimony of Bill Taylor 

To U.S. Senate Committee on Indian Affairs 

April 07 1998 

Page 2 



Mr. Chairman, I also want to stress that my family has always enjoyed good relations 
with our Indian neighbors. We buy and market shellfish for some, and others are 
valued employees. We share more than a community with the Tribe, we hold 
common values, especially a love of our environment. We bear no ill will toward our 
neighbors. 

My name is Bill Taylor. I am a farmer of shellfish. My family has grown shellfish on 
the shores of Puget Sound and Hood Canal for four generations. Today, my 
company grows clams, oysters and mussels and sells them all over the world. 

I am also President of the Puget Sound Shellfish Growers, a group representing over 
130 independent businesses, mostly small and family-run. 

Some tidelands my family farms today, and many tidelands belonging to our fellow 
growers, have been in our families for generations. Washington state sold some 
tidelands to our ancestors in the 1890s specifically to try to save the then-declining 
shellfish populations of Puget Sound. Earlier, the federal government had granted use 
of the territorial tidelands to shellfish growers. 

In fact, when local Indian tribes signed the treaties with Governor Stevens in the 
1 850s, they agreed to protect the growing shellfish industry, with a commitment that 
stated "provided however, that the tribes shall not take shellfish from beds staked or 
cultivated by citizens. " 

The reason, Mr. Chairman, that I go into this history is to explain that the private, 
commercial farming of our tidelands has been going on for nearly 150 years. And 
until very recently, there has never been a question that we owned the tideland and 
its resources, fully and without the slightest shadow of doubt. 

As a rancher yourself, I know you appreciate the risks and failures that underlie every 
farmer's existence. Like you, we suffer from adverse "whims of nature. We risk the 
rise and fall of prices, the changing tastes of consumers, the press of ever-greater 
regulation. We invest in research and new technologies to enhance our success, and 
sometimes we fail. And in our case, we often suffer from the pollution of others, and 
we find ourselves in the front line of battle to clean and protect our waters. 



110 



Testimony of Bill Taylor 

To U.S. Senate Committee on Indian Affairs 

April 07 1998 

Page 3 



In 1989 however, some 130 years after the tribes signed the treaties, and without any 
complaint to us over that time, several Puget Sound Indian tribes sued, claiming one- 
half of our shellfish under the Treaties. 

In the nearly ten years since, a great black cloud has hung over me, my family, and all 
the other families that farm shellfish here. Today, we do not know whether we may 
keep the shellfish we grow, or just some portion. For nearly all the families who grow 
shellfish, their entire savings, their entire life's work is tied up in their beaches, their 
businesses, and this lawsuit. Some face total ruin. 

And a principal reason that this immense unfairness was visited upon us after seven 
generations, is because the Tribes enjoy a legal haven that every other government in 
America has rejected as unjust: absolute sovereign immunity. 

Actually, it is more unfair than just the one-sided ability of the Tribes to sue vis that 
creates this injustice. We also are not allowed the normal defenses that would 
otherwise protect us in this situation. There is no statute of limitations that restricts 
the Tribes from bringing a claim, ever. The principle of laches, that is, a legal 
principle against delay in asserting a right or claim, does not apply to the Tribes, at 
least not yet. And of course, sovereign immunity also means there is no proactive 
way that I, as an American citizen, can sue the Tribes to settle this or any other issue 
that may come between us. I have to wait, because the scales of justice are 
completely one-sided: only the tribes can sue me, not the reverse. 

And what is the result of this gross imbalance of justice? The final chapter remains 
unwritten, because we have yet to take our case to the U.S. Supreme Court. But if 
the case remains as it stands today, a tribe could demand half the natural background 
production from my lands. That will force me to try to prove what the natural 
production was before cultivation ever began. Mr. Chairman, please ask yourself: in 
all the years of your ranching, did you ever keep records on the native grasses you 
plowed under? The deer or antelope your cattle displaced? Could you go back forty 
years, let alone 140, and prove to a judge what existed decades before you came? 
Would it be fair that you pay the cost of finding out and fighting over it? 

That is not only an absurd burden, it is an impossible burden. My great-grandfather 
is dead and so is everyone else who might know these answers. To require it today is 
to disgrace our concepts of justice. And this burden exists because the Tribes have a 



Ill 



Testimony of Bill Taylor 

To U.S. Senate Committee on Indian Affairs 

April 07 1998 

Page 4 



legal protection that the United States of America and every State within it has long 
since dropped. Americans can sue their states or the federal government for many 
things, including the taking of private property without compensation. 

As you can see by now, our case is not idle speculation. Absolute immunity from law 
suit has already hurt me. Beyond these very real and present injustices, however, lie 
the future jeopardies that should be equally offensive to any American: if in the 
future the tribes legally sponsor a taking of shellfish on our land but they allow their 
members to take too much, or to damage our property again, we cannot sue the Tribe 
for compensation. Our lawyers have raised the frightful possibility that the tribes 
could arrest us on our own beaches for allegedly violating their rights; if they did, we 
would have no recourse against the tribe for false arrest or damages. Further, only 
tribes can sue us, and not we them, to determine whether any other act of ours to 
conduct our business is acceptable. They can wait another seven generations, and 
they can sue again. And its not just us: if they win this shellfish case, they can sue to 
undo the developments of tens of thousands of acres of developed tidelands, affecting 
hundreds of thousands of citizens, anytime and for any reason. The American 
citizens of this area have no certainty, no settled relationships, and no justice. We 
respectfully suggest to you that absolute sovereign immunity is not only unwise, it is 
unfair and un-American. 

Americans do not bow to kings. So why do we allow certain groups of citizens the 
rights of kings? Give us all equal access to justice. Let tribes have the same 
immunity that states and the federal government retain. That is all Senator Gorton's 
bill would do. On behalf of all the families whose livelihoods depend on the Puget 
Sound shellfish industry, I urge the committee to support Senator Gorton's bill. 

Mr. Chairman and members of the Committee, my fellow growers have a question for 
the Congress. We have always believed that our justice system was supposed to 
protect individuals and settle disputes peacefully and fairly. But if Congress refuses 
to give all Americans equal access to judicial processes to settle disputes, what 
alternative would Congress intend? 

Thank you. 



■ 






(J 
























' 












June 10, 1998 



The Honorable Senator Ben Nighthorse Campbell 
Chairman, Committee on Indian Affairs 
Washington, D.C. 20510-6450 

: 

■ 



Dear Senator Nighthorse Campbell: 



This letter responds to your May 5, 1998 letter with supplemental questions to my testimony at the 
April 7* hearing on tribal sovereign immunity in Seattle, Washington. 

1 . Since the Chapman's Cove incident in 1995, have there been other instances involving shellfish 
collection on our property or other private property? 

There have been a number of incidents, some reported and some alleged. The incidents, some which 
involved our property and others that didn't, were individual tribal members harvesting clams, 
claiming to be exercising their treaty rights. Most of these incidents to my knowledge were not 
tribally sanctioned activities. Some specific case numbers from Skagit County involving tribal 
harvest in Northern Puget Sound are 98-3961, 98-3406, 982519 and 98-4713. This is not a full list. 

To my knowledge there have been few if any other incidents of sanctioned tribal harvest on grower 
cultivated beds since Judge Rafeedie's December 1994 Ruling. I believe the tribes realize that it is 
not in their best interest to have any more incidents such as that which occurred in Chapman's Cove 
as long as the case is on appeal. 

2. What is the status of the shellfish litigation now pending in Federal court? 

The Ninth Circuit Court of Appeals issued their ruling on various petitions in January of this year. 
All parties filed petitions for rehearing on specific points or for En Banc review with the Ninth Circuit 
Court of Appeals in March. The Court requested responses to the grower's and tribe's petitions. 
These petitions and responses are currently being considered by the Court and we are awaiting their 
decision. 

Each of the parties in the case has indicated an interest in appealing some aspect of the lower court's 
decisions to the United States Supreme Court. The petitions to the United States Supreme Court will 
likely be filed later this summer assuming the Ninth Circuit opinion is forthcoming. 

TAVLOR SHIUMMI CO. • H1IOI UlsOUAlls lit. • TAVIOK TIMIIH INVISTMINT 111 • TAILOR RESTAURANTS INI 
si IIO LYNCH ROAD SHfcl.TON, WA Kill MlONt 160 42* *I7» FAX 1*0 427 0127 



113 



Bill Taylor, Supplemental Testimony 

U. S. Senate, Committee on Indian Affairs 

Page 2 



The Federal District Court Order currently provides the tribes the opportunity to access shellfish on 
grower's privately owned tidelands. Under the Judge Rafeedie's August 28, 1995 Implementation 
Order the tribes can file notice on the growers of their desire to develop a harvest plan for shellfish on 
the grower's tidelands outside their artificial beds. Judge Rafeedie ruled that growers could exclude 
tribes from harvesting on beds that had been artificial prior to August 28, 1998. He felt it was within 
the equitable powers of his court to exclude the tribes from harvesting in grower's artificial beds and 
thus benefiting from the fruits of their labor. All of the tribes filed notice on virtually all of the 
commercial growers. The growers then had 60 days to respond as to where their artificial beds were 
and to provide documentation regarding the cultivation activities that proved the beds were artificial. 
It took the better part of two months and two of my employees to do that documentation for my 
company. The tribes never responded. 

The Ninth Circuit Court of Appeals overturned the District Court and said that if a grower has 
cultivated a natural bed, that the grower now has to provide the tribes access to those privately owned, 
cultivated beds for half of the shellfish that would exist there prior to cultivation efforts. A significant 
problem is that there is no recognizable difference between a cultivated clam and a natural clam. 
Both the tribes and the growers are challenged by how to implement this. Unfortunately for the 
growers, the Court has put the burden on us to determine the sustainable natural yield of a particular 
bed prior to historic cultivation efforts. Many of these beds have been cultivated since the late 1800's 
or early 1900's and no records exist for what was there prior to cultivation. 

Regardless of the outcome from the Ninth Circuit, the growers feel the District Court missed the mark 
in their interpretation of the shellfish proviso in the treaty and we intend to appeal that tc the United 
States Supreme Court. The treaties say that "The right of taking fish, at all usual and accustomed 
grounds and stations, is further secured to said Indians, in common with all citizens of the territory... 
Provided, however, that they shall not take shellfish from any beds staked or cultivated by 
citizens.". It is our intention to petition the United States Supreme Court to reconsider the simple 
meaning of this treaty language and to consider the doctrine of laches as it pertains to our case. The 
doctrine of laches basically says that it was unfair of the tribes to sit silently for 13S years while the 
growers successfully built their businesses with the understanding that the shellfish on their property 
was theirs, then assert their treaty rights claim. After allowing this much time to pass, the growers 
generally do not have the necessary records to document natural populations prior to cultivation 
efforts. 

3. Would state trespass laws prevent tribal members from crossing private property in the event the 
Court rules for the tribe on appeal? 

The answer is yes and no. It is yes if an individual tribal member is on private property unlawfully. 
Then state trespass laws apply. The individual tribal member would be prosecuted in county or tribal 
court depending on the arrangement between the tribe and county. 

The tribes can legally access across private uplands if they can demonstrate to a Special Master the 
absence of access by boat, public road, or public right of way. In this situation state trespass laws 
would not apply since they would be their lawfully. The Federal District Court ruled that the tribes 
could not access across private uplands to get to privately owned tidelands to harvest their share of the 
shellfish resource. Judge Rafeedie told the tribes they would have to come by water as they had 
traditionally to avoid conflicts with the upland owners. The tribes appealed to Judge Rafeedie to 



114 



Bill Taylor, Supplemental Testimony 

U. S. Senate, Committee on Indian Affairs 

Page 3 






reconsider this and he once again said "no" unless the tribes could demonstrate to a Special Master 
the absence of access by boat, public road, or public right of way. The tribes appealed this to the 
Ninth Circuit and the Ninth upheld the District Court's decision. We would anticipate the tribes will 
appeal this once again to the United States Supreme Court. 

State trespass laws will not preempt a Special Masters decision to grant the tribes access over private 
uplands now. Nor will state trespass laws prevent further access over private uplands if that is 
granted by the Supreme Court. 

The issue of crossing private uplands to access the beaches has been a real source of conflict in the 
case. Upland owners are very concerned about this particularly in the winter when the low tides come 
during the middle of the night. 

It is important to point out that the beaches the tribes are accessing are also privately owned. It wasn't 
clear from your question as to whether you understood that the beaches were public and it was just an 
issue of accessing across private uplands. The tide lands are private property as well. Washington 
State is unique in this respect. All states had the option at statehood of keeping the tidelands in public 
trust or selling them to private ownership. Most states opted to keep tidelands in the public trust. 
Washington opted to sell a portion of their tidelands. Much of the tidelands were sold specifically for 
the purpose of culturing shellfish under the Bush and Callow Acts passed by the Washington State 
Legislature in 1895. 

Thank you Senator for the opportunity to testify before your committee in Seattle and for your interest 
in this very important issue. I hope these responses to your supplemental questions are helpful. 
Please feel free to contact me if you have any additional questions. I would be willing to provide you 
or your staff with periodic updates on the tribal shellfish rights litigation if that is of interest to you. 

Sincerely, 



Bill Taylor O 
Vice President 
Taylor Resources, Inc. 






























115 



Testimony 

v 
of 

Alan Montgomery, Chairman of 

United Property Owners of Washington, 

Before the Senate Committee on Indian Affairs on 

Tribal Sovereign Immunity 

Presented Tuesday, April 7, 1998 

I am Alan Montgomery, Chairman of United Property Owners of Washington 
("UPOW), a non-profit organization with over one hundred seventy-five primarily 
residential waterfront home-owner associations as members. I am also the individual 
owner of waterfront residential property on Hood Canal, in western Washington. 

UPOW and its member organizations have a combined membership of over sixty 
thousand individuals. There are an estimated total of two hundred thousand private 
property owners who own waterfront property on salt water beaches in western 
Washington, and to whom tribal sovereign immunity has recently become as issue of 
Urgent importance even though they may reside many miles from a reservation. We 
strongly urge the Senate to pass Senate Bill #1691 simply because it will promote the 
interests of justice. 

Washington is unique among the states because its 2000 miles of protected inland 
waterways and beaches are well-suited to growing shellfish, primarily clams and oysters. 
These sheltered inland waterways of Puget Sound and Hood Canal also became the 
locations for the first businesses and homes for the settlers of the Washington territory, 
after the making of the Stevens treaties in the 1850s between the local Indian tribes and 
the federal government. In reliance upon the promises of the territorial and . federal 
governments that the treaties insured their clear title to these properties, the early settlers 
invested in and improved the properties and tidelands, and helped to create the modern 
economy and tax base that supports our local and federal governments to this day. 

The present owners of these properties acquired them in good faith by purchase, 
and in some cases have invested their life savings in them. Shellfish beds flourish on 
these tidelands because the owners nurture and protect them from predators, both human 
and animal. This may be as part of a commercial enterprise or for personal use and 
pleasure, much like other home owners raise vegetables, flowers or fruit in their gardens 
and orchards. 

UPOW was organized to provide a legal defense for these private property owners 
against claims made by local area Indian tribes under the Stevens Treaties. The tribes 
seek the right to come onto these privately-owned shellfish beds, including those that 
serve as the "front yards" of private residences, to take shellfish in which the owner has a 
significant financial and personal investment. 

The tribes also seek the right to cross privately-owned upland residential 
properties for access to the shellfish beds. The tribes continue, via judicial appeals, to 
seek the right to use private roads and driveways, on a twenty-four hour per day basis, to 



116 



gain entrance to the beaches, even if it means crossing through the side-yards of private 
residences. We private home owners consider this to be an outrageous assault on our 
reasonable expectation of privacy and security in our homes that all other Americans 
enjoy. 

Much to the dismay of private owners, under the recent Ninth Circuit ruling, 
shellfish beds that may be less than fifty feet from the front doors of our homes, are now 
subject to a tribal treaty right to take up to half of the shellfish, depending upon how 
much the private owner has improved the shellfish bed. Until the appeals are over, the 
extent to which tribal access down our driveways and across our side yards, and the 
extent to which large equipment and tools that could damage our properties may be used 
by tribes, is unclear. 

However, it is clear that as a result of this ruling, the tribes will be able to come 
onto private properties without the consent of the owners, and engage in activities that 
may lead to significant damages. For example, the tribes may take a greater percentage 
of the shellfish than the ruling allows, or may damage or destroy shellfish beds in which 
the tribes have invested nothing and for which they pay no property taxes. If tribes 
attempt to cross upland properties to get to the beaches, damage to shrubs, gates, fences, 
landscaping, docks and bulkheads will inevitably result. Under some circumstances, 
these activities may result in personal injuries, or violations of the owner's right to 
privacy or other civil rights. 

There is a growing frustration among property owners resulting from these claims 
because we know we have done nothing wrong. To the contrary, Judge Rafeedie 
specifically ruled that we private owners are completely innocent, which indicates that 
Congress should act aggressively to help avoid injustice against us: 

The Shellfish Growers and Private Property Owners are, 
effectively, innocent purchasers who had no notice of the Tribes' Treaty 
fishing right when they acquired their property. Indeed, many of these 
Growers and Owners purchased their land at or before the turn of the 
century, and they reasonably believed the land to be free of encumbrances 
and servitudes. Their belief was reinforced by the Tribes' failure to 
formally assert the Treaty right until over 100 years after the Stevens 
Treaties were signed. 



All U.S. citizens (including the tribal members) benefited from the treaties. It is 
unjust to place the entire burden of this new treaty obligation upon innocent private 
property owners who are only a small percentage of the benefited citizens. In fairness, 
the federal government should accept full responsibility for satisfying these federal 
obligations by exempting private lands from treaty rights, which only it has the power to 
do. Regrettably, the federal government has, so far, declined to do so. 

To make things worse, private owners know that if the tribes begin to exercise this 
newly created treaty right on their properties, there is little incentive for the tribes to 
respect the rights of the owners. Under the doctrine of tribal sovereign immunity, 
regardless of how careless or negligent the tribes may be, and no matter how large the 
amount of damages they may cause, the tribes know there is nothing the owner can do 
about it 

The tribes may argue that eliminating tribal sovereign immunity is unnecessary 
since, if damages occur as a result of their activities on private property, the private 
owners can make their damages claims against the individual tribal members involved. 



Testimony of Alan Montgomery 



117 



However, that is not a realistic remedy, as the evidence presented by the tribes at trial 
indicates that, despite the substantial funds provided to the tribes by the federal 
government, a large percentage of their members are unemployed or otherwise below the 
poverty line. That is because those funds are owned and controlled exclusively by the 
tribal governments, as entities. Although the individual tribal members may have access 
to these resources, they do not individually own them, and therefore are less likely to have 
sufficient resources of their own to be financially responsible for any damages they may 
cause. 

Our attorney presented evidence in the subproceeding that the annual income the 
tribal governments receive from the federal government and from casino gambling is very 
substantial (see attached charts). Thus, the Washington tribal governments are not poor, 
and being made to account for the damages they may cause to others will not cripple their 
ability to perform essential functions for their members. To the contrary, they have 
substantial financial resources, and should be expected to pay any damages they cause to 
others so that there is sufficient incentive to avoid damaging others, and as a matter of 
simple justice. Individual tribal members exercise treaty rights only under the jurisdiction 
and control of the tribal governments. Therefore, the tribal governments, as entities, 
should be held responsible for the damages their members cause on private property since 
they organize and supervise the tribal digs. 

The treaties do not exonerate tribal governments from liability for damages they 
cause on private property. To the contrary, the Stevens treaties specifically require the 
tribes "to commit no depredations on the property of citizens," or "compensation may be 
made by the Government out of their annuities." The modern version of tribal sovereign 
immunity is therefore a violation of the spirit of the very treaties the tribes seek to enforce 
against us. 

We private property owners do not seek to voluntarily enter into any transactions 
with the tribes, nor to obtain any benefits or advantages from them that might justify the 
imposition of tribal sovereign immunity upon us. The tribes may be sovereign 
governments with respect to their own members, but none of their members are 
compelled by law to join them. We private owners, on the other hand, are being 
compelled by the courts to interact with the tribes against our will. Private property 
owners who are not of Indian descent are excluded from tribal membership, and therefore 
have no ability to hold tribal governments accountable through participation in 
democratic elections. 

It should be obvious that this ruling, if implemented, will be the start of unending 
conflict between the tribal governments and their off-reservation neighbors. It is 
unbelievable to private property owners that the federal government may force the tribes 
and property owners to be unwilling partners in privately owned shellfish beds that will 
only serve to undermine the systems of free enterprise and exclusive private property 
ownership that the Stevens treaties were intended to encourage. 

If the Congress will not act to exempt private property from the exercise of treaty 
rights, then the least it can do is provide a strong incentive for the tribes not to damage 
private property by eliminating the doctrine of tribal sovereign immunity. Respect for, 
and confidence in, the American judicial system depends on having a realistic remedy 
available to persons damaged by others. If sovereign immunity for damages caused by 
unwanted tribal incursions onto private properties is not eliminated, the risk of angry 
conflict and confrontation on those private properties, rather than calm and deliberate 
dispute resolution in the courts, will be unnecessarily and unwisely increased. 



Testimony of Alan Montgomery 3 



118 



Some of UPOW's member organizations are comprised of "fee land" owners of 
property located within the boundary of reservations. Their plight is even more severe 
than that of off-reservation waterfront property owners because the unfettered 
interference of the tribal governments with the reasonable use of their properties is much 
greater. Tribal governments have threatened to shut off the water supply to fee lands, 
block access roads, tax and regulate fee lands with no legal authority to do so, and to 
arrest and incarcerate fee land owners for using their property in a manner permitted by 
local, state and federal law. Due to tribal sovereign immunity, these private fee land 
owners have no ability to prove through the judicial process that the tribes are acting 
illegally, nor do they have recourse against them for the resulting damages or for 
violations of their civil rights. In short, they are denied the simple justice that all other 
Americans enjoy. 

Again, we urge the passage of Senate Bill #1691 because it will better promote 
justice than the current system of tribal sovereign immunity, under which the tribes have 
too much freedom to damage the properties and violate the civil rights of U.S. citizens 
with impunity. 















Testimony of Alan Montgomery 



119 



TABLE 1: TRIBAL MODERATE LIVING CONTRIBUTION BY U.S. 
GOVERNMENT 



Tribe 


Federal Go vera - 
meat Payment or 
Award to Tribe ■ 


Number of 
Tribal 
Households 2 


Federal Govern- 
ment Payment or 
Award Per 

Tribal Household 


Jamestown Klallam 
Tribe 


3,140,474 


62 


50,653 


Lower Elwha 
S'KUlUm Tribe 


2,285,261 


157 


14,556 


Lu rami Tribe 


11,194,698 


531 


21,082 


Makah Tribe 


4,852,741 


434 


11.181 


Mttckleshoot Tribe 


14,579.485 


134 


108.802 


Nisqually Tribe 


9,212,017 


71 


129,747 


Nooksack Tribe 


1,933,256 


207 


9,339 


Port Gamble Tribe 


1,200,792 


HI 


10.818 


Puyallup Tribe 


11,455,976 


363 


31,559 


Skokotnish Tribe 


1,510,678 


196 


7,708 


Squaxin Island Tribe 


2,319,762 


116 


19,998 


Suquamish Tribe 


3,349,600 


198 


16,917 


Swinomish Tribe 


3,664,086 


HI 


33.010 


Tuialip Tnbc 


8,679,622 


502 


17,290 



1 From latest A-128 Audits produced at trial (fiscal year 1991 or 1992). Ex. 
UPOW-004, ER 1178. A-128 Audits not produced for Upper Skagit or Yakama 
Tribes. 






1 Household numbers as shown in Thomas Report, Table Dl. ER 1039, 1040 



-40- 



120 



TABLE 2: TRIBAL CASINO NET WIN (CALCULATED FROM PUBLIC 
RECORD OF COMMUNITY CONTRIBUTION, ADDENDUM 3-4) 



.■•.•■•IHk«r- 


** 


Highest of 
Allocated 
or DUtri- 
bated 


Net Win 


No. of 
Tribal 
Home 

holds, 


Net Win 

House- 
hold 


Jamestown KJallam 
Tribe 


1995 


159,813 


7,990,650 


62 


128,881 


Mucldeshoot Tribe 


1995 


527,595 


26,379.750 


134 


196,864 


Nooknck Tribe 


1995 


124.733 


6.236.650 


207 


30,129 


Squaxin Island Tribe 


1996j 


156,420 


7,821.000 


116 


67.422 


Suquamish Tribe 


199& 


300,000 


15,000,000 


198 


75.758 


Swinomish Tribe 


1995 


279,192 


13,959.600 


111 


125.762 


Tulalip Tribe 


1995 


495.903 


24.795.150 


502 


49.392 


Upper Skagit Tribe 


19962 


347,548 


17,377,400 


113 


153,782 



NOTICE: THESE FIGURES ARE CALCULATED FROM STATE 
PUBLIC RECORD OF 2% COMMUNITY CONTRIBUTION; 
REQUEST FOR JUDICIAL NOTICE OF PUBLIC RECORD 
INFRA, P. 43. 

i All Appellate Tribes but the Makah have casino compacts. See. UPOW 
Opening Br., p. 60, n.22. A public records request for latest figures 
from all Tribes is pending, and the numbers will be furnished when 
produced by the State and/or Tribes. 

i When only 1st quarter figures were available, the amount was multiplied 
by four to calculate an annual figure. 

9 Household numbers as shown in Thomas Report, Table Dl. ER 1039, 
1040. 



-46- 






121 



BEFORE THE UNITED STATES SENATE 

COMMITTEE ON INDIAN ATTARS 
APRIL 7, 1998-SEATTLE, WASHINGTON 



STATEMENT OF CLEMENT J. FROST, CHAHtMAN 
SOUTHERN UTE INDIAN TRIBE 

Mr. Chairman and members of the Committee: 

I am Clement J. Frost, Chairman of the Tribal Council of the Southern Ute Indian Tribe. We 
appreciate your invitation to participate in these proceedings, and we hope that our views will assist 
the Committee. You have requested that I address civil rights and property rights in Indian Country. 
In doing so, I must call upon my own experience and that of my tribe. 

Our reservation is a checkerboarded reservation consisting of approximately 700,000 acres 
in southwestern Colorado. Almost one-half of the reservation is owned by the United States in trust 
for the Tribe. Additionally, we own severed mineral estates reserved in patents issued by the United 
States to homesteaders between 1909 and 1934. Because of the land ownership patterns, non-Indians 
are often close neighbors of members of my Tribe. The small Town of Ignacio, which is a tri-ethnic 
community of Hispanics, Anglos and Utes, is located within the reservation not far from our tribal 
headquarters. For many years, members of our tribe and other members of the community lived in 
harmony, attended public school together, helped one another, and respected each other. For a 
number of reasons, our relationships have become strained. Respect has been replaced by resentment. 
Mutual concern for one another has often turned to distrust and suspicion. As a person and as a tribal 
leader I am saddened by the increasing tensions that continue to grow. While many Indians and non- 
Indians seek to save the cooperative spirit of the past, racism and ethnic division is spreading on all 
sides. Racism is evil and destructive. It is bom in ignorance and nurtured by fear and greed. 

One factor leading to the decline in our relations has been the tribe's success. With the 

1 



122 



frequent encouragement of Congress, we have actively pursued economic improvement. Where 25 
years ago we were poor, we have taken advantage of the energy resources underlying our lands. 
Today the tribe's payroll exceeds that of any other employer in La Plata and Archuleta Counties. We 
employ almost 1000 residents of the Four Comers. Our tribally owned natural gas company is the 
fourth largest producer in the State of Colorado. In partnership with KN Energy, we are the majority 
owner of a gas gathering and treating system that collects and transports natural gas from hundreds 
of wells located within our reservation. While energy related revenues account for more than 90% 
of our annual general fund, we also receive revenues from a small casino, which we own and manage 
in accordance with our compact with the State of Colorado. We are proud of our accomplishments, 
and we have a right to be. This Committee should also take pride in our accomplishments. 

Our success, however, has also fostered jealousy and envy by area residents who do not 
understand the barriers we faced in reaching our goals and objectives. They liked us better when we 
were poor. In 1972, Congress passed legislation authorizing our Tribe to sell lands and to purchase 
lands within our reservation. Under that law, purchased lands are to be titled in the name of the 
United States in trust for the tribe. Increased tribal revenues have permitted us to make occasional 
purchases of reservation land. While initially purchased by the Tribe in its own name, we have 
followed procedures set forth under federal regulations to have the lands taken into trust. Acquired 
lands have been used for a variety of purposes, including expansion of educational programs and 
other facilities that serve not just our tribal members, but other residents, as well. Fueled by concern 
that these few purchases signal reacquisition of the entire reservation, local officials feared that we 
would destroy the local property tax base. In response to those fears and in settlement of litigation 
regarding taxation, in 1996 we negotiated a Taxation Compact with the State of Colorado and the 



123 



County Government. Under the Compact our tribe agreed to make annual voluntary contributions 
to the County Government to help offset negative tax consequences associated with our purchases. 
The lost tax revenue associated with our acquired tracts is less than $5000 per year in a county with 
an annual operating budget of more than $30 million. More significant, but seldom mentioned, is the 
fact that energy related tax revenue derived from tribal lands supplies La Plata County with 
approximately one fourth of its annual tax revenue. The fears that the Tribe will reacquire all lands 
within the reservation are grossly exagerated. As the Chairman of the Committee will attest, many 
non-Ute residents within the reservation have no interest in selling their lands, and we certainly cannot 
force them to do so. Yet acquisition of five small tracts of land within the Town of Ignacio and their 
placement into trust has spurred a panic among town officials, who have appealed to the Interior 
Board of Indian Appeals. 

As elected leaders of our tribe, we hear from and listen to our tribal member constituents. 
Over the last two years, we have heard repeated allegations of use of excessive force against our 
tribal members by Town Police Officers. Those reports included assertions that officers beat tribal 
members and, in some cases, held loaded revolvers against the heads of members already restrained 
by handcuffs. The allegations were frequent and appeared to be verified by witnesses. We met with 
town officials and proposed creation of a citizen review panel to investigate complaints of police 
abuse brought against both town police and tribal police. Our suggestions were rejected, yet the 
allegations persisted. We support law and order, but there is nothing more damaging to community 
relations than repeated police brutality. In order to end those abuses, we authorized our attorneys 
to file a lawsuit against officials and officers of the town for civil rights violations. The filing of that 
lawsuit has further widened the gulf between Indian and non-Indian citizens in our area. We make 



3 



124 



no apology for supporting the lawsuit; however, we remain hopeful that the lawsuit will be settled 
in a manner that will provide all citizens, Indian and non-Indian alike, with assurances that the town 
police are not above the law and are there to serve and protect all members of the public. 

Because of the checkerboarded nature of our reservation, jurisdiction is complex. In an effort 
to help remove some of that confusion, we worked with state and local officials to resolve issues that 
have led to lengthy litigation on other checkerboarded reservations. The compromises we reached 
were approved by Congress in 1984, with enactment of Public Law No. 98-290. That Act confirmed 
the boundaries of our reservation, disclaimed tribal jurisdiction over non-Indians on non-Indian lands, 
and confirmed the Town of Ignacio's criminal jurisdiction over tribal members. New town officials 
who have moved to Ignacio from other states do not understand the long and complex history that 
led to this legislative compromise. Unfortunately, they have shown no interest to become informed, 
rather they simply demand that the Indian Country status of our reservation be revoked. In public 
statements, town officials appear to blame the lawsuit on Indian Country jurisdiction rather than on 
allegations of police abuse. Since enactment of Public Law No. 98-290 in 1984, however, our tribe 
has not contested the authority of the Town of Ignacio to enforce state and local laws against tribal 
members within the town. 

We hope that our presence here will mark a new day in our relations with the town, in which 
constructive discussion can replace litigation. Discussion and cooperative governmental agreements 
could strengthen police protection for all concerned. Toward that end, we have urged the victims 
of civil rights abuses to mediate with the Town. A mediation session is scheduled later this month. 
We support and look forward to those discussions. Our history reveals repeated examples of 
negotiation and settlement of difficult issues, including: Indian Country status, reserved water rights 



4 



125 



claims, taxation, and gaming matters. We have always supported discussion over litigation, whenever 
possible. 

In conclusion, our governmental status as an Indian tribe is very important to us. We intend 
to maintain our traditions and our differences. We have been promised those rights and we have 
earned them For our sake and for the sake of our children, our differences should be respected and 
not serve as the basis for hatred or jealousy. I hope that the Committee will not turn its back on the 
promises it has made to Indian people. Our sovereignty should not be diminished. At the same time, 
however, we remain willing to discuss ways in which the rights and expectations of non-Indians can 
be accommodated without sacrifice of our governmental status. Attachment No. 1 to my written 
statement is a schedule showing a number of examples of tribal actions which have contributed to the 
well being of the entire community as a whole. In the interest of providing you a more detailed legal 
analysis of several issues, Attachment No. 2 is a memorandum prepared by our lawyers for your 
review. Again, we thank you for the opportunity to appear before you today. 



126 






ATTACHMENT NO. 1 
TO STATEMENT OF CLEMENT J. FROST 



TRIBAL ECOMOMIC CONTRIBUTIONS 
TO REGIONAL ECONOMY AND HUMAN SERVICE PROGRAMS 
IN THE IGNACIO AREA 
(Exclusive of federal and State Grants) 



PROGRAM TARGET POPULATIONS SERVED 

-Tribal Payroll Tribal Employees/ approx. 800 



TRIBAL SUPPORT 

$8 million annually, plus 
benefits 



-Waste water Entire Indian and non-Indian community 

treatment in Ignacio area 



Approx. $11 million 
investment no other entity 
could make 



-charitable contributions 



Beneficiaries of United Way, Schools, 
Human Service Programs/ see detail 
below 



Approx. $1 million 
annually 



-energy development 


La Plata and Archuleta Counties/ 45,000 


Approx. $10 million 


taxable non-Indian 


residents 


annually . 


investment and production 






on tribal lands 






-fire protection 


Los Pinos Fire Protection District 


$70,000cashcontribution 
plus dispatching service 


-Head Start 


106 children and families: 


$260,765 gaming funds 


1997-98 


36 Southern Ute 


to support staff training, 




19 other Native American 


material purchase and 




19 Hispanic 


implementation of 




30 Anglo 


Montessori curriculum, 




2 Black 


$10,000generak>perating 

support, 

$ 1 00,008 in-kind support 

in facilities and service 


-Families Learning 


75 families at four sites in La Plata 


Tribal gaming request 


Growing, Even Start 


County, tribal support pending for 


pending at $23,000, 




Ignacio site— 28 families, 28% Southern 


Tribal in-kind support 




Ute 


in facilities and services 
$12,395 



127 



PROGRAM 

-Peaceful Spirit 
Alcohol Recovery 
Center 



TARGET POPt!LATION/# SERVED TRIBAL SUPPORT 






-Ignacio Drop In 
Center 



-Senior Citizens' 
Program 

-Ignacio Volunteer 
Emergency Squad 
(Ambulance) 



-Job Training 



-Butch McClanahan 
Library, Town of Ignacio 

-Town of Ignacio DARE 



-Multi-ethnic local youth 
sports teams 

-George's Independent 
Boxing 

-College of Same Fe 

-Ignacio Elementary 
School and Head 
Start Spaulding Reading 
Program Training 



Intensive Residential Trtmt~96 clients 
92% Native American 
Outpatient~52% Southern Utc 

22% other Indian 
8% Hispanic 

18% Anglo 

Approx. 100 youth per month--60% 
Southern Ute, average daily attendance 

25 

Meals, transportation, home visits, adult 
day care-approx. 200 clients~60% Indian 

1997 Responses- Anglo 151 
Southern Ute 107 
Other Indian 91 
Hispanic 90 

1 1 county Training Advantage 
Southern Ute Reservation-Native 
American programs 






High Risk Youth 









Request pending $33,000 
outreach counselor 



$9,400 



$29,800 









$47,819 

$6,000 gaming funds 



$10,000 per year for 5 
years 1996-2000 

$6,682 



$7,500 

$94,705 
$14,014 



128 



BEFORE THE UNITED STATES SENATE 

COMMITTEE ON INDIAN AFFAIRS 
APRIL 7, I998-SEATTLE, WASHINGTON 

ATTACHMENT NO. 2 

TO STATEMENT OF CLEMENT J. FROST 

PREPARED BY MAYNES, BRADFORD, SHIPPS & SHEFTEL 

The Committee has requested testimony on two broad issues affecting Indian Country, civil 
rights and property rights. Because of their legal nature. Tribal Chairman Clement J. Frost has 
requested that our firm, which serves as general legal counsel for the Southern Ute Indian Tribe, 
prepare a brief legal analysis of those subjects. We hope that this analysis assists the Committee in 
its evaluation of these matters. 

I. Introduction 

The civil rights and property rights of persons in Indian Country turn heavily upon the legal 
relationship of those persons to the respective tribe or tribes for which Indian Country status has been 
established. In the area of civil rights, most substantive and procedural rights of Indians in Indian 
Country are defined by federal and tribal law, rather than by state law. As citizens of the states in 
which they reside, however, Indians are generally eligible to receive services provided to other state 
citizens. For non-Indians in Indian Country, depending upon the circumstances, civil rights may be 
defined by state law, federal law or tribal law. Determining applicable law is not always easy, 
particularly when different governments can articulate reasonable, competing interests over the 
persons or subject matter at issue. 

Like civil rights, property rights in Indian Country may also be affected by one's relationship 
to the tribe at issue. Those rights include a vast range of potential interests that may vary significantly 
based upon the history of the tribe or the reservation. Clearly, reservation history, including 
consideration of the treaties or federal statutes that addressed the lands, may affect fundamental title 

1 



129 



to real property. How underlying title is obtained or held also affects rights associated with those 
lands. For example, lands held by the United States in trust for the benefit of a tribe are presumed to 
be exempt from state or local property taxation. Federal statutes and regulations, coupled with tribal 
law, further define how subordinate interests in land, such as mineral leases or rights-of-way, may be 
acquired from tribes and their members. Just as the use of property outside of Indian Country may be 
affected by governmental action or regulation, so too may property rights in Indian Country be 
impacted by governmental regulation. Thus, the jurisdiction of a government to take action, whether 
that entity is a federal agency, a county planning commission, or a tribal council, is generally a key 
starting point in evaluating how property rights may be affected by governmental action in Indian 
Country. 

First, this analysis seeks to provide legal support for and more detailed explanation of the 
foregoing propositions. Second, this analysis also addresses several matters of controversy or 
misunderstanding regarding civil rights and property rights in Indian Country. In that regard, we have 
identified the following issues: 

1 . To what extent may tribal governments regulate the conduct of non-Indians in 
Indian Country? How does that jurisdiction differ on tribal lands versus non-Indian 
lands? 

2. What procedural rights, if any, do non-Indians have to participate in the making of 
tribal governmental decisions that may affect their personal or property rights? What 
minimal requirements, if any, might be imposed upon tribal governments to consider 
the views of such affected non-Indians? 

3. Do tribal courts provide an adequate forum for adjudication of the rights of Indians 
or non-Indians in Indian Country? What role should federal courts or state courts play 

2 



130 



with respect to such adjudication? How does tribal sovereign immunity from suit 

affect such adjudication? 
Recognizing that the Committee's work includes not only an understanding of the status quo, but also 
consideration of ways in which to improve the current system, we believe that the experiences of the 
Southern Ute Indian Tribe may provide useful examples of alternative ways in which to approach 
issues in Indian Country. 

II. Civil Rights in Indian Country 
a. "Indian country" 

"Indian country" is defined at 18 U.S.C. §1 151 to include "all land within the limits of any 
Indian reservation," "dependent Indian communities," and "all Indian allotments." "Although this 
definition by its terms relates only to federal criminal jurisdiction, we have recognized that it also 
generally applies to questions of civil jurisdiction." Alaska v Native Village of Venetie Tribal 
Government. 66 U.S.L.W. 4145, 4147 (1998). By its express terms, 18 U.S.C. §1 151(a) includes 
lands patented to non-Indians within the exterior boundaries of reservations, unless reservation 
boundaries themselves have been modified by Congress to exclude such lands. Particularly on 
reservations in which allotment and homestead patenting occurred, establishment of reservation 
boundaries, and thus Indian Country status, is a threshold matter that affects the jurisdictional powers 
of Indian tribes and of the federal government, as well of the civil rights of individuals. SfiC e.g.. 
South Dakota v Yankton Sioux Tribe. 66 U.S.L.W. 4092 (1998) (determining that landfill site located 
on non-Indian land opened for homesteading under 1894 statute was excluded from reservation and 
not subject to tribal environmental regulation). 

b. Jurisdiction in Indian Country 

Assuming that Indian Country status exists, special jurisdictional principles apply. Several 

3 



131 



factors must be considered in applying the principles, including: the Indian or non-Indian status of 
persons; the ownership status of the lands on which activities are conducted; and the nature of the 
activity at issue. For example, federal courts have jurisdiction over non-Indians who commit offenses 
against Indians within Indian Country under the general laws of the United States or under the 
Assimilative Crimes Act, 18 U.S.C. § 13. State Courts have exclusive jurisdiction over non-Indians 
committing offenses against other non-Indians in Indian Country. United States v. McBratney . 104 
U.S. 621 (1882). Tribes may not prosecute non-Indians for criminal violations of tribal law in tribal 
court. Oliphant v. Suquamish Tribe . 435 U.S. 191 (1978). Tribes possess authority to prosecute 
Indians for violations of tribal law, provided that criminal penalties do not exceed the limitations 
imposed by the Indian Civil Rights Act of 1968, as amended. 

With respect to civil matters, tribes have the power to control their internal workings, subject 
to Congress' plenary authority to regulate Indian affairs. Santa Clara Pueblo v. Martinez . 436 U.S. 49 
(1978) (in the absence of express waiver, tribe immune from suit regarding denial of membership). 
Unless authorized by Congress, states are generally preempted from interfering in tribal affairs in 
Indian Country. McClanahan v. Arizona Tax Comm'n . 41 1 U.S. 164 (1973). By the same token, 
states, rather than tribes, may regulate the conduct of non-Indians in Indian Country unless the 
application of state law "would interfere with reservation self government or impair a right granted 
or reserved by federal law." Cotton Petroleum v. New Mexico . 490 U.S. 163 (1989) (upholding state 
tax of non-Indian oil and gas lessees on tribal lands where no direct injury to tribe demonstrated); 
Montana v. United States . 450 U.S. 544 (198 1 ) (invalidating tribal prohibition of non-Indians fishing 
on their private lands within Crow Reservation). Because such issues generally approach the limits 
of governmental powers, determinations of whether tribal regulation of non-Indians is needed to 
preserve the integrity or welfare of the tribe or of whether state regulation affecting Indian Country 

4 



132 



unduly interferes with tribal powers are particularly divisive and complex. 

c. Public Law No. 98-290 

Because the Southern Ute Indian Reservation was subject to allotment and homestead 
patenting, Indian Country status and jurisdiction was a matter addressed in sevenl cases. See , e.g.. 
People v. Luna. 683 P2d 362 (Colo. App. 1984) (confirming Indian Country status of Town of Ignacio 
and dismissing state criminal prosecution of tribal member). Concerned that repeated litigation of this 
issue could result in inconsistent decisions and jurisdictional confusion, tribal leaders worked with 
non-Indians and local governmental officials to simplify Indian Country status and its effect on the 
Southern Ute Indian Reservation. The compromise reached by those parties was approved by 
Congress in Public Law No. 98-290. The provisions of that statute merit review by the Committee. 

First, the legislation confirmed the exterior boundaries of the reservation and the Indian 
Country status of all land within those boundaries, including tribal land, allotments, private land, and 
national forest land. In so doing, the legislation confirmed the territorial jurisdiction of the Southern 
Ute Indian Tribe and the Indian Country jurisdiction of the federal government over Indians anywhere 
within those boundaries. Second, the legislation disclaimed tribal territorial jurisdiction and federal 
Indian Country jurisdiction over non-Indians conducting activities on non-Indian lands within the 
reservation. This concession by the tribe removed substantial concerns of non-Indians that the tribal 
government would directly regulate or tax non-Indian lands. Third, the legislation treated 
incorporated towns, such as the Town of Ignacio, as islands in which state criminal jurisdiction over 
Indians was deemed to exist under the provisions of Public Law 280. While this provision assured 
the town that it could enforce state criminal laws against all persons in the town, it did not negate 
Indian Country status. 

In many respects, passage of Public Law 98-290 settled issues that otherwise promised 

5 



133 



lengthy, expensive litigation. The law did not answer all questions, however, and important issues 
remain unresolved. For example, with subsequent passage of amendments to environmental 
legislation, such as the Clean Water Act and the Clean Air Act, which authorized certain delegations 
of environmental protection programs from EPA to tribes, the effect of Public Law 98-290 upon the 
eligibility of the Southern Ute Indian Tribe or the State of Colorado to assume primacy over 
reservation lands remains uncertain. Whether those amendments also amended the parceling of 
territorial jurisdiction reflected in Public Law 98-290 continues to be debated and unresolved. The 
practical consequence of that debate is that EPA refuses to extend primacy over those environmental 
programs involving the entire reservation to the state or to the tribe. Additionally, EPA appears to be 
reluctant to endorse any joint agreement that the state and the tribe might be willing to reach about 
water or air quality standards or their enforcement in part because of concerns about the precedential 
effect that such endorsement might have on other checkerboarded reservations. We anticipate that this 
issue will become one of increasing importance as the Four Comers continues to experience growth 
and development by both the tribe and non-Indians. Because the tribe believes it is best suited to 
institute an effective, comprehensive program in both of these areas, the tribe seeks "treatment as a 
state" on all reservation lands. Based upon EPA's current position, the tribe desires congressional 
confirmation of its eligibility to obtain primacy over the development of standards and environmental 
enforcement over all lands and persons within the reservation. Because of the checkerboarded nature 
of the reservation, we would anticipate that Colorado and local governments would also seek 
assurances of some rights to participate in these programs. 

d. Non-Indian Participation in Tribal Decisions 
Although Public Law 98-290 may raise its own special problems with respect to obtaining 
primacy over environmental programs on the Southern Ute Indian Reservation, non-Indian opposition 

6 



134 



to tribal regulatory jurisdiction and enforcement over activities conducted on non-Indian land appears 
quite pervasive. In large part, we attribute such fears to a lack of knowledge about tribal governments 
and unjustified conclusions about the fairness of tribal governments to non-Indians. While it is true 
that non-Indians do not have the power to elect representatives of tribal governments, that limitation 
should not be viewed as preventing tribal governments from affording due process in tribal decision- 
making. On this point, we believe that the experience of the Southern Ute Indian Tribe is of particular 
relevance. 

Following the Supreme Court's decision in Merrion v. Jicarilla Apache Tribe . 455 U.S. 130 
(1982), the Southern Ute Indian Tribe enacted a severance tax ordinance, which was approved by the 
Department of the Interior on April 26, 1982. In January of 1988, following major changes in the 
natural gas industry, the Southern Ute Indian Tribal Council authorized a comprehensive review of 
its severance tax ordinance. In doing so, the tribe invited tax and regulatory specialists from Amoco 
Production Company, Atlantic Richfield, Northwest Pipeline Corporation, El Paso Natural Gas, and 
the Council of Petroleum Accountants Societies to participate in a working panel to assist in 
addressing industry concerns. After approximately one year of drafting sessions and meetings, the 
Tribe published and circulated for comment to all taxpayers of record a proposed revised ordinance. 
Because of the active participation of industry officials, the severance tax ordinance contained specific 
provisions addressing complex issues, such as gas balancing arrangements and take-entitlement 
questions. Significantly, no adverse industry comment was submitted, and the revised severance tax 
ordinance became law. 

To be sure, the severance tax ordinance affected only interests in mineral lands owned by the 
Tribe and not private fee minerals. Nonetheless, the extensive solicitation of non-Indian participation 
went well beyond minimal due process protections. In fact, the collaborative nature of decision- 

7 



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making, which is not an exception to the rule, ensured much greater public participation than that 
afforded by most state and local legislative bodies. With respect to any legislative enactment likely 
to have a direct effect upon non-Indian interests, the Southern Ute Indian Tribal Council regularly 
publishes its proposed laws in newspapers of general circulation and actively solicits public input. 
e. Efficacy of Tribal Courts 
The Southern Ute Tribal Court system, like many tribal courts, provides an effective forum for 
the adjudication of rights of both non-Indians and Indians. Not only has the tribe's court system 
become a reliable forum for securing judgments and collections against tribal members, it has also 
adjudicated complex civil rights and commercial issues. For example, in 1990, a group of tribal 
members calling themselves the "Committee For Better Tribal Government" ("CFBTG") sought and 
obtained a recall election involving all members of the Tribal Council. As a result of the Tribal 
Election Commission's disallowing certain ballots, including ballots submitted by "proxy," the recall 
effort failed. The CFBTG secured the legal representation of the American Civil Liberties Union, and, 
asserting that election irregularities had deprived them of civil rights, sued the tribe, the election 
commission, and individual tribal council members in tribal court. Committee For Better Tribal 
Government v. Southern Ute Election Board . 90-CV-35 (S. Ute Tribal Court 1990). In declining to 
dismiss the action, the tribal court ruled that it was a proper forum for adjudication of due process 
claims under the Indian Civil Rights Act, and, although the tribe was immune from suit, the tribe's 
officials could be sued for violations of those rights. LL Order, August 13, 1990. Following a trial 
on the merits, the tribal court concluded that the election officials had acted properly, and its 
conclusions were upheld by an appellate decision issued by the Southwest Intertribal Court of 
Appeals. Southern Ute Election Board v. Committee For Better Tribal Government. 90-On-SIJTRA 
(Aug. 19, 1991). 

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The Southern Ute Tribal Court has also adjudicated complex commercial issues in which the 
principal litigants were non-Indian corporations. Hallwood Petroleum, Inc. v Bowe n/Edwards 
Awvnaies. Inc.. 96 CV 68 (S. Ute Tribal Court, 1 997) (recognizing validity of foreign judgments and 
marshaling foreclosure on working interests in tribal oil and gas leases). Sfi£ aha Lvon v. Amoco 
Prod. Co.. 923 P2d 350 (Colo. App. 1996) (state court lacks subject matter over dispute between non- 
Indians where conduct directly affects political integrity, economic security, or health and welfare of 
tribe). In view of the successful development of the Southern Ute Tribal Court and other tribal courts 
throughout the country, we urge the Committee not to diminish their legitimacy, but rather to continue 
to assist in the improvement of these important institutions. 

One possible approach to improving tribal courts, which may not necessarily be supported by 
other tribes, would be to expand the review powers of federal courts over categories of cases 
adjudicated in tribal courts. Under Iowa Mutual Insurance Co. v. La Plante . 480 U.S. 9 (1987) and 
National Farm ers Union Insurance Companies v. Crow Tribe of Indians. 471 U.S. 845 (1985), there 
is currently no guarantee that a litigant in a controversy for which federal court jurisdiction may exist 
will necessarily be able to obtain federal court review of a tribal court decision. Appellate oversight 
of certain categories of tribal court cases, such as those involving allegations of civil rights violations 
under the Indian Civil Rights Act, might further establish the credibility of tribal courts in the non- 
Indian world as courts in which equal justice is regularly obtained. While the Southern Ute Indian 
Tribe does not necessarily advocate such an approach, further study of this and other methods of 
obtaining federal institutional support of tribal courts and its litigants should be explored. 
f. Importance of Tribal Sovereign Immunity 

One matter that has been raised in the context of protection of individual civil rights has been 
that of tribal sovereign immunity from suit. As reflected in testimony previously provided to the 

9 



Committee on March 11, 1998, by Reid Peyton Chambers, sovereign immunity remains an important 
protection that has been retained by the federal government and by state governments. In fact, reliance 
upon principles of state sovereign immunity has impeded the ability of some tribes to secure good 
faith participationof states in negotiation of gaming compacts. Seminole Tribe of Florida v. Florida . 
134 L.Ed 2d 252 (1996). Sovereign immunity in Indian Country is important to the preservation of 
tribal governments. Wholesale abrogation of tribal sovereign immunity is not only incompatible with 
American jurisprudence, it would constitute a stinging rejection of tribal sovereignty long-recognized 
by Congress. The effect of sovereign immunity in any jurisdiction often yields a harsh result to those 
who have been harmed by negligent or improper conduct by governments. Should the Committee 
proceed with consideration of abrogating tribal sovereign immunity from tort actions, we respectfully 
request that its analysis be the result of careful study and that modifications, if any, be imposed 
sparingly and only where clear necessity has been demonstrated. Even in such instances in which 
some limited waiver of tort immunity is justified, we would suggest that Congress has many 
opportunities to provide incentives to tribes electing to limit aspects of sovereign immunity. While 
incentives for such tribal decisions should not be unduly coercive, a consensual approach rather than 
unilateral imposition by Congress would certainly be more palatable and consistent with notions of 
tribal self-determination. 

With respect to contracts, the Southern Ute Indian Tribe has recognized for many years that 
economic development often requires unequivocal assurances to industry and to commercial 
institutions that interpretation and enforcement of contractual obligations can be obtained despite the 
sovereign status of tribes. Hundreds of contracts with the tribe contain limited waivers of immunity 
that provide for judicial review and enforcement of such contracts. Although individual tribes may 
well refuse to grant such waivers, our experience would suggest that failure to do so will result in lost 

10 



opportunities or the declination of services of highly qualified persons or companies to tribes. The 
decision to pay that high price for lack of compromise remains the decision of the members and 
leaders of individual tribes, and the power to make such measured decisions should remain that of 
contracting parties, including tribal governments. We incorporate by reference and support the 
testimony of Reid Peyton Chambers on this matter. 

111. Property Rights in Indian Country 
a. Underlying Federal Statutes 
The relationship of property in Indian Country to an Indian tribe substantially affects the 
manner in which such property may be used. In the first instance, one must examine federal statutes 
establishing Indian Country, the federal statutory history of those lands, and the ownership interests 
affected thereby. In addition to rights expressly reserved to tribes, the implied reservation doctrine 
may also affect rights to interests in lands needed to effectuate the purposes of original reservation. 
See , e.g.. Winters v. United States . 207 U.S. 564 (1908) (implied reservation of water needed to fulfill 
purposes of treaty). Federal statutes disposing of reservation land may well establish a patchwork of 
land ownerships within Indian Country, including: tribal trust lands, restricted Indian allotments, 
private fee lands owned by non-Indians or Indians, federal lands, and lands owned by state and local 
governments. Moreover, the estates in such lands may be severed in a manner that creates a three 
dimensional checkerboard of land ownership. See, e.g.. Southern Ute Indian Tribe v. Amoco 
Production Co.. 119 F.3d 816 (10th Cir. 1997), rehearing pending (recognizing tribal beneficial 
ownership of coal bed methane contained in coal deposits reserved under 1909 and 1910 Coal Land 
Entry Acts and restored to tribe). One matter of paramount importance associated with property in 
Indian Country is the maintenance of accurate and complete land records. As discussed in more detail 
below, not only are such records vital from an informational sense, the existence of proper land 

11 



records defines substantive rights. 

The issue of ownership of land claimed by Indian tribes and by others is a matter of federal 
law. Oneida Indian Nation v. Oneida County . 414 U.S. 661 (1974). For example, rights of non- 
Indians to real property in Indian Country are frequently established by federal statutes that opened 
reservation land to homesteading. Sfifi Yankton Sioux Tribe . 66 U.S.L.W. 4092; Brendale v. 
Confederated Yakima Indian Nation . 492 U.S. 408 (1989) (dividing land use planning jurisdiction 
over certain lands within the reservation between tribe and county). Based upon judicially established 
legal presumptions, in the absence of federal statutes to the contrary, tribes appear to have limited 
authority to regulate non-Indian use of non-Indian fee interests in Indian Country. See , e.g.. Montana . 
450 U.S. 544, but see Brendale (local state governments must ensure that private land use does not 
frustrate federally authorized use of neighboring tribal lands). Particularly on lands with severed 
estates in which tribes own valuable mineral rights, however, there is the potential for disputes 
regarding the dominant or controlling use of land for either surface or subsurface uses. 

Rights associated with tribal and allotted lands are generally governed by federal and tribal 
law. In this regard, federal law expressly renders void any grant, lease or conveyance of tribal land not 
authorized by federal law or treaty. 25 U.S.C. §177. While applicability of this statute to land 
acquired by tribes outside of Indian Country for investment purposes is questionable, the literal 
language of the statute would appear to apply to lands acquired by tribes in their own names within 
Indian Country. In accordance with the expansive effect of 25 U.S.C. § 1 77, numerous federal statutes 
define the manner in which Indian lands may be sold, leased, or burdened by easements. See , e.g.. The 
Indian Mineral Development Act of 1982 (25 U.S.C. §§2101, et seq.); The Indian Mineral Leasing 
Act of 1938 (25 U.S.C. §396a); 25 U.S.C. §323 (authorizing issuance of rights-of-way across tribal 
land with tribal consent) . These federal statutes, as supplemented by tribal law, limit the manner in 

12 



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which tribal lands may be leased and used by persons obtaining rights associated with tribal land. 

b. Acquisition of Lands by Tribes 

The rights of tribes to participate in gaming activities has engendered new debates surrounding 

tribal acquisitions of land. Sfifi Indian Gaming Regulatory Act (25 U.S.C. §2703 and §2719) 

(authorizing gaming within Indian reservations and limiting gaming on certain acquired trust lands). 

The right of tribes to purchase lands has long been recognized. 

Tribes may acquire land in their own names as a consequence of their general 
contractual capacity. Many tribes have purchased lands in the exercise of this capacity 
and the validity of such purchases has been recognized legislatively and judicially. 

Feltx S. Cohen's Handbook of Federal Indian Law at 482 (1982 ed.). Part 15 1 of Title 25, Code 

of Federal Regulations, sets forth the procedure by which lands acquired by tribes may be taken into 

trust status by the United States. Although acquisition of fee land within Indian Country by a tribe in 

its own name may well exempt such land from state and local property taxation, trust status clearly 

removes acquired lands from tax rolls. 25 C.F.R. §151.109 (e) (1997). The perceived adverse tax 

impact of securing trust status for on-reservation tribal acquisitions has fueled recent tensions between 

the Southern Ute Indian Tribe and local governments. 

c. Land Acquisitions by the Southern Ute Indian Tribe 

In 1972 Congress passed specific legislation authorizing the Southern Ute Indian Tribe to sell 
and buy land within the boundaries of the Southern Ute Indian Reservation. 25 U.S.C. §§668-670. 
Lands purchased by the tribe under this enactment "shall be taken in the name of the United States in 
trust for the Southern Ute Indian Tribe." 25 U.S.C. §669. The clear underlying purpose of the 
statute was to promote tribal land consolidation within the reservation. 

In most instances, opportunities to purchase lands within the reservation are subject to normal 
market forces. A landowner desiring to sell his land secures the services of a real estate agent, the land 



13 



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is advertised for sale, and the first willing buyer with sufficient funds will generally acquire the listed 
property. As the Committee may imagine, given the limited manpower and budgets of the Bureau of 
Indian Affairs, it is difficult for the tribe to require that immediate agency attention be given to land 
acquisitions for the benefit of the tribe. In order not to lose an elusive opportunity to purchase key 
lands tracts, the tribe, on several occasions, has purchased lands in its own name and then applied 
under the regulatory process contained in 25 C.F.R. § 151.10 to have the property placed into trust 
status. Despite recent opposition by the Town of Ignacio and the Board of County Commissioners 
to such practices, the tribe maintains that it is fully within the rights conferred by Congress to proceed 
in this fashion. 

On a somewhat more complex level, the tribe has also undertaken to expand and diversify its 
energy resource development. Pursuant to a plan approved by the Secretary of the Interior, the tribe 
obtained access to a portion of funds appropriated by Congress under the Colorado Ute Indian Water 
Rights Settlement Act of 1988. With those funds, the tribe established an energy operating department 
of the tribe, which has engaged in acquisition of working interests generally established in tribal oil 
and gas leases previously issued by the tribe. Those working interests, while owned by non-Indian 
companies, had been the source of state and local tax revenue under the principles established in 
Cotton Petroleum v. New Mexico . 490 U.S. at 163. Because of the complicated nature of working 
interest titles, such as overriding royalties and merger issues, the tribe has not requested that these 
acquired interests be placed into trust; however, in most instances underlying mineral ownership is 
already in trust status. The state and county asserted that such acquired interests remained subject to 
taxation. 

In order to resolve this dispute, the tribe filed an action against the state and county in federal 
court. Southern Ute Indian Tribe, d/b/a/ Red Willow Prod. Co. v. Board of County Commissioners. 

14 



142 



855 F.Supp. 1 194 (D.Colo. 1994). The federal district court upheld the tribe's exemption from tax. 
On appeal, however, the federal appeals court ruled that the matter was not ripe because assessments 
had not been included in the record, and the original ruling was vacated. Southern Ute Indian Trite 
v Amoco Prod. Co.. No. 94-1310 (10th Cir. 1995). Following issuance of new assessments, but 
immediately prior to reinstiruting litigation, the tribe, the state and the county engaged in negotiations 
that ultimately resulted in a Taxation Compact approved by the Colorado General Assembly in 1996. 
C.R.S. §§24-61-101, et seq. (West Supp. 1996). Under the provisions of the Taxation Compact, the 
tribe agreed to make voluntary contributions to the county in an amount equal to approximately 30% 
of the tax assessments that otherwise would have been issued for lands and working interests acquired 
by the tribe in its own name, but not yet placed in trust status. The state and the county recognized 
that lands acquired by the tribe in its own name or in trust status within the reservation would not be 
subject to tax under the provisions of the Taxation Compact. 

Here again, while the tribe may not have been legally required to do so, it engaged in 
compromise rather than litigation. All parties to the Taxation Compact recognized that future trust 
status for many acquired interests would be pursued by the tribe. While this resolution, like most 
negotiated compromises, may not be perfect, it reflects another example of the tribe's willingness to 
take into consideration the competing interests of those who might be affected by the exercise of the 
tribe's powers. 

d. Land Records in Indian Country 

The federal government has a fundamental obligation to maintain accurate records of interests 
carved from tribal lands, generally only with approval of the Department of the Interior. For that 
purpose, the Bureau of Indian Affairs has established "Land Titles and Records Offices" which are 
"charged with the federal responsibility to record, provide custody and maintain records that affect 

15 



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title to Indian lands." 25 C.F.R. §150.2 (j) (1997). Particularly as tribes engage in increasingly 
sophisticated and frequent commercial transactions affecting tribal lands, the importance of this 
record-keeping function cannot be overstated. 

Official record-keeping of interests affecting land titles generally has important substantive 
consequences, including the perfection and priority of lien interests. The existence of state record- 
keeping systems and the general inapplicability of state law to tribal land interests creates a general 
state of confusion among those seeking to establish valid security interests associated with tribal lands. 
For example, a lending institution willing to loan funds to a tribal lessee must be concerned with the 
quality of the lessee's security interest. In some cases, after obtaining tribal and BIA approval of 
assignments of security interests in tribal lands, lending institutions have required filing of documents 
in state systems, the BIA Land Title and Records Offices, as well as filing in a separately created tribal 
land filing system established under tribal law. Confusion in this area is extremely expensive for tribes 
and those who do business with them. That contusion creates another impediment to economic 
development in Indian Country, one which derives from the uncertainty surrounding the creation and 
perfection of security interests. Sfifi Thomas H. Shipps, "Commercial Transactions, Security Interests 
and Perfection in Indian Country, ABA 7th Annual Conference on Natural Resources Development 
and Environmental Protection on Indian Lands (Seattle, Wash. Oct. 19, 1995). As the work of this 
Committee proceeds, we hope that it will call upon those who have had to swim in these rough waters 
to help establish an optional model system of recording and perfection of interests associated with 
tribal lands. 

Conclusion 

The Southern Ute Indian Tribe has been on the cutting edge of many issues affecting Indian 
Country. The broad subjects being reviewed by the Committee cannot be adequately addressed in this 

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short analysis. Nonetheless, we hope that some value can be derived from these comments, and we 
offer our assistance to improving relations and understanding issues in Indian Country. 

Respectfully submitted, 



MAYNES, BRADFORD, SMPPS & SHEFTEL, L.P. 
Attorneys for the Southern Ute Indian Tribe 




By: 

Thomas H. Shipps 

itvrasvussiNAFT wro *nm 

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LUMMI INDIAN BUSINESS COUNCIL 

2616KW1NAROAD * BEUJTJGHAM. WASHINGTON 98226-9298 . (360)384-1409 
DEPARTMENT EXT. 



TESTIMONY OF THE LUMMI NATION 

Henry M. Cagey, Chairman 

United States Scute Committee on Indian Affair* 

Aprfl7,i99t 

Seattle, Washington 



Field Hearing on Scute Bill 1(91 - Sovereign Immunity 












"We just want to live in Peace... the Government and the People 

"America was founded on Freedom of Choice . " 
'Non-Indians live on the Lummi Reservation by choice... no force " 
Statement of the Lummi Nation Tribal Government 

My name is Henry Cagey. I am Chairman of the Lummi Nation and I am here to address the 
subject of Senate Bill 1 69 1 , which is mockingly entitled, "the American Indian Equal Justice 
Act" 

This legislation would strip Indian tribes of their sovereign immunity so they could be sued like 
any non-go vemmental entity. This legislation would also extend state court jurisdiction over 
tribes without tribal consent If enacted, this legislation will undermine and potentially destroy 
tribes' abilities to function as tribal governments, financially and politically. This is a direct 
attack on our people, children, elders and our total way of life. The Lummi Nation is a 
responsible and accountable government We have come a long way in a short period of time in 
the development of our governmental structures. 

INTRODUCTION 

The last one hundred and fifty years are full of examples of hastily drawn and narrowly 
conceived legislation that ultimately created negative consequences for Indian people and for 
non-Indians alike. While these negative consequences are not necessarily intended, it was often 
the hasty drafting of legislation that produced negative results. The present legislation is both 
carelessly drawn in the heat of political passions and narrowly designed to serve the interests of 



146 



just a few individuals while adversely affecting the lives and property of hundreds of thousands 
of Indian people. 

■ 
Immunity from suit for governments is acknowledged as a time-honored and proper method for 
protecting the interests of a political community from narrow and sometimes dishonorable 
attempts by individuals to take for themselves at the expense of the many. This is an attack on 
the poorest of the poor of the United States. Indian governments have the same responsibility as 
the United States of America and each of its fifty states to protect the public interest. We need to 
develop alternative solutions to address these issues based upon mutual consent and mutual 
respect 

Indian Nations are well aware of the issues cited in S. 1691 and have been addressing them in 
numerous constructive ways. We must seek the cooperation of state and federal officials to help 
us to continue solving these problems through constructive measures. These new mechanisms 
will rely on the principles of dignity, authority and respect of each of the sovereign governments. 

■ 
A MATTER OF HONOR - The Treaty 

I would like to quote from the Treaty of Point Elliot, to which we are signatories; the 
reservations were "set apart... for the exclusive use" of the Indians; "nor shall any white man be 
permitted to reside upon the same without permission of the said tribes the Superintendent or his 
agent." We have never accepted payment for any of our lands. Our reservation was set aside for 
our tribal use - our land was never allotted - it was assigned and therefore should have never left 
Indian ownership. 

The original reservation was established when the Lummi Nation entered into the 1 855 Treaty of 
Point Elliot with the United States of America. In that treaty, Lummi ceded millions of acres of 
what is now western Washington. Our treaty is based upon the mutual consent and respect 
between the Lummi Nation and the United States government. 

The Lhaq'atemish the Xwlemi, or Lummi people have worked, played, and celebrated life on the 
shores and waters of Puget Sound for uncounted generations. Lummis were always a fishing 
people and fished the waters of the Puget Sound for centuries. We reserved our fishing rights in 
the Point Elliot Treaty of 1855, signed by Washington State territorial Governor Isaac I. Steven's 
and ratified by Congress April 11, 1859, thirty years prior to Washington gaining statehood. 

This Treaty has not been honored. This is a contract between two sovereign governments that 
should be honored. It is various acts of Congress that have created these problems; such as the 
Allotment Act and the Dawes Act, NOT THE ACTS OF TRIBAL GOVERNMENTS. 

THE LUMMI RESERVATION 

The projected enrollment for the Lummi Nation in 1996 was 4,373 tribal members. The 
projected enrollment for 2010 is 6,500. Of the total resident Indian population, the 
unemployment rate is at 50%. According to the 1995 Overall Economic Development Report, 
approximately 30% of the Tribal members still rely upon the decimated fishing industry as their 

2 



147 



sole source of income and approximately 35% of the tribal population have -incomes below the 
poverty level. The main employers on the reservation consists of the Tribal Government and the 
Northwest Indian College. 

A healthy balance of vocation, education, and recreation keeps the Lummi community strong. 
Generations of hard workers have forged a strong work ethic among the Lummi people. 
Education is encouraged at every level. Canoe racing teaches us that we go farther when we pull 
together. We cherish our children and we honor and respect our elders. From generation to 
generation, in work and in play, we are proud to be Xylemi. 

Our language. Our customs. Our approach to life. Each is unique to Lummi. Each has survived 
the ages to be passed down from elder to child. Respect for our heritage and one another is the 
cornerstone of our community. The present generation of the Xwlemi is proud to continue 
building upon this foundation laid by our fathers so that our children might always prosper on 
our land. 

THE GOVERNMENT 

The Lummi Indian Nation is a sovereign nation within the United States. The nation defines its 
sovereignty as; "our inherent right to govern ourselves without external interference. " The 
Lummi Nation retains and exercises its sovereign powers to regulate and control its people, 
territory and resources. 

The General Council is composed of the registered voting membership of the Lummi Nation. 
Each elected official is voted upon by the General Council to serve staggered 3 year terms. Each 
year the Business Council votes from within its membership the officers: (1) Chairman; (2) Vice- 
Chair: (3) Secretary; (4) Treasurer. The Lummi Indian Business Council through powers granted 
to them in the Tribal Constitution exercises its jurisdictional control over those activities within 
the boundaries of the reservation. 

The Tribal Government offers a wide ranges of services. This includes Education from 
preschool through a two year college, a full service Health Care facility, a comprehensive social 
services department, full tribal administration services, a Natural Resources Department, a Public 
Works Department with Housing and Construction divisions, as well as a Water and Sewer 
Department and law and Order department to secure and protect the well being and safety of all 
who reside within our Reservation.. 

As non-Indian populations increase in the various states, demands on Indian reservation lands 
and resources have increased and the number of conflicts over water, land, natural resources, 
environmental quality, law enforcement, etc., have also increased. 

• Non-Indians on the Lummi Reservation occupy 4% of our land and use 50% of our water 
resources. 



148 



JUDICIAL STRUCTURE and DUE PROCESS 

Since the inception of the Lutnmi Nation Tribal Court in 1 974, we have evolved under Self- 
Governance, into a court system that in 1 997 had II 73 cases filed. The Lummi Tribal Court can 
best be compared to a court of general jurisdiction. The court has jurisdiction over criminal 
cases involving Indians, civil cases and civil infractions for traffic, hunting and fishing 
violations. 

The court currently has one chief judge, two clerks and five pro-tem judges. The chief judge and 
four of the pro-tem judges are attorneys licensed in the State of Washington. The fifth pro-tem 
judge is an experienced tribal court judge currently serving as Chief Judge of another tribe in 
Tacoma, Washington. The Lummi Tribe also employs a prosecutor and public defender. The 
Lummi Tribal Court encourages attorneys and qualified spokesperson to join the Lummi Tribal 
Court Bar and practice before the court 

In the Lummi Nation Tribal court, due process is accorded to all parties that use the system. The 
Lummi Tribal Code and Constitution provide for basic protections and ensure due process. 
Judges are appointed to six(6) year terms and can only be removed for cause, LTC I. 3.06 Judges 
can be disqualified from a case, by a party submitting an affidavit of prejudice as provided for by 
LTC 1.4.04. There is an appeal process where parties may appeal a decision of the tribal court to 
a panel of three judges. Those appellate judges are composed of attorneys in private practice. 
Although jury trials are rare, parties have a right to a jury composed of "residents of the Lummi 
Reservation, " which means any qualified person regardless of race or tribal affiliation may serve 
on a jury, LTC 4.3.020 (b). 

• The Lummi Nation has a tribal Court a Law and order systems that ensure equal access to 
due process and the equal protection of the law is provided to all persons. 

• In 1997, there were 1 173 cases filed in Lummi Tribal court. 592 civil cases and 581 criminal 
cases. Of these cases there were 20 cases that involved non-Indians and non tribal members. 
Non Indian/non tribal individuals prevailed in 60% of these cases. 

• In 1997, the Lummi Law and order responded to 3,929 calls. Of these 962 or 24.4% 
involved non-Indians. 

The Lummi Nation is not insensitive to, nor unaware of. the needs of non-tribal members on the 
reservation. The Nation has put in place mechanisms which ensure due process in tribal forums 
for tribal and non-tribal members on the Lummi reservation for their personal safety, protection 
of the resources and private properties. 

Tribal sovereign immunity does not put anyone at risk who lives within the reservation 
boundaries. At Lummi, many non-Indians, in fact, use the Tribal Court to resolve their disputes. 
The non-Indians living on the reservation probably obtain access to justice for less money and in 
less time than is available in nearby state courts. Even if a tribal government is immune from 



149 



unconsented suit in federal court, tribal governmental officials are not and may be sued to 
restrain unconstitutional action. 

TORT CLAIMS 

Sections 4 and 5 of S. 1691 create a special Tort Claims Procedure for Indian tribes, allowing 
tribes to be sued in federal court for money damages for loss of property, personal injury, or 
death caused by the negligent or wrongful act or omission of an Indian tribe, to the same extent 
that a private individual or corporation is liable in the state where the act or omission occurred. 

This new Tort Claims Procedure ignores the fact that Congress has already effectively dealt with 
the problem of tribal government liability for tort damages. In the Indian Self Determination and 
Education Assistance Act, Congress requires the Secretaries of Interior and Health and Human 
Services to obtain liability insurance or equivalent coverage of Indian tribes carrying out self 
determination contracts; and any policy of insurance so obtained must contain a provision that 
the insurance carrier will not "raise as a defense the sovereign immunity of an Indian tribe from 
suit, but that such waiver shall only extend only to claims ... within the coverage and policy 
limits." In some instances Congress has provided that the Federal Tort Claims Act applies to 
programs and services that Indian tribes now carry out instead of the federal government The 
Indian Sel f- Determination Act statutory insurance requirement described above, is incorporated 
in the Lummi Nation Self Governance Compact with the federal government Virtually all 
services and programs at Lummi are delivered pursuant to this Compact; hence, there is 
insurance coverage or Federal Tort Claims Act coverage for whatever claims might arise. In 
addition, Lummi purchases general liability insurance and waives its immunity to the extent of 
such coverage and policy limits. 

S. 1691 creates a sledge hammer that could weaken or destroy tribal governments, totally 
ignoring the fact that Congress has already created a careful scheme to provide redress to 
deserving claimants while protecting the limited resources of tribes. 

RESPONSIBLE AND COOPERATIVE GOVERNMENT 

As a responsible government, we have always prided ourselves on our ability to maintain a high 
level of integrity in our governmental operations. We have several examples of these types of 
governmental functions. 

• A Water/Sewer Board with two slots for non-Indian property owners on the 
reservation 

• A water/sewer agreement 

• A water agreement in principle. Recently signed an historic agreement in principle with the 
state and property owners mat will guarantee water for all reservation p ro p ert y owners. Like 
the sewer a gr eem en ts non-Indian Property values are greatly increased by this a gr ee m e nt 

• A Memorandum of Understanding with Whatcom County on Zoning issues 

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• The Lummi Nation maintains many long-standing cooperative agreements with 

governmental entities, including Whatcom County, the State of Washington, and Federal 
agencies. Lummi Nation has been working cooperatively for 6 years with Whatcom County, 
Washington State Department of Transportation, US Army Corps of Engineers and the 
Bureau of Indian Affairs on a multi-million dollar Lummi Shore Road reconstruction 
project. 

WE ARE NOT TAX EVADERS - TAXATION 

It has been asserted that Indian Nations are tax evaders in that Tribes do not pay various taxes. 
This is simply not true. It is estimated that in 1 997 the Lummi Nation paid the following taxes to 
Washington State and the Federal Government. 



Employer portion of payroll taxes 


1. 


Tribal government 


$1,100,279 


2. 


Enterprises 


$458,000 


3. 


Water & Sewer District 


$41,540 


Other Taxes 


4. 


Fuel Taxes 


$308,400 


5. 


Cigarette Taxes 


$180,000 




Total Taxes paid in 1997 


$2,088,219 



CONTRACTURAL RELATIONSHIPS 

• In 1997, there were more than 133 contracts between the Lummi Nation and various. 
state/federal entities as well as individual contractors. These contracts were negotiated 
between consenting parties. No one is forced to contract with the Lummi Nation or to accept 
contract terms with which they do not agree. That is why these contracts may include 
various remedies for resolving any disputes that might arise; they may include limited 
waivers of sovereign immunity; or they may provide that the terms of the contract be 
interpreted according to federal, state or tribal law. Each of these contract terms is carefully 
tailored to fit the needs and concerns of the contracting parties; and they are appropriate to 
the specific circumstances of each contract The Lummi Nation prides itself on honoring its 
contracts. There is simply no evidence that the Lummi Nation has avoided its contractual 
responsibilities, hidden behind tribal sovereign immunity, and left its contractors high and 
dry without a remedy. If the Nation behaved in that fashion, governmental entities and 
private parties would cease to do business with us. That this has not happened is perhaps the 

6 



151 



most compelling evidence why S. 1 69 l's provision for contract suits addresses a problem that 
simply does not exist 

In 1997, the Lummi Nation Tribal Employment Rights Office (TERO) negotiated 19 
compliance plans that agreed to Indian Preference Hiring and payment agreement for TERO 
tax payments. Of these contractors 14 were non-Indian and S were Indian owned. As of this 
date there have not been any disputes. 

In 1 997 the Lummi Nation Natural Resources Department maintained 19 different service 
contracts, 1 S were with non-Indian contractors and 4 were with Indian contractors. There 
have not been any disputes. This Department also successfully maintained 17 inter- 
jurisdictional cooperative agreements that involved local, state, tribal, national and 
international entities. 

Through the Lummi Nation Planning Department the Nation has maintained many long- 
standing cooperative agreements with various, governmental entities. There are presently 5 
such cooperative agreements. This includes a recent discussion that will lead to a 
Memorandum of Understanding being drafted to guide a cooperative effort to develop 
permanent zoning for reservation fee lands. 

For the Nation's many road and housing construction projects over 3 1 successful contractual 
agreements have been maintained with many local and regional contractors 
and vendors. 



All agreements arc negotiated based upon mutual respect and consent. The Lummi 
Nation has earned this respect over the years. 






FUTURE PERSPECTIVES 

As one of the first Self-Governance Tribes in the United States, we have worked 
aggressively to ensure community input, involvement, and participation in government and 
budgeting. Tribal governments have worked diligently over the past thirty years under Self- 
determination and Self-Governance policies. These policies are working for Indian people. 
Indians are raising their standards of living, living longer with longer life expectancies, restoring 
the heritage of their cultures and improving their ability to govern both themselves and others on 
the reservations. 

Sovereignty is not an anachronism It is a proven way of lift that is no different for Indian 
Nations than any other sovereign Nation. 

RECOMMENDATION 

While S. 1691 is clearly inappropriate, and the methods proposed for solving a long standing 
problem are potentially destructive of Indian rights and the rights of non-Indian citizens, the Bill 
does demonstrate the need for diligent and accelerated cooperation between Indian and non- 
Indian governments to solve the problems of jurisdictional confusion and the imbalance between 

7 



152 



Indian peoples' fights and the rights of non-Indians on and near Indian reservations. Indian 
leaders in Indian Country believe we have a workable solution that will preserve the dignity and 
integrity of Indian, state and federal governments while providing an expeditious method of 
addressing intergovernmental disputes and problems of citizen rights. 

CONCLUSION 

The introduction of S. 1691 serves an important function. It reminds tribal, state and federal 
government leaders of the great importance we must attach to defining a solution to growing 
problems of inequity between Indian people and non-Indian citizens. I urge a moratorium on 
consideration of a/rv legislation until tribal, state and federal officials have had a chance to 
consider and act on the development of a new intergovernmental mechanism that will address the 
problems of jurisdiction, citizen rights and the exercise of governmental authority in Indian 
Country. 

US government and State government efforts to reduce the sovereignty of Indian Tribes by 
forcing Indian governments to waive sovereign immunity against law suits in exchange for 
receiving continuing tribal government aid threatens the basic future of Indian Country. 
Unilateral US government legislation pending before the US Congress threatens to overturn more 
than two centuries of developing government to government relations between the United States, 
Indian nations and with state governments. 

This would mean financial devastation and the end of tribal governments. If, S. 1691 is 
enacted it is the future of our children that you will be jeopardizing. 

I thank the Committee for giving me the opportunity to present the Lummi Nation's 
position on Senate Bill 1691. 

Attachments: 

1. Treaty of 1855 

2. Map of the Lummi Nation 

3. Centennial Accord Proclamations 

4. Water Agreement in Principle 

5. Hallauer Summary Judgment 

6. Sandy Point Shores Flyer 

7. Lummi land Synopsis 









153 

A.Huch merit. I , s 





XL7AIAIJ INDIAN NATION 

Northwest Coastal Aboriginal People 



Treaty b et w een the United Sates and the Dwamish, Suquamish, and other allied and subordinate 
Tribes of Indians in Washington Territory. 

JAMES BUCHANAN. 
PRESIDENT OF THE UNITED STATES OF AMERICA 

TO ALL AND SINGULAR TO WHOM THESE PRESENTS SR*XL COME, GREETING: 

Whereas a treaty was made and concluded at Muckl- te-oh, or Point Elliott, in the Territory of 
Washington, the twenty -second day of January, flat, rjmmnd flghf knssjjsjs j and fifty five, by Isaac 
I. Stevens, governor and superintendent of Indian affairs for die said Territory, on the part of the 
United States, and hereinafter-named chiefs, headmen and delegates of the Dwamish, Suquamash, Sk 
tahl-mish, Sam-ahmish. Smalh kahmish, Skop-ahmish, St-kah-mish, Snoqualmoo, Skai-wha-mish, 
N'Quentl ma-mish, Sktah-le jum, Stoluck-wha-mish, Sno-ho-mish, Skagit, Kik-I-allus, Swinamish, 
Squin ah-mish, Sah kumchu, Noowha ha, Nook wa-chah mish, Meesce-qua-guilch, Cho bah-ah-bish 
and other allied and subordinate tribes and bands of Indians occupying certain lands situated in said 
Territory of Washington, on behalf of said tribes and duly authorized by law; which treaty is in the 
following words and figures to wic 

Articles of agreement and convention made and concluded at Muckl- te-oh, or Point Elliott, in 
the Territory of Washington, this twenty-second day of January, eighteen hundred and fifty-five, by 
Isaac L Stevens, governor and superintendent of Indian affairs for the said Territory, on the part of die 
United States, and the undersigned chiefs, headman and delegates of the Dwamish, Suquamash, Sk 
eahl-mish, Sam-ahmish, Smalh kahmish, Skop-ahmish, St-kah-mish, Snoqualmoo, Skai-wha-mish, 
N'Quentl ma-mish, Sktah-le jum, Stoluck-wha-mish, Sno-ho-mish, Skagit, Kik-I-allus, Swinamish, 
Squin ah-mish, Sah kumehu, Noowha ha. Nook wa-chah mish, Meesee-qua-guikh, Cho bah-ah-bish 
and other allied and subordinate tribes and bands of Indians occupying certain lands situated in said 
Territory of Washington, on behalf of said tribes and duly authorized by them. 

Article I. The said tribes and bands of Indians hereby cede, relinquish, and convey to the 
United States all their right, tide, and interest in and to die lands and country occupied by them, 
bounded and described as fellows: Commencing at a point on the eastern side of Admiralty inlet, 
known as Point Pully, about midway between Commencement and Elliott bays' thence eastwardly, 
running along the north line of lands heretofore ceded to the United States by the Nisqually, Puyallup, 
and other Indians, m rk<- mmmit of said range to the 49th parallel of north latitude: thence west, 
along said parallel to the middle of the gulf of Georgia' thence through the middle of said gulf 
mi **"• m ^in chiinntl through the Canal de Arro to the straits of Fuca. and crossing the same 
through the middle of Admiralty inlet to Suquamish Head; thence south-westerly, through the penin- 
sula, and following the divide between Hood's canal and thence round the foot of Vashon's island 
eastwardly and southeastwardly to the place of beginning, including all the islands comprised within 





XL7A1AU INDIAN NATION 
"Protect all spiritual, cultural and physical values...'' 

said boundaries, and all die nghc, tide, and interest of the said tribes and bands to any lands within the 
territory of the United States. 

Article II. There is, however, reserved for the present use and occuparion of the said tribes 
and bands the following tracts of land, viz: the amount of two sections, or twelve hundred and eighty 
acres, surrounding the small bight at the head of Port Madison, called by the Indians Noc-sohk-um; 
the amount of two sections, or twelve hundred and eighty acres, on the north side Hwomish bay and 
the creek emptying into the same called Kwilt-seh-da, the peninsula at the southeastern end of Perry's 
island called Chah-choo-scn. situated in the Summi river at the point of separadon of the mouths 
emptying respectively into Belling ham bay and the gulf of Georgia: all which mm thall k«- ^r 
apart, and so far as necessary surveyed and marked out for their exclusive use: nor sfaj| aj|y 
white man be permitted to reside upon the same without permission of the said 
tribes of fond*, and of the superintendent or agent, but, if necessary for the public convenience, 
roads may be run through the said reserves, the Indians being compensated for any damage there-by 
done them. 

Article III. There is also reserved from out the lands hereby ceded the amount of thirty-six 
sections, or one township of land, on the northeastern shore of Port Gardner, and north of he mouth 
of the of Snohomish river, including Tulalip bay and the before mendoned Kwilt-seh-da creek, for the 
purpose of establishing thereon an agricultural and industrial school , as hereinafter mentioned and 
agreed, and with a view of ultimately drawing thereto and settling thereon all the Indians living west of 
the Cascade mountains in said territory, provided, however, that the President may establish the central 
agency and general reservation at such other point as he may deem for the benefit of the Indians. 

Article rv. The said tribes and bands agree to remove and settle upon the said first above 
mendoned reservations within one year after the ratification of this treaty, or sooner, if the means are 
furnished them. In the mean time it shall be lawful for them to reside upon any land not in the actual 
claim and occupation of citizens of the United States, and upon any land claimed or occupied, if with 
the permission of the owner. 

Article V. The right gfafcJM fj»h " m"*l ">d accustomed fishing grounds and stations 
is further secured in common with all citizens of the Territory, and of erecting temporary houses 
for the purpose of curing, together with the privilege of hunting and gathering roots and berries 
on open and unclaimed lands: provided, however that they shall not take shell fish from any 
beds staked or cultivated by citizens. 

Article VI. In consideration of the above cession, the United States agree to pay the said tribes 
and bands the sum of one hundred and fifty thousand dollars, in the following manner — chat is to say: 
For the first year after the ratification hereof, fifteen thousand dollars for the next two years, twelve 
thousand dollars each year, for the next three years, ten thousand dollars each year for the next four 
yean, seven thousand five hundred dollars each year, for the next five years, six thousand dollars each 
year, and for the last five years, four thousand two hundred and fifty dollars each year. All which said 
sums of money shall be applied to the use and benefit of the said Indians under the discretion of the 






155 





XU7HAIJ IJSTOIAJST JV-ATTOZV 
"Building upon this foundation... " 



President of the United Sates, who mar from time to time determine at his discretion upon which 
beneficial objects to expend the same; and the Superintendent of Indian Affairs, or other proper officer, 
shall each year inform the President of the wishes of said Indians in respect thereto. 

Article VTI. The President may hereafter, when in his opinion the interests of the Territory 
shall require and the welfare of the said Indians to be promoted, remove them from either or all of the 
special reservations, herein before made to the said general reservation, or such other suitable place 
within said Territory as he may deem fit, on remunerating them for their improvements and the ex- 
penses of such removal, or may consolidate them with ocher friendly tribes or bands; and he may 
further at his discretion cause the whole or any portion of the lands hereby reserved, or of such other 
land as may be selected in lieu thereof, to be surveyed into lots, and assign che same as a permanent 
home, on the same terms and subject to the same regulations as are provided in the 6th article of the 
treaty with the Omahas, so far as the same may be applicable. Any substantial improvements hereto- 
fore made by any Indian, and which he shall be compelled to abandon in consequence of this treaty, 
shall be valued under the direction of the President and payment made accordingly therefor. 

Article VIII. The annuities of aforesaid tribes and bands shall not be taken to pay the debts of 
individuals. 

Article DC The said tribes and bands acknowledge their dependence on the government of 
the United States, and promise to be friendly with all citizens thereof, and they pledge themselves to 
commit no depredations on the property of such citizens. Should any one or more of them violate this 
pledge, and the fact be satisfactorily proven to the agent, the property taken shall be returned, or in 
default thereof, or if injured or destroyed, compensation may be made by the government out of their 
annuities. Nor will they make war on any other tribe except in self defense, but will submit all matters 
of difference between them and the other Indians to the government of the United States or its agent 
for decision, and abide thereby. And if any of the said Indians commit depredations on other Indians 
within die Territory the same rule shall prevail as that described in this article in cases of depredations 
against citizens. And the said tribes agree not to shelter or conceal offenders against the laws of the 
United Sates, but to deliver them up to the authorities for trial. 

Article X. The above tribes and bands are desirous to exclude from their reservation the use of 
ardent spirits, and to prevent their people from drinking the same, and therefore it is provided that any 
Indian belonging to said tribe who is guilty liquor into said reservations, or who drinks liquor, may 
have his or her proportions of the annuities withheld form him or her for time as the President may 
determine. 

Article XI. The said tribes and bands agree to free all saves now held them and not' to purchase 
or acquire others he r eaft e r. 

Article XII. The said tribes and bands further agree not to trade at Vancouver's Island or 
elsewhere out of the dominions of the United Sates, nor shall foreign Indians be permitted to reside in 
their reservation without the consent of the superintendent or agent. 

Article XIII. To enable the said Indians remove and settle upon their aforesaid reservations, 



I 
! 



156 





XC7AIAIJ INDIAN NATION 

"To meet the economic, social, educational 
values of our people... " 

and co clear, fence, and break up a lufficienc quantity of [2nd for cultivation, the United Scares 
fiirrhgr igree, nay |ym «f fifr ecn thousa nd AtMan. to be laid out and expended under the direction 
of the President and in such manner as he shall approve. 

Article XIV. The United States further agree co establish at the general agency for the district 
of Puget s Sound, within one year from the ratification hereof, and to support for a period of twenty 
years, and agricultural and industrial school, to be free to children of the said tribes and bands in 
common with those of the other tribes of said district, and to provide the said school with a 
suitable imrrnr rnr of inttf ^ cro rt «n/4 aU p to provide a smithy and , | carpe nter's shop, and fiir- 
i them with the necessary tools, and employ a blacksmith, carpenter, and farmer for the like 



njfhj 



twenty years to instruct the Indians in cheir respective occupations. And che United States finally 
agree to employ a physician to reside at the said central agency, who shall furnish medicine and advice 
to che sick, and shall vaccinate them; che expenses of said school, shops, persons employed, and medi- 
cal attendance to be derived by che United Scares, and noc deducted from che annuities. 

Article XV. This treaty shall be obligatory on che contracting parties as soon as che same shall 
be ratified by the President and Senate of che United States. 

In testimony whereof, the said Isaac I. Stevens, governor and superintendent of Indian af- 
fairs, and die undersigned chiefs, headmen, and delegates of the aforesaid tribes and bands of 
Indians, have hereunto set their hands and seals, at die place and on the day and year 
hereinbefore written. 



Isaac I. Stevens, 

Governor and Superintendent. 



Seattle 

Pet-ka-nam 

Chow-its-hoot 

Gonah 

Kwallactun 

S'Hoolst-hoot 

Snah-talc 

Squush-um 

Chul-whil-tan 

Ske-eh-cum 

Parch-kanam 

Sare-kanam 

Sd-10-maml 

Dahtl-de-min 

Sd'zek-du-num 



his x mark 
his x mark 
his x mark 
his x mark 
his x mark 
his x mark 
his x mark 
his x mark 
his x mark 
his x mark 
his x mark 
his x mark 
his x mark 
his x mark 
his x mark 



Chief of che Dwamish and Suquamish tribes. 

Chief of che Snoqualmoo, Snohomish and other tribes. 

Chief of the Lummi and other tribes. 

Chief of che Skagits and other allied tribes. 

Sub-chief of che Skagit tribe. 

Sub-chief of Snohomish. 

Sub-chief of Snohomish. 

Sub-chief of che Snocjualmoo. 

Sub-chief of Suquamish tribe. 

Skagit tribe. 

Skagit tribe. 

Squin-ah-mush tribe. 

Kik-ial-lus band 

Sub-chief of Sah-ku- meh-he . 

Me-sek-wi -quilse sub chief 



157 




XCTAIAIJ IWOIAJST JSTATI O JST 
Northwest Coastal Aboriginal People 




Whai-lau-be 

Kwulc-teh 

Kwull-et-he 

Kleh-lcenc-sooc 
Sohn-heh-ovs 

S'den-ip-lcin 



his x mark 
his x mark 
hisxmarlc 
hisx mark 
his x mark 
hisxmark 



buBami in the presence of us... 

M.T. Simmons, Indian Agent. C.H. 

Benj. E Shaw, Interpreter. 

H.A. Goldsborough. 

John H. Scranton. 

S.S. Ford Jr. 

Ellis Barnes. 

S.M. Collins. 

ES. Fowler. 

Rob't Davis. 



Sub-chief of Lummi tribe. 
Sub-chief of Lummi tribe. 
Lummi tribe. 
Skagit tribe. 
Skagit tribe. 
Skagit tribe. 



Mason, Secretary of Washington Territory. 
Chas. M. Hitchcock 
George Gibbs. 
Henry D. Cock. 
Orrington Cushman 
R.S. Bailey. 
Lafayetee Batch. 
J.H.HaiL 









And whereas, the said treaty having been submitted to the Senate of the United States for its 
constitutional action thereon, the Senate did, on the eight day of March, one thousand eight hundred 
and fifty-nine, advise and consent to the ratification of in articles by a resolution in the words and 
figures following, to wit: 
In Executive Session, 

"Senate of the United States, March, 8, 1859. 

"Resolved, (two-thirds of the senators present concurring.) That the Senate advise and consent 
to the ratification of treaty b e t ween the United States and the chiefs, headmen and delegates of the 
Dwamish, Suquamish, and other allied and subordinate tribes of Indians occupying certain lands situ- 
ated in Washington territory, signed the 22nd day of January, 1855- 

"Attest: "Asbury Oickins, Secretary." 

Now, therefore, be it known that I, James Buchanan, President of the United States of America, do, in 
pursuance of the advice and consent of the Senate, as expressed in their resolution of the eighth of 
March, one thousand eight hundred and fifty-nine, accept, ratify, and confirm the said treaty. 

In testimony whereof, I have caused the seal of the United States to the Hereto affixed, and 
have signed the same with my hand. 

Done at the city of Washington, this eleventh day of April, in the year of our 
lord one thousand eight hundred and fifty-nine, and of the independence of 
the United States the eighty-third. 

James Buchanan 



158 




it/AiAU ustdiajst nation 

Signed this day: January 22, 1855 



Now-i-chiis his x mark Sub-chief of Owamish 

Mis-lo-tehe his x mark Sub-chief of Suquamish 

Sloo-ooksh-can his x mark Suquamish tribe 

Moo-whah-lad-he his x mark Suquamish tribe. 

Too-leh plan his x mark Suquamish tribe. 

Sla-seh-doo-in his x mark Dqmish tribe. 

Slovilt-meh-time his x mark Sub-chief of Suquamish 

We-ai-pah his x mark Skaiwhamish tribe 

Sah-au-he his x mark Snohomish tribe. 

She-hope his x mark Skagit tribe. 

Hwu-lah-lakq his x mark Lummi tribe. 

Cht-simpt his x mark Lummi tribe. 

Tse-sum-ten his x mark Lummi tribe. 

Klt-hahl-ten his x mark Lummi tribe. 

Kut-ta-kanam his x mark Lummi tribe. 

Ch-tah-ben his x mark Noo-qua-cha-mish band. 

N'oo-heh-oos his x mark Snoqualmoo tribe. 

Hweh-uk his x mark Snqualmoo tribe 

Peh-nus his x mark Skai-whamish tribe. 

See-alla-pa-han his x mark Sub-chief of Sk-tah-le-jum. 

He-uch-ka-nam his x mark Sub-chief of Snohomish. 

Tse-nah-tale his x mark Sub-chief of Snohomish. 

Ns'Slci-oos his x mark Sub-chief of Snohomish. 

Wats-ka-lah-techie his x mark Sub-chief of Snohomish 

Smeh-mai-he his x mark Sub-chief of Skai-wha-mish 

Slat-eah-ka-nam his x mark Sub-chief of Snoqualmoo 

St'Hau-ai his x mark Sub-chief of Snoqualmoo 

Lugs-ken his x mark Sub-chief of Skai-wha-mish. 

S'Sleht-soolt his x mark Sub-chief of Snohomish. 

Do-queh-oo-sad his x mark Snoqualmoo tribe. 

John Kanam his x mark Snoqualmoo tribe. 

Klemsh-ka-nam his x mark Snoqualmoo. 

Ts'HuihntI his x mark Dwa-mish sub-chief. 

Kwuss-ka-nam his x mark Skagit tribe. 

tlel-mit his x mark Skagit sub-chief. 

S'kwai-kwi his x mark Skagit tribe, sub-chief. 

Seh-lek-qu his x mark Sub-chief of Lummi tribe. 

S"n' — chen-oes his x mark Sub-chief of Lummi cribe. 










159 



A-lU-iLN/Ue/lt. c& 




IhlLKJ 

— .* * » « * ' 

LUMMI INDIAN 
NATION 



/■cr/Sir/ls'/ltst^ 



Bte$m*\&ty&m}Mto%tom 




froclamation 



WHEREAS, it is the intent of the Governor to reaffirm the government- to -government 
relationship established in the Centennial Accord of August 4, 1989 with the federally 
recognized Indian tribes within the boundaries of Washington state; and 

WHEREAS, the state of Washington recognizes that there are 27 separate and distinct 
federally recognized sovereign tribal governments in Washington state and acknowledges that 
the tribes have an historical relationship with reserved rights defined by treaties with the United 
States government, federal statutes, and executive orders of the President; and 

WHEREAS, the state of Washington seeks to strengthen the relationship with the 
federally recognized tribal governments to promote and enhance tribal self-sufficiency; and 

WHEREAS, the state of Washington reaffirms the spirit and intent of the Centennial 
Accord and directs its agencies to develop policy consistent with the stated principles therein; 
and 

WHEREAS, the state and federally recognized tribal governments respect the 
sovereignty of one another, 

NOW, THEREFORE, I, Gary Locke, Governor of the state of Washington, do hereby 
proclaim that the state of Washington accepts the fundamental principles and integrity of the 
government-to-government relationship between the state and the federally recognized Indian 
tribes within Washington state, and that the principles of the Centennial Accord shall guide 
Washington state's policy in relations with the federally recognized tribal governments. 



this 21" da' 




_ 



161 






WHEREAS, it is the intent of the Governor to continue the government-to- 
govemment relationship set out in the Centennnial Accord of August 4, 1989 with the 26 
federally recognized Indian tribes within the boundaries of Washington state; and 

WHEREAS, the State of Washington and the federally recognized Indian tribes 
seek to better achieve mutual goals through an unproved relationship between their 
sovereign governments and provide a framework for government-to-government 
interaction, and 

WHEREAS, the State and tribal governments acknowledge there are 39 counties 
and numerous other local governments and independent State elected officials with 
independent and often overlapping interests and legal authority in Washington state, and 

WHEREAS, the State and federally recognized tribal governments will direct their 
staffs to communicate within the spirit of the Centennial Accord; and 

WHEREAS, the State and federally recognized tribal governments reaffirm that it 
is their shared policy to maintain government-to-govemment relations and to promote 
understanding of this relationship within their governmental organizations and with the 
public; and 

WHEREAS, the State and federally recognized tribal governments respect the 
sovereignty of each other; 

NOW, THEREFORE, I, Mike Lowry, Governor of the State of Washington, do 
hereby proclaim that the State of Washington continues to accept the fundamental 
principle and integrity of the government-to-govemment relationship between the State 
and the federally recognized Indian tribes within Washington state, and that the principles 
in the Centennial Accord shall guide Washington state's policy in relations with 
federally-recognized tribal government. 



Signed, this 3rd day of March, 19£>3, 



Governor Mike Lowry / (/ 










162 



AGREEMENT IN PRINCIPLE 
As agreed 12/3/97 



I. GENERAL INTENT AND PURPOSE 

A. The United States, the Lummi Nation and the State of Washington entered into 
negotiations for the following stated purpose: 

The purpose of the negotiations is first to reach agreement on future 
water needs of the Lummi Nation and non-tribal landowners within the 
reservation and to determine if these needs can be met from on-reservation 
groundwater supplies. To the extent there are unmet needs, subsequent 
negotiation discussions will focus on identifying alternative ways of 
meeting the on-reservation water supply needs and evaluating their 
feasibility, recognizing that some of these alternatives may require the 
involvement of other parties in the negotiation process. 

B. This Agreement in Principle does not reach agreement on the total 
future water needs of the Lummi Nation within the Reservation. 

C. Upon execution by the parties of this Agreement in Principle, the parties 
agree to immediately commence, in an expedited process, good faith negotiations 
for the purpose of obtaining an off-reservation source of water to satisfy future 
growth within the reservation and to enhance instream flows as set forth in HA. 
below. • 

n. ALLOCATION 

The purpose of this Agreement is to outline the steps that must first be taken as 
conditions precedent to enter into a Final Agreement and identify the issues to be 
resolved in the Final Agreement. 

A. AGREEMENT ON ALLOCATION 

1. The parties intend to find water from an off-reservation source or combination of 
sources totaling 5 million gallons per day (mgpd) for the purposes of: 1) importing 
for use on reservation 2.5 mgpd, to be divided .5 mgpd for non-tribal use, and 2 
mgpd for tribal use, and 2) enhancing instream fishery resources within the 
Nooksack Basin equivalent to 2.5 mgpd. The water source(s) must provide an 
assured, uninterruptible supply of water that is legally, politically, environmentally 



163 



and economically available. Until the entire 5 mgpd is secured, no portion of the 5 
mgpd may be delivered or used for either tribal or non-tribal purposes. 

2. When the associations obtain delivery of the off-reservation water, the associations 
will substitute the off-reservation supply for the existing groundwater use subject 
to conditions agreed upon in the Final Agreement, including those issues listed in 
part C of this Agreement. 

B. STEPS TO TAKE PRIOR TO ENTERING INTO FINAL AGREEMENT 

1. The parties will search for: 

a) Water for non-tribal use totaling 500,000 gpd from off-reservation sources, 
including transferring rights that withdraw water in continuity with the 
Nooksack River if the water is obtained from currently exercised rights that 
are transferred in whole or in part from future or recently (e.g., over the last 
2 years) conserved water; 

b) Water for tribal use totaling an additional 2,000,000 gpd from off- 
reservation source(s); and 

c) Conserved water to enhance instream flows by 2,500,000 gpd or to provide 
other mitigation as agreed to by the United States and the Lummi Nation. 

2. The parties will evaluate costs of delivering water from off-reservation and the 
availability of funding sources from local, state, federal, tribal, and private parties. 

C. ISSUES TO BE RESOLVED IN FINAL AGREEMENT 

The Final Agreement will resolve issues, including but not limited to the following: 

1. The necessary state and federal legislation for authorizing agreements and 
appropriations. 

2. Funding, i.e., assessments, grants, loans, etc. to implement agreement. 

3. The necessary state authorizations/permits to deliver water for on-reservation use, 
including resolving any legal impediments to existing tribal use of water now 
delivered from Bellingham. 

4. The necessary pipelines, pump stations, etc., consistent with applicable drinking 
water laws and standards. 



164 



5 The timing for delivery of off-reservation water based upon phased-in non-tribal 
growth. 

6 Ground water use for non-tribal emergency supplies and other uses. 

7 How will off-reservation waters be purveyed to on-reservation users. 

8 Jurisdiction 

9 Dispute Resolution 

10. Mechanism for making the Final Agreement binding. 

11. Technical data to implement the Final Agreement. 

12. Other issues that may be raised. More issues may be raised that need to be 
resolved for the Final Agreement. 

This list of issues is not prioritized. 

D. TIMING 

The parties agree to commence expeditiously with effectuation and 
implementation of this agreement, including, as a matter of first priority, immediately to 
meet and agree on a schedule and checklist of the necessary actions, including certain 
time deadlines, to accomplish the goals of this agreement. The parties anticipate finding 
the off-reservation source and evaluating the cost effectiveness of the source within the 
next nine months of execution of this Agreement. To the extent feasible, the parties will 
also pursue, within the next nine months, resolution of the issues in Part C above. 

E. DISCLAIMER 

Nothing in this or the Final Agreement limits or waives the United States' or 
Tribes' right to claim additional water from any source in satisfaction of the Nation's 
reserved water right. 



165 



LUMMI NATION 



By. 







__,^a£e£ Chairman 
Lummi Nation 
Date: \ln\Q 




STATE OF WASHINGTON, including 
certain water associations, Whatcom 
County and the State Attorney General's 
Office. , _ . 1 



By 



7 






Mike Rundlett, Regional Director 
Department of Ecology and 
Chairman, State Negotiation Team 
Date: >'-~7 '9 



UNITED STATES 










Robert Anderson, Counselor to the Secretary 
United States Dept. of the ulterior and 
I Negotiation Team 

X 



Chairman, Federal Ne; 
D*e: D ^ i % 



Concuoed-By: 



By. 



M. 



■CK£i»" -'*-*- 



PeteKremen 

Whatcom County Executive 

Date: AJ ?~9? 



By /<m,, J7i~i_/i. 



if 



Tom McDonald 
Assistant Attorney General 
Approved as to Form 
Date: // - 7/ '? y 



B y ^LLC/W^W^C 



%Z?^i-4l*^> 



Dale Petersen, President 

For Sandy Point Improvement Co. 

Date: 'fa (ft 



By / /^r r p^^ 
Jefif McKay, President A 



ForN 
Date 



c Beach Water Association 



Neptune Beach W 
: lk->p? 



By. 




Gary S^hith, President 

For Harden Island View Water Assn. 

Date: / - z~7- 9# 






casa\ptm\tnbal agreement doc 









166 



By 'ZU-J /' &!~ ■ 

Richard T. Bremer, Board Member 
For Georgia Manor 
Date: (T^. "^ ) ^ # 
/. / 



By_ 

Mike Heinte, President 

For SunsetrWafer Association 

Date: N /•a.-' \ 1 £ 

B y " ,Q^U< — I / ' ?d/*r~- — 

Richard T. Bremer, President 
For Fee Land Owners Association 
Date: j^, £7 /??/- 






■ 







ARTICLE XIV. 






JUDICIAL REVIEW 



167 

■ • 

SECTION 14.01. INITIAL RESOLUTION OF DISPUTES. Any disputes 

regarding the right to use the sewer or water system, refusal or 
failure to provide service/ operational problems affecting service, 
and other service related issues shall be resolved according to 
this Article. Any person aggrieved by an order or decision of the 
Sewer and Water Board relating to any of these areas shall first 
petition the Sewer and Water Board for a hearing. This petition 
shall be' in writing/ although this requirement may be waived by the 
Sewer and Water Board. The hearing shall be on the record and the 
Sewer and Water Board shall cause a verbatim record of the hearing 
to be kept and transcribed. The Sewer and Water Board shall issue 
a written decision which shall become a part of the written record 
and shall be open for inspection at the offices of the Sewer and 
Water Board during regular working hours. 

SECTION 14.02. LUMMI INDIAN BUSINESS COUNCIL REVIEW. The decision 
of the Sewer and Water Board shall be reviewable by the Lummi 
Indian Business Council. Any person who desires any review of the 
Sewer and Water Board Decision shall petition the Lummi Indian 
Business Council for such review within ten (10) working days of 
the date of the Sewer and Water Board Decision. The review power 
of the Lummi Indian Business 'Council shall be limited to ascer- 
taining whether a fair hearing upon the dispute was held. The 
Lummi Indian Business Council shall take up the review within 
thirty (30) calendar days of the date of the receipt of the 
petition for review. Failure of the Lummi Indian Business Council 
to act within this period shall be deemed to be an affirmance of 
the Sewer and Water Board Decision. 

section 14.03. judicial review. Any party dissatisfied with the 
decision of the Lummmi Indian Business Council may petition the 
Lummi Reservation Court for judicial review of the decision. For 
the purposes of this review the Lummi Indian Business Council 
agrees not to raise as a defense to the appeal any immunity from 
this type of action which it or the Lummi Indian Tribe may possess 
in the Lummi Reservation Court. This petition for review shall be 
filed within ten (10) working days of the date of the decision of 
the Lummi Indian Business council/ or within forty (40) calendar 
days of the date of the petition for review to the Lummi Indian 
Business Council. The Reservation Court shall conduct a review 
upon the written record/ and shall permit time for each party to 
present oral argument in support of this position. The standard 
used in this review shall be whether there was substantial evidence 
in the record to support the decision of the Sewer and Water Board. 
The Reservation court shall issue a written decision. 

SECTION 14.04. ARBITRATION. Any party to a dispute dissatisfied 
with the decision of the Lummi Reservation Court may invoke 
arbitration under the rules and auspices of the American Arbitra- 



168 



tlon Association. The arbitrator shall conduct a de novo review 
upon the written record before the Reservation Court and shall 
issue a written decision. For the purpose of this arbitration, the 
Lununl Indian Business Council agrees to not assert any immunity 
from arbitration or suit which it nay have as a defense to 
participating in the arbitration/ provided that this agreement 
shall be strictly construed and shall not be considered or 
construed as an agreement not to assert any such immunity in any 
action brought or maintained in the courts of the State of 
Washington. 

SECTION 14.05. COSTS. As a condition of appealing or petitioning 
in any of the above steps, the party wishing to file the appeal or 
petition shall first pay all costs of the previous step from which 
the appeal or petition is sought. Costs shall include, but not be 
limited to, the preparation of the written transcript of each 
hearing or meeting, reasonable filing fees, and other costs, 
provided that these costs shall not include attorney's or spokesma- 
n's fees for any of the above stages of proceeding. 

SECTION 14 . 06 . MINOR DISPUTES . Operational problems or complaints 
of a minor nature may, at the option of the complaining party, be 
resolved informally through contact with the manager or staff of 
the Sewer and Water Board. The use or nonuse of these Informal 
proceedings shall not affect a complaining party's right to pursue 
the appeal right set out in this Article. 

SECTION 14.07. OTHER APPEALS. Any other decisions of the Sewer 
and Water Board, including rate setting and class of service 
decisions, may be reviewed by the Lumml Indian Business Council 
pursuant to the Constitution and Bylaws of the Lumml Indian Tribe, 
Article VI, Section 1 (p) . Any such decision of the Sewer and 
Water Board or of the Lumml Indian Business Council may be reviewed 
in the Lumml Reservation Court by filing an appeal therein within 
ten (10) working days of the date at which the decision of the 
Sewer and Water Board or of the Lumml Indian Business Council was 
taken. The procedures and rules of the Reservation Court governing 
civil actions shall, be applicable to such an appeal, and the 
decision of the Reservation court shall be final. 









169 



V 






ml • « 



FE9 (! 1S32 2-0 






f £9 5 - 1982 

eaUCT RIFKIN. Ctartt 
^ .^.Beauty 



UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 

XT SEATTLE 



LUMMI INDIAN TRIBE, et al.. 
Plaintiffs, 
and 
UNITED STATES or AMERICA, 
Plaintiff-Xntervenor. 
v. 
WILBUR HALLAUER. «t ml., 

Def endants . 



NO. C?9-«82R 

ORDER GRANTING SUMMARY JUDGMENT 
MOTION OF PLAINTIFF AND DENTING 
SUMMARY. JUDGMENT MOTION OP 
DEFENDANT RE: JURISDICTION 



THIS MATTER comes before tha court on a motion for summary 
judgment by th« Lummi plaintiffs, in which the united states and th 
Environmental Protection Agency (EPA) (plaintiffs- interveners) join 
The defendant State of Washington hos filed a brief supporting the 
Luarai Indian Tribe's motion. The defendants have filed a cross - 
motion for summary judgment. Having considered the mcmornnda and 
supporting materials eubmitted by ceunrel, the «©ure finds as 
follows: 



I. THE ISSUE 

The central issue before the «:ourt is whether on Indian tribe 
has eivil jurisdiction to nlnn, construct, operate nnd maintain a 
sewer system to nervine non-Tndian owned land within a reservation 
The Lummi Tribe has formed n sewor district to serve the entiro 
Reservation, including the land owned in fee. simple by non-Indians. 

ORDER K.U-M.M..MT 

Page -X- 



170 



The I.umbI siuer district would reoul re that all land on the Reser- 
vation hook up to the J.ummi sever system. The non-Indiana have 
formad their own sewer and water districts and claim that they alom. 
have the authority to provide sewer services within the boundaries 
of these districts. 

On November 6, 1980, thin court entered a partial judgment on 
o eonsent agreement between t'ho TH»"*, the United St-ntr* and the 
State of Washington. The order allowed completion of U\e Lummi 
sewer system, including the portion within the defendant dintricts. 
while expressly reserving the issue of which entity would operate 
and maintaia< the portion lying within the districts- The parties 
to the agreement assumed the risk of later being required to pay 
the cost differential of installing certain meters and valves nec- 
essary to allow tha defendant districts to operate the portion of 
the sewer system within their boundaries if the court later deter- 
mined that the Tribe did not have jurisdiction to operate that por- 
tion of the system. 

Plaintiffs argue that the Tribe has the civil authority to 
regulate the sewer system on the Reservation and to requiro non- 
Indian fea simple property owners to hook up to the system and to 
pay assessment fees for the services received. They look to the 
Tribe's inherent sovereignty, the treaties between the Tribe and 
the federal government, federal preemption, and federal delegation 
under the Clean Water Act. Defendant State of Washington has sub- 
mitted a memorandum in support of the Tribe's regulatory authority, 
but relies solely on the theory that the Lummi Tribe is the proper 
grantee and delegate of federal and state grants to construct and 
operate the sewer system. The individual and district defendants 
attempt to refute all of plaintiffs' and stato defendants' theories 
The defendants argue that they cannot he made to hook up to and pa- 
for services from a sewer system in which they have no voting 
rights. In addition, despite the position taken by the State of 

* 
ORDER 
fage -2- — ^-> 






171 



Washington. they claim So bf asserting superior jurisdictional 
claims under state law. 

II. BACKGROUND 



In 1972, the State of Washington declared aa a goal of the 
State the protection of the State's resources, environment, and thr» 
health and safety of its popple through the provision of adeouate 
waste treatment facilities. RCV 43.83A.O10. The Washington State 
Department of Ecology (DOE) wni authorised to issue loans or grants , 
to public bodies for improvements to fulfill this goal. Public 
bodies include Indian tribes. RCW 4 3.83A.OSO. one such loan or 
grant was issued to the mmmi Tribe. 

It is undisputed that Washington State (DOE) listed the Lummi 
Saver Project as its number cne priority problem. There is no ques- 
tion that inadequate septic tank systems had resulted In unsanitary 
and unhealthy conditions on the Lummi Indian Reservation. Serious 
diseases were poslnq imminent health problems due to sewage fieepagi- 
and open sewage in ditches.- Badl y needed additional housing could 
not ba built without the sewer system, thus resulting in substand- 
ard and overcrowed living conditions that intensified health 
hazards.- In addition to the pressing health problems, pollution 
of the waters surrounding the Reservation was threatening the Lummi 
aquaculture and oyster-raising ventures which are vital to the 
Tribe's economic well-being. - 

The Luiami sewer project began in the early 1970 's. See State 
Defendants' Exhibit A-l. The Lummi Indian Business Council began 
receiving federal and state grants for the project under the super- . 



1/ Deposition of Robert Sylvester, 18-19; Affidavits of Phillip 
Jones, M.D. and Stephen P. Kciner with exhibits attaehfd to Plain- 
tiffs' Memorandum in Opposition to Oufc-ndnitr.i: ' Motion for :;unm.\ry 
Judgment dated Nov. 7, 198 P. 

2/ Affidavit of Lloyd h. Kinley, C2-3 In Support of Lummi rlaln- 
tiffs' Motion for Summary Judgment re: Jurisdiction; Affidavit of 
Celeste Alaniz, p. 2 fn Support of Lummi Plaintiffs' Memorandum in 
Opposition to Defendants' Motion for Summary Jud-jmeot on Civil 
Rights Claims. 

3/ Affidavit of Lloyd I,. F.inley, supra at 3. 

Order mm*—-*—* 

Page -3- 



0'» 



172 



vision of CTA and DOE in 1971.-' The Tribe 1 * c&mprnhensive «ewcr 
ordinance (Ordinance Ho. O-U3(0-<5) wa* passed by tlio Council in 
IM.-' The ordinnnc* passed by the Lummi sewer district requires 
that ill dwellings within 200 feet of its sewer connect with thn 
sewer. This provision is essentially in conformity with tne 
Bellingham-wnatcom County Health District and tha State codes. 
MAC 248-59-100(6) . 



III. INHERENT TRIBAL POWER TO EXERCISE CIVIL AUTHORITY 

The proper decision in this case is mode clear by the recent 
Ninth Circuit decision in Confederated Sallsh t Kootenai Tribes v. 
Namen, No. 80-3189 (9th Cir. filed Jan. 11, 1932) (hereinafter 
Hamen ) . In that opinion the Court carefully analyzed the legal 
tests to be considered by a trial court in determining when a 
tribe's regulatory powers could extend to ncn-members. 

A. The Colville Rule 

The fires test by the court in Namen was the one enunciated by 
the Supreme Court in Washington v. confederated Tribes of the Col- 
ville Indian Reservation , 447 U.S. 135, 153 (1980) (hereinafter Col- 
ville ) . Under this test, the traditional quasi-sovereign powers of 
tribes would be divested only when thoy were inconsistent with over- 
riding federal interests. 

Applying the Colville test to the case before this court, the 
court finds there is no inconsistency with federal interests. 
Quite the contrary, the United States Itself is urging the court 
that not only would no federal interest be Injured by the proposed 
sewer project, but that this project is vital for the advancement 
of federal Interests in promoting and improving water and scwa«* 
conditions on Indian rexervntlonn . 

The government points ":o vario«« fcdnrnl cnactm«-nti» whi«:!> «1i-oJ 



4/ Attachments 5A-D to ErA Motion to Oismiam Attachment/! 9-12 m 
united States' Motion for Summary Judgment re: Jurisdiction. 

5/ Attachment No. 13 to United States' Motion for Summary Judtmmt 
ret Jurisdiction. 

ORDER 

page -4- -.vhi.-.~-«« 



173 



specifically with Indians and which demonstrate pervasive federal 



regulation aimed at improving water and sewage systems on Indian 

reservations. The ln<Uan llrnlth Car- Act o/ I1"t. 35 if.O.C. S 1*0!.' 

ee seq. , has as its goal the highe.it posnlble health status fur I 

Indians. The Indinn Health Care Act specifically noto:: Che need C- 

improved sanitation on Indian reservations and the interrelationship 

of sewage disposal systems, pure water, sanitary housing and health. 

i 

(e) All other Federal services and peogrnmn 
in fulfillment of tin? Federal rer.ponrtibuity 
to Indians are jeopardized hy the low health 
status of tho American Indian pcopl«. 

(f) Further improvement in Indian health in 
imperiled by. . . . 

(6) lacfc of safe water and sanitary J 

waste disposal services. For example, over 
thirty-seven thousand four hundred existing 
and forty-eight thousand nine hundred and 
sixty planned replacement and renovated 
Indian housing units need new or upgraded 
water and sanitation facilities. 

25 u.S.C. S 1601(e), (£1(6). In the same Act Congress declared 

that it was federal policy to provide existing Indian health 

services with all resources necessary to affect the Act's policy. 

25 U.S.C. 5 1602. i 

The Indian Hospitals and Health Facilities Act, 42 U.S.C. 
S 2004(a), authorizes construction, improvement and maintenance of 
sewage- and waste-disposal facilities for Indian communities. 
State defendants' Exhibit a shows that the Regional Indian Health 
Service probably received funds authorized under 42 u.S.C. 5 2004(4. 
for the purpose of assisting the Lummi sewer project. 

The Housing Act of 197.4 provides for federal assistance to 
ereate "decent, safe, and sanitary dwellings for families of low 
income." 42 U.S.C. 5 1437. Indian tribos are included within tlm 
definition of "states" to when such assistance is provided. 42 
U.S.C. S H37a(2)l7). See 24 C.F.ft. s 805. See also this court's 
Partial Judgment and Consent Deere* of November C. 1980, concerning 
both the poor health conditions and substandard housing on the Loiw • 
/ / / 






ORDER 
page -5- 



Reservation which determined the ll»Mno by the W««liinqton Depart- 
ment of Ecology of the Reservation net number out on j tn priority 
liat of areas with sewage treatment problems needing federal and 
.tate assistance. 

These Federal statutes and regulation* dealing with problems 
of substandard honsina and health conditions rhow a strong interest 
in promoting programs which will Improve those conditions. Certain 
of those programs have been implemented to improve the specific 
conditions which existed on the Lummi Indian Reservation. 

B. The Montana Rule 

The second test applied in Women is whether this attempt at 
regulation by the tribe falls within the exception set forth by lh>: 
Supreme Court in Mont a na v. United States , 450 U.S. 5<4, 566 (1980V 
(hereinafter Montana ) . that is, whether "the conduct at the nrn- 
Xndians on fee lands within its reservation threatens or bo;: some 
direct effect on the political integrity, the economic security, o. 
the health and welfare of the tribe." 

In Namen tha Tribes sought to ronulate non-Indians' exercise 
of their riparian rights to build wharves, breakwaters, and other 
structures out onto the bed and banks of the Flathead Lake. Even 
more so than in Namen . the conduct the Lummi Tribe seeks to regular 
in this case has the potential for significantly affecting the 
economy, welfare, and health of the Tribe. 

Non-Indian landowners within the Reservation contribute to t)v 
Reservation-wide pollution and health problems which have been de- 
scribed above. The pattern of Indian and non-Indian land ownership 
is very irregular and not static- The Tribe has a strong interest 
in including the lands and houses of non-Indians in its sower syst.-- 
because of the engineering requirement* for the efficient operation 



6/ Affidavit of JJ/ivid If. C. Oreiro, Exh. F-l Jn Support of T.uinmj 
Plaintiffs' Motion for Summary JuOgnwnt r«» Jurisdiction. 

/ / / 



ORDER 
•age -«- 



175 



of any comprehensive.- .ind economically feasible systrm. -' Asvertioi 
of authority by another entity wliosa boundaries ""jerrymander" 
around and through the Rcr»<rr"ation sower district co<«Ul lc.vl to a 

lack of consistency or uniformity in the admininstration nnd onera- 

8/ 
tion of the Tribe's system.- 

In Colvllla Confederatad Tribes v. Walton , 647 F.2d 42 (9th 

Cir. 19>1) the Ninth Circuit considered the claim to w«cer rights 

of a non-Indian, fee owner on the Colville Indian Reservation based 

on state water permits. The Court of Appeals held that the state 'r. 

regulatory power was preempted. The Court found that the actions 

of one water user have an immediate and direct effect on other 

users. Regulation of water on a reservation is critical to the 

lifestyle of its residents and the development of its resources. 

647 r.2d at 52. Tha same is true regarding the Importance of a 

sewer system to the Lummi Reservation. 



IV. DEFENDANTS' OTHER ARGUMENTS 

Defendants have offered two other theories in support of their 
position that were not dealt with by the Court in the Namen case. 

A. Assertion of Authority Under State Law 

District defendants argue that they have jurisdiction to oper- 
ate a sewer district created by State law and that they represent 
a state Interest that must prevail. This argument is severely 
undermined by the fact that the State of Washington han filed a 
brief in support of the Lummi Indian Tribe's authority to provide 
the sewer services to all residents, Indian and non-Indian fee 
owners, of the Lummi Indian Reservation. The State's strongly 
nt.ited {<onitlon destroys nny nrgutwnfc Mint th<: district rtafcwtiMifcP 

7/ Depositions of Robert Svlvester, 31-5fi « John Spencer* vol I, 
1(3-164, 181, 233; Affidavit of Craitj Peck, Attachment 17 to unite 1 
States' Motion for Summary Judgment re: Jurisdiction. 

§/ Defendants' map, Dkt. No. J77» Affidavit of Craig reck, sup™.. 

/ / / 



ORDER 
page -7- 



176 



9/ 
contrary position represents a "state interest."- Sen Re ynolds v. 

Sims. 377 U.S. 533. 57S (1974); Mosca ha ke S chool pi strict .So. 1J>1 
v. Big Bend Communit y College. «) Wn.2d 551. 5<*. 5nj P.2«l 8rt 
(1973) . 

Furthermore. Washington state ease law, whila rucoani.- in:j that 
competing municipal corporation* may exereine concurrent jurisdic- 
tion, makes clear that it is Against public policy for two corpora- 
tions in the same territory to exereine the same functions. 
Aldarwood Water District v. Pope t Talbot , 62 Wn.2d 319, 321, 382 
P. 2d 639 (1963). ftCW 57.04.070 provides: 

Whenever two or more petitions for the 
formation of a water district shall be filed 
as herein provided, the petition describing 
the greater area shall supersede all others 
and an election shall first be held there- 
under, and no lesser water district shell 
ever be created within the limits in whole 
or in part of any water district. 

This statutory prohibition against the geographical overlapping of 

water districts directs the finding that the state's internet is ; 

better served by not having the Lummi Sever System carved up into , 

an irregular patchwork of districts. 

The State of Washington has made it clear that a solution to 
the Lummi Indians' health and pollution problems by means of a uni* 
f ied and comprehensive sever system operated by the Tribe is an 
important state priority. Any contention that there is a stato in- 
terest to the contrary must be regarded by the court as totally 
without foundation. 

1. Assertion of Constitutional night to vote 

It is the position of the individual defendants that the triba 
sewer district cannot exercise authority over them because they hav 



9/ There is some question - whether the district defendant:* arc 
properly formed under state law. Defend Ant District 12 does not 
have an approved comprehensive pi in. Defendant water district 
No. 11 does not have a certificate of necessity to operate a sewer 
system. Depositions of Robert Sylvester, 56-58, 201-204 t, virgin!-' 
Smith, Vol. X, 74-85, 89-101. 104-1J1. Doth the certificate and 
approved plan are necessary under state law in order to Citrate. 
ftCW 56.08.020; 57.08.065. 



ORDER 
Page -I- 






177 



no voting rights in the I.ummi Indian nufliiienn council which lv Mm 
g0v9rni.no board of the Tribe And has veto imvcr over the T.itnuni 
Sewer Board on which non-Indians do sit. According to defendant* 
this is a violation .of the due process »nd equal protection guaran- 
tees of the rifth Amendment as well as of the right to hold office 
and to voce guaranteed by the rirst Amendment. Essentially the 

sw argument was offered by appellees in Hasten. The Court of 

i 
Appeals dismissed this argument with the general rule that the Hill ' 

of Rights cannot be invoked against tribal actions unless Congress 

has explicitly so provided. Slip op. at 209 n. 31 , cit ing Santa 

Clara Pueblo v. Marines . 426 U.S. 49 (3 978) end Te JL ton, v . Jfay ca . 

163 U.S. 376 (1896) • 

The Tribe's position is much stronger in the present cana, be- 
cause one's right to vote for members of the governing body of a 
sever district does not rise to the same level as the right to vote 
for representatives of a govornment with broader powers. Defend- 
ants discuss at length various United Stat** Supreme Court eases 
affirming the right of all qualified citizens to vote in state and 
local elections. Reynolds v. Sims , 377 U.S. 533 (19*4), Ayerv v. 
Midland County , 390 U.S. 474 (1?68) . N whether or not the denial of 
the right to vote fer members of a sewer board constitutes the vio- 
lation of fundamental rights of due process and equal protection as 
asserted by defendants is not answered by these cases, howovcr. 

The court finds more persuasive authority in the case of Holt 
Civil Club v. Tuscaloosa , 439 V.S. 60 (1978) in which the Supreme 
Court held that the exercise of police powers by Tuscaloosa outsiH<- 
its corporate limits* to the residents of the community of Molt wit!* 
out the concomitant cxtenfion of franchise equal to tltoso residinq 
within Tu'c.-tloonn ua« not a denial of the right* secured by the Bu» 
process and equ*l protection clauses of the Constitution. -139 U.S. 
at 69-70. Zt is interesting to note that defendants have not pro- 
tested their Inability to vote or hold office in other utilities 

ORDER 

page -9- -...._...„., 



178 



from which they have received services and boen assessed costs.— j 

j 
The Supreme Court has recognized that in certain situations 

Indian tribes may exercise civil regulatory authority over nen- 

Zndians. The fact that non- Indians could not participate in tribal j 

government did not change the conclusion. United States v. Maiuric . 

419 0.9. 544. 557 (1973). The right to vote and participate in 

governmental decisions is an important one. Nevertheless, the lack j 

of franchise in a municipal corporation whose sole function is the : 

construction, operation and maintenance of a saver does not rise to ' 

the Level of being a deprivation of fundamental rights as claimed 

by defendants. Ball v. James , 4*1 U.S. 3S5, 101 S. Ct. 1811 (1981);;" 

Holt Civic Club v. Tuscaloosa , supra : Salver Land Co. v. Tulare j 

Lake Basin Water Storage District . 4io U.S. 719 (1973). 

Individual defendants' arguments have even less weight in light' 

of the fact that, without being compelled to do so, the Lummi Indian 

Tribe has offered an opportunity to non-Indians to participate and 

voice their opinions. Four members of the board are olected at 

large by all voting residents of the reservation and, at present, 

are non- Indian ' Four are elocted from among the membership of 

the Tribe, by voting members of the Tribe, and one is. a member of 

the Lummi Indian Business Council, also elected by voting members 

of the Tribe. The Lummi Indian Business Council, which is the 

i 
governing board of the Tribe, has veto power ovor the Lummi Sever 

I 
Board. 

Finally, there is nothing in the record to indicate that the 

i 
individual defendants have received or will receive unfair treat- ! 

ment or inferior service from the Lummi Indian eover rervlcc. All 

aspects of the sewer system conform lo state l.iw and rcgulnt ipnn, , 



£0/ Ij. Deposition of Virglni-i Smith, pp. 28-34. 130-32, l?8-20''< 

11/ Affidavit of Tern- Unq*», Attachment If to united .«s»ntee Morion; 
lor Summary Judgment ret Jurisdiction. 



/ / / 



on dc n 
Page -10- 









179 



as well «s bo the f«<Jer»i standards sat by the EPA. The Lummi 
Tribal Court is available to nan-Indians for adjudication of any 
dispute which might arise regarding the sewer system. 

CONCLUSION 



The court finds that the Lummi Indian Tribe is a proper grantei 
for federal and state funds to plan, design and construct a sewer 
system in accordance with the Clean Water Act, as amonded; thae the 
Lummi Indian Tribe has the power and the authority to provide sewer 
services to all residents of the Lurnni Indian Reservation; that the 
exercise of sewar powers by the Luirnni Indian Tribe within the 
boundaries of the Lummi Indian Reservation preempts the exereise of 
sewer power* by either Whatcom county Sewer District Ho. 2 or 
Whatcom County Water District No. 11; that the exercise of state 
sewer powers by either Whatcom county Sewer District No. 2 or 
Whatcom County water District No. 11 impermissibly infringes upon 
the self-government of the Lummi Indian Tribe and is therefore pro- 
hibited; that the administration of the Lummi Reservation Sewer 
System by the Lummi Sewer Board and Lummi Indian Business Council 

is a proper exercise of tribal governmental powers, and that the |' 

i 

regulation of a sewer system serving the entire Reservation is nee- I 
essary to protect the economic security and health and welfare of 
the Tribe and affords to all users of the sewer system, on »n equal 
basis, the rights to which they are entitled. The Lummi Sewer Beard 
has the authority to require residents of the Lummi Indian Reserva- 
tion to hook up to the Reservation sewer system and to assess and 
collect connection and service fees from all users of the system. 

XT IS ORDERED that plaintiffs' motions for summary judgment art 
/ / / 

til 

/ / / 
/ / / 



ORDER 
Page -11- 



180 



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jrantzd and district and individual dafandanta' cress motion i« 
DENIED. 

Th« dark of tha court, ia directed to tand uncartifiad copiaa 



of this ordar to all counsel of raeord. 






DATED at Saattla, waahincton thia g day of Fabraary, 1982. 




DNITSO STXSW DISTRICT JUDGZ 












■ 



181 



AHticfim-etcL (p 




Sharon Allen 
715-7100 



Ad* 



Dick Jacobson 
384-6109 



The Muljat Group 

Sandy Point Properties 



CerMiea 
Residential 

Specialist 





Waterfront Jewel $315,000 

3 UK. JoHgnrr ht«m* ivilh VI rw> Kiai. m jut iimum- 

OujIiU i-\IM> nVrtvr A; IVrpi Anting, * tllM IUiim- 
rt-ilmev *W4" t*vn. .ind niU-d tub in nuMif -mil,' 




Lakefront Home 

2* I'-K nvir .uotiml lum 

Niv* t^i/i-tsi.v hul Uih. 

jipii. 1 Hi->.-.jn>ii>.iH.-. 



$134,950 

l II. l.ikflfiilll.l^C 




Just Completed $278,950 

Nvw J HK. iJiul heme uith 2ti jMd JnJ 31 \ -W pole 
hUl;; M.m\ iiu.iJiu extras thiou^hnul IncmiiNe 
\iewv A**. .ihiHit amcniiv pk<. 




Boat At Your Doorstep $237,500 

Like ik'u year nmml home with •.luck lot v<mr 
t*m>.it l-npiy Miiis*.i>. Itsttini:. crabbing ainl tliv 

twnplcic ^amlv Mi Amcniiv P;K'kni*v. 





Waterfront Condo $129,900 

At >jn*jy J\>int> inner I -brivr 2- BR, pvM retreat. 
G>;iv* with ^njy l\m* Amenity I 'jvLiijc 




Mt. Baker View 397,500 

3UK.2UA. ZOi ffutjttk^bcft KV parking. Like 
nw ci«klimin iwpt I20U sq. II. Ju>i Irtai & won t last 





Luniiiiis Sign Water Pact 

The Lummi Tribal Government and all "On Reservation" 
water associations have signed a water agreement. This 
agreement should make available water to all on reserva- 
tion residents, natives and non-indian alike. 

Call Dick Jacobson for details. 
733-3030 or 384-6109 




REALTOR 



_> 




(360) 733-3030 



510 Lakcway Drive 

Bcllingham. VYA 98225 



(360) 384-4081 



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184 



Historic Land Us* 

Prior to the arrival of Euro-Americans trie Lummi people inhabited a territory stretching from 
eastern Vancouver Island to Point Roberts and south to Samish Island, including the San Juan 
Islands and parts of northeast Olympic Peninsula. Some of the ways in which the Lummi people 
used the local environment included building permanent summer and winter villages near the 
shoreline at strategic locations, constructing temporary hunting and fishing camps inland along 
major rivers, and utilizing established sites for the gathering of important food plants and bemes. 
The use of special sacred locations for spiritual purposes was also important 

With the immigration of Euro-Americans into the northwest after 1850, many of the traditional 
Lummi places were occupied by non-Indians. In 1855, with the Treaty of Point Elliott the Lummi 
Nation reserved for it's exclusive use that portion of the Lummi's aboriginal lands known as the 
Island of Chah-Choo-Sen located between the mouths of the Nooksack and Lummi Rivers. This 
area became the Lummi Indian Reservation. In 1873 the boundary of the Lummi Reservation was 
changed by a Presidential Executive Order to add the western peninsula know today as Sandy 
Point 

The Lummi people maintained several village sites on the Reservation, including Gooseberry 
Point on the Lummi River, at Fish Point and at Portage Point A small community grew up around 
the Catholic Church near Marietta as well. Each village site was typically surrounded by about 5 
acres of cleared land. At the time of the Treaty the population of the Lummi Reservation was 
about 450. 

Federal Indian policies that were applied to the Lummi Nation included encouraging native people 
to become farmers. Consequently land began to be cleared at Lummi for small scale agricultural 
use. In addition, American immigrants settled and cleared land for farming on northern portions of 
the Reservation. By 1896 it was reported that 1 ,222 acres of land were cleared and under 
cultivation at Lummi. According to BIA figures, the population at the turn of the century on the 
Lummi Reservation had dropped to about 325. 

In addition to clearing land for agriculture, logging of the old growth forests for lumber by the BIA 
and non-Indians was occurring. Most of the timber on Portage Island was cut for use as fuel on 
the steamboats prying the Nooksack River. Forest fires also raced across the Reservation forests 
at the turn of the century, destroying the remaining old growth forests. By 1916 records indicate 
that nearly all of the forests were either harvested of burned, leaving only about 500 acres of 
standing forest About 500 Lummi people were recorded living on the Reservation at this time. 

The diking of the Nooksack River and Lummi River delta in 1929 created a major land use change 
on the Reservation. This engineering project made it profitable to dear more land for agricultural 
purposes along the floodplain of the Nooksack . Eventually over 3,000 acres of land was cleared 
and brought into production after these flood control projects were built The diking and draining 
that occurred at this time resulted in the alteration and loss of thousands of acres of freshwater 
and estuarine wetland systems. The diking and draining of the Lummi River delta significantly 
reduced the habitat for local wildlife species and salmon. Other significant changes in land use' 
between 1940 and 1960 included the construction of several new public roads providing access 
to Femdale and Bellingham as well as a toll ferry to Lummi Island. 

Land Ownership 

The Treaty of Point Elliott between the Lummi Nation and the United States described the land 
area that was ceded to the United States Government by the Puget Sound Indians as well as the 
land that was reserved by the Lummi Nation. The purpose of the treaty was to define those lands 
available for homesteading by American emigrants and set-aside that land reserved by the Native 

4/3/96 Comprehensive Environmental Land Use Ptan: Background Document Page 84 



185 



Lummi Indian Nation 



American inhabitants of Puget Sound. The boundary of the Lummi Reservation, as described in 
Article 2 of the Treaty of Point Elliott, 1855, was as follows: 



...the peninsula at the southern end of Perry's island called Shais-quihl, and the island called 
CharKhoo-sen situated in the Summi river at the point of separation of the mouths emptying 
respectively into Bellingham Bay and the Gulf of Georgia; all tracts shall be set apart, and so tar 
as necessary surveyed and marked out for their (the Lummi's) exclusive use; nor shall any white 
man be permitted to reside upon the same without permission of the said tribes or bands, and of 
the superintendent or agent, but, if necessary for the public convenience, roads may be run 
through the said reserves, the Indians being compensated for any damages done them. 



During the late 1800s Federal Indian policy attempted to assimilate Native Americans into the 
larger American society in response to the closing of the American frontier and to secure 
reservation lands for non-Indian development In order to accomplish this assimilation, the 
Federal Government tried to break down Native American traditions of communal land ownership. 
Indian reservation lands throughout the West were subdivided into small regular parcels and 
allotted to individual Indians. The intent of the Federal Government was to break up the large tribal 
holdings of the reservations and allow the smaller parcels of land to be sold to non-Indians. This 
action was authorized by the 1887 Allotment Act also known as the Dawes Act 

Because of language in the 1855 Point Elliott Treaty prohibiting the sale of land at Lummi without 
the permission of the tribe(atong with references to Article 6 of the Treaty with the Omahas 
defining the method and terms of assigning land parcels to tribal members) the Dawes Act could 
not be applied to the land on the Lummi Reservation. Three years before the Dawes Act was 
approved reservation land at Lummi had been assigned to various Lummi tribal members as a 
means to thwart non-Indian trespass and occupation of reservation lands. The "assignment" of 
land to Lummi tribal members was different than the "allotment" of tribal lands on other 
reservations, and carried with it different restrictions and requirements. Tribal land at Lummi was 
assigned to individual Lummi tribal members as restricted fee lands, and could not be sold to 
others, including non-Indians, without the consent of the Lummi Tribe. Land allotted to Indians on 
other reservations was transferred with a fee patent that prohibited the sale of the allotted land for 
25 years. After 25 years, a fee patent was issued to the Indian title holder, whereupon they could 
do what ever they liked with their allotment 

Beginning in 1884, reservation land at Lummi was assigned to individual Lummi tribal members 
with a "restricted fee patent" based on provisions contained in the Stevens Treaty containing the 
restrictions outlined in Article 6 of the Treaty with the Omahas. These restrictions included 
provisions restricting leases to two years and exempting these lands from levy, sale, or forfeiture. 

At Lummi. individual or family use rights to specific areas were acknowledged by tribal members 
for various activities such as fishing, shellfish beds, or root gathering. The assignment system 
instituted in 1884 significantly changed the nature of the land ownership. Previously only the 
heads of important families had property or rights to properties. With the coming of the 
assignment system every nuclear family received land of its own, regardless of family or kinship 
ties. 

Despite the provisions of the 1855 Treaty restricting the sale of Indian land, white settlers and land 
speculators thought they could gain title to Indian lands at Lummi. With the approval of the 
Commissioner of Indian Affairs, individual Lummi title holders began to sell their land to non- 
Indians, in violation of the 1855 Treaty. The Dawes Act was repealed in 1934 with the passage of 
the Indian Reorganization Act on the recommendation of Meriman Report which recognized that 
loss of traditional lands was destroying Native Americans cultures. However at Lummi, the original 

4/3/96 Comprehensive Environmental Land Use Plan: Background Document Page 85 



186 



Lummi Indian Nation 






provisions of the Treaty of 1855 continued to apply yet individual assignments of land on the 
reservation were sold to non-Indians, often in time of individual financial hardship 

With the increase in non-Indian settlement in Whatcom County the traditional means of gaming a 
livelihood for the Lummi people became threatened. Fishing, hunting, and gathering became more 
and more difficult Some Lummi fishermen were prosecuted for taking salmon at their usual and 
accustomed places of fishing Lummi people were forced to find employment in the local economy 
and began shifting from a traditional hunting/gathenng economy to a wage and cash economy. 
However the instability of the local and national economy in the late 1920 and 1930s forced many 
Lummi people to seek assistance from the government Paradoxically, individuals were not 
eligible for government assistance if they owned property. Consequently, those lummis who 
became dependent on the cash economy were left with no choice but to sell their property if they 
were to become eligible for government assistance. The sale of Lummi Reservation land was 
further encouraged by active assimilation polices of the Federal Government Beginning in the 
1930s, many valuable shoreline parcels were sold to non-Indians. During the 1950s the Bureau of 
Indian Affairs exerted pressure on Lummi landowners to sell reservation land to non-Indians as 
part of the termination policy of the Federal Government This policy was eventually changed, but 
individual Indian landowners, with the approval of the Commissioner of the BIA can still sell their 
property to anyone they choose. 

Land ownership today on the Lummi Reservation can be divided into two basic groups: trust land 
held in a restricted fee status for the Lummi Nation or individual Indians, and fee simple land, 
which can be owned outright by any one, including Indians and non-natives. The fee lands are 
those lands that were alienated from the original Lummi Reservation by the sale of original land 
assignments. Of the total 12,987 upland acres within the exterior bounds of the Lummi 
Reservation, about 9,350 (72%) acres are held in restricted fee status with 3.636 acres ( 28%) in 
fee simple ownership. In addition to these upland areas, there are about 8,000 acres of tribal 
owned tidelands within the exterior bounds of the reservation. Map 17 displays the distribution of 
restricted fee and fee simple ownership categories for the Lummi Reservation. 












4/3/96 Comprehensive Environmental Land Use Plan: Background Document Page 86 



187 



Lummi Indian Nation 



In addition to the development and regulatory problems posed by the mixture of land ownership 
on the Lummi Reservation, the undivided ownership of many restricted fee parcels by numerous 
heirs has made efficient development of these lands very difficult Undivided ownership of land 
means that several individuals can be owners of a single parcel of land, each with an assigned 
percentage interest in the parcel. The parcel however remains a single, undivided parcel, and 
cannot be developed or leased unless a majority of the owners agree. 

Most of the Lummi people who were originally assigned restricted fee land did not transfer their 
ownership of the land to another individual at the time of death. Consequently, the ownership of a 
restricted fee parcel was divided evenly among the surviving heirs by the Federal Government 
Over the course of several generations the number of undivided interests in many trust parcels 
increased as owners passed on without adequate wills that would have transferred their assigned 
land to a specific individual. Today there are some restricted fee parcels of land that have over 
300 separate owners, each with a percentage of undivided interest in a small parcel of land. As 
part of Lummi self-governance responsibilities the Lummi Nation is encouraging tribal members 
to provide for adequate legal transfer of properties. In addition the tribe is working on ways to 
consolidate undivided ownership in order to create manageable parcels of land that can become 
available for development 

Currant Land Use 

The distribution of various land uses on the Lummi reservation was recently inventoried by field 
observation, air photo analysis, and interpretation of satellite imagery. In order to meet the needs 
of land use planning, the wide variety of uses of land on the Lummi Reservation were categorized 
into 16 distinct groups, and each parcel on the reservation was assigned to one of these 
categories. Residential land uses were classified as either single family residence, mobile home, 
multi-family, agricultural residence where a home was located on a larger agricultural parcel, 
business residence where there was a clearly defined home enterprise, and forestry residence 
where a home was situated on a large parcel of forest land. Land uses such as the Casino and 
Lummi Shellfish Company, are classified as Commercial. Forestry and Agricultural categories 
were assigned to those parcels where that particular uses was the predominate use of the land 
area. Road ways were categorized as Transportation . Community Use included such areas as 
the Tnbal Center, the Lummi School system, the Lummi Sewer and Water system, and the 
Stommish grounds. Light Industry includes land uses such as auto wrecking. For those areas 
such as the Nooksack Delta or the Lummi River a specific classification of Wetland or Riparian 
area was assigned. All land remaining uncategorized was classified as vacant Table 15 and 
Figure 7 below display the area of each of the 16 land uses. 
































































4/3/96 Compnhensrve Environmental Land Use Plan: Background Document Page 88 




188 



LUMMI INDIAN BUSINESS COUNCIL 

2616 KWTiA ROAD . BEUJNGHAM. WASHNSTON 98226-9296 • (360) 344-1489 
DCPAOTMENT EXT. 



• 



ORAL STATEMENT 

Hear? M. Cagey, Chairman Lummi Nation 

Senate Committee on Indian Affairs 

April 7, 1998 

£ 1691 - Sovereign Immunity 

PROPERTY RIGHTS 

Lummi Nation members and their government fully support the protection of property rights 
for both Indians and non-Indians. The discussion about property rights on our reservation seem to 
indicate that only non-Indians are concerned about their property nights. 

Lummi Nation members and other Indian tribes and their members, more than any 
other identifiable group within the United States, are conscious of the need to protect 
property rights. A report recently referenced by Ada Deer, Assistant Secretary for 
Indians Affairs, indicated that since the 1 8 7ffs approximately 1 90 million acres of Indian 
land have been lost These were not aboriginal losses; but losses of land set aside by 
treaty and statute to provide homelands for Indian people. 

Is there any incident comparable to this level of loss among non-Indians? The 
Lummi people also suffered this loss. The Lummi Reservation was established by the 
Treaty of 1855. By 1970, a little over one half of the reservation was owned by non- 
Indians. Then, the Lummi Nation started to buy land back. Today, nearly 80% of the 
Reservation land base is owned by either the Tribal government, tribal members or other 
Indians. This is a major success story of a Tribe working to restore its land base through 
the private market system. 

Yet, the property rights of non-Indiana, rather than Indians, seems to be of 
paramount concern. What have they lost? What are their purposes? We are preserving 
our lands to preserve our way of life. Not our way of life in 1855; that is not possible or 
desirable. We are preserving our way of life as we live now. We do not wish to preserve 
our poverty, our poor health or the other problems which impair the quality of life for our 
members. We need a place, not a big place, but enough to stand on the earth, through 
which we maintain our livelihood. 

Most of the non-Indians who have voluntarily decided to live within our 
boundaries and within our rules have similar goals. They want a place to live and the 
resources needed to sustain their lives. (See Testimony of Tom Richardson, non-Indian 
land owner on the Lummi Reservation). Those non- Indians who are most vocal about 
their property rights are those that do not have similar goals. This small minority sees our 
reservation as a way to make profits by increased access to our resources. These are not 

1 



■ 



189 



new issues. This is the age old story of non-Indians wanting more and more of our land 
for their purposes. Today, these are the owners of magnificent houses who want the 
market value of their assets increased and see the continued existence of tribal 
government as something to be dismissed in favor of their profits. (See attachment on 
recent brochure distributed on Sandy Point Shores) 

We ask the Committee, have profits ever been guaranteed by governments? The 
anger of these non-Indians is their perception that the actions of the Lummi Nation do not 
support their plans to profit. We have offered to guarantee water to existing reservation 
homes, even though reservation water supplies cannot meet this need and also the short 
term future needs. This is still not enough for this small group of property owners. This 
offer was not enough because this group wants to speculate using our resources and lands 
within our Reservation for their own profit without regard to our needs. The Reservation 
is our home Mr. Chairman: not an investment held for speculation and profit. 

It is simply an unreasonable expectation on the part of some non-Indian property 
owners that the government of the Lummi Nation, or any other government, would 
operate in a way to guarantee the profits to small groups within their boundaries. The 
Lummi Nation will not operate in this manner. Instead the Nation intends to pursue a 
balance of both natural resource protections and sound economic development The 
narrow profit goals of this small group are not consistent with the interests of members 
of the Lummi Nation or the majority of non-Indian p ro p erty owners living on the 
reservation. 

Whatever, the outcome of this hearing, the record is clear The Property rights of 
Indians are in jeopardy, not the property rights of non-Indians. Regardless of the spins 
that are placed on mis topic, there is absolutely no evidence of any loss of p roperty rights 
by non-Indians that is in any way shape or form comparable to the losses experienced by 
Indian people. Where is our due process - the due process for Indian people in these 
historical losses. This is a loss that has occurred and continues within our own lifetimes. 

The asserted claim is that non-member property rights are violated by tribal 
governments and not protected in tribal courts. If the goal is to create a forum in which 
the non-member always prevails and tribal government always loses, we have no 
suggestions for the committee. But, if the goal is to create a system in which 
discriminatory or illegal actions are minimized, and aggrieved parties have a speedy, 
inexpensive and fair dispute resolution, the Committee should consider the experience of 
the installation of the Lummi Tribal Sewer System and the Court case that evolved, (See 
attachment - Lummi Tribal Sewer System) 

In the 1970's, the Lummi Nation was increasingly concerned over the failure of 
individual septic systems on the reservation. It proposed to construct a comprehensive 
sanitary sewer system which would serve both Indians and non-Indians. The Tribe 
packaged tribal, state and federal funding in such a way that the entire $14 million system 

2 



190 



could be constructed without capital cost to any property owner, Indian or non-Indian. 
The system would be administered by an elected board consisting of both Indian and non- 
Indian residents. Rather than accepting these substantial benefits, local non-Indian 
property owners prevailed on the state to withhold funding from the Tribe. This resulted 
in a delay of the project of over eight years. 

The Tribe sued to obtain release of the funds and the system was constructed. 
The discrimination claims of the property owners were dismissed by the federal court as 
factually groundless. Rather than simply imposing its will on the property owners at that 
point, the Tribe sat down with them and negotiated a dispute resolution system which 
addressed their concerns. The principal features of the system are: initial decision on 
water and sewer hook-ups, rates, etc. by the manager or Board; a formal hearing on the 
record before the Board with full opportunity for representation by counsel, cross- 
examination of witnesses and introduction of evidence under a relaxed evidentiary 
standard designed to allow property owners to represent themselves if they desire; formal 
findings of fact and conclusions of law and a written decision; appeal to the Lummi 
Indian Business Council on the limited issue of whether the Board provided a fair 
hearing; appeal to the tribal court on the record with the standard of review being whether 
the Board's decision is supported by substantial evidence; further appeal to an arbitrator 
under the rules of the American Arbitration Association; and a waiver of sovereign 
immunity to enforce any final decision. In addition, the five member Tribal Sewer Board 
has two seats which are open to non-Indian residents and non-Indians are eligible to vote 
for those positions which are staggered 2 year terms. 

In the sixteen year history of the system only one sewer appeal has reached the 
tribal court, and in that case the appellant stipulated to the fairness of the hearing 
procedure. She lost her appeal on the merits, but elected not to appeal to the outside 
arbitrator. The appellant in that case was Marlene Dawson, (Ms. Dawson is a member of 
the Whatcom County Council and the Vice-President of the Sandy Point Improvement 
Company located on the Lummi Reservation) who has submitted to this Committee 
relentless attacks on tribal sovereignty and claims of violations of her rights. Yet when 
she had the chance to prove her claims to an arbitrator where she would be subjected to 
cross examination, she elected not to proceed. She was given due process, but chose not 
to disclose the rest of the story. 

There are two lessons here. First, the Committee should not accept at face value 
unsubstantiated horror stories from persons with ulterior motives in the outcome. Ms. 
Dawson, for example, continues to speculate in real estate on the reservation in the hope 
that the land will greatly increase in value if tribal sovereignty is destroyed. (Ms. 
Dawson and her husband a realtor, own 4 homes at Sandy Point, 1 1/2 vacant lots in 
another reservation development, and an 8.98 acre undeveloped parcel at Sandy Point 
that she purchased in 1995. Her property is assessed on the tax rolls at a total value of 
over 1770, 000, but has a market value higher.) 

3 



191 



Secondly, the most important lesson may be what would be lost if the proposed 
legislation passes? What incentive does a tribe have to incorporate non-member 
participation in tribal government or to create innovative, accessible dispute resolution 
systems if the court of "first resort" is a distant federal or state court system? The Bill 
would effectively destroy the Lummi appeal system. Tribal courts will never increase 
their expertise in handling civil litigation or reviewing tribal council actions if litigants 
can routinely bypass them in favor of a non-tribal forum. 

In addition, the self-correcting aspects of a localized dispute resolution system 
will be lost. Day to day decisions affecting lives and property will still have to be made 
by tribal governments. But, if the correctness of those decisions is only reviewed in a 
distant federal court after protracted litigation, progress will be slow indeed. 

Tribal courts have made huge strides as law-formulating and law-applying bodies 
in the thirty years since the passage of the Indian Civil Rights Act in 1968. This 
legislation will destroy that progress and have the opposite effect Tribal courts will 
become irrelevant. Tribal officials will be afraid to act, fearing that even if their decisions 
are ultimately upheld, the huge costs of litigating in a distant forum will bankrupt their 
tribe in the process. This "chilling effect" on legitimate tribal action is precisely what the 
proponents of this legislation seek. 

We ask the Committee to consider the attitude toward tribal property of these self- 
proclaimed property rights advocates. Their attitude toward Lummi tribal tidelands is 
typical. The Lummi Reservation is surrounded on three sides by the waters of Puget 
Sound (See attached map). The Lummi Nation owns all of the beaches on the reservation 
below the high tide water mark. Individual tribal members (not the tribe) have sold some 
of the more attractive uplands to non-Indians who have built expensive homes on them. 
Many of these property owners initially leased the adjoining tribal beaches, but now 
assert that they have a right to use this tribal property without compensation. They have 
argued that since the land is held by the United States in trust for the tribe, they should be 
able to use it because they are U.S. citizens. They complain that any tribal effort to keep 
them off tribal property violates their property rights. For the past ten years, the property 
owners at Sandy Point, where Ms. Dawson owns most of her property, have refused to 
enter into a lease for use of our tidelands, despite the fact that they use them and the 
channel dredged over our tidelands to enhance their waterfront property values. It is not 
their property rights which are being violated, but ours. 

The same attitude has been demonstrated in disputes over groundwater on the 
Lummi Reservation. In 1995 property owners on the Lummi Reservation created a false 
"crisis" by claiming that a tribal well was drawing off their water from a nearby well. In 
fact, the non-tribal well was being pumped in concentrated bursts which caused 
temporary shortages and exceeded the conditions imposed by their state water permit. 
While it is true that these poor practices and permit violations did not result in a water 



192 



shortage until the tribe also began withdrawing water, it is equally true that the problem 
went away once the non-tribal well was properly managed. The property owners have 
not made use of available remedies. Instead, they have created political controversy in 
order to ask Congress to accomplish their real goal: to diminish tribal sovereignty itself. 
If all they sought was a remedy, they would use the remedies which exist. They seek 
more. They seek the destruction of tribal government and the relegation of tribes to 
nothing more than private, voluntary associations whose property and treaty rights can 
more easily be taken for private gain. 

If, Congress is convinced that non-Indian rights are being violated by tribal 
actions, it should strengthen tribal courts and encourage tribes to provide redress and 
involve non-members more in the governance process. It should not destroy the very 
institutions which promise to deliver justice on the reservations on a day by day basis. 
They cannot show that tribal courts have failed to deliver justice, because they have not 
used the tribal courts. The prejudice against tribal courts should not be a reason for 
Congress to abandon them. No one has forced non-Indians to live on an Indian 
reservation. They have chosen to do so. They will not be treated unfairly, but they must 
recognize that on an Indian reservation Indians will have a say in what life will be like. 



In order to improve the current circumstances of conflicts locally and with 
governmental entities other than the federal government. Congress could enact and fund a 
number of proactive policies, such as: 

• Fully fund tribal court systems 

• Fully fund establishment of tribal codes and ordinances which 
delineates the private pro pert y rights of member and non-member 
citizens alike, rights protected by the US Constitution and Bill of 
Rights for all citizens. 

• Fully fund tribal education programs. 

• Fund and establish an ombudsman and process for alternative conflict 
resolution. 

• Assist tribes in the formation and development of inter-local 
agreements regarding civil and criminal jurisdictional issues involving 
members and non-members on-reservation, or living in Indian country 
under the jurisdiction of tribes. 






193 



STATEMENT OF SUSAN M. WILLIAMS, ESQ. 

WILLIAMS & JANOV, P.C, ALBUQUERQUE, NEW MEXICO 

BEFORE THE COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

APRIL 7, 1998 
SEATTLE, WASHINGTON 

Mr. Chairman and members of the Committee, my name is Susan M. Williams. I am a 
shareholder in the law firm of Williams & Janov, Albuquerque, New Mexico. Our firm represents 
many Indian tribal governments throughout the country and has broad experience in dealing with 
issues of tribal sovereign immunity and legal matters affecting non-Indians and non-members 
within reservation boundaries. 

At your invitation, I am pleased to appear before this distinguished body to discuss the 
issue of tribal sovereign immunity against the backdrop of S. 1691, Senator Gorton's bill to waive 
tribal sovereign immunity and subject tribes to state court jurisdiction. I believe that my views 
are representative of the positions taken by many tribal leaders on these issues, and I am grateful 
for the opportunity to testify before you on this matter of critical importance to Indian country. 

In sum, the Congress should not legislate the type of sweeping, unprecedented abrogation 
of tribal sovereign immunity represented by S. 1691 for several reasons. Such legislation is not 
needed and is bad public policy for the country. Legally, of course, the Congress may have the 
power to waive tribal sovereign immunity, although some constitutional issues are presented. We 
should not, however, distract ourselves in the intellectual niceties of the law. Instead, we should 
judge this bill by its impact on ordinary citizens, Indians and non-Indians. Practically, non-Indians 
gain little by this bill, for it is based on the flawed premise that numerous individuals have been 
aggrieved by tribal actions and have been prevented from obtaining legal redress for their injuries. 
The truth is that the rights of non-members are being considered by most tribal governments, and 
those rights demonstrably are being vindicated in tribal courts and tribal administrative agencies. 
Conversely, S. 1691 represents an extreme response to those minor problems with non-member 
rights that remain to be dealt with in Indian country. By diminishing the rights of Indian tribes, 
the bill does great harm to the Indian citizens of this country. Morally, passage of this legislation 
would be a reprehensible act by the United States in breaking its solemn promises to protect 
tribal governments' authority in their territories and would set in motion the destruction of 
American Indian culture and Indian self-government. Such a loss would be profoundly sad for 
American culture. Unfortunately, the magnitude of that loss is not well understood by most 
members of Congress. 

No one has presented sufficient evidence that S. 1691 is necessary. To be sure, the 
proponents of this bill can produce some shocking stories about harms that were not redressed, 
and I would be less than credible were I to insist that none of these stories were true. However, 
I can in perfect honesty insist that these stories are not truly representative of what's going on 
in Indian country today, and cannot justify the massive assault on tribal sovereignty launched by 
S. 1691. Some of these stories misrepresent the true facts, because the true grievance of some 
of these individuals is their disagreement with tribal action, not any harm they suffered because 
their rights were denied. The anecdotal information currently advanced to support the waiver of 



194 



tribal sovereign immunity involves isolated events, not patterns of injustice in Indian tribes' 
dealings with non-members and non-Indians. These anecdotes, unfortunately, feed common 
misunderstandings and negative stereotypes held by non-Indians about Indian tribes. The ill- 
conceived legislation now proposed to respond to these incidents is much like the ill-advised use 
of a bulldozer to remove a dandelion weed from the front lawn. No government could or does 
operate under the level of waiver envisioned by this bill. The problems that exist regarding the 
civil rights and property rights of tribal non-members have less drastic solutions, many of which 
have already been implemented by many tribes. 

Extremism is an appropriate word to describe the provisions of S. 1691 because they 
jeopardize the welfare of American Indians and the continued existence of viable tribal 
governments. The legislation violates solemn obligations for protection and assistance to Indian 
tribes that the United States has sworn to uphold in treaties, laws, and administrative actions. 
The care of that trust responsibility is to protect tribes' sovereignty and to assist them to achieve 
self-governance and self-determination. 

S. 1691 is unfair to tribes, and it is discriminatory. No member of this Congress would 
think of introducing similar legislation completely abrogating the sovereign immunity of states~yet 
the problems the legislation presumes to address have their analogies in the dealings of 
individuals with state, local, and federal governments. For these reasons, as amplified below, I 
urge the Congress to refrain from legislating a broad abrogation of tribal sovereign immunity and 
thus prevent the infliction of far greater harms than the alleged harms that S. 1691 purports to 
correct. 

I. Background of Tribal Sovereign Immunity . 

Indian nations possess "the common-law immunity from suit traditionally enjoyed by 
sovereign powers." 1 The basis of this immunity has been expressed as an inherent aspect of 
sovereign powers predating the United States Constitution, applicable to all governments, and as 
consistent with federal policy in preserving tribal autonomy. 2 Congress thus must act cautiously 
in this area because the important federal interest in tribal self-determination is at stake. 3 Indian 
tribes, however, are not cloaked with an absolute, unqualified immunity from suit, as the 
proponents of S. 1691 like to claim. Tribal immunity is subject to waiver by congressional action, 
and courts also have recognized exceptions to tribal immunity from suit. In fact, tribal sovereign 



x Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (citing United States v. United States 
Fidelity & Guaranty, 309 U.S. 506, 512-13 (1940)). 

2 Id.; White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980); Turner v. United States, 
248 U.S. 354, 357-58 (1919). 

*See, e.g., Santa Clara Pueblo, 436 U.S. at 66-67 (Congress' provision in the Indian Civil Rights 
Act of 1968 "for habeas corpus relief, and nothing more, reflected a considerable accommodation 
of the competing goals of 'preventing injustices perpetrated by tribal governments, on the one 
hand, and, on the other, avoiding undue or precipitous interference in the affairs of the Indian 
people'"). 



195 



immunity is practically similar, but not identical, to that enjoyed by the federal government, state 
governments, or foreign sovereigns. 

The doctrine of sovereign immunity rests on the theory that official actions of government 
must be protected from undue interference. 4 As a practical issue of sound public policy, the 
doctrine is necessary to protect public treasuries from depletion by unfettered litigation. 3 Thus, 
the common law doctrine of immunity from suit will remain viable into the 21st century. The 
need for immunity is especially strong for tribal governments, since Indian tribal governments are 
weaker financially and have poorer revenue-raising capacity than most non-Indian governments. 
Without protection of the land on which Indian culture depends and the other limited assets 
owned by most tribes, tribal governments would constantly be at risk-whether they acted or 
refrained from acting-of exposure to substantial losses through the judgments of federal or state 
courts. The tribes are particularly vulnerable to a barrage of meritless or marginal suits simply 
as a means to deplete tribal revenues and render tribal governments ineffectual, a tactic that has 
been used within the non-Indian legal system. 

The Supreme Court since 1940 has viewed the common law sovereign immunity possessed 
by tribes as "a necessary corollary to Indian sovereignty and self-governance."* Courts have 
recognized that tribal immunity from suit is essential to preserve tribes' autonomous political 
existence and tribal assets, as well as to promote the federal policies of tribal self-determination, 
economic development, and cultural autonomy. From a policy standpoint, tribal immunity 
advances the federal policy of assuring that Indian nations remain viable cultural, economic, and 
political entities. We must remember that tribes are governments, and governments must operate 
and provide services to their citizens. Tribes are responsible for a broad range of governmental 
activities on their land, including education, law enforcement, justice systems, social welfare, 
environmental protection, and basic infrastructure such as roads, bridges, water systems, sewers, 
solid waste management, and public buildings. 

Tribes and tribal agencies and officials are subject to suit under various exceptions to tribal 
sovereign immunity recognized in the courts. For example, courts have applied the age-old 



*See Note, Tribal Sovereign Immunity: Searching For Sensible Limits, 88 Columbia L. Rev. 173 
(1988); see also The Federalist No. 81 at 548 (J. Cook E. 1961); Reynolds, The Discretionary 
Function Exception of the Federal Tort Claims Act, 57 Geo. LJ. 81 (1968); 14 C. Wright, A. Miller 
& E. Cooper, Federal Practice and Procedure § 3654 (1985)(Iitigation must not be allowed to stop 
or slow down official activities that are essential to governing a nation); Larson v. Domestic & 
Foreign Commerce Corp., 337 U.S. 682, 704 (1949)(the government represents the community as 
a whole and cannot be stopped in its tracks by any plaintiff who presents a disputed question of 
property or contract right). 

i See Ziontz, In Defense of Tribal Sovereignty: An Analysis of Judicial Error in Construction of 
the Indian Civil Rights Act, 20 S.D.LRev. 1 (1975). 

'"Three Affiliated Tribes of Ft. Bert hold Reservation v. Wold Engineering, P.C., 476 U.S. 877, 890 
(1986) (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)). 

3 



196 



doctrine established by Ex parte Young 1 in the tribal context.* This doctrine works as an 
exception to the general rule of sovereign immunity from suit and is applied to federal and state 
governments. At its core, the Ex parte Young doctrine permits suits for prospective injunctive or 
declarative relief to require governmental officials to comply with the law. It is based on the 
notion that an action against individual government officials engaging in unauthorized or illegal 
conduct is not an action against the sovereign government itself. Thus, in the tribal context, a 
litigant may seek injunctive or declaratory relief against individual tribal officials who allegedly 
have acted outside the scope of their authority.* This exception to tribal sovereign immunity has 
been broadly construed, permitting, for example, developers or individuals to obtain adjudications 
of the validity of various tribal laws and actions. 









^09 U.S. 123, 159-60 (1908)(where a state official attempted to enforce an unconstitutional 
state law, he was "stripped of his official or representative character"; his immunity from suit in 
federal court under the Eleventh Amendment did not protect him from the consequences of his 
individual conduct). This doctrine remains vital as a mechanism to force compliance with the 
commands of the federal Constitution, although it is based, in part, on the legal fiction that 
"unauthorized" or "illegal" actions of government officers are not actions of the sovereign itself. 

% See Wisconsin v. Baker, 698 F.2d 1323, 1332 (7th Cir.), cert, denied 463 U.S. 1207 (1983)("an 
official of an Indian tribe should be stripped of his authority, and corresponding immunity, to act 
on behalf of his tribe whenever he exercises a power that his tribe was powerless to convey to 
him"); Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 171 (1977)(a suit to enjoin 
violations of state law by individual tribal members is permissible). 

*As with suits against state or federal officials, an action against tribal officials can seek only 
injunctive or declaratory relief; suits for monetary relief are barred under the notion that suits 
affecting the treasury are suits against the sovereign itself. See Edelman v. Jordan, 415 U.S. 651 
(1974)(action for retroactive relief barred); but see Dry Creek Lodge, Inc. v. United States, 515 F.2d 
926 (10th Cir. 1975) and Dry Creek Lodge v. Arapahoe A Shoshone Tribes, 623 F.2d 682 (10th Cir. 
1980), cert, denied 449 U.S. 1118 (1981)(no tribal remedy, thus non-Indians' claim for damages 
against tribe permitted). 



197 



In only a few instances has Congress waived tribal immunity from suit. 10 Various court 
decisions have established other exceptions to tribal immunity from suit. For instance, where 
particularly egregious allegations of personal restraint and deprivation of personal rights were 
raised, the Tenth Circuit distinguished the Santa Clara Pueblo case and permitted a claim against 
a tribe for damages for constitutional violations of personal and property rights." In addition, 
an exception based upon the equitable recoupment doctrine has been recognized in the Tenth 
Circuit. 12 These latter two trends are disturbing to Indian country because the power of the 
United States to waive tribal sovereignty rests in Congress, not the courts, and that power must 
be exercised judiciously. Congress, appropriately, has exercised this power only sparingly. 

In addition, tribes may waive sovereign immunity from suit voluntarily. Tribal waivers of 
sovereign immunity must be "unequivocally expressed." 13 Courts have found tribal waivers of 
immunity from suit in a variety of circumstances. For instance, courts have held that an Indian 
tribe's contract providing for resolution of disputes by arbitration and making the arbitration 
agreement enforceable in any court having jurisdiction creates a right to sue, and thus constitutes 
a waiver of the tribe's sovereign immunity. 14 Most courts also have held as a general rule that 



,0 See, e.g., Santa Clara Pueblo, supra (in the Indian Civil Rights Act, Congress waived 
sovereign immunity for habeas corpus proceedings to review decisions of tribal courts); 
Metropolitan Water Dist. of Southern California v. United States, 830 F.2d 139 (9th Cir. 1987), affd, 
490 U.S. 920 (1989)(in the McCarran Amendment, 43 U.S.C. § 666, Congress waived the United 
States' sovereign immunity as a party defendant in suits to adjudicate all water rights in a stream 
system, which included Indian water rights); Blue Legs v. U.S. Bureau of Indian Affairs, 867 F.2d 
1094, 1097 (8th Cir. 1989)(tribal sovereign immunity from suit is abrogated under the Resource 
Conservation and Recovery Act, thus permitting "citizen suits" against tribes); Indian Self 
Determination and Education Assistance Act, Pub.L. 93-638, 88 Stat. 2203 (Secretaries of Interior 
and Health and Human Services must require tribal contractors to obtain liability insurance or 
equivalent coverage in carrying out self-determination contracts and, further, that any policy of 
insurance must prohibit the insurance carrier from raising the sovereign immunity of the tribe as 
a defense to claims). 

"Dry Creek Lodge, Inc. v. United States, supra at n.9 (wrongful denial of access to a non-Indian 
guest ranch located on the reservation). 

n Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324 (10th Cir. 1982)(doctrine of equitable 
recoupment applies to tribes as it applies to federal and state governments). Under this doctrine, 
when a sovereign sues, it waives immunity to (1) claims of the defendant that assert matters in 
recoupment (matters arising out of the same transaction or occurrence), or (2) claims of equal 
or less monetary value that are of the same form or nature as those sought by the sovereign 
plaintiff. See Frederick v. United States, 386 F.2d 481, 487-88 (5th Cir. 1967). 

l3 Santa Clara Pueblo, supra. 

u Sokaogon Gaming Enter. Corp. v. Tushie-Montgomery Assocs. , 86 F.3d 656 (7th Cir. 1996); 
Rosebud Sioux Tribe v. Val-U Construction Co. of South Dakota, Inc., 50 F.3d 560 (8th Cir.), cert, 
denied 516 U.S. 819 (1995); seeAubertin v. Colville Confederated Tribes,4A6 F.Supp. 430, 435 (E.D. 



198 



the presence of "sue and be sued" clauses in corporate charters established under the Indian 
Reorganization Act ("IRA") 15 constitute a waiver of sovereign immunity. 1 * 

In the commercial context, increased economic development involving non-tribal entities 
has resulted in tribal governments voluntarily waiving tribal immunity on a limited basis and 
providing protections to non-Indians' and non-members' interests as necessary. For example, in 
its gaming compact with the State of Arizona, the Yavapai-Apache Nation agreed to establish 
procedures for the disposition of tort claims arising from alleged injuries to patrons of its gaming 
establishment. Under the gaming compact, it was agreed that the procedures may be analogous 
to the remedial system available for similar claims arising against the State. Pursuant thereto, the 
Yavapai-Apache Nation adopted comprehensive tort remedies procedures, wherein the Nation 
waives the sovereign immunity of the gaming establishment and/or the Nation for the express 
purpose of allowing patrons to bring tort claims against the Nation and/or the gaming 
establishment in the Nation's tribal court. Our firm recently handled such a claim against the 
Yavapai-Apache Nation by non-Indians pursuant to these tort procedures. The case was settled 
before trial to the mutual satisfaction of the tribe and the plaintiffs. 

These are but some examples of circumstances in which tribal immunity from suit has been 
limited. Given this discussion, it is clear that tribes are not cloaked by an impermeable shield of 
sovereign immunity from suit, as the backers of S. 1691 claim. The courts appear to be finding 
exceptions and waivers by tribes of tribal sovereign immunity with increasing frequency. Thus, 
a sweeping waiver of tribal sovereign immunity is unnecessary. As with any sovereign, tribal 
governments must retain their autonomy and ability to protect their treasuries from attack and 
to subject themselves to legitimate claims on a case-by-case basis. 

The disruption S. 1691 poses to the sovereign immunity currently enjoyed by tribes has 
serious economic implications. The need for sustained economic growth and improvement is 
critical in Indian country. Despite the unfair hype about Indian gaming that is promoted by some 
in the media and some members of the Congress, Indian Reservations have a 31 percent poverty 
rate-the highest poverty rate in the United States. Indian unemployment is six times the national 
average. For better or worse, gaming represents one of the very few opportunities tribes have 
for economic development and job creation. Jobs created by gaming benefit not only tribal 
members but also the surrounding communities through employment, spending, and the 
generation of tax revenues. Federal law requires tribal governments to use gaming revenues to 
fund essential services such as education, law enforcement, tribal courts, economic development, 
and infrastructure. Indian gaming revenues thus are virtually indistinguishable from the revenues 
generated by state lotteries. Indian health, education, and income statistics are the worst in the 
country. Health conditions on reservations are generally poor, and recent statistics show that 



Wash. 1978); see also In re Colegrove, 9 B.R. 337 (Bankr. N.D. Cal. 1981)(whcre "sue and be sued" 
language is omitted from tribal corporate charter). 

15 12 U.S.C. §§ 461, 462, 464-479 (1983); 25 U.S.C. § 463 (Supp. 1986). 

"See, e.g., Merrion v. Jicarilla Apache Tribe, 617 F.2d 537, 540 (10th Cir. 1980), affd on other 
grounds, 455 U.S. 130 (1982). 



199 



rates of diabetes, suicide, alcoholism, and smoking are far above those in the rest of the country. 
Tribal infrastructures for roads, community water and sewer services, and other amenities that 
most non-Indian communities take for granted are either absent or woefully inadequate. 
Whatever the source of tribal revenues-gaming or non-gaming-the needs of the overwhelming 
number of tribes far exceed available resources. S. 1691 will jeopardize all of the efforts tribes 
are able to initiate these days to address their economic problems. In addition, tribes have 
positive economic impacts on their surrounding non-Indian communities. S. 1691 could also have 
dire consequences for such local communities when it derails the reservation economic engine. 

II. The Federal Government and the Tribes are Protecting Significant Interests of Non- 
Indians and Non-Members on Reservations Now . 



A broad abrogation of tribal sovereign immunity is unnecessary because the federal 
government and tribal governments already are providing protections to non-Indians and non- 
members within the boundaries of reservations. Existing federal oversight prevents abusive tribal 
practices and protects the interests of non-member, non-Indian reservation residents without 
destroying tribal autonomy. 

Congress ensures the protection of non-Indians and non-members by requiring federal 
approval of certain tribal laws and ordinances governing a variety of civil regulatory areas, some 
of which are described below. While it is arguable that Congress oversteps the "guardian" role 
of the United States over tribes and effectively usurps tribal governments through this type of 
legislation, it is certainly less harmful than legislating broad waivers of tribal immunity from suit 
in these areas. Thus, where tribes exercise regulatory jurisdiction in these areas, the involvement 
and oversight of the federal government already protects the interests of non-Indians and non- 
members. 

Congress has authorized federal agencies to assist tribes in developing tribal ordinances 
and regulations related to the particular agency's areas of concern. For example, the Indian 
Energy Resources Act authorized the Secretaries of the Interior and Energy to provide assistance 
to Indian tribes in the development, administration, implementation, and enforcement of tribal 
laws and regulations governing the development of energy resources on Indian reservations. 17 
The Indian Gaming Regulatory Act authorizes the Chairman of the National Indian Gaming 
Commission, a federal agency, to approve tribal gaming ordinances and resolutions. 18 The 
interests of all reservation citizens are taken into account by the federal agencies that evaluate 
tribal undertakings in these areas. 

In the area of environmental protection, Congress has acknowledged that tribal 
governments, like state governments, have the authority to regulate environmental matters. This 
authority, however, is subject to federal agency oversight. The Environmental Protection Agency 
("EPA") is authorized to approve certain tribal environmental codes as part of federal government 



"25 U.S.C. § 3504 (Supp. 1998). 

1S 25 U.S.C. § 2710(b)(l)B), (d)(l)(A)(iii), and (b)(2) (Supp. 1998) 













• 









200 



programs. Specific EPA authority is found in the Clean Water Act" and the Safe Drinking 
Water Act. 20 Under the "primacy" provision of the Safe Drinking Water Act, tribes are provided 
the opportunity to assume principal responsibility for the enforcement of drinking water supply 
regulations within the jurisdictional boundaries of the tribe. To attain primacy status, a tribe must 
have drinking water regulations at least as strict as EPA's and establish an independent agency 
within the tribal government that has the power to enforce tribal regulations. Increasing numbers 
of tribes are undertaking principal responsibility, with the assistance of the EPA for protecting 
sources used for drinking water under the federal enabling legislation. 

Tribes also are undertaking environmental regulation under the Clean Water Act. 
Congress has permitted tribes to be "treated as states" for purposes of this legislation. As such, 
tribes can obtain funds necessary to pursue the planning required for protecting water resources 
vita] to the tribes. Section 106 of the Clean Water Act allows for development of a surface water 
management program, and section 104 provides for water quality management. Once a tribe's 
water quality standards have been approved by the EPA the tribe also is treated as a state for 
purposes of the certification process under section 401 of the CWA 21 The section 401 
certification process requires the technical review of pending permit applications to determine 
their impacts on water quality standards, and most tribal law-making bodies avoid becoming 
directly involved in carrying out this kind of technical review process. Another statutory 
requirement is that tribes adopting their own water quality standards, like states, must conduct 
a public review of their standards at least every three years. These burdensome administrative 
procedures ensure the input and protection of the interests of affected non-Indians and non- 
members. 

Despite the strict statutory burdens of undertaking tribal environmental regulation, many 
tribes are establishing the necessary administrative and adjudicatory procedures and expertise in 
order to protect the resources that are vital to their welfare and future. For example, tribal 
governments have developed extensive solid and hazardous waste regulations, particularly in 
response to the Eighth Circuit's 1989 decision in Blue Legs v. U.S. Bureau of Indian Affairs, 12 
which held that tribal governments are responsible for managing solid waste disposal on 
reservations and may be held liable for failing to meet this responsibility. The Campo Band of 
Mission Indians in California, for example, has established comprehensive tribal regulatory and 
enforcement mechanisms for regulating solid waste on the Reservation. In many of these tribal 
ordinances, tribes provide a waiver of their sovereign immunity from suit for purposes of appeal 
of administrative decisions by tribal agencies. The Lummi Water and Sewer Ordinance, discussed 



'*33 U.S.C. § 1377(e) (Supp. 1998). 

M 42 U.S.C. § 300j-ll(a) (Supp. 1998). 

2, We note for the record that any affected person may seek judicial review of the EPA's 
approval of tribal water quality standards. City of Albuquerque v. Browner, No. 93-82-M Civil 
(D.N.M., Oct. 22, 1993)(federal court jurisdiction is based on the Administrative Procedure Act 
and Declaratory Judgment Act). 

a 867 F.2d 1094, 1097 (8th Cir. 1989). 



201 

in Chairman Cagey's testimony, is another major example where the tribe has afforded non- 
members significant rights in tribal government. 

In the commercial context, tribes have a built-in incentive to waive their immunity from 
suit or otherwise protect non-Indians. Interested parties usually will not conduct business on 
Indian reservations without an ability to seek redress for grievances. Tribes, thus, will choose to 
waive immunity or take other similar steps to consummate a business deal. Our firm has worked 
with many of our clients to insert arbitration clauses into commercial contracts that contain 
limited waivers of sovereign immunity for the purpose of enforcing an arbitration award, or 
limiting or specifically identifying which assets may be subject to judgment. Clearly, no further 
congressional intervention is necessary in this context. 

HI. Regulatory Issues and Participation of Non-Indians and Non-Members in Tribal 
Government 

The authority of tribal governments to exercise jurisdiction over non-Indians has been one 
of the most disputed issues in Indian affairs during the modern era. In 1978, the Supreme Court 
held in Oliphant v. Suquamish Indian Tribe that tribes could not criminally prosecute and 
convict non-Indians, unless authorized to do so by Congress. In 1990, the Supreme Court 
extended the Oliphant ruling to non-member Indians, 24 but Congress later reinstated tribal 
authority over non-member Indians. Today, controversies relating to tribal authority to exercise 
civil jurisdiction and regulatory authority over non-Indians and non-members residing within 
reservation boundaries persist. In certain civil contexts, particularly taxation and land use, tribal 
authority over non-Indians and non-members has been upheld, 25 although the Supreme Court's 
current rationale for tribal sovereignty over non-members and non-Indians is confusing. 

Federal judicially-created law imposes certain limitations on tribal authority to regulate 
non-Indians on non-tribal land within reservation boundaries. In Montana v. United States* 
the Supreme Court articulated the rule for establishing tribal jurisdiction over non-Indians in this 
context. First, "[a] tribe may regulate, through taxation, licensing, or other means, the activities 



a 435 U.S. 191 (1978). 

u Duro v. Reina, 495 U.S. 676 (1990). 

^Washington v. Confederated Tribes of CohHlle Indian Reservation, 447 U.S. 134 
(1980)(upholding tribal cigarette tax for sales to non-Indians on tribal lands); Merrion v. JicariUa 
Apache Tribe, 455 U.S. 130 (1982)(upholding tribal tax levied on mineral extraction from tribal 
lands, even though the tribe was receiving revenues from the mining companies under the mineral 
leases; the Court compared the tribe to states and cities, which may both receive contract 
payments as landowners and levy taxes in their governmental capacities as sovereigns); Kerr- 
McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985)(holding that non-IRA tribal governments may 
tax on-reservation business activities without first obtaining approval by the Secretary of the 
Interior where the tribal constitution does not require such advance approval). 

*450 U.S. 544 (1981). 



202 



of non-members who enter consensual relationships with the tribe or its members, through 
commercial dealing, contracts, leases, or other arrangements." 27 Second, "[a] tribe may also 
retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands 
within its reservation when that conduct threatens or has some direct effect on the political 
integrity, the economic security, or the health or welfare of the tribe." 24 Under the "tribal 
welfare" test, lower courts have upheld broad tribal civil powers over non-Indians on non-Indian 
land in a tribal zoning ordinance, a tribal health and safety ordinance, and tribal regulation of 
non-Indian lands bordering tribal trust property. With regard to water use, the courts have 
upheld federal and tribal control to the exclusion of state control over water use by non-Indians 
on an Indian reservation. 

Many tribes have responded to the civil regulatory concerns involving non-Indians as well 
as tribal members by adopting extensive legal codes, by administering their increased regulatory 
responsibilities, and by restructuring tribal government to enhance the capability to adjudicate 
Indian and non-Indian civil disputes in their own courts. These efforts make tribal governments 
more accessible and "user-friendly" to tribal members and non-tribal members alike. For example, 
the Zuni Pueblo has adopted extensive legal codes, including the Zuni Business Code which 
controls and regulates the activities of non-Zunis and non-residents in their commercial dealing 
with the Zuni tribal government and the people living on the Zuni Reservation. The Zuni 
Business Code establishes procedures and requirements consistent with federal laws and 
regulations governing the conduct of business on the Zuni Reservation. 

In addition, because tribes have civil regulatory authority and jurisdiction over non-Indians 
and non-members, tribal governments are developing initiatives to increase the participation of 
non-tribal members in government. For example, the Navajo Nation has established a five- 
member Navajo Tax Commission, two of whom may be non-Indians and non-members. 
Particularly important to note here is that Navajo law permits a refund action in tribal court in 
specific instances for certain taxes. Thus, non-member reservation citizens have direct access to 
both regulatory and judicial relief. Similarly, the Zuni Pueblo has established the Zuni Tribal 
Enterprise Board of Directors, whose five-member Board may be comprised of "[a]ny person, 
Zuni or non-Zuni, resident or non-resident." 

A particularly good example of tribal agency activities directly involving non-Indians is the 
Lummi Tribal Sewer and Water District Ordinance, discussed by Chairman Cagey in his 
testimony. Clearly, Lummi's regulation and administration of its water and sewer ordinance seeks 
to protect the interests of non-Indians and non-members within its reservation boundaries. 

IV. J* Need for M691 . 

With this background in mind about current events on reservations, I would like to digress 
and examine the underlying purposes and findings that purport to support the need for the 
extensive dismantling of tribal sovereign immunity proposed in S. 1691. Comparing the 



ITrj » mem 

"Id. at 565. 
»Af.«566. 

10 



203 



information given above and the provisions of S. 1691, the logic in support of this legislation 
becomes elusive. S. 1691 represents an extreme attack on tribal sovereignty, not because tribes 
have caused harm to individuals, but because certain non-members and non-Indians have 
disagreed with the substantive decisions made by tribes concerning their land and resources. 
These individuals prefer that others make decisions for tribes and that tribal land and resources 
be subject to their direction rather than tribal direction. 

Section 1(c) of S. 1691 states that the purpose of the bill is 

to assist in ensuring due process and legal rights throughout the 
United States and to strengthen the rule of law by making Indian 
tribal governments subject to judicial review with respect to certain 
civil matters. 

This provision implies that tribes do not respect due process and legal rights. The facts actually 
show the opposite. This provision also implies that tribal governments are not now subject to 
judicial review. In fact, tribal governments already are subject to judicial review in many areas, 
usually by tribal courts. Further, many disputes between tribes and states or between tribes and 
individuals that involve federal questions often end up in federal court, which reviews the actions 
of the tribal government that form the basis for the dispute. One need only look at the numerous 
decisions of the United States Supreme Court and the federal courts of appeal for the last year 
to see that tribal government actions are already being reviewed in federal court. 

Section 1(b) of S. 1691 sets forth the findings that supposedly support the need for the 
legislation. An examination of the findings reveals half-truths, misleading statements, and pure 
anti-Indian sentiment unrelated to any abuses of authority by tribal governments. For example, 
Section 1(b)(1) of the bill states that 

a universal principle of simple justice and accountable government 
requires that all persons be afforded legal remedies for violations 
of their legal rights. 

The implication is that tribal governments do not afford legal remedies to persons whose rights 
have been violated. That simply is not true. Tribal courts and tribal administrative bodies are 
increasingly affording all persons, non-members and members, with the opportunity to participate 
in proceedings and to appeal alleged violations of their rights. For example, one of our client 
tribes has a limited waiver of sovereign immunity in its tax code. In 1988, an oil company sued 
the tribe in tribal court, which reversed the tribe's action and remanded the case to the tax 
commission. Eventually, a mutually agreeable settlement was reached. Later, another oil 
company sued the tribe in a $2.1 million dispute over severance taxes. The tribal court ruled in 
favor of the oil company for one period of time and for the tribe on another. These certainly 
appear to be examples of simple justice and accountable tribal governments. 

In a world interested in fairness, simple justice and accountable government should require 
that Indian tribes be afforded legal remedies for violations of their legal rights. Yet, states boldly 
assert their 11th Amendment immunity from suit in federal court to thwart tribal attempts to 



11 



204 



vindicate their rights under federal laws, while Congress in recent sessions attempts to strip away 
tribal rights with impunity because tribes are politically powerless and must rely on the honor and 
good will of members of Congress to support their causes. There is no simple justice in the 
treatment of tribes recently or for the last 200 years. 

Sections 1(b)(4) & (5) of S. 1691 read as follows: 

(4) for more than a century, the Government of the United 
States and the States have dramatically scaled back the doctrine of 
sovereign immunity without impairing their dignity, sovereignty, or 
ability to conduct valid government policies; 

(5) the only remaining governments in the United States 
that maintain and assert the full scope of immunity from lawsuits 
are Indian tribal governments. 

These sections dangerously mistake the true state of affairs. The United States did not pass the 
Federal Tort Claims Act ("FTCA") or the Administrative Procedures Act ("APA") until the 
middle of this century. Further, these Acts do not by any means totally waive the sovereign 
immunity of the federal government. Even under the FTCA the United States remains insulated 
from suit for intentional torts, constitutional torts, discretionary federal government actions that 
are "susceptible to policy analysis" (whether or not the government official involved considered 
policy factors), and several other specific categories of actions spelled out in the FTCA. Each 
year, more citizens of the United States are left without legal redress because of the application 
of one specific doctrine of federal sovereign immunity than through the assertion of sovereign 
immunity by tribal governments when sued. This doctrine states that the United States is not 
liable for any injuries alleged to arise as an incident to military service. Instead of picking on 
tribes, here is a worthwhile reform for Congress to tackle. Additionally, under the APA, federal 
government actions "committed to agency discretion" are exempt from coverage, thus preserving 
the federal government's sovereign immunity in some cases. My clients have repeatedly asked 
for specific federal waivers of immunity in contracts with the federal government, only to be 
refused each time. 

Nor have the states opened the courthouse doors to the extent suggested by the 
proponents of S. 1691. State statutes or court rulings often preserve a state's sovereign immunity 
when the issue involves the so-called "discretionary acts or functions" of state officials, a cavernous 
catchall similar to the FTCA discretionary act exemption. Federal and state governments often 
enact statutes of limitation, ceilings on damage awards, prohibitions on punitive damages, and 
similar conditions imposed on lawsuits against the government, all of which are forms of the 
government's imposition of limited sovereign immunity in those contexts. Yet, S. 1691 provides 
no such reasonable conditions or limitations on the waiver of tribal sovereign immunity, and it 
is unclear whether tribes could enact such limitations under the terms of the bill. 

Sections 1(b)(4) & (5) further ignore completely the distinctions between tribal 
governments and the federal government or state governments. These differences include the size 
of the government, the affected population, the tribal government's ability to generate revenues 
to pay damage judgments, and the complexity of its government operations. Except for a very 



12 



205 



small handful of tribes, Indian tribes cannot absorb the financial shock of a major lawsuit to the 
same extent as federal and state governments. 

V. A Fair and Sensible Solution to the Perceived Problem . 

Rather than the blunderbuss approach of S. 1691, this Committee should carefully review 
the facts and determine whether credible evidence supports the need to change the current 
sovereign immunity of tribes and what particular approach to such a change, if needed, would 
preserve the ability of tribes to continue to exist as governments and separate cultures while 
correcting the perceived problems. Isolated anecdotes of problems, even if true, do not make a 
case for a wholesale congressional abrogation of tribal sovereign immunity. With respect to civil 
rights, limited data exist on the extent of civil rights problems in Indian country. Our data show 
that tribal courts are taking and deciding Indian Civil Rights Act cases. If one believes that tribal 
courts are unfair and ignore the abuses of tribal governments, one would expect the data to show 
the tribal governments winning cases in overwhelming numbers. In fact, a quick examination of 
cases reported in the "Indian Law Reporter" from 1983 to 1989 found forty published tribal court 
decisions from twenty-two different tribes involving the Indian Civil Rights Act. Tribal courts 
found appropriate sovereign immunity waivers and ICRA violations or remanded cases for further 
proceedings in nineteen cases. In three additional cases, the courts recommended procedures or 
provided declaratory relief to ensure that tribal governments complied with the due process 
requirements of the ICRA. Another review of tribal court cases from 1989 to 1998 alleging due 
process violations revealed that more times than not the court held the government liable for the 
violations. From 1993 to 1998, tribal appellate courts handled seven cases claiming tribal 
immunity. In all seven cases, the appellate court allowed due process challenges to proceed in 
the lower courts. Tribal courts also have overturned and invalidated tribal statutes, and tribal 
appellate courts have been willing to reverse the judgments of trial courts. Tribal courts have 
enjoined tribal elections and proscribed procedures that tribal governments must follow. 

In short, tribal courts have given enforcement life to the Indian Civil Rights Act and other 
tribal constitutional guarantees. The greatest single improvement that Congress could make 
toward ensuring the rights of non-members, non-Indians, and tribal members is not approval of 
S. 1691, but the provision of adequate funding for tribal courts and tribal justice systems. I urge 
this Committee to use its influence to secure such funding for tribes. 

I would now like to address some of the fine-tuning that might be done to improve tribal 
protection of individual rights. In the area of torts, most of Indian country would support the 
idea of a federally-guaranteed intertribal insurance company to provide tribes with low cost 
insurance coverage for negligent acts that result in injury to a person or property. Private 
insurance is already available for Indian gaming and Self-Determination Act operations, which 
are major avenues of interaction between tribes and non-members. The availability of affordable 
insurance to cover tort claims would help tribes, whose limited financial resources make it 
financially ruinous to pay either claims or insurance premiums. Tribes would not have to waive 
their sovereign immunity, but the insurance carrier could be prohibited from asserting the defense 
when a tort claim is filed. 



13 



If Congress is concerned about individuals who contract with Indian tribes but lack the 
resources to determine and address the existence of tribal sovereign immunity, a carte blanche 
federal waiver is akin to using an axe instead of a scalpel. Instead, tribes might be required to 
provide documented notice to their contractors, prior to finalizing any agreements, that the tribe 
possesses sovereign immunity. Each individual contractor can then negotiate whatever tribal 
waiver may be appropriate in the circumstances. I would emphasize our view, however, that even 
such a notice requirement seems unnecessary, as tribes routinely waive their immunity on a 
limited basis in their commercial agreements. 

In the area of civil rights and property rights, Congress could spare the massive harm of 
S. 1691 by instead considering, in government-to-government consultation with the tribes, possible 
revisions to the Indian Civil Rights Act. Before going further with this discussion, I emphasize 
that the possible approach suggested below represents solely my own views in an attempt to open 
a government-to-government dialogue. These views are not necessarily the views of my clients 
or of others in Indian country. 

Although the hard evidence shows that tribes are waiving their immunity and protecting 
the civil and property rights of non-members through various means, current jurisprudence still 
holds that the Indian Civil Rights Act did not create a private cause of action against tribes for 
alleged violations of the Act. One possible approach worth exploring would be to clarify that in 
fact the ICRA does create a cause of action in tribal courts. Another, obviously more 
controversial concept to explore would be to permit limited and carefully defined review of tribal 
court judgments by the federal courts. This review would proceed from the concerns expressed 
by the Supreme Court about fundamental fairness. 2 * 

Many other commentators have ideas about the extension of federal court review to tribal 
court decisions linked with a clarification of tribal jurisdiction, instead of the current patchwork 
of civil and criminal jurisdiction. I urge this Committee to hear the views of many others on this 
subject. It is a subject of vital importance to Indian country and merits focused congressional 
consideration. In exploring this possibility, however, it is imperative that Indian tribes be 
consulted on every aspect of these issues, on a government-to-government basis. Such changes 
should not be unilaterally imposed on the tribes by peremptory legislation. 

Even the mere suggestion of federal review of tribal court ICRA decisions is highly 
controversial, and I am compelled to repeat my two initial disclaimers. First, I believe no federal 
legislation is necessary at this time, including changes to the ICRA, because Indian country itself 
is developing administrative and judicial avenues to ensure that the rights of all persons-Indian 



"Once framed as a genuine dialogue on this subject between Congress and Indian country, 
some of the specific details that might be discussed could include restoring Oliphant jurisdiction 
to the tribes in exchange for federal court review; the scope of such review (for example, ensuring 
that issues like membership and tribal elections stay where they belong, strictly within tribal 
jurisdiction); necessary exhaustion of tribal appellate remedies; the mechanism and standards by 
which issues can be brought to federal court (e.g. , by certiorari rather than automatic appeal); due 
consideration of applicable tribal law and custom; and deference to the tribal court's findings of 
fact. 

14 



and non-Indian-are protected. Second, my musings about permitting limited federal court review 
of tribal court ICRA decisions are just that-my own personal thinking out loud to stimulate 
debate and the development of creative--not blunderbuss-solutions. These thoughts are solely 
my own and should not be imputed to my clients or to any other tribal leaders. 

This concludes my prepared statement. I am pleased to answer any questions the 
Committee may have. 












i 






15 




208 



Quinault Indian Nation 

POST OFFICE BOX IN Z TAMOLAH. WASHINGTON 9BM7 t TELEPHONE (200 27M211 



TESTIMONY ON BEHALF OF 

THE QUINAULT INDIAN NATION 

by JOE DE LA CRUZ 

United States Senate Committee on Indian Affairs 

Field Hearings On Senate Bill 1691 - Tribal Sovereign Immunity 

April 7, 1998 

Seattle, Washington 



Mr. Chairman, and members of the Committee. I am Joe DeLaCruz, former President and 
Executive Director of the Quinault Indian Nation, positions which I held for 24 years. 

• I have served as President of the National Congress of American Indians, the President of 
Affiliated Tribes of Northwest Indians, and as Co-Chairman of the National State-Tribal 
Relations Commission. 

• I have also served on numerous local, county, state and regional and international boards 
and task forces, including the Governor's Indian Advisory Committee, State of 
Washington; Federal Water Rights Policy Task Force; a Congressional Appointment on 
the National Commission on American Indian, Alaska Native and Native Hawaiian 
Housing; North American Representative of the World Council of Indigenous Peoples. 

• In addition, I have served on state and federal legislative task forces and was 
instrumental in the development of key legislation in Indian Country, including: the 
Indian Child Welfare Act; the Indian Self-Determination and Educational Assistance 
Act; and the related amendments through Title I V-the Self-Governance Act 

1 appreciate the opportunity to come before this Committee and present a brief chronology of 
events that include a series of what I call bad legislation, that was pushed by "courthouse-to-the- 
Whi te-house-politics" — in other words people who wanted the little resources Indian people had 
left after treaty-making with the United States government. I will also highlight some of the 
good legislation, beginning in 1964 with the U.S. Great Society Legislation that created the 
Office of Economic Opportunity (OEO). This legislation was the first in our relationship with 
the United States in which a commitment was met towards building resources to strengthen 
tribal governments promised 150 years earlier. 



209 



Bad Legislation 

The Quinault Indian Nation signed a treaty with the United States, known as the Treaty of 
Olympia where the Quinault Indian Nation ceded several million acres of its former homeland in 
return for a promise that the United States would set aside a reserved territory for the exclusive 
use and occupation of Quinault People. The United States set the first reservation boundary in 
1 873, and in 1 889, President Grant issued an Executive Order defining the present-day 
Boundary. (SEE MAP 1) 

In 1 891 , United States surveyors completed a survey of the Quinault Indian Nation and deleted 
17,000 acres of land that was Quinault Reserved land. This was the first diminishment of our 
lands. (SEE SHADED AREA, MAP 1) 

In 1887, Congress passed the Dawes Act, known by many as the "Conquer and Divide Law". 
This law allotted individual Indian lands for the purpose of farming 

The United States government did not complete surveying and setting reservation plats for 
allotment until early in the 1900's. They issued 500 allotments on the river bottoms of the 
Quinault and Queets rivers. Tribal leaders opposed allotting the reservation, because it was not 
suitable for farming — it was all forestry land. 

In 1922, the Quinault Tribe passed a Constitution laying out how they would govern themselves, 
developing a set of rules and procedures and officially demonstrating their government 
establishment to the outside world. The Quinault leaders, with support from local people and 
the Bureau of Indian Affairs, were able to stop the allotment process, and attempted to get the 
remainder of reserved lands in a Forest reserve for Quinault People. However, in 1924,Tommy 
Payne, a Quilleuyete Indian, filed a lawsuit to open allotment on the Quinault Reservation and 
prevailed. So, once again, allotments resumed. Tribal leaders, again, opposed allotments, and 
the allotment process was stopped yet again. But, in 193 1 , Halbert, a Chinook Indian, filed 
another lawsuit, and prevailed The law suit supported the claim mat stated Indians did not need 
to live on the reservation in order to be entitled to an allotment. By 1932, the entire Quinault 
Reservation was allotted (SEE MAP 2) 



Termination - Public Law 83-280 

From 1932 to 19S3, almost all the lands remained in Indian ownership, except for approximately 
3,000 acres. Then, in 1953, the United States passed Public Law 83-280, known commonly as 
the Termination Act" Washington State passed enabling legislation in 1957 (HB 404 - Chapter 
240, Laws of the State of Washington), and further amended state law in 1963. These laws 
provided for the state to assume criminal and civil jurisdiction over certain Indians, their 
reservations and their lands. 1 reference this law because no appropriation was ever made by the 
Federal or State gove rnm ent s for the jurisdiction they assumed in 1957. It took the Colville 
Tribe 33 years to get mis jurisdictional nightmare corrected with legislation which was passed in 

Testimony - Joe DeLaCruz Page 2 

April 7, 1998 - Seattle, Washington 






210 



1986 (See Public Law 83-280 - -A Report Prepared by American Friends Service 
Committee") 

Soon after the passage of Public Law 280, it appears many companies (both timber and land 
development) and politicians were lined up at the Reservation borders to capitalize on the 
Quinault Reservation untouched lands and resources Oddly enough, it was these same timber 
and land development companies and politicians who convinced Congress to enact the 
Termination Act. 

Lands Lost and Anti-Indian Property-Owner's Associations Proliferate 

Between 1953 and 1965, approximately 50,000 acres of Quinault Reservation land went into 
non-Indian ownership, mostly to timber companies. (SEE MAP 3). In 1962, 1964, 1967 and 
1969, real estate developers had massive development tracts approved by Grays Harbor Counfy- 
-including the Taholah Ocean Tracts and Point Grenville Estates (SEE MAP 4). A realty 
company called Santiago Realty handled sales on these tracts of land in these developments — 
they falsely advertised beach rights, clam-digging, surfing, and bear and elk hunting in their 
promotional ads. They sold 75% of the 592 lots by 1968. 

The property-owners who purchased lots went to Grays Harbor County to obtain a septic system 
permit They received a provisional permit that was stamped "Subject to approval of the 
Quinault Tribe". The fact is, that all the land in the area of the proposed development site would 
never pass septic perculation tests due, in part, to high water tables and high clay content, and 
other problems inherent in beach frontage property. Nevertheless, the Quinault Nation complied 
with the requests and had Indian Health Service sanitation engineers perform standard 
perculation tests. However, the tests revealed that the land proved unsuitable for septic drain 
fields, and Quinault Nation subsequently denied the permits. In so doing, the Quinault Indian 
Nation acted as a responsible government to protect its people and its resources — the clam 
beaches. The developer and property owner disagreed and, in 1968, a man by the name of 
George Garland of Gig Harbor, Washington, and woman named Betty Morris, organized the 
Quinault Property Owners* Association, with a Seattle address. 

These individuals spearheaded organizing other property rights groups such as the Lummi 
Property Owners' Association (headed by Marlene Dawson), Association of Property Owners 
and Residents in Port Madison Area (APORMA), Suquamish Reservation; Interstate Congress 
for Equal Rights and Responsibilities (ICERR) established in 1976 — (the key organizers were 
again, Betty Morris, Howard Gray and Ron Erickson, all from Washington State); United 
Property Owners of Washington (UPOW); Protect American Rights and Resources (PARR); and 
Citizen Equal Rights Alliance (CERA). 

The leaders and organizers of these organizations claim to represent all property owners, which 
they do not. They have been blaming the tribes and the BIA for stopping their developments. If 
the tribe had not taken action 30 years ago, they would have now have 600 failed sewage 

Testimony - Joe DeLaCruz Page 3 

April 7, 1998 - Seattle, Washington 






211 



systems running raw sewage into the tribal clam beaches. Their refusal to succumb to the 
political pressures was an act to protect one of its most valued shellfish resources. Additionally, 
the tribe realized the major potential public health and safety problem posed by the proposed 
developments. 

The Quinault Indian Nation has been the only responsible government working with other 
governments to solve the problems created by bad state and federal laws. In the Tribal struggle 
for survival, we have been dealing with the anti-Indian movement for over 30 years. These 
groups blame the Indians for the depletion of the salmon and other renewable resources. They 
accuse the Indians of denial of due process of law, denial of equal protection, denial of rights of 
residency, denial of full use and protection of property, denial of protection from pollution, 
denial of personal rights. However, there is no record of any kind behind these allegations, nor 
has there been any attempt to resolve them at the tribal level. 

Good Legislation 

In 1 934, after all the problems created by the Dawes Act, and a study entitled the "Miriam 
Report," Congress passed the Indian Reorganization Act — an Act to help rebuild tribal 
governments and regain or consolidate their former land holdings. In 1964, the United States 
Great Society Legislation created the Office of Economic Opportunity (OEO). This marked the 
beginning of re-emerging tribal governments. Tribes were provided small grants to begin 
developing their infrastructure and tribes began working with counties and other units of 
government planning and development needs for Indian lands. Following this, funds became 
available from the Housing and Urban Development for 701 Land-Use Planning, and from the 
Economic Development Administration for economic planning. The Quinault Indian Nation 
adopted some of its first planning and regulatory land use zoning in 1966. In 1968, the Johnson 
Administration began listening to tribes regarding their right to self-determination, and became 
the first Executive advocates of self-determination for tribes by the United States. 

In 1970, President Nixon issued his Executive Statement on self-determination affirming the 
rights of Indian People, to freely choose their economic and political future. The Quinault 
Indian Nation, with the help of grants from the Ford Foundation, began developing Tribal Codes 
to better manage the forest lands and streams on the reservation and amended the Tribal 
Constitution and various zoning laws 

In 197S, when the United States passed the Indian Self-Determination Act, the Quinault Indian 
Nation was among the first tribes to begin assuming contracting for responsibilities over its own 
affairs. During this same period, the U.S. passed laws creating national legislation, under the 
Law Enforcment Assistance Administration, and tribes were included. The tribe took this 
opportunity to further develop its own Tribal Code of Laws and enhance its criminal justice 
system. 



Testimony - Joe DeLaCkuz Page 4 

April 7, 1998 - Seattle, Washington 



212 



In 1983, President Ronald Reagan, re-affirmed President Nixon's policy on Indian Self- 
Determination and further strengthened the statement that the relationship was a govemment-to- 
govemment relationship with the United States government. 

Between 1987 and 1989, Congress passed resolutions Senate Resolution 76 and the 
corresponding House Resolution. These Resolutions were the first legislative expression 
recognizing the tribal rights to self-determination and government-to-govemment relations 
between tribes and the United States. I point to these Presidential Executive statements and the 
Resolutions, because for the first time in the history of the United States, we have a legislative 
and executive expression of how the true relationship is between tribes and the United States 
government. 

In 1989, tribal leaders, working on a statement for the bicentennial of the United States 
Constitution, and the constitutional relationship to tribes, worked with Congress, to develop the 
Self-Governance Legislation, which was enacted as a demonstration project in 1989 and is now 
permanent legislation for the Deparment of Interior. Again, the Quinault Indian Nation was on 
the cutting edge of this new and developing legislation. 

In Washington State, the Quinault Indian Nation with other tribal leaders, helped spearhead the 
Washington State Centennial Accord signed by Governor Booth Gardner and by 25 of the 
federal ly-roecognized tribes in Washington State. A copy of the Accord is included in this 
report. It develops a mechanism for sovereign governments to solve problems. 

In 1989, the United States Senate Indian Affairs Committee, held hearings on land and forestry 
problems on Indian Reservations, created by the Dawes Act, such as the checkerboarding of 
reservations, the undivided interests created by heirship problems throughout reservations, etc. 
Senator Dan Evans of the Senate Indian Affairs Committee, proposed legislation to return the 
North Boundary, lost by the survey error in 1 891 to the Quinault Indian Nation. The legislation 
specified that proceeds go toward land consolidation of these checkerboarded properties. Since 
1989, Quinault Indian Nation has purchased back 56,702 acres, through land consolidation 
efforts, made possible by a Senate Committee that was committed to resolve solutions instead of 
creating problems. (SEE MAP 5) 

I have highlighted some of the Executive Orders and laws embracing the development of 
govemment-to-government relations. In my text, and for the record, I want people to look at the 
Centennial Accord, which has been embraced by the past three governors, the TFW (Timber- 
Fish and Wildlife) agreement that was worked on by tribal governments in cooperation with 
other state agencies, industry, the environmental community, and other stakeholders. 

I have brought with me today other documents that are too large to put into the record that are 
examples of where we are today as a government. These documents clearly show that we have 
been working with other governments and working towards a fair process to solve problems for 

Testimony - Joe DeLaCruz Page 5 

April 7, 1998 • Seattle, Washington 



213 



all citizens. I brought these documents as examples of government-to-govemment relations can 
accomplsih, where people, working together, in mutual respect, have solved problems even with 
impediments created by a history of bad laws. 

As I pointed out earlier, for the past 30 years, people who warn the little resources we have are 
painting a picture that we treat people unfairly. However, our tribal court records, our planning 
records and our Tribal Business Council records do not show that any of these individuals have 
brought their situations to us anywhere in our system. They have not utilized any portion of our 
due process, therefore they were never wronged. Like any other government, the Quinault 
Indian Nation is covered by tort claims, and relevant malpractice insurance for employees 
working in any area of potential governmental liability. The Tribe has adopted, within its code 
of laws. Title 99, which lays out specific provisions for waiving sovereign immunity for specific 
actions. Additionally, the Tribe has laws in place to protect lending institutions and other people 
or agencies that have business of a financial nature with the Tribe. 

Conclusion and Recommendations 

The last 1 50 years are full of examples of hastily drawn and narrowly conceived legislation that 
ultimately create negative consequences for Indian people and non-Indians alike. While these 
negative consequences are not necessarily intended, it was often the hasty conception of 
legislation that produced negative results. The present legislation is both hastily drawn in the 
heat of political passion and narrowly conceived to serve the interests of just a few individuals 
while adversely affecting the lives of hundreds of thousands of Indian people. Immunity from 
suit for governments is conceived as a time-honored and proper method for protecting the 
interests of a political community from narrow and sometimes dishonorable attempts for 
individuals to take for themselves at the expense of many. Indian nations have the same right as 
the United States of America and each of its fifty states to protect the public interest. This right 
is guaranteed under international legislation to which the United States is a formal party. 

The key to the solution in this case is cooperation and respect. We have just recently celebrated 
the Centennial in Washington State, the bi-centennial in the United States, and the 
quincentennial of the First Association of People of the Americas with other people. We could 
have reflected the deplorable history of treatment of our people. Instead, we shared the progress 
that has been made in the last three decades. Therefore, this legislation should not go any 
further. The United States should continue the path of strengthening tribal governments, and 
together, establish once and for all, tribal structures of government within the structure of the 
United States. 

I hope that this brief chronology will show that we have long-established sovereignty. Just 
maybe the Indians can show a way to other governments, including the United States, to work 
together with mutual respect I would like to emphasize respect, to resolve our differences. 
Consequently, this legislation should not go any further. 



Testimony - Joe DeLaCkuz Page 6 

April 7, 1998 - Seattle, Washington 



1 



214 



US Acts and Policy Affects in Indian Country 

Quinault Government Example (1855 to 1989) 



Chronolofi) Policy Actions Indian Non-Indians \ 


1855 


Treaty between Quinault and 
USA 


Reduced Quinault territorial base to 
small proportion of historical use area 
and placed member* of neighboring 
tribe* in Quinault territory and 
restricted Quinault use of original 
territories 


Removed some non-Qumaurt 
tribe* or individuals from the 
North-South Corridor running 
south from Pugat Sound to the 
Columbia River making way for 
railroad construction and 
increased US government land 
holdings in the Pacific Regren 


1873 

(Map#1 of 

Reservation 

Boundane*) 


Reservation Boundaries set 


Defined a land-base protected from 
non-Indian encroachments and 

ensured substantial water resources, 
timber, wildlife, fish, etc. 


Increased access to original 
wilderness containing large 

quantities of timber 


1887 

(Map#2 of 
Reservation and lands 
affected by Act) 


Dawes Act (General Atotmerrt 
Act) 


Reduced individual Indian and tribal 
land-base and opened land* for non- 
Intxan occupation inside reservation 
boundaria*. 


Opened on-reservation lands to 
non-Indian ownership and 
occupation. Most non-lndons 
are married to Indians and act 
as members of Quinault society 


1885 


Major Cnmes Act 


Unilaterally extended US jurisdiction 
over crime* on Indian reservations to 
include Murder, Manslaughter. Rape, 
Assault with Intent to kit, Arson, 
Burglary, Larceny, etc. placing 
individual Indian* under (tract 
jurisdiction of US for crime* committed 
against non-Indian*. 


Extended US government 
authority into reservations to 
protect non-Indian individuals 
under US laws instead of tribal 
law*. 


1889 

(Map#l of Quinault 
Reservation as 
defined under 
Executive Order) 


Reservation Executive Order 


Formalized the establishment of 
reserved lands for Quinault* and 
permitted increased numbers of non- 
Quinaults to live on reservation land* 


Formalized non-Indian 
ownership of off reservation 
land* and ensured protection for 
Indian* living on reservation 
land*. 


1891 

( Map#1 of Quinault 

Reservation 

diminished) 


Reservation Diminished by US 
error in survey 


Reduced Quinault reserved land base 
by thousands of acres 


Increased US land holding* in 
the rainforest 


1922 


Tribal Constitution 


Though Quinaults had long governed 
themsetve* by custom this established 
a codified set of rules and procedure* 
(recognizable by non-Indian*) for the 
governance of Quinault Reservation 


Established recognizable and 
understandable rule* and 
procedures by which the 
Quinault reservation « 
governed. Non-Indians 
participate in suggesting 
language and provisions. 


1932 

( Map#2 of Quinault 
Reservation 


General Alotment of Quinault 

Reservation 


Large tracts of pnme coastal land 
(parbculary in the NW of the 
reservation) are taken out of tribal 
control and sold at very low price* to 
non-Indians. 


Non-Indians unrelated to 
members of the Quinault begin 
moving in increasing number* to 
Quinault reservation or 
becoming "absentee land 
owners' otherwise Irving in 
Aberdeen, Tacoma, Seattle or 
some other remote location 






Chroaotofj of Events: US Act. and Policy Affects in Indian Count r> 
Paget 



215 



Chronology Policy Actions Indian NJon Indians ] 


1953 


PL 280 - Termination Era 


Posankaly extends the jurisdiction of 
the State over various Indian 
reservations, but the US Congress 
conveyed no money with the potential 
jurisdictional transfer so jurisdictional 
authorities are increasingly confused 
on the reservation 


Non-Indian state governments 
received the authority from 
Congress to exercise jurisdiction 
inside Indian Country, but no 
funds are provided. The powers 
of the state of Washington over 
Indian Country are increased 
though much confusion 
develops over the exercise of 
these powers 


1956 


Quinaut Tribal amendment of 
the QumeuR Constitution 


Expand Tribal Participation- 
Constitutional change 


No direct affect on non-Indian 
interests or rights 


1960 


US Land Sales and Developer* 
push for more tand saies on 
Quinaut Reservabons 


Inolans are not advised of developers' 
plans and the* affects on Quinaut 
landrrterestfindMdualortnbal) 


Non-Indiana gain access to land 
on the Quinaut reservation but 
are not advised of limitations on 
the possessory rights or about 
the lack of perked land m the 
ptannad development araaa in 
and around Tahotah 


1964 


US Great Society LegjeMon: 
Office for Economic 

Opporruntty (OEO) provides 
smel grants 


Estabsshment of Tribal Planning 
Commission (Indmn and Non-Indian 
Membership) 


Non-Indians are grven direct 
aocaas to davatopmant planning 

ofmeQusiaufllndannatton 


1966 


QumautCound enacts 
Zoning Orxanancaa, Modi 
Home Traaar Orolnancae, Non 
vobng mambarahipon Grays 
Harbor County Planning 
Commaaaon 


Tribal and mdMduai Indian lands and 
resources given protection under 

advanced notice of non-tnoian plans 
for development in Grays Harbor 
County and advae on what is 
appropriate and what a not 
appropriate 


Non-incsan tanda am protoctod 
along ajllh aaaaH lands, tribal 
participation in County ptanning 
haflpad foster cooperation and 
lapraaentaaon of non-Indian 
and today, ffnaraato. 


1966 


Johnaon Adnaraatraaon 
advocates *aet-oaaainnaaon 
pcacy* for I ndten country; 
Tribal/Stale tafcs on PL 280 
RMioootson 


Qumsuts gain more dVect access to 
US government aeeatance and have 
mora mdependent ebaty to exercise 
self -government 


non-Indian tanda and intonate 
coma undar mora cfiract tribal 
junadtaaon and protecaort 


Ma 1960s 


LaaBaMH Oavatopara prat and 
Ml todi to f>on-»nd«n« **hout 
adequate effort to parte. County 
gfcraa porvnaa to oavatopara 
'subject to Quinaut Nation 
approval," on lands that donl 
parti Quinaut ftoraaa parmaa, 


Inolans do not have <*rect access to 
lands bang proposed for development 
insJds the rsaetvaaon. 


Masad by oavatopara to apand 
thatr money on Lands that war* 
not adequate for aaatornant, 
indMduaa) loat monay and that* 
righto 


1989 


Tribal Govaroant Ctoaaa 
baachaa to non-indian* to 
praaarva ocaan wet tanda 


Indians hava mora bnaad access to 
beaches for dam dQQing, crabbing 
and ether feed gathering. 


Non-lndsana prevented from 
uaing beach fronte to thar 
ajajpaaaal without tribal 
govarnment parmiaaon. 


1970 


SatT-Oatarmoabori Posey 
Praaktont Nann :US Exacuava 
r*oscy ararmmg tne ngnoi or 
Indian peoples to fraety choose 
VMs own social, economic and 


Quinaut and other Indian nations 
mow* to Insltuto new tribal 

governmental responasxabes for 
goverrang the Quinaut Reservation 


non-lndjBna gwan aoMaoiy rates 

in Qusvaut government, but 

govsrnmenteJ authonty on a*s 
reeenratton. 


1974 


Qumaut Government 
netfcjsssTnbe! Codas, Tribal 
Conaatuoonat Amendments- 
TribaJ Forestry PracScss Act 

federal, US Federal Courts 
recognce Quinaut 
government s management 


Graatsr control and regulation of tnbal 
oaf Ma services and increased 


Mont apadac rastneaon of non- 
Indian uaaa of pnvate Landa in 
accofd vain tribal planning 

oojocevaa lor the Quinaut 



Caraeilipr ef EvewM: IS Art» — d Peaky Affect* la 



216 



Chronology 



Policy Actions 



Inaan Sen-Determination ana 
Education Assistance Act 



Quinaurt government oxectry 
'contracted" to deliver services on the 
reservation tor Indians and non- 
Indiana while US government 
procedures forced tribes into greater 
dependence on BIA administration 
and control 



Non-Indians 



Received greater number of 
services including Are protection, 
waste disposal and emergency 
health aa wet as improved 

schools 






Government-tc-Government 
Pokey: President Ronald 
Reagan 



Reopened negotiation procedures 
between Inotens and the United States 
(long foreclosed since 1871) so 
Inctens could directly participate in the 
decision-making affecting their lives 



Gained a forum to directly 
negotiate with Indian 

governments and since the 
Qumault government was 
among the first to initiate efforts 
to establish a government to 
government framework, non- 
Indians at Qumault increasingly 
had an open and direct channel 
va the United States to deal with 
concerns and interests 



Negotiation of Compact of Serf- 
Governance, Self -Government 
Policy Centennial Accords 
between Indian governments 
and the State of Washington 
establishing a working 
framework for government to 
government relations Self- 
Govemment Compacts 



Quinaults assume direct responsibility 
for social, economic and political 
development on the reservation and 
resources are more directly put to use 
in support of tribal plans. Cooperation 
between Washington State Executive 
and Tribal Executive improves social 
services. 



New roads, facilities and Wing 
spaces improve access to the 
Qumault government and 
delivery of services suitable to 
non-Indian interests on the 
reservation. 



127 Lawsuit concerning fisheries issues from 1920 - Present Miaons of doters in expense to defend tribal fisheries jurisdiction 



■ 



ad 

























•■ 
























■ 






Cataaslipr eft vase US Acts ajaj Fastey Affects at lasHaa C— try 



217 



I 



MAP#1 



Quinault Reservation Boundary established 1873 




Reservation in 1873 Executive Order 
but lost In 1891 survey. 15285 acres 



Reservation after 1891 survey, 
195025 acres, including lake 



M«r* It, MM K> 31 1 



Quinault Reservation Allotted, 1907-1932 






Allotted land. 191106 acre* 

Quinautt Indian Nation Lands, 
3919 acres 



219 




MAP #3 



Fee Property on the Quinault Reservation prior to 1988 




Fee allotments, 58910 acres 
Trust allotments. 124344 acres 
Quinault Indian Nation, 11770 acres 



220 




SCENARIO 

You live in the United States. You have a 
home and twenty acres. Your grandparents 
left you this land which they had reserved for 
themselves, when they gave away 20,000 
acres to the state. They reserved it for 
themselves and their heirs in perpetuity..: 
"For as long as the rivers run and the grass 
grows." 

It is 1 976 now and this is what it is like to live 
on this land left for your exclusive use. 



Someone enters your living room and steals 
your chair. You call the local police. "Sorry," 
they say, "Your living room is not in our- 
jurisdiction. Call the state police." (The state 
police are located 20 miles away.) & 
The state police arrive but by then the thief is 
gone. At that moment another person enters 
the house, this time the kitchen. This person 



takes your toaster. "Quick, police!" you cry, 
"Catch the thief. "Sorry," say the state 
police, "we have no jurisdiction over your 
kitchen, you will have to call the federal 
police." 

The federal police arrive. "Oh dear," they 
say, "this person is a juvenile, the state has 
jurisdiction over juvenile delinquency, not 
us. You will have to get the state police back 
again." So saying, the federal police depart. 
Meantime, a fight breaks out next door and 
the combatants come onto your land, you 
call the local police. The local police arrive. 
"Sorry, they say, "we have no juris- 
diction over', these- people, they are 
non-family members. Yes, we have jurisdic- 
tion over your family, and this piece of land, 
but these people are not members of your 
family and we cannot arrest them." 
Fiction? Fantasy? A fairy tale? Not if your 
home happens to be an Indian Reservation 
in a state that adopted... 

Public Law 83-280 



221 



Some Cases Under PX. 280. 






1. Bryan v. Itasca County. 44 L.W 4832 (June 14, 1976). 

The United Stales Supreme Court held that Public Law 83-280 does not give Itasca County, Minnesota, jurisdiction to 
impose personal property tax on a mobile home belonging to an enrolled Chippewa Indian, used as his permanent home 
and located within the Leech Lake Reservation on trust land. 

2. Omaha Tribe of Indian, v Peters. 44 L.W. 3746 (June 29. 1976). 

By summary order the United States Supreme Court vacated the judgment of the Eighth Circuit Court of Appeals and 
remanded it for further consideration in light of Bryan v. Itasca County 426 U.S. (1976.) 

Quileute Indian Tribe v. State of Washington, U.S.D.C. WE. Washington. Civil No. C 74-7615. 
Issue: Does Public Law 280 authorize the state of Washington to apply its sales, use, business, occupation and cigarette tax 
laws to the activities and property of plaintiff tribes and individual Indians within federally recognized reservations in 
situations where, absent Public Law 280, an immunity from taxation would exist. 

4. United States v. State of Washington. U S.D.C., EX). Washington. Civil No. 3909. 

Issue: Whether Public Law 280 gives the state of Washington the authority to impose its excise tax laws on transactions of 
mbally licensed retailers on the Yakima Reservation on their sales to Indians and non-Indians. 

5. Confederated Tribes of the CoKilfe Indian Reservation v. State of Washington 

Issue: Whether Public Law 280 gives the state of Washington the authority to impose its excise tax laws on transactions of 
tnbally licensed retailers on the Yakima Reservation on their sales to Indians and non-Indians. 

6. Santa Rosa Band of Indians v. Kings County. U.S. Court of Appeals. Ninth Circuit, Civil No. 74-1565. decided 
November 3. 1975. 

Petition for rehearing was denied at some unspecified date. The case held that Public Law 83-280 does not make county 
ordinances applicable inside Indian Reservations, but only state laws of general application throughout the state. 

7. Qulnauh v. Gallagher. 387 U.S. 907 

in this case the Ninth Circuit Court of Appeals held that the question of whether Washington had complied with state law in 
assuming Indian jurisdiction was a state question which had been decided by the state Supreme Court in the Paul case and 
the Makah case. 

8. Snohomish v. Seattle Disposal Co.. 389 U.S. 1016. See 425 P. 2d 22. 

This case turned on the state Supreme Court's saying that zoning by Snohomish County would constitute an 
"encumbrance" on trust lands in violation of federal. So the case really did not turn on Public Law 280. However, the 
question is now decided by Santa Rosa v. Kings County. 

9. Kenneriy v. District Court of the Ninth District of Montana. 404 U.S. 823. See 90 Cal. Rptr. 794. 

In this case the tribal council of Blackfeet Reservation voted to give the state jursidiction The Supreme Court however held 
that such jurisdiction could not be assumed by the state without specific compliance with Public Law 83-280. 









222 



Each room In this fictional home represents a 
geographical and Jurisdictional entity on an 
Indian reservation. Trust land. Fee Patent. 
Individual Indian owned land, are under 
differing Jurisdictional authority (Tribal. 
Federal. State and County). 'Checkerboard' 
Jurisdiction causes great problems for tribal 
governments and tribal members. There is a 
crucial breakdown in law enforcement with 
agencies being unwilling to take responsibility 
and thereby creating a vacuum of authority. 
The tribes have Indicated their willingness to 
fill this vacuum but are often denied the 
Jurisdictional authority as a result of PL 
83-280. 



PUBLIC LAW 83-280 



. 



A REPORT 

PREPARED BY 

AMERICAN FRIENDS 

SERVICE COMMITTEE 



■ 

TRIBAL SOVEREIGNTY... 
does it exist? If so, how much exists? 



When the Europeans arrived in this country the sole 
governments that existed were obviously those of 
Indian tribes. This would mean that the Indian tribes 
at that time possessed SOVEREIGN JURIS- 
DICTION. 

As the time passed the jurisdiction of the tribes was 
eroded by various U.S. Acts and treaties. The law 
confirmed, however, that the Indian tribes still 
possessed rights and ownerships unique and 
sovereign. 

As a result of Worcester v. Georgia (1832) the 
sovereign jurisdiction of Indian tribes was limited to 
"internal" as opposed to "external sovereignty", but 
the "internal sovereignty" was emphatically 
confirmed. (Internal the right to govern members 
within boundaries. External matters, i.e.. trade, was 
the responsibility of the federal government.) 

In 1889 the Northwest Ordinance recognized the 
Possessory Title of the Indian tribes 

The 1834 Act of Congress confirmed that Indian 
land could only be obtained through treaties and 
conventions pursuant to the US Constitution. 






In the case of Ex Parte Crow Dog (1881) the U.S. 
Supreme Court held that only the Indian tribe had 
jurisdiction over tribal members on the reservation. 

The Enabling Acts of States entering the Union 
often contained a clause that disclaimed jurisdiction 
over Indian lands within the State. 

Treaties between the tribes and the United States 
invariably specified the land the Indian retained for 
themselves while they gave to the United States most 
of the land that they possessed. It is worthwhile 
noting that the reservation lands owned by the tribes 
today are only a small fraction of the land that once 
was theirs and that the reservation lands are not a gift 
from the United States but were reserved by the tribes 
for their own exclusive use. Hence the word 
"reservation" came from the fact that the Indians 
reserved lands rather than having been given them 
by the federal government. 



EROSION OF TRIBAL SOVEREIGNTY 

or "If you can't steal 

power away. ..legislate it away." 



In 1869 Congress authorized the President to settle 
tribes on reservations and "civilize" them. 



223 



1885 Major Crime* Act 

After the Supreme Court ruling of Ex Parte Crow 

Dog the U.S. extended federal jurisdiction over 
crimes on Indian reservations to include Murder, 
Manslaughter, Rape, Assault with Intent to Kill, 
Arson, Burglary, Larceny. (These seven crimes have 
since been extended to thirteen). The results of the 
Major Crimes Act was to emasculate the authority of 
the tribal court system and the tribal government. 

1887 The General Allotment Act 

This Act authorized the alloting of the tribal lands to 
individual tribal members, the land to remain in trust 
for 25 years. Ostensibly the reason for allotment was 
that the tribal members would become self- 
supporting members of the community, i.e., farmers, 
a life occupation totally at odds with their historical 
ways of making a livelihood. The result was that after 
the twenty-five year trust period the land became 
eligible for state taxes. Too often the Indian owners 
were unaware of the taxes or unable to pay them, 
and land thus became available for sale to 
non-Indians. A direct result of the Allotment Act has 
been the loss to Indian tribes of over 17-1/2 million 
acres. (Giving up three-quarters of the land mass of 
the United States was not enough; now a large 
portion of the remaining' 1 /2ifell into non-Indian 
hands.) 



The Menominee tribe is another tragic example of a 
disasterous effect of termination. Within a few years 
of termination the Menominees, a tribe formally 
paying for all of Its own services, was reduced to 
having to sell lands to pay taxes. The hospital 
was closed and the infant mortality rate rose 
dramatically. At the time of termination the tribe had 
over ten million dollars in the federal treasury. By 
1964, the fourteen percent of the county which was 
the former reservation area was receiving welfare 
payments. The ten million dollars had been paid out 
in per capita payments and there was no more tribal 
treasury. Menominee termination was repealed on 
December 22, 1973. 

The disastrous effects of termination were soon clear 
to most tribes. As a result, few petitioned the United 
States for such action. PL 83-280 is seen as the next 
attempt of the U.S. government to end its 
responsibility to the Indian people for whom it had 
assumed wardship. 



PUBLIC LAW 83-280 - 

"A noose choking Indian tribes and the 

Indian way of life out of existence 

since 1953" 



TERMINATION ACT - An attempt 
to turn Indians into non-Indians 



1953 House Concurrent Resolution No. 108 
Termination Act 

This Act made possible the "termination" of a tribe. 
Tribes that were deemed ready for termination were 
paid a per acre fee and the unique relationship 
between the tribe and the federal government was 
then ended. What tribes discovered was that the 
termination of the reservation meant the termination 
of federal benefits and services and also the 
termination of the tribe as an institution. 

The Klamath tribe of Oregon was terminated. Each 
Klamath was to receive $43,000 on total termination 
of the reservation and sale of trust land and timber 
assets. Many Klamaths unschooled in the way of 
white finance and money management hocked their 
future $43,000 for a few thousand dollars in 
immediate cash. At the present time the effort to 
restore Klamath has begun. 



1953 Public Law 83-280 

This Act gave to the various states the right to extend 
state jurisdiction to Indian reservations within their 
boundaries. 

PL 280 allowed for the termination of federal law 
enforcement and the substitution of the laws of the 
state in which the reservation was located. Despite 
the vast increase in state law and order responsibility 
there were no funds appropriated with the bill. Lack 
of sufficient funds has often hampered the efficient 
provision of law enforcement. Counties that have 
large reservations within their borders are unable to 
provide sufficient personnel (the Yakima reservation 
was provided with 1-1/4 officers to cover an area of 
1,366305 acres and a population of 5,975.) Juvenile 
crime is szen by most of the tribes to be best 
adjudicated by the community yet in most cases the 
jurisdiction for juveniles under PL 280 rests with the 
state authorities. 

PL 280... What does It authorize. ..What does It 
say 

PL 83 280 was passed by the U.S. Congress August 
15, 1953. This Act authorized the transference of civil 



224 



and criminal law enforcement jurisdiction from the 
federal government to the various states. (The 
concurrent tribal authority still remains the same.) 
The various states were divided into three categories. 

Certain states were granted mandatory assump- 
tion of Jurisdiction. These were: 
I Calif oml« 

2. Minnesota, except over the Red Lake 
Reservation 

3. Nebraska the Omaha tribe retroceded state 
jurisdiction 

4 Oregon, except over the Warm Springs 

5. Wisconsin 

6. Alaska, upon reaching statehood, except for 
criminal jurisdiction on Metlakatla Indian 
community (1970). 

State* with constitutional disclaimers of 
jurisdiction over Indian tribes. 

The following states, despite jurisdictional disclaimers 
over Indian reservations in both their enabling acts 
(by Congress) and their own constitutions, neverthe- 
less assumed PL 280 jurisdiction: 

1. Ariiona. air and water pollution laws only 

2. Montana, criminal jurisdiction over Flathead 
Indian tribe only. 

3. North Dakota, civil jurisdiction over consenting 
tribes, no tribe has to date consented. 

4. Utah, civil and criminal jurisdiction upon tribal 
consent 

5. Washington, civil and criminal jurisdiction in 
eight specific subject areas. Option for tribes to 
request total state jurisdiction. 

States with no constitutional disclaimers 

1 . Florida, civil and criminal jurisdiction. 

2. Idaho, cm! and criminal jurisdiction in seven 
areas. 

3 Nevada, civil and criminal jurisdiction upon tribal 
request. (Nevada has since adopted a law 
providing retrocession of jurisdiction on all of its 
reservations, this is on a county by county basts.) 

In 1968 the passage of PL 90-284 The Indian Civil 
Rights Act made the consent of the tribes 
mandatory for the assumption of further state 
jurisdiction. 

On January 1975 PL 93-638 Indian Self-determi- 
nation and Educational Assistance Act was 

passed by Congress. This Act recognizes the right of 
Indian tribes to manage their own affairs to the 
greatest possible extent and also stresses the need of 
tribes to exercise the principles of self-determination. 



PL 280 is seen by many Indian people as the major 
stumbling block to empowerment and eventual 
self sufficiency. 

Over the years since the passage of PL 280 the 
Indian tribes have found the confusion of jurisdiction 
and the encroachment of the states into Indian 
reservations, has caused grave problems in the 
management of tribal affairs State encroachment 
under the PL 280 authority includes zoning, pollution 
control, taxation, health and safety regulations, etc. 
Taxation encroachment has been halted due to the 
U.S. Supreme Court decision in Bryan v. Itasca 
County, 1976. In a 9-0 decision the Court found the 
PL 280 did not give states the right to tax Indian 
reservations. 



RECENT INDIAN ACTION 

ON PL 280- S2010 
Indian Law Enforcement Act of 1975 



The National Congress of American Indians met in 
Denver, February 1975 and resolved that PL 280 
constituted a major threat to tribal sovereignty. As a 
result of the Denver meeting the tribes and their 
attorneys drafted legislation entitled "Indian Law 
Enforcement Improvement Act of 1975" to be 
known as S 2010. This bill was introduced June 25, 
1975 by Senator Henry Jackson. Hearings on S 
2010 took place December 3 and 4. 1975. before the 
Subcommittee on Indian Affairs of the Committee on 
Interior And Insular Affairs, United States Senate. 
Subsequent hearings wete held March 4 and 5, 1976. 



RETROCESSION...S 2010 

A national Indian answer to PL 83-280 



An analysis of S 2010 states: 

The basic principle of S 2010. adopted by the 
National Conference of PL 83-280 is the principle of 
local option repeal of PL 83280. That is that true 
self-determination of Indian people requires that each 
tribe determine for itself whether all or any measure 
of state jurisdiction should apply in the Indian country 
it controls and whether tribal jurisdiction should be 
current with state or federal jurisdiction. 



225 



On December 3, 1975, tribal leaders came to 
Washington D.C. to present testimony on the 
problems that have resulted from PL 83-280. They 
spoke of the need for a bill such as S 2010. 

Mel Tonasket. President National Congress of 
American Indians, Councilman Colville Con- 
federated Tribes: 

/ have been looking forward to this hearing for all of 
my adult life and I know that many of the other tribal 
leaders here, of far more experience than I, have 
been awaiting this hearing since 1953, the date of 
enactment of Public Law 83 280 Public Law 280 has 
been choking the Indian way of life out of existence 
since 1953. 

Public Law 83-280 is an outgrowth of the termination 
philosophy of the early 1950's. Public Law 83-280 
was not a termination bill, but was one act in a series 
of bills whose eventual design was termination. Public 
Law 83-280 was a law and order statute whose aim 
was merely the transfer to states of jurisdiction over 
civil and criminal causes of action on Indian 
reservations. 

After 22 years, it is now conclusively proven that 
Public Law 83-280 is a total failure by an standard. 
And the termination philosophy which underlines 
Public Law 83-280 Is defunct 

Joe DeLaCruz, President, Quinauit Tribal Council, 
Taholah, Washington: 

S 2010, which you have before you today, is a bill 
which is intended to place the Indian people back in a 
position where they can exercise their rightful 
authority to control the land and the people of their 
reservation as strong governments based upon clear 
legal jurisdiction over their territory and peoples. The 
legislation which took some of that power away, 
Public Law 83-280, adopted In 1953, has been the 
source of endless problems and suffering for the 
Indian people made subject to its provisions. 1 am 
sure that all here today agree that Public Law 83-280 
was a misguided attempt to forcibly assimilate my 
people. The problem today is what to do about it The 
answer of the Indian governments is S 2010. 

Roger Jim, Yakima Tribal Councilman, Toppenish, 
Washington: 

This bill represents the desires of the Indian people 
and should not be found to be objectionable by other 
interests. This bill's basic provision provides that those 
tribes placed under state jurisdiction, by a now 
discredited termination policy, will be returned to the 
same status as Indian tribes that missed the 
consequences of this termination policy. This bill is 
firmly within the policy of Congress and 
administration. 



Roger Jim also spoke to the committee of the 
problems resulting from PL 280 and the confusion of 
jurisdiction on Indian Lands. 

This breakdown is directly caused by the State 
assumption permitted under Public Law 83-280. The 
present system of a partial, checkerboard system of 
justice could not be worse no matter what system is 
devised. Congress owes the people, Indian and 
non-Indian, on the Yakima Reservation that action be 
taken to bring order out of this mess. The foundation 
of this mess is Public Law 83-280. 

Odric Baker. La Courte Oreilles, Wisconsin: 
The state and county judicial systems, its juvenile 
program as well as the foster children laws of the state 
demonstrate a deplorable and inhuman and callous 
disregard for Indian children. The doors of secrecy 
behind which minor tribal members are imprisoned 
constitute a serious violation of their civil rights 
inasmuch as it extinguishes the right to culture and 
family and in some cases disinherits them from lands 
and resources handled by probate courts. The failure 
of the state to license tribal governments in their work 
with foster children and juvenile delinquents results in 
the complete withholding of cooperation and 
information. Legal recognition and jurisdiction is 
considered very important Because of Public Law 
280, the State of Wisconsin is attempting to tax trust 
property of the tribe. In Its efforts to tax, they have 
attached and confiscated tribal moneys held at our 
local bank. 

Lucy Covington, Colville Tribal Councihvoman, and 
since Tribal Chairwomen, Nespelem, Washington. 
Under Public Law 83-280, the State of Washington 
has attempted to assume jurisdiction over juveniles 
on the reservation. Indian children are constantly 
being taken from Indian homes and placed in foster 
care with non-Indians or placed for adoption with 
non-Indian families. 

These children grow up with a sense of alienation 
from the culture surrounding them. Attempts by our 
tribal social services programs to deal with juvenile 
matters have met with opposition from the state 
which resists any efforts of our people to deal with 
these problems by ourselves. In addition, the 
existence of State Public Law 83-280 jurisdiction on 
our reservation has had bad effects in the area of 
criminal jurisdiction. The state asserts Its jurisdiction 
over offenses on the reservation, but refuses to 
provide the manpower necessary to protect the 
residents of the reservation properly. As a result, the 
state has shown very little interest in protecting the 
personal and property rights of Indians, while at the 
same time proclaiming Its jurisdiction over our lives. 



226 



In March 1976. the hearings on S 2010 were largely 
to determine the government position on the 
proposed legislation. The various states were given 
the opportunity to express their feelings on return of 
jurisdiction to the federal government and the Indian 
tribes. John Keeney, Deputy Assistant Attorney 
General Department of Justice had this to say on 
behalf of the Department of Justice: 
We strongly support the concept of Indian tribes 
having the right to decide for themselves whether , 
they are to be under state or federal jurisdiction, and 
that any requests for a return to federal jurisdiction 
should come from the tribes alone. We believe that 
the tribes, rather than the states, should be given the 
option, in an orderly fashion and with reasonable 
control by the Department of the Interior, to return to 
mat criminal and civil jurisdiction which prevailed in 
Indian country prior to 1954 and the enactment of 
Pubhc Law 280. 

James Dolliver, Administrative Assistant to the 
Honorable Daniel J. Evans, Governor of the State of 
Washington: 

Let me begin by saying it is the policy of the 
Governor in the Slate of Washington that we believe 
in retrocession. I mink the record will show in our 
state that the Governor has at least in one instance 
granted retrocession to the Suquamish Port Madison 
Tribe, k was approved by the Secretary of the 
Interior. He was in the process of granting 
retrocession to other tribes who requested. Re- 
grettably, someone asked the question of the 
Attorney General whether inherent executive 
authority rested in the Governor to do this. We 
assumed mat it had, and the Attorney General, after 
much study, said that in fact it did not We felt bound 
by the Attorney General's decision, but that does not 
lessen the Governor's support of retrocession. We 
feel that Indian persons are fully competent to 
conduct their affairs, and if retrocession is what they 
desire, we support it 

Statement of Jack Olsen. District Attorney, Umatilla 
County, Pendleton, Oregon: 

Mr. Chairman, those very principles which we 
consider dear to the hearts of every American citizen, 
those very principles which served as the catalyst to 
the development of this great land •- liberty and the 
right of self-determination ■■ are in fact still being 
denied to that very group of Americans who first 
settled this continent It is inconceivable to me that 
any nation should be denied the right to self-determi- 
nation; and in fact It is stiff being denied here. We 
espouse liberty, yet we deny liberty. It will be a sad 
day for America if this denial is perpetuated. Mr. 
Chairman, on a more practical vein it is essential that 
jurisdiction be returned, at least to the Confederated 
Tribes of the Umatilla Indian Reservation. Our county 
consists of over 3.200 square miles and our 



reservation is some 286,000 acres. With these vast 
areas state and county law enforcement simply 
cannot provide the protection it ought to be 
providing. This applies both to the Indian and to the 
non-Indian living on or passing through the 
reservation. 

The State of Nebraska expressed opposition to 
retrocession. The major faction being the "checker- 
boarding" of Indian and Non -Indian lands and the 
consideration of loss of revenue to the state. 

Ralph H. Gillan. Assistant Attorney General. State of 
Nebraska: 

There is little or no question mat, if this bill is passed, 
the Omaha and Winnebago Tribes, at least will ask 
for civil as well as criminal retrocession. The 
Winnebago Tribe has already asked for both criminal 
and civil retrocession, but this session of the Nebraska 
Legislature declined to adopt the resolution. Since 
the payment of state sales, income and cigarette 
taxes, and probably other taxes, is dependent upon 
the state having civil jurisdiction, there will of course, 
be an almost irresistible incentive for the tribes to 
remove mat jurisdiction. It is very possible that even 
the Santee Sioux will follow suit The Santee Sioux 
Reservation is approximately 220 miles from 
Omaha, so the problems of going to federal court will 
be even greater for persons on that reservation. 

(The question of state revenue gain through taxation 
has been settled with the 9-0 decision, June 1976 in 
Bryan v. Itasca County. The U.S. Supreme Court 
found the PL 83-280 does not grant any taxing 
jurisdiction to states.) 

In the last decade the national policy towards Indian 
tribes and reservations has been stated as that of tribal 
self-determination. In 1968 PL 90-284 Indian Civil 
Rights Act made further state assumption of 
jurisdiction possible only upon tribal request 



SELF DETERMINATION AND 
TRIBAL SOVEREIGNTY 



In 197S PL 93-638 affirmed the principle of Indian 
self-determination. 

July 1976. President Ford met with 200 Indian 
governmental leaders and pledged his support to the 
realization of the goal of self-determination for tribes 
and the reasserbon of tribal jurisdiction over tribal 
lands. 



227 



Despite the many promises there has been minimal 
action to return jurisdiction over Indian lands to those 
most able to assert it -• the Indian people themselves. 

Indian people, both individually and as tribes, are 
united in the desire to govern themselves. The 
destruction of the environment, the decay in the 
quality of life is seen by Native Americans to be the 
result of poor and thoughtless management and 
unacceptable values. It is safe to say that the U.S. 
treatment of both the environment and people of 
alien cultures has not been flawless. Too often 
expediency and lack of understanding have 
destroyed the best of both. Today, the Indian people 
are demanding the rea ssert ion of their right to govern 
both their land and their people. A culture belongs to 
those who love and respect it -- only they can 
preserve the very best aspect for delight and strength 
of future generations. 

WASHINGTON STATE 
UNDER PL 83 280 



Washington State implemented the provisions of PL 
83-280 by legislative action in 1957. In 1963 it 
amended and extended this Act. These two Acts 
have certain very important differences. 

1957 SB 56. The assumption of PL 280 jurisdiction 
which became RCW 37.12.010. The terms of the 
1957 Act show that the State of Washington was 
concerned for the sovereignty of the Indian tribes 
within its borders, a.) The Act could only go into 
effect on a reservation upon specific request by that 
tribe (this was later to become a requirement 
throughout the nation with the passage in 1968 of PL 
90 284, the Indian Civil Rights Act); b.) No property 
was to involved; and, c.) Treaty hunting and fishing 
rights were precluded. There were, however, certain 
grave shortcomings in the Act. a.) No trial period was 
required in order for the tribe to determine the effects 
of state jurisdiction; b.) No method was included to 
allow foT the retrocession of state jurisdiction should 
the tribe, or the state, so desire it 

Eleven tribes requested total state jurisdiction on their 
lands. 1. Chehalis. 2. Muckleshoot. 3. Nisqually. 
4. Quileute, 5. Quinault, 6. Skokomish. 7. 
Squaxin Island. 8. Suquamish. 9. Tulalip. 10. 
Colville. 11. Swinhomish. When the tribes 
requested state law enforcement they believed that 
they could obtain superior services, when they found 
that this was not the case they also found that the 
mechanism for the return of jurisdiction was 
nonexistent. Most of the reservations that requested 
state jurisdiction have since asked that it be returned to 
the federal and tribal authorities. 



1963 TERMINATION LEGISLATION 

IN THE STATE OF WASHINGTON. 

EXTENSION OF JURISDICTION 

WITH NO TRIBAL CONSENT CLAUSE 



The state legislature extended and amended the 
1957 Act by asserting total jurisdiction over all fee 
patent land, and partial jurisdiction over all land 
(tribal trust, individual trust, alloted land and fee 
patent.) With no consent clause required, the 
legislature with one act ignored the concept of tribal 
sovereignty. 

The partial jurisdiction asserted by the State of 
Washington consisted of eight subject areas. 1.) 
compulsory school attendance; 2.) public 
assistance; 3.) domestic relations; 4.) mental 
illness; 5.) adoption proceedings; 6.) Juvenile 
delinquency; 7.) dependent children; 8.) opera- 
tion of motor vehicles upon public streets. 

The obvious cultural implications of these eight areas 
was not lost on the tribes, numerous court cases were 
brought to obtain relief from what was seen as 
cultural strangulation. 

The responsibility for Indian children was taken from 
tribal government and placed into the hands of a 
culture with entirely different standards in child 
raising. The extended family concept is not present in 
the dominant culture yet it is one that is both 
traditional and logical for tribes. 



CHECKERBOARD JURISDICTION. 

The game of confusion in 

law enforcement. 



Only the government that has jurisdiction has the 
legal right to exercise law enforcement. When a crime 
is committed on Indian land in the State of 
Washington it is necessary to determine which 
authority has the jurisdiction ..the tribe, the federal 
government or the state and county government. 
The determination must often be made on the spot 
by a police officer; to do this certain facts must be 
established: 

the status of the land, 

the status of the crime, 

the status of the persons involved. 



228 



a.) The status of the land. Trust the Jurisdiction 
on trust land rests with the federal authorities, the 
tribal authorities and in the eight subject areas with 
state and county authorities. Fee Patent The 
jurisdiction belongs to the state authorities concurrent 
with the tribe. This fact is often ignored by the state, 
b.) The status of the crime. Does the crime fall 
within the eight areas of Jurisdiction assumed by the 
State in 1963? Docs the crime belong under the 
thirteen major crimes under the jurisdiction of the 
federal authorities or is it under the jurisdiction of the 
tribal court? 

c.) The status of the persons Involved. Indian or 
non-Indian, juvenile or adult 
It is small wonder the state and county authorities are 
often reluctant to get involved in the confusion, the 
reluctance, however, leaves the Indian tribes with 
little or no protection, or as Roger Jim of the Yakima 
Nation describes it, The reservation has the law, 
but no order." The tribes have been forced to 

provide law enforcement for their people at great 
expense and met with no recognition by the state of 
their having legal jurisdiction. 



assumption of partial jurisdiction without consent of 
tribes (1963). The Yakima Nation v. Yakima County 
and State of Washington case incorporates the 
argument made by Quinault tribe in Quinault v. 
Gallagher (1966) and amicus briefs compiled by 
every tribe in the state. The legislation presently 
before the U.S. Senate S 2010, has the support of 
every tribe of the State of Washington. The tribes are 
united in their determination to reassert tribal 
jurisdiction over tribal lands. 






RETROCESSION... 
First you see it. then you don't. 



On January 11, 1971, the Suquamish Tribe of the 
Port Madison Reservation presented a resolution for 
retrocession August 26, 1971 and the Secretary of 
the Interior accepted the proclamation april 5, 1972. 

The Quinault tribe believed that the original request 
for state jurisdiction (1958) was illegally obtained. 
Governor Evans voided state jurisdiction on the 
above grounds in 1965. In 1972 the State Attorney 
General was requested to present an opinion on the 
legal authority of the Governor of Washington to 
retrocede jurisdiction to an Indian reservation. The 
Attorney General's opinion (Wash. A.G.0. 1972, No. 
9) noted that he could find no authority to retrocede 
partial jurisdiction over the eight subject areas 
assumed in 1963, neither did he find authority to 
retrocede jurisdiction which had been proclaimed by 
the Governor under either the 1957 or 1963 Acts 
pursuant to a petition by a particular tribe. The power 
of the Governor was confirmed to rescind a previous 
proclamation on discovery of error. 

The result of this Attorney General's opinion has 
been to freeze state jurisdiction over tribes. At the 
present time the Ninth Circuit Court is considering 
the question of the legality of State of Washington 
assumption of jurisdiction by simple legislative action 
rather than constitutional amendment (1957) and the 









229 



BIBLIOGRAPHY 



Books: 



















Uncommon Controversy: American Friends Service 
Committee. Seattle: University of Washington Press, 
1970. reprinted 1975. 

Justice and the American Indian-. National American 
Indian Court Judges Association. Boulder Native 
American Rights Fund. 1974. 

Law and the American Indian: Price, Monroe E New 
York. Boobs Merrill Co.. Inc. 1973. 



Hearing*. Report*. Law Review Articles. 

Goldberg. Carole E. UCLA Law Review. Vol 22. 
Number 3, February 1975. 

Hearings before the Subcommittee on Indian affairs 
of the Committee on Interior and Insular Affairs, 
United States Senate. Ninety-Fourth Congress. First 
session of S 2010. December 3 and 4, 1975. Second 
session on S 2010 March 4 and 5, 1976. 

Report of Indian Affairs Task Force: State of 
Washington. 

Are You Listening Neighbor? State of Washington, 
1971. 















230 



MAP #4 

Taholah Ocean Tracts and Moclips Ocean Tracts 
in Sec20, T. 21 N., R 12, Quinault Indian Reservation 
Approved by Grays Harbor County, 1968 




231 




MAP 



Current Property Status on the Quinault Reservation 




Fee allot m ants, 30853 acres 
Tru»t allotments. 119539 acres 

Quinaulr Indian Nation. 56702 acres 
New Federal Lands 









• 



232 



CENTENNIAL ACCORD 

between the 
FEDERALLY RECOGNIZED INDIAN TRIBES 

in 

WASHINGTON STATE 

and the 

STATE OF WASHINGTON 

I. PREAMBLE AND GUIDING PRINCIPLES 

This ACCOf$> dated August 4, 1989, is executed between the federally recognized Indian tribes of 'Washington signatory 
to this ACCOTJ) and the State of "Washington, through its governor, m order to better achieve mutual goals through an im- 
proved relationship between their sovereign governments. This ACCO^p provides a frameworkjor that government to govern 
ment relationship and implementation procedures to assure execution of that relationship. 

tack Tarty to this XCCOTJ) respects the sovereignty of the other. The respective sovereignty of the state and each feder- 
ally recognized tribe provide paramount authority for that party to esrist and to govern. The parties share in then relationship 
particular respect for the values and culture represented by tribal governments. Jurthtr, the parties share a desire for a complete 
accord between the State of "Washington and the federally recognized tnbes m "Washington reflecting a full govtrnment-to- 
government relationship and will wori^unth all elements of state and tnbal governments to achieve such an accord. 

n. PARTD2S 

Then are twenty -svrj'ederally recognized Indian tribes in the state of "Washington. "Lack sovereign tribe has an independ- 
ent relationship with each other and the state. "This ACC&XJ), provides the frameworijor that relationship between the state 
of "Washington, through its governor, and the signatory tribes. 

The parties recognize that the state of "Washington is governed m part by independent state officials. Therefore, although, 

this ACCO^P has been initiated by the signatory tnbes and the governor, it welcomes the participation of ', inclusion in and cjrt 
cution by chief representatives of all elements of state government so that the government- to government relationship described 
herein is completely and broadly implemented between the state and the tribes. 

ID. PURPOSES AND OBJECTD7ES 

This ACCOT3) illustrates the commitment by the parties to implementation of the go v ernme n t- to-govemment relationship, 
a relationship reaffirmed as state policy by gubernatorial proclamation January 3, 1969. This relationship respects the sovereign 
status of the parties, enhances and improves communications between them, and f a cilitate s the resolution of issues. 

This ACCOTJ) is intended to build confidence among the partus m the government togovernment relationship by outlm 
ing the process for implementing the policy. "Spt only u this process intended to implement the relationship, but also it is in- 
tended to institutionalize it within the organizations represented by the parties. The partus will continue to strive for complete 
institutio n a l iz ati on of the government-to-gov ernm ent relationship by seeijng an accord among all the tnbes and all elements of 
state government. 

rttt rncrr**) tm* e m ■ nt » ■ the narties to the initial tosh that will translate the gtnmrnmtnt-to-gom unment rtU ntmr mji 
into man-efficient, imprxved and beneficial services to Indian and non-Indian people This ACCOI&) encourages and provides 
the foundation and framewon\for specific agreements among the parties outlining specific tastj to address or resolve specific 



The panics recognize that i m ple m entation of this ACCQ9$> will require a comprehensive ed u c a tio nal effort to promote 
understanding of the government to government relationship within their own governmental organizations and with the public. 

TV. IMPLEMENTATION PROCESS AND RESPONSIBILITIES 

"While this ACCORD addresses the relationship between the partus. Us ultimate purpose u to improve the services deliv 



233 



end to people try the partus. Im me di ately and periodically, tfu partus shall establish goals for improved sennces and identify 
the obstacles to tfu atfatvtmtnt of those goals. At an annual muttng. tfu partus will develop joint strategies and specific 
agrttments to outline tasks, overcome obstacles and acfueve specific goals. 

Tfu partus rtcognize that a key principle of their nlationship is a requirement that individuals wording to resolve issues 
of mutual concern art accountable to act ma manner consistent with this ACCOItJ). 

Tfu state of Washington u organized into a variety of large but separate departments under its governor, other mdepend 
tntly elected officials and a variety of boards and commissions. Tach tribe, cm the other hand, is a unique government organiza- 
tion with different management and decision-making structures. 

Tfu chuf of staff of the governor of the state of 'Washington is accountable to tfu governor for implementation of this 
ACC&X/p. State agency directors art accountable to the governor through the chief of staff for the related activities of their 
agencies tach director will initiate a procedure within his/her agency by which the government to government policy will be 
implemented. Among other things, these procedures will require persons responsible for dealing with issues of mutual concern to 
respect the government to government relationship within which tfu issue must be addressed. Tach agency will establish a 
documented plan cf accountability and may establish men detailed implementation procedures in subsequent agreements 
between tribes and the particular agency. 

'The partus rtcognize that their relationship will success fully address issues of mutual concern when communication is 
clear, direct and between persons responsible for addressing tfu concern. Tfu partus recognize that m state government, ac- 
countability is best achieved when this responsibility rests solely within each state agency. Therefore, it u the objective of the 
state that tach particular agency be directly accountable for implementation of tfu government-to-govemment relationship m 
dealing with issues of concern to the partus. "Lack agency will facilitate this objective by identifying individuals directly respon 
sibU for issues of mutual concern. 

tach tribe also recognizes that a system of accountability within its organization is critical to successful implementation 
of the rtlatumsfup. Therefore, tribal officials will direct their staff to communicate withm the spirit of this ACCOffP with the 
particular agency which, under the organization of state government, has the authority and responsibility to deal with the 
particular issue of concern to the tribe. 

In order to accomplish these objectives, each tribe must ensure that its current tribal organization, decision- making process 
and relevant tribal personnel is known to each state agency with which the tnbe u addressing an issue of mutual concern. 
further, each tribe may establish a more detailed organizational structure, decisionmaking process, system of accountability. 
and other procedures for implementing the government togovemment relationship in subsequent agreements with various state 
agencies Jinaky, each tribe will establish a documented system of accountability. 

As a component of the system of accountability within state and tribal governments, the parties will review and evaluate 
at the annual meeting the implementation of the government togovemment relationship. A management report will be issued 
summarizing this evaluation and will include joint strategies and specific agreements to outline task}, o verco m e obstacles, and 
achieve specific goals. 

The chuf of staff also will use his/her organizational discretion to help implement the government togovemment relation 
ship. The Office of Indian Afffain will assist the chief of staff in implementing the government to government relationship by 
providing state agency directors information with which to educate employees and constituent groups as defined m the ac- 
countability plan about the requirement of the government to government relationship. Tfu Office of Indian Affairs shall also 
perform other duties as defined by the chuf of staff 

V. SOVEREIGNTY and DISCLAIMERS 

tach of the pomes respects the sovereignty of each other party In executing this ACCOXJ), no party waives any rights, 
including treaty rights, i mm un i tus . including sovereign imm'imtus, or ju ri sdi cti on. Tinker does thu ACCOty) diminish any 
t*""r* rri '* '3 ' ' * '* y '^* yvsonscrtneituu iisueT.ita+ttrjU*^Uw.'ikri.Tu*\ ttus ACCOtP partus 
strengthen their collective ebiHiy to successfully resolve issue, of Mutual concern. 

'Wfult the relationship described by this ACCOt^) provides increased ability to solve problems, it likely will not result in a 
resolution of all issues. Therefore, inherent in their relationship is the right of each of the partus to elevate an issue of impor- 
tance to any decision-making authority of another party, including, when appropriate, that party s executive office. 

Signatory partus have cjrecutcd this ACCOT$> on the dote of August 4, 19S9. and agreed to be duly bound by its commit ■ 



234 







^)r^.Ufe«g5togdJ^lJ|^!tfi 




Proclamation 



WHEREAS, it is the intent of the Governor to reaffirm the govemment-to-govemment 
relationship established in the Centennial Accord of August 4, 1989 with the federally 
recognized Indian tribes within the boundaries of Washington state; and 

WHEREAS, the state of Washington recognizes that there are 27 separate and distinct 
federally recognized sovereign tribal governments in Washington state and acknowledges that 
the tribes have an historical relationship with reserved rights defined by treaties with the United 
States government, federal statutes, and executive orders of the President: and 



WHEREAS, the state of Washington seeks to strengthen the relationship with the 
federally recognized tribal governments to promote and enhance tribal self-sufficiency: and 

WHEREAS, the state of Washington reaffirms the spirit and intent of the Centennial 
Accord and directs its agencies to develop policy consistent with the stated principles therein; 
and 

WHEREAS, the state and federally recognized tribal governments respect the 
sovereignty of one another; 

NOW, THEREFORE, I, Gary Locke. Governor of the state of Washington, do hereby 
proclaim that the state of Washington accepts the fundamental principles and integrity of the 
government-to-govemment relationship between the state and the federally recognized Indian 
' tribes within Washington state, and that the principles of the Centennial Accord shall guide 
Washington state's policy in relations with the federally recognized tribal governments. 













3 ^i^mywiipmrm,TmrmiFVTmT^ r - 









235 




Perspectives on the Columbus Quincentenary 






"This we know. All things are 
connected, like the blood '.which 
unites one family. 

All things are connected. " 

...Chief Seattle 



• 



236 






Professor Milnar Ball 



Professor Ball is the Caldwell Professor Con- 
stitutional Law or the University of Georgia 
School of Law. and is a Presbyterian Minister. 
He has published numerous articles, includ- 
ing 'ConsTtnittnn. Court. Tribes" 11987. Ameri- 
can Bar Foundation Research JoumaD 







A distinguished member of another Indian Na- 
tion heard that I would be here, today, and he sent 
me a letter. In that letter, he said this: The Tjimrnl 
Indians are among the greatest people you win ever 
meet. I go up there every chance - not Just for the 
seafood but because I like to see a c omm u n i t y that 
continually moves forward." And he added: "I wish 
I was a celebrity and was invited up there. I can tell 
you. Maybe you can talk southern for them." 

Weil. I am no celebrity but I am from Georgia and 
can certainly talk southern and say truthfully that 
you have done me a great honor by your Invitation 
to be here. I give thanks that I may sit with those 
who are among the greatest people I shall ever meet. 
I come as a student with much to hear and much to 
learn. I stand to speak now not because I have 
special knowledge but to pay tribute to you who are 
here and to the organizers of this important meeting. 
It gives me no pleasure to say what I must, but 
I am determined to speak such truth as Is given me 
howsoever shameful that truth may be to me as an 
American lawyer and as a Presbyterian minister - 
which I also am. I am mindful of the position m this 
morning's native prayer that the speakers be given 
the strength and courage to speak the truth. 

I believe mat there Is not one United States of 
America but two. wcisrmg side by side. There is a 
United States that has acknowledged the inde- 
pendent sovereignty of Indian Nations and has made 
with those Nations oeatles which it honors and 
fulfills. But there Is also a United States that has 
violated its treaties with Indian Nations, sometimes 
through fraud, sometimes deceit, sometimes terror- 



ism. I gtve thanks for the first United States and 
weep for the second. 

I believe that the second United States has pre- 
vailed over the first, honorable one during much of 
Its portion of the last five hundred years. I believe 
further that this United States will continue to pre- 
vail for as far as I can see into the next five hundred 
years. But I do not have the gift of prophecy and so 
cherish the hope that I am wrong. I also believe in 
miracles. 

Allow me to describe both United States of 
Americas. 

The first is to be seen already in 1778. while SOU 
under the Articles of Confederation and before the 
Constitution. In that year it signed the first major 
treaty with an Indian Nation, the Delaware. That 
treaty expressly contemplated an invitation whereby 
the Delaware Nation would be invited to form a state 
providing that if citizens of one treaty partner com- 
mitted crimes upon the citizens of the other, the 
wrongdoers would be punished by both non- Ind ia n s 
and Indians according to the laws and customs of 
both. When the Constitution was approved, it de- 
dared treaties already made, like the one with the 
Delaware, and treaties to be made, like the 1855 
Treary of Muckl-teh-oh. to be the supreme law of the 
land. 

Then in 1832 in the great Supreme Court case 
of Wnm»«f— vpr^iK Onrgia Chief Justice John 
Marshall acknowledged and protected the inde- 
pendence and sovereignly of Indian Nations. He 
noted that, by sanctioning treaties with them, the 
Constitution admits that Indian Nations rank as 
treaty-making powers. And he concluded that they 



Our PwapU... Our Land 



237 



are - these axe his words - "distinct, independent 
political communities, retaining their original natu- 
ral rights..." 

If we follow Chief Justice Marshall's way of think- 
ing, then we can say. for example, that when it made 
the 1855 Treaty of Muckl-te'h-oh. the United States 
was acknowledging that It was treatytng with treaty- 
making sovereigns. The very fact of the Treaty is a 
land of testimony to equality among Nations. 

In 1871. sixteen years after that Treaty. Con- 
gress voted to end treaty-making with Indian Na- 
tions. But that legislation did not mran Indian 
Nations ceased to exist as Nations in the eyes of the 
United States. Nor did it mean existing treaties were 
no longer valid. The statute expressly stated, in 
clear language: "Nothing [in this act] shall be con- 
strued to invalidate or impair the obligation of any 
treaty heretofore lawfully made... with any.. .Indian 
Nation or tnbe." The treaties are still the supreme 
law of the land, and the federal courts of the United 
States continue to the present day to recognize their 
validity. 

Prom the 1778 Treaty with the Delaware to the 
Constitution of 1789 to Chief Justice John Mar- 
shall's 1832 decision in Wnrr^tir w^ik (Vnrya to 

the 1855 Treaty of Muckl-te'h-oh and the federal 
court decisions of the present there has been a 
United States that respects the dignity and integrity 
of Indian Nations, honors the treaties made with 
them, and fulfills the promises given in those trea- 
ties. 

The most ancient and basic injunction of inter- 
national law - and of personal relations, too - is 
"pacta sunt servanda": promises are to be kept 
Treaties are to be fulfilled. There is a United States 
of America, the one I cherish, that has met its 
obligations, and I am proud of it But there is also 
another, and I am bound to describe it as well. 

We have government of limited powers. It may 
not act unless the Constitution expressly permits it 
to do so. Otherwise the people have delegated to it 
no right of action. 

The Constitution contains only two bases for the 
United States authortty in dealings with Indian Na- 
tions. One is the treaty clause, which allows the 
federal government to make treaties with Indians as 
with any Nation. The other is the commerce clause 
which empowers the federal government to regulate 
commerce "with foreign Nations, and among the 
several states, and with the Indian tribes." 

Notice how limited the commerce clause is. It 
does not allow the United States to Intervene in the 
internal affairs of Indian Nations any more than it 
allows the United States to intervene in the internal 
affairs of Great Britain or China. It only allows the 
federal government to regulate commerce between 
another Nation and the United States. 



If neither a treaty nor the commerce clause 
provides for United States authority in Indian coun- 
try, on what basis is that authority exercised? The 
answer to that question requires that I describe the 
second United States. 

This United' States was on display in the 1903 

Supreme Court case of T.nni» W olf vrr-stis HltrhmrW 

There. Indian signatories had fully performed their 
obligations under the Treaty of Medicine Lodge when 
the United States violated that treaty in various 
illegal ways, including fraud. Instead of rectifying 
the wrongs, the Supreme Court ratified them. It said 
Congress could abrogate the provisions of an Indian 
treaty whenever and however it wished to do so free 
of Judicial oversight 

The commerce clause did not permit this. No 
treaty permitted it In fact in the Lone Wolf case, 
the Congress had violated a treaty that was the 
supreme law of the land. How could it do so? How 
could the Supreme Court allow it to do so? In recent 
years the Court has given same answers and it 
shames me to report them. 

In 1954 the Court handed down the famous 
opinion in Bmwn vr^m Hoard nf griurattnn that 
ended school segregation and offered hope to Afri- 
can-Americans. But the following year, the same 
Court announced its opinion In Tee-Hit-Ton Indians 
versus United States that gave no hope to Native 
Americans. There the Court held Congress could 
extinguish the Tllnglt right to property in Alaska. No 
treaty permitted this. The commerce clause did not 
permit it And the Fifth Amendment specifically 
prohibited such action without payment or Just 
compensation. None was paid. 

What explanation did the Court offer? It could 
not cite a treaty or the c omm erce clause, so It said - 
and it pains me to repeat the words - that 

"Every American schoolboy knows that the sav- 
age tribes of this continent were deprived of their 
ancestral ranges by force and that, even when the 
Indians ceded millions of acres by treaty in return 
for blankets, food, and trinkets, it was not a sale but 
the conqueror's will that deprived them of their 
land." 

This is an outrageous fiction. It employs insult- 
ing language, invents history, and abandons legiti- 
macy. There was no conquest of the Tllnglt by force 
of arms. There was no treaty or constitutional pro- 
vision to support what Congress did to them. The 
pernicious fiction of conquest was Invented by the 
modem Supreme Court in an attempt to mask 
United States lawlessness. 

A second, equally pernicious fiction, was in- 
vented by the Supreme Court in ffflnhant wt*h« 
Siifpiamish Indian Tnty in 1978. This time the 
fiction was not conquest but incorporation. Justice 
Rehnqulst wrote: "Upon incorporation into the ter- 
ritory of the United States, the Indian tribes thereby 



/tytacflons on Common Ground: 500 Ym 



238 



Tribal 

Timber/Fish/Wildlife 

Programs 

1988-1990 




. 






239 



EXECUTIVE SUMMARY 

WHAT IS TFW? 

For the past three years tribes and tribal organizations in Washington State have participated in Timber/Fish 
Wildlife (TFW), a cooperative resource management process to address forest practices on state and private lands. 
The success of the agreement is 
built on a foundation of open 
participation by tribal govern- 
ments, state agencies, the 
timber industries, and the 
general public. For the tribes, 
one of the primary components 
of the success of TFW has been 
the decision-making process 
that is based on consensus 
rather than majoritarian rule. 
The consensus decision-making 
process ensures the tribes have 
a meaningful role in the 
management of forest practices. 



"Washington state's landmark Timber/Fish/Wildlrfe Agreement is as much a marvel 
today as It was the day It was reached. TFW is proof that timber, fish and wildlife 
management can be addressed as a whole - that all parties can be winners - without 
endlessly tying up the process in litigation and disputes. The success of this effort is 
due largely to the equal participation of all interested parties, including Washington's 
tribal nations. 

I urge the Congress to continue to support tribal participation in Timber/Fish/Wildiife. 

For centuries, Indian tribes have earned their living from the land without irreparably 

damaging the resources. They know the importance of caring for the land that gives 

them life. It is a lesson from which we all can learn, especially in these modem 

times.* 

- Booth Gardner, Governor, "Mate of Washington 



WHY TFW? 

In the early 1970s forest management in Washington was a battlefield. Logging activities on state and private 
lands placed Indian tribes and conservationists at odds with the timber industry. State regulators had failed to assume 
a leadership role in resolving the impasse and the legal skirmishes were seriously escalating. 

Tribes were faced with losses of natural fish production habitat in Washington. These losses were part of a mix of 
problems encountered with the increasing uses of the natural resources in the state, including the extensive logging of 
watersheds where salmon spawn. These losses threatened not only the livelihoods of tribal communities but the very 
basis of their culture and spirituality. Tribes were being pushed closer and closer to retaliation through demonstration 
and litigation. Fortunately, at the same time, tribes were experiencing many successes through the cooper a t i ve fishery 
management process being developed between the Washington Department of Fisheries and the treaty fishing tribes. 
Tribal leaders and state officials thought this cooperative approach could also be applied in the forest practices arena. 

HOW WAS SUCH A COMPLEX AND DIVISIVE ISSUE PACKAGED INTO THIS AGREEMENT? 

The only thing that was certain in the spring of 1986 was more uncertainty over the management of forest lands in 
Washington State. More legal challenges would be filed. Timber companies would continue to slump in unstable 
market conditions. No real regulatory protection of fish, wildlife, water quality, arid other environmental concerns 
could be guaranteed. The only thing that everyone agreed upon was that something had to be done. With a simple 
model of consensus-based problem solving before them and many complex issues in hand, TFW cooperators held 
over 100 meetings in a four-month period. That winter, the TFW Agreement was bom. 

WHAT HAS TFW ACCOMPUSHED? 

* TFW has been hailed as a national model. The involvement of the tribes, industry, state agencies, and environ- 
mental groups in a common process is itself a remarkable achievement. When this is coupled with the process for in- 
tegrating timber, wildlife, fisheries, water quality and cultural resources, it is unprecedented. 

* TFW has provided an alternative means other than litigation to implement the Stevens Treaties. The promises set 
forth in the treaties were quickly forgotten. Non-Indians dominated the limited resource. Development, timber 
harvesting and other factors severely reduced or destroyed vital habitat necessary for salmon. These pressures on the 

1 



tribes resulted in the federal government intervening on behalf of the tribes for the re-instatement of the Stevens 
Treaties. The provisions included a guaranteed share of fish. Another provision, not completely defined by the court, 
is an environmental right that ensures there will be fish to share. This provision, more than any other, has the most 
effect on TFW. Tribal and state officials realized that cooperation, rather than costly litigation, was the best way to 
accomplish the objectives of the treaties. 

* TFW has established a common set of goals and mechanisms to address future conflicts. TFW enables resource 
managers to respond to problems with site-specific solutions developed through cooperative problem solving. 

Each tribe has developed a base level program that ensures tribal participation in TFW and Forest Practices Act 
regulations. Components of each tribal base level progr am include: 

• Review and document Forest Practices Applications and identify those requiring field visits. 

- Participate in field investigations as Interdisciplinary Team members. 

- Participate as tribal representatives on TFW committees. 

- Conduct long-range planning. 

In addition to base programs, tribes are required to work on specific project-oriented problems within their respec 
tive regions. These specific projects include intensive management planning, ambient monitoring, data collection, 
water quality work, cultural and archaeological protection and habitat enhancement. The Northwest Indian Fisheries 
Co mmi ssio n , as a central coordinator, provides a clearinghouse, central database development, policy analysis, tech- 
nical coordination, logistical 
support, long-range planning, 
and an information manage- 
ment system. 



• TFW provides benefits to 
the tribes, state, general 
public and timber industry. 
The coordinated approach 
provides a forum to integrate 
responsibilities and manage- 
ment authorities. This creates 
cost savings for all parties 
and dramatically improves 
efficiency. Avoidance of liti- 
gation creates a healthier use 
of funds for the future and a 
more stable economic envi- 
ronment for the timber 
industry and public. Compre- 
hensive management protects 
the resource better than a 
series of court orders. 

WHAT DOES THE 
FUTURE HOLD AND 
HOW MUCH WILL IT 
COST? 

First and foremost, it 
should be recognized that this 
cooperative process is a cost- 
saving mechanism. There is a 
considerable amount of 
experience with the coats 



TtMBER/FISH/WlLDUFE PROGRAM 
TRIBAL ALLOCATION AND PROPOSAL FOR FY-1992 



Tribe/Organization 


FY-1988 


FY-1989 


FY-1990 


FY-1991 


FY-1992 


Lutntri Trite 


$128 298 


$128 299 


$126299 


$126299 


$188,303 


Nookaac* Trite 


$56 259 


$56 259 


$56259 


$56259 


$62,600 


SKAGiT SYSTEM COOP 


$70,812 


$70,812 


$70,612 


$150,000 


$195,967 


SwtaotnMi Trite 












Uppat Stag* Trite 












SauVSuoflkt Trite 












TukatpTritea 


$92232 


$92,232 


$92232 


$95232 


$312,669 


SattaguaniMi Trite 


S3 000 


$3,000 


$3,000 


$50,000 


$106,725 


SuquMtrmh Tnba 


SS0.020 


$50,020 


$50,020 


$50,020 


$77206 


Mucklaahoot Trite 


$94,940 


$94,940 


$94,940 


$94,940 


$249,666 


PuyalupTnba 


$63,840 


$63,840 


$63,640 


$63,640 


$252,955 


Naqualy Trite 


$45800 


$45.(00 


$45.(00 


$50,000 


$92,689 


Squum Island Tr*a 


$48,690 


$48,690 


$48,690 


$50,000 


$236,790 


P-WP TREATY COUNCIL: 


$130,000 


$130,000 


$130,000 


4150.000 


$264,550 


Skokotnah Trite 












Pott Gambia Trite 












JantaaKMn Trite 








$50,000 


$50,000 


Lwmt Ekate Trite 












Makah Trite 


$63,002 


$63,002 


$63,002 


$63,002 


$96,902 


Hah Trite 


$3423$ 


$43236 


$43236 


$50,000 


$64,000 


Qutauai Trite 


$52,420 


$52,420 


$52,420 


$52,420 


$140,617 


Ouaiauft Trite 


$138664 


$138 664 


$136,664 


$136,664 


$296,641 


CtuhaH Trite 


$0 


$0 


$0 


$0 


$50,000 


Shoakmar Trite 


$0 


$0 


$0 


$0 


$50,000 


Yakana tnoavi Naaan 


$235,716 


$236,716 


$216,716 


$236,716 


$366,796 


Co*— Comadaialad Trite* 


$104,024 


$104,024 


$104,024 


$104,024 


$365 146 


UPPER COL UNITED TRIBES: 


$110,604 


$110,604 


$110,604 


$110,604 


$136464 


Spokana Trite 












Katapal Trite 












MW#C 


$477,440 


$466,440 


$466,440 


$256,960 


$450 000 


TOTAL 






$2,000,000 


$2,000,000 


$4,150263 



m racogrtaon at da nrnaaul r 
taaka. tta NW1FC tea la aao ca lad I 



I budgat lot tej66606 



241 



associated with the alternative. This does not mean it is without costs. It means it is a wise investment in the short 
and long-term. 

The state has already contributed more than SIS million for its involvement in TFW. The timber industry has 
agreed to provide field and oversight participation, which when viewed in total of all landowners, is equal to or 
greater than that amount contributed by the state. Timber industry analysts have also estimated there is considerable 
costs associated with the regulatory changes agreed to in TFW. Environmental groups, even with their limited 
resources, have 
contributed $350,000 
per year. The other 
partner is the tribes. 



TRIBAL BUDGET REQUESTS COMPARED 
WITH ACTUAL ALLOCATION OF FUNDS 



$5000 



$4000 



$3000 



$2000 



$1000 




Tribes have re- 
ceived TFW funding 
through die Bureau 
of Indian Affairs for 
the past three years 
due to Congressional 
support These funds 
enable the tribes to 
manage and protect 
vital natural re- 
sources. Federal 
funding is appropri- 
ate for the trust re- 
sponsibility of the 
U.S. to implement 
the Stevens Treaties. 

Initially, tribes 
presented to Con- 
gress and the Bureau 

of Indian Affairs what TFW would cost The costs were expected to be increased incrementally as TFW was imple- 
mented. Unfortunately, this was not accomplished. 

Today there are increased pressures on the tribes to continue their involvement in TFW. The state and timber 
industry recognize that the tribes are an integral pan of forest management . Without tribal participation, mere can be 
no consensus or resolution to current issues. This involvement has taxed the abilities and resources of the tribes, 
causing a shift in priorities away from long-range planning and base level program activities, and has moved tribes 
towards a more negative and reactive position. 

The 1992 budget request of $4,150,283 reflects only the overall implementation of the original TFW agreement, 
and not the emerging issues facing the tribes. These issues include new legislation to address wildlife concerns, 
cultural and archaeological concerns, and rapid conversion of forest lands to urban areas. The additional funds will 
shore up base level programs and replace funds previously slated for long-range planning and data collection. An 
estimated additional $2.8 million would be necessary to adequately support participation in new legislative issues. 

IN CONCLUSION 



1988 



1989 



1990 



1991 



1992 



Tribal involvement in TFW is at a threshold. TFW is based on the ability to move away from a reactive and 
negative approach to forest management and towards a positive, pro-active method. However, this requires that the 
focus be shifted towards long-range planning, refinement of goals, and development of comprehensive legislative and 
regulatory packages. This requires the tribes to stay in step with the state and timber industry during this transition. 
This proposed budget and report win explain past, current and evolving activities involving TFW. Thank you for 
your support. 



242 



Introduction: Why TFW? 

In the early 1970s, forest management in Washington was a battlefield. Logging activities on state and private 
forest lands placed Indian tribes and conservationists at odds with the timber industry. State regulators, meanwhile, 
failed to assume a leadership role in resolving the impasse. 

Timber harvesting on state and private lands in Washington is regulated by the 1974 Forest Practices Act Im- 
plementation of the Act is overseen by the state Forest Practices Board (FPB). In 1975, 1977 and 1982. the FPB 
revised regulations adopted as a result of the Act 



■Ever since we first came to the conclusion that 'there must be a better way' 
than confrontation to solve the problems surrounding our state's magnificent 
natural resources, the Washington Forest Protection Association, the treaty 
Indian tribes, and the Northwest Indian Fisheries Commission have shared 
a special affinity for each other's work. 

The Native American tribes of Washington were Key players in helping to 
find innovative solutions to immensely complex problems. Nowhere was 
their effort more crucial or more beneficial than in helping to turn conflict to 
consensus in the process Known as Timber/ Fish/Wildlife (TFW). The result 
was a monument to cooperation, unique in American history. On the 
toughest issues, the tribes often served as the catalyst that led to 
agreement. The people of Washington are enjoying the benefits of that 
effort today, but the really big winner is our state's natural resources.* 
- Bill Jacobs, Executive Director, Washington Forest Protection 
Association 



In 1986, the FPB was set to 
make another round of revisions 
addressing protection of streamside 
vegetation and cumulative effects 
of timber harvesting activities. Each 
previous set of changes in the Act 
had touched off new battles be- 
tween the tribes, forest products 
industry, environmentalists, and 
state regulators. 

The spring of 1986 was no 
different 

The package of proposed 
regulations was called a disaster for 
the timber industry, while advocates of fish and wildlife said the changes were inadequate. 

The Washington Department of Natural Resources (DNR), the state agency charged with implementing the rules 
and regulations was faced with mounting legal challenges and increasing pressure from the timber industry, tribes, 
and environmental community. 

The timber industry was faced with ongoing uncertainty and confrontation over forest practice regulations during 
a rime of extremely poor market conditions. The result was an unfavorable business climate that showed little hope 
for improvement. 

An event that provided a legal challenge to the state regulatory system and added to the uncertainty of the industry 
occurred in 1979. when the U.S. Supreme Court upheld treaty Indian fishing rights as defined in U S , v Washington 
(the Boldt Decision). The decision created considerable uncertainty among those entities regarding tribal authority to 
regulate activities in watersheds sustaining salmon runs. 

The tribal right to habitat protection was reserved through treaties negotiated in the Northwest by Governor Isaac 
Stevens in 1854 and 1855. Each of the treaties contains similar language pertaining to fishing rights: The right of 
taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common 
with the citizens of the territory-together with the privilege of hunting ... on open and unclaimed lands." 

There were two distinct segments in the U.S. v. Washington litigation: Phase I and Phase II. Phase I involved the 
determination of the nature and extent of tribal fishery harvest rights. Those basic harvest rights were affirmed by the 
United States Supreme Court in 1979 and the federal court has retained jurisdiction to fully implement those fishing 
rights. 

The tribes argued in Phase D that the right of taking fish incorporates the right to have treaty fish protected from 
environmental degradation (U.S. v Washingt on Phase U). 



243 



In response to the tribes' claim, the court stated, "the most fundamental prerequisite to exercising the right to take 
fish is the existence of fish to be taken. In order for salmon and steelhead trout to survive, specific environmental 
conditions must be present: (1) access to and from the sea, (2) an adequate supply of good-quality water, (3) a suffi- 
cient amount of suitable gravel for spawning and egg incubation, (4) an ample supply of food, and (5) sufficient 
shelter. An alteration of any one of these essential requirements will affect the production potential of anadromous 
fish. Furthermore, the court indicated that "it is undisputed that these conditions have been altered and that human 
activities have seriously degraded the quality of the fishery habitat." (U.S. v. Washington . 506 F. Supp. 1 87, 1980) 

Over the years, there has been a gradual deterioration and loss of natural fish production habitat in Washington 
streams. Although there are many individual factors contributing to this, the general trend toward reduced production 
habitat is more the result of a combination of activities performed by man — activities which alter and destroy one or 
more habitat conditions required for successful fish production. Generally, these factors can be categorized under the 
broad headings of watershed alteration, such as forestry, water storage dams, industrial developments, stream channel 
alterations, and residential developments. 

In 1980, Federal District Court Judge Orrick ruled in favor of the tribes. Orrick held that the State government 
must refrain from degrading fish habitat as required by the Stevens Treaties. "Were this trend to continue, the right to 
take fish would eventually 
be reduced to the right to 
dip one's net into the 
water.. .and bring it out 
empty." (Id.) 

The Orrick decision 
and its implications 
created extensive public 
concern and debate. In 
response to Orrick's 
decision, a Washington 
State Assistant Attorney 
General stated, "the ruling 
could lead to the tribes' 
having veto power over 
real estate projects, 
logging practices, highway 
construction and the use of 
pesticides in the western 
half of the state." 



Washington Department of Natural Resources Regions 




The Assistant Attorney 
General went on to say: "The decision could affect literally everything that touches the environment The potential for 
impact on the economy and development and use of resources would be substantially greater under this decision than 
anything we've seen under the 1974 decision (Phase I). This may address how we continue our forest practices, the 
use of pesticides, what water may be withdrawn from rivers, where you can build highways and docks, real estate de- 
velopment and shopping centers - the whole bit" 

Though the case is still pending. Phase II issues and impacts remain. The parties of U.S. v. Washington recog- 
nized the potential for litigation of the Phase II issues. The federal government as trustee for the tribes, is responsible 
and accountable to ensure the tribes' treaty rights are fully protected. 

In the spring of 1986, the only thing that was certain was more uncertainty over the management of forest lands in 
Washington State. More legal challenges would be filed, the timber industry would continue to slump in unstable 
market conditions, and no real regulatory protection of fish, wildlife, water quality and other environmental concerns 
could be guaranteed. All of the parties had reached the same fork in the road. A decision had to be made. 






5 



244 



Cooperation by all of the parties was not an option that had been considered up to that point in 1986. The treaty 
Indian tribes had seen how cooperation with the state had led to unproved management of the fishery resource. In the 
summer of 1986. timber industry representative Shi Bledsoe, Executive Director of the Washington Forest Protection 
Association, was invited to attend a meeting of the Northwest Indian Fisheries Commission. Commission Chairman 
Bill Frank, Jr. asked Bledsoe if the timber industry would be willing to discuss forest practices with a goal of finding 
common ground that could serve as the foundation for cooperation. The historic Timber/Fish/WUdlife (TFW) Agree- 
ment was bom. 

There was a bond of cooperation between all of the parties that, just months before, had been on the verge of 
continuing down the same deeply rutted road of confrontation. 

With the Northwest Renewable Resources Center serving as mediator, about 40 representatives from the tribes, 
timber industry, environmental organizations, and state government were invited to a three-day retreat in late July. 
They were asked to explore the possibility that they could "agree to agree". 

Lists of goals and needs were developed for each party. Possible answers that offered "win-win" solutions to old 
problems were discussed Defensive positions were left at the door. Parties that had never before sat down together in 
the spirit of cooperation found that they could even agree on some issues. They saw a way to end the war in the 
woods. 

TFW cooperators agreed to try and resolve all issues identified at the retreat. This was accomplished through an 
intensive series of 100 meetings in a four-month period. A Policy Group, Working Group and various subcommittees 
developed a draft a gr e em e nt in December 1986 and a final agreement in February 1987 that was reviewed through a 
public process, adopted by the Forest Practices Board, and implemented unanimously through the state legislature. 

The result is an agreement that is unique in the nation. TFW is not an institution. It is a living process built on 
trust, commitment and above all cooperation. 

What has TFW Accomplished? 

TFW has provided an alternative means for implementing the Stevens Treaties. 

A century ago, salmon abounded in die Pacific Northwest Almost every accessible area, even in die deep interior, 
nurtured runs of salmon which renewed themselves as they had for millennia. However, in 1 850s, the United States 
entered into various treaties with Indian tribes located in Washington Territory in efforts to peacefully settle the West 
In these treaties, die Indians traded their land interest in the territory for the exclusive use of the lands within the res- 
ervations, the right of continued fishing, and other guarantees. When the treaties were negotiated, fish were the main- 
stay of the Indians' economy and the focal point of their culture. All the tribes of the Northwest shared a vital and 
unifying dependence on anadromous fish. 

Unfortunately, the provisions in the treaties guaranteeing the tribes reserved rights to fish were soon forgotten. 
The institutional framework of state government and laws evolved to the point that non-Indian settlers were allowed 
to monopolize the fisheries resource to the extent of almost total exclusion of the Indians. Federal and state institu- 
tions also allowed the urbanization and intensive settlement of the area, the rapid development of dams for electrical 
power, logging and irrigation, and the nonpoint source pollution of the watersheds which reduced the quality and 
amount of accessible spawning grounds and rearing capacity for the treaty protected fishery resources. 

As a result of the forgotten promises and obligations of the federal government, the tribes sought redress and 
implementation of the Stevens Treaties provisions through the courts. The legal battles began at the turn of the 
century and continued into the early 1980s. Beginning in the early 1980s, however, there was recognition by tribal 
and state governments that cooperation, rather than litigation, could accomplish the objectives of implementing the 
Stevens Treaties. Cooperative consensus-building processes like TFW can avoid the legal issues and costs, both 
political and financial. Recognition of the need to work with the tribes on a govemment-io-gove mm ent basis is 
creating institutional change within state and local governments without the need for litigation. Cooperative efforts 
6 



245 



such as the unprecedented Centennial Accord between the tribes and Washington State, TFW and others can serve as 
alternative mechanisms to litigation for the implementation of the Stevens Treaties. Institutional changes within state 
and local governments are providing opportunities to develop relationships with the tribes as individual governments 
with legitimate issues and concerns that have to be addressed in a consensus-based system of decision-making. 

However, to ensure the ability of the tribes to participate in cooperative natural resource processes that affect their 
governmental interests, funding support must also be institutionalized. The federal government must include base 
level funding for tribal planning and implementation of these types of efforts. The federal government's role is no 
less critical than any other participant to address some of the most complex and socially significant issues in natural 
resource management and tribal-state-federal relations. 

TFW has established a framework for tribal governments to affect policy and 
technical decision-making. 



As a cooperative process to address natural resource management, TFW has provided a mechanism for the tribes 
to participate in both policy and technical decision-making that affect their interests and resources. Alternative 
processes to litigation provide a legitimate role for tribal governments in the management of the resources and land 
uses that impact issues of tribal governmental concern. Implementation of either court orders or cooperative agree- 
ments will require adequate financial resources for tribal policy and technical participation as co-managers of the 
natural resources. Federal support for tribes to implement cooperative agreements, of course, are beneficial for long- 
term collaboration and mutually supportive accomplishments. 

TFW has 
established a 
common set of 
goals. 























Policy 
Group 


TFW 
DECISION-MAKING 






STRUCTURE 




Administrative 
Committee 
















1 






1 








Acheotogicai & 
Cultural Committee 






Training. Information 
4 Education 
Committee 






















Cooperative Monitoring 

Evaluation a Research 

Committee 




impteme 
Comrr 


d 

ntation 
ittee 






Steerm 


gc 


ommittees 










| Fnhery | 


| Sediment. Mass Wasting 
















| Wildlife 1 


| Tempe» 


ature/Water Quality 
















| Amo«©nt Monitoring [_ 

















TFW is an experiment 
that combines the experi- 
ence of the parties 
through consensus-built 
decisions. Implementa- 
tion of the decisions is 
then monitored by the 
participants. To accom- 
plish tins, extensive 
discussions are held and 
planning is conducted to 
identify expectations 
before a decision is im- 
plemented. The decision 
is then monitored and 
evaluated to determine 
whether to retain or 
change decisions based 
on new experience and/or 

research. The annual TFW reviews provide the forum for interim evaluation. However, the parties have also agreed to 
a long-term commitment of eight yean in order for some research results to be assessed. 

The TFW Agreement is not cast in stone. Participants understand and encourage evaluation and modification of 
the Agreement to the extent the changes improve forest practices. Experiences will determine if the needs of the 
parties are being met. This is the Adaptive Management system incorporated into the Agre em e n t, which supports 
monitoring and evaluation of the effectiveness of the process. 



246 



The Agreement conuins the sum of the parties knowledge and experience related to the agreed-upon goals that 
guide TFW discussions. Following are the five goals that all parties embrace and support. 

The wildlife resource goal is to provide the greatest diversity of habitats, particularly riparian, wetlands and old 
growth habitats. The goal also seeks to ensure the greatest diversity of species within those habitats for the survival 
and reproduction of native wildlife on forest lands. 

The fishery resource goals are long-term habitat productivity for natural and wild fish, and the protection of 
hatchery water supplies. 

The water quantity and quality goals are 
protection of the water needs of people, fish and 
wildlife. 

The archaeological and cultural goals are to 
develop a process to inventory archaeological and 
cultural places in managed forests. Another pan of 
the goal is to inventory, evaluate, preserve and 
protect traditional cultural and archeological 
spaces, and ensure tribal access. 

The timber resource goal is the continued 
growth and development of the state's forest 
products industry which has a vital stake in the 
long-term productivity of both the public and 
private forest land base. 

In addition to these goals, participants recog- 
nized that the negotiations could not succeed 

without agreeing on certain groundrules to govern expectations and behavior of all parties. The importance of 
working together to seek resolutions satisfactory to all points of view has been recognized as vital to the future 
success of this effort. 



/ Protection \ 




/Qrea«e»t\ 


/ otWater \ 




/ Diversityot \ 


I Needs ol 




1 Wildlite j 


People, Fish A 




+ Speoesand / 


\*WUdJH«/" 


( TaWEWFISH/WMJHJFE \ 

GOALS J 


r\>taoHas/ 


f Long-Term^^^ 

/ Fish Habitat \ 




^^y^ConSnuedX 
/ Growth and ^ 


l Productivity 1 




'Development olj 


\ andWater I 


/ Inventory, \ 


V Timber J 


\Supp*es/ 


/ Evaluate \ 
[ Preserve and 

I Protect Cultural 


\ta**ryy 




\ Archeological / 






\T SitM l/ 





TFW has developed a mechanism to address future conflicts and emerging issues. 

TFW is a process based upon a broad representation of governmental, public, political, legal, and economic inter- 
ests. The foundation of the process is that decision-making is based on consensus rather than majoritarian rule. This 
process is different than the traditional administrative process utilized by state and local governments. The traditional 
administrative process is usually comprised of a central regulatory body (such as the Forest Practice Board), which 
develops proposals and options (such as the State Environmental Policy Act (SEPA) or other regulatory mecha- 
nisms), incorporates public testimony, and then determines the best course of action (generally a compromise of all 
the concerns). TFW. however, is composed of the various "stake-holders" and allows them to determine the balance 
of all interests and identify the best course of action. 

The success of TFW has provided a model approach for other states and Canada to utilize when addressing forest 
practices and resolving state/tribal or interstate disputes over natural resource issues. Tribal participants have given 
presentations in Alaska, Idaho, Oregon, North Carolina, North Dakota. Wisconsin, Minnesota, Michigan, and Canada 
on the success of the TFW process. Several of the states have implemented a consensus-based process with similar 
success. Canada is considering applying this approach to issues involving forest practices and Indian fishing rights. 
The State of Washington has begun to implement consensus-building processes in other administrative functions of 
government to address tribal and natural resource issues. These include new and emerging issues involving forest 
practices on state and private lands, an "Agriculture-Natural Resource Forum" to deal with conflicts between agricul- 
tural practices and protection of the environment and human health, and more recently, a process to address water 
resource planning throughout the state. 



247 



TFW Provides Benefits to the State, General Public, and Timber Industry: 

A coordinated approach of multi-governments and agencies has provided greater opportunities to integrate respon- 
sibilities and management authorities. Integration of these efforts has resulted in more efficient use of limited finan- 
cial and professional 
resources for all parties. A 
collaborative resource man- 
agement approach instills 
cooperative relations, more 
efficient implementation 
and, as a result, greater 
ability to avoid litigation. 

For the timber industry 
and general public, TFW 
has provided greater 
stability and predictability 
of forest management 
regulations and better 
protection of the public's 
resources. Predictability 
and stability are the corner- 
stone of the industry's 
economics. TFW provides 
an opportunity for the 
industry and public to 
participate in die manage- 
ment of the timber and 
natural resources. Participa- 
tion by private landowners 
and the public in the 
management of the re- 
sources allows for coopera- 
tive and efficient implem- 
entation of forest practice rules and regulations. The TFW cooperative management approach also reduces the need 
for extensive compliance and enforcement of the regulations. Furthermore, cooperative participation by industry and 
the general public has helped foster better relations with tribal communities. 





PERCENT OF TIME SPENT ON TFW 




TRIBAL IMPLEMENTATION 






^^___^ Pre-Planning 
■"""""--^ 10.25% 




FPA Review ^^H 
43.8% ^fl 


^^ Annual Reviews 




^ku 


■ ^B ^L Administration 

■ ^M ^k 15.6% 




ID Team \ -^^ JM 

6% \^. _' . ML 


^k yM ^B Other 
A ^H ^F 20% 




Compliance \ Mk\ 

11.5% X4B 






Committees 
15.8% 


^^^"""^ Training 

RMP 72% 
6.25% 


1969 







Given the rapid expansion of commercial logging activities fueled by higher than expected 
price*, It ha* become Increasingly difficult to complete basic TFW activities. In addition, 
other processes and new legislation have further exacerbated the problem. 



TRIBAL TFW ACTIVITIES: 

Each tribe or tribal organization operates a base level TFW program that ensures tribal participation in TFW and 
Forest Practices Act regulation. The Department of Natural Resources ( DNR ) is the lead agency for administering the 
Forest Practices Act and has final decision making authority. TFW opened the door for tribes to have direct input of 
their specific concerns. It also provided tribal technical expertise to aid in more informed decision-making. 

The base level of activities varies by tribe depending on factors such as the size of the geographic management area, 
number of Forest Practices Applications (FPAs) submitted in their area, and the number of miles of stream habitat to 
be managed. Components of each tribal base level program include: 

* Review and document FPAs; identify those requiring field visits. 

* Participate In field investigations such as Interdisciplinary (ID) team reviews. 

* Participate as designated tribal representatives on TFW committees. 






248 



Following is a summary of fib* 1 TFW activities for Fiscal Years 88, 89, and 90. Also included is a description of 
a specific tribal effort to address concerns within their area. More detailed information is available by contacting the 
tribes. Northwest Indian Fisheries Commission, or the Portland Area Office of the Bureau of Indian Affairs. 

LUMMI TRIBE 



FY 88 

* Coiyftictf^ channel morphology studies, including surveys of channel cross-sections and pool dimensions. Studies 
provide information on gross changes to channel morphology and impacts to habitat used by salmon in various life 
stages. 

* Participated in Canyon Creek Technical Committee, a multi-agency group focused on remediation of stream 
habitats damaged by past logging practices. 

* Provided technical assistance to Nooksack Tribe for TFW stream rehabilitation pilot project 

* Participated in initial development of TFW Orphaned Roads Pilot Project 

* Provided technical and logistical assistance to geology research being conducted in a critical watershed in the 
Nooksack River basin. 

* Initiated contact with state and private sector groups announcing tribal cultural and archaeological program. 

* Completed preliminary inventory of cultural use sites, areas and resources for use in tribal database. 

* Initiated cross-cultural workshops with Department of Natural Resources (DNR). 

* Addressed school children about fish habitat and geology for local "Day in the Woods" Program. 

* Committees and training: TFW Policy Group; Administrative Committee; Sediment Hydrology and Mass Wasting 
Committee (SHAM); Slope Stability Workshop; Ambient Monitoring Workshop; and computer software classes. 

FY 89 

* Assisted with multi-agency Deadhorse Creek acclimation pond. Pond is part of natural stock recovery program on 
North Fork Nooksack River. 

* Worked with Georgia-Pacific Corp. and agencies on road reconstruction project in West Cornell. Result was more 
stable road location, reduction of sediment and improved long-term channel stability. 

* Participated in Nooksack Co-op Group. Group is proto-TFW and is focused on resource rehabilitation in the 
Nooksack basia 

* Served on Orphaned Roads Ad Hoc Committee. Provided field assistance to DNR for pilot project site. 

* Participated in Sustainable Forestry Roundtable (new legislation). Provided technical assistance to Rate of Harvest 
Steering Committee. 

* Participated in Racehorse Creek Rood Emergency Response Team. Addressed potential for channel shift and 
resultant damage to fish habitat and private homes. 

* Expanded inventory of cultural use sites to include Whatcom County and San Juan County. Accompanied TFW 
Interdisciplinary Teams to potential impact sites and completed draft cultural resource management plan for use on 
state and private lands. 

* Continued cross-cultural workshops. 

* < " ?" n ' necs " nd tramin F TFW Polky Group, Administrative Committee, SHAM Committee, Fish Committee. 
Northwest Region Team Building, conference on forestry and forest systems, and Ambient Monitoring Committee 

rY 90 

* Initiated basin studies in two watersheds. Purpose is to better plan resource management to preveru impacts to 
streams and improve stream recovery. 

* C on ti nu ed Sustainable Forestry Roundtable (new legislation) participation. 

* Presented overview of Nooksack fisheries and forestry for Agricultural/Forestry group. 

* Worked with U.S. Forest Service on cumulative effects methodology. 

* Participated in Spring Chinook Technical Group. 

* Wrote fisheries section and provided technical review of South Fork Sub-area background document for Whatcom 
County Planning Department. 

* Accompanied TFW Interdisciplinary Teams to potential cultural resources impact sites including those on the north 
and south forks of the Nooksack River and San Juan Islands. Completed draft of cultural resource management plan. 

* Continued cultural values workshops. 

10 



249 



* Committees and training: TFW Policy Group; Administrative Committee; SHAM Committee; Cooperative Moni- 
toring, Evaluation and Research Committee; basin screening work group; slope stability workshop; American Geo- 
physical Union debris flow field trip. 

The Lummi Tribe conducts an extensive cultural and archaeological program as pan of its TFW effort. The 
Lummi TFW Cultural Resource Program is designed to identify and protect cultural and archaeological sites, areas 
and resources in the tribe's traditional area. 

Over 24 cultural use sites on state and private lands in the tribe's traditional area have been identified through the 
program. These include vision questing sites, cleansing sites, and areas where traditional medicines and ceremonial 
materials are collected. Information about the sites has been compiled by the tribe and is used in evaluating the nature 
and extent of cultural impacts from proposed Forest Practice Applications. The tribe is finalizing a Cultural Resource 
Management Plan that can be used by state, federal and other agencies to manage and protect these sites. 

The tribe's TFW Cultural Resource Program has been extensively involved in the Values Project Northwest, 
which is designed to improve cross-cultural communication between resource-dependent agencies and affected tribal 
communities. The project, coordinated by the tribe and the Florence R. Kluckhohn Center, brought together tribal 
staff and community members with managers and field personnel from die state Department of Natural Resources to 
learn more about value-based 
differences and how well, or 
poorly, these values are under- 
stood 

NOOKSACK TRIBE 

FY 88 

* Staff reviewed about 350 Forest 
Practice Applications (FPAs) and 
responded on 37 with comments 
to DNR. This included attending 
eight ID teams pertaining to the 
concerns of the Nooksack Tribe. 

* The Nooksack Tribe worked 
jointly with the Lummi Tribe in 
rehabilitation projects in river 
basins that have significant 
erosion problems. 

* Staff attended a workshop on 
slope stability as it relates to forest practices. 

FY 89 

* Staff continued to review about 350 FPAs and responded on SO with comments to DNR. This included attending 
five ID teams. 

* The Nooksack Tribe continued to work jointly with the Lummi Tribe in rehabilitation projects in river basins that 
have significant erosion problems. 

* Staff participated in ambient monitoring field methods training. 

* Staff collected data for the Ambient Monitoring Program; completed 7.2 stream miles within the North Fork 
Nooksack drainage. 

FY 90 

* Staff continued to review about 350 FPAs and responded on 50 with comments to DNR. This included attending 
three ID teams. 

* The Nooksack Tribe continued to work jointly with the Lummi Tribe in rehabilitation projects in river basins mat 
have significant erosion problems. 

* Staff participated in ambient monitoring workshops, anthropological courses, and computer classes. 

* Worked jointly with the Lummi Tribe to collect ambient monitoring data this year. 




Paul Johnny, Nooksack TFW technician, rolls a log Into placs as part of ths tribs's 
sfforts In ths TFW Corrscuvs Action Program. 



11 



71ie Nookaack Tribe has been extensively involved in stream rehabilitation and habitat restoration from the early 

stages of TFW. 

Under the TFW Corrective Action Program, the tribe, U.S. Forest Service, Department of Natural Resources and 
several timber companies joined forces to rehabilitate and enhance salmon and steelhead habitat in the Nooksack 
River watershed. The program focused on the upper reaches of the watershed, where past logging practices created 
landslides, unstable stream channels and debris dams that have damaged or destroyed large amounts of fish habitat. 

On Racehorse Creek, tribal and state workers slowed erosion of the steep, mostly bare slopes lining the stream by 
anchoring logs and root wads along the creek. In addition to slowing the rate of erosion along the creek, side channel 
rearing habitat was created for naturally spawning salmon and steelhead On Canyon Creek, workers anchored logs in 
the stream to trap gravel and increase salmon spawning habitat. An additional 12 miles of critical salmon spawning 
habitat was opened up on the river's South Fork after workers carved a four-step series of pools in a 20 foot waterfall 
that had blocked fish passage. 

The Nooksack watershed was one of two selected for the Corrective Action Program, which served as a statewide 
model for implementation of TFW. 

SKAGIT SYSTEM COOPERATIVE (SSC): SWINOMISH TRIBE; UPPER SKAGIT 
TRIBE; SAUK-SUIATTLE TRIBE 

FY 88 

* Organized SSC TFW program. 

* Hired full-time staff person in August 1988 to work on the TFW Program (two months in FY- 1988). 

* All forest practice applications (226, covering approximately 1 2,000 acres) received from the beginning of the TFW 
program were entered into a computer database for analysis. 

* Staff participated in two ID teams. Nine field days were spent reviewing forest practice sites, three days were spent 
in training, and four days in meeting. The balance of the time was spent in developing the database and setting up 
procedures to implement the program. 

FY 89 

* SSC staff increased field work involvement including ground truthing of potential fisheries impacts, expansion of 
interaction with DNR, and increased participation in "Big Picture" TFW activities. 

* Staff participated on the committee to develop new water typing methods. 

* SSC developed a work plan for their program for TFW which consisted of objectives and methods for meeting 
those objectives. 

* SSC received and reviewed 343 forest practice applications involving approximately 24,000 acres for potential 
fishery impacts and entered information into the database for analysis. 

* The effort in FY- 1 989 involved 85 days in field review, 21 days of training, and 35 days in meetings. The balance 
of the time spent in the office. 

* Seventeen FPAs required formal written comments and numerous others were addressed through informal meetings 
or phone calls. 

FY 90 

* Additional staff were hired in order to meet SSC TFW objectives outlined in the work plan. 

* Staff participated in Sustainable Forestry Roundtable (new legislation) activities such as the Forest Practice Board 
Areas of Concern. 

* SSC received, reviewed and documented 363 forest practice applications involving over 21 ,000 acres. 

* Staff continued to participate on ID teams which has resulted in significant gains in fishery resource protection. 

* SSC has used its data base to track forest practices by sub-basin in an 80- square-mile test area of the Skagit River 
to monitor timber harvest rates and locations in an area where streams are severely aggrading. 

* SSC has cooperated with private timber companies and the State Department of Fisheries in stream restoration 
projects. For example, SSC jointly installed in-stream log structures and cooperated on a rearing pond project 

* SSC initiated monitoring projects on streams to track stream recovery from timber harvest impacts. 

* SSC has conducted stream retyping and has seen a productive component of habitat protection in the Skagit water- 
shed. We have electroshocked and upgraded 21 streams to type 3, which has resulted in substantially greater fisheries 
habitat protection. 

12 



251 



* Staff alerted DNR to potential fishery habitat problems. Without the tribal TFW program these habitat issues would 
have gone unnoticed and may have resulted in significant damage to the fishery resource. 

Skagit System Cooperative (SSC) tribes are active primarily in the Skagit River basin. SSC personnel have 
cooperated with private timber companies and the State Department of Fisheries in a number of stream restoration 
projects. SSC. Washington Department of Fisheries and the Port Blakely Mill Company jointly installed in -stream 
log structures in a tributary to Hansen Creek that will substantially improve fish habitat. In addition, SSC is cooperat- 
ing with the U.S. Forest Service on a rearing pond project in the Bacon Creek drainage. 

SSC TFW personnel also recently began monitoring projects on a tributary to Hansen Creek and in lower Finney 
Creek to track stream recovery from timber harvest impacts. 

TULALIP TRIBES 

FY 88 

* Conducted Temperature Monitoring and Critical Development Study, which included placing and analysis of data 
from 13 thermographs and one weather station. 

* Conducted ambient monitoring activities. Developed work plan and monitored 36 miles of habitat on specific 
stream reaches. 

* Conducted water quality collection and analysis as a result of geologic failures on the South Fork Still aguamish 
River. Collected and analyzed water for turbidity and suspended solids. Conducted in-stream analysis and monitoring 
of substrate and channel physical changes. 

* Participated on the following TFW committees: Water Quality Steering Committee; Sediment, Hydrology and 
Mass Wasting Steering Committee; Fish Steering Committer; Cultural Resources Steering Committee; Administra- 
tive Committee; Policy Committee. 

* Attended the following TFW training sessions: TFW Training; In-stream Flow Incremental Methodology; Recog- 
nizing Archaeological Sites; 

Remote sensing; Slope stability, 
Geomorphology , Channel Mor- 
phology and Hydrology. 



"The Washington Environmental Council wholeheartedly supports Congressional 
funding for Washington Indian tribes participating in the Ti mber/Fish/Wildiite process. 

The technical skills of the various tribes and the full and generous use of those skJBs 
in the many cooperative forums is also vital. The months of long negotiations on the 
South Fortes of the Tort River are just an example. The Tuialip Tribes geologist and 
fisheries experts went constantly involved and provided the information and 
willingness to work together that made a resolution possible. 

This is just one example of the many places where the tribes are involved day in and 

day out. We can neither go on, nor succee d without them* 

- Mercy Gokse, Director, Washington Environmental Council Forestry Project 



FY 89 

* Conducted ambient monitor- 
ing on Deer Creek, Woods 
Creek, Portage Creek, and 
several tributaries to the South 
Fork Stillaguamish River. 

* Continued and expanded 
thermograph program. 

* Took active rote in the Lake 
Roesi ger monitoring team appointed to monitor FPA compliance in the basin. 

* Initiated and participated in a cumulative effects analysis project in the North Fork Toll River basin. 

* Participated in an orphaned roads inventory in the Stillaguamish River basin. 

* Participated in the following TFW committees: Sediment, Hydrology and Mass Wasting Steering Committee; Fish 
Steering Committee; Cultural Resources Steering Committee; Administrative Committee; Policy Committee; Wild- 
life Technical Advisory Committee; Deer Creek Technical Committee. 

* Attended the following TFW training sessions: TFW Training; TFW Ambient Monitoring workshop; "Forestry and 
Landslides" workshop; Forest Hydrology course; Wildlife Diversity in Landscape Patterns; Geographic Information 
System workshop; Training in operating and programming Omnidata Polycorders. 

FY 90 

* Continued North Fork Tolt River cumulative effects assessment . 

* Developed proposals for Dry Creek and Benson Creek habitat rehabilitation. 

* Developed Woods Creek cumulative effects assessment and proposal. 

* Participated in Department of Natural Resources geographic information system project. 

* Conducted Watershed and Stream Channel Cumulative Effects project 

13 



252 



* Participated in Department of Natural Resources Orphaned Roads Project 

* Participated on the following TFW committees: Sediment Hydrology and Mass Wasting Steering Committee; Fish 
Steering Committee; Cultural Resources Steering Committee; Administrative Committee; Policy Committee; Wild- 
life Steering Committee; Deer Creek Technical Committee; Sustainable Forestry Roundtable (new legislation) 
participation: Wildlife Committee; Thresholds Committee; Rate of Harvest Committee: North Fork Tolt River Ge- 
otechrocal Committee. 

The Tulalip Tribes are active TFW participants in both the Stillaguamish and Snohomish watersheds. Tribal 
personnel conduct extensive analyses of the cumulative effects of forest practices in the two watersheds and review 
approximately 700 FPAs annually. 

In addition to site reviews, tribal TFW staff have performed intensive field surveys to assess major geologic and 
biological impacts of forest practices in the watersheds. For example, field investigations were conducted on major 
geologic failures on the North Fork Stillaguamish, the Skykomish and a tributary to the Snoqualmie. A debris flow 
on a tributary to the North Fork Stillaguamish was surveyed to determine its cause and origin, and a water quality 
problem as a result of forest practice activity was investigated on a tributary to the South Fork Stillaguamish. 

In most cases where forest practice applications were reviewed by staff in the field, changes were recommended to 
reduce potential impacts to fish, wildlife, water quality, cultural and archaeological, and other resources. 

STILLAGUAMISH TRIBE 

FY88 

* Reviewed Forest Practice Applications (FPAs). 

* Attended field interdisciplinary (ID) teams on priority sales. 

* Began to develop a database for tracking timber harvests by basin. 

1989 

* Continued to review FPAs 

* Participated on field ID teams. 

* Monitored the Stillaguamish basin for compliance and impacts. 

* Attended several training sessions on logging practices, slope stability and channel morphology. 

FY 90 

* Continued to review FPAs 

* Participated on field ID teams 

* Developed a computer database for timber activities and for cultural and archeological resources. 

* Attended meetings as a member of the TFW archeological and cultural committee. 

* Began to organize TFW breakfast meetings in Stillaguamish area. 

* Wrote grant to conduct an orphaned road investigation in the Stillaguamish River basin. 

* Surveyed and electroshocked streams to determine stream classification types. 

* Worked with other tribes on Sustainable Forestry Roundtable (new legislation) technical issues. 

TFW breeds cooperation outside of the formal process of the agreement For example, the Stillaguamish Early 
Action Watershed Planning process has created an arena for TFW cooperators and the VS. Forest Service to work on 
a basin wide management plan. By using the systems approach, the participants can address the forest practice 
impacts and their relationship to agricultural, urban runoff and septic impacts. 

A cooperative landslide stabilization project is ongoing in the Deer Creek Basin. Georgia Pacific, the Department 
of Natural Resources and the U.S. Forest Service have all dona ted labor and services to the effort to protect the fish 
resources of the river system from the effects of the slide. 

In addition, the tribal TFW program recently received a Department of Ecology Centennial Clean Water Grant to 
conduct an orphaned forest road inventory in the Stillaguamish Basin. AH local TFW participants will be involved in 
the project 



253 



SUQUAMISH TRIBE 

FY 88 

* Developed Suquamish tribal TFW program. Established office, hired personnel, developed preliminary procedures 
for processing permits, notification and information management 

* Developed working relationship with other TFW participants. 

* Participated in TFW training. 

* Conducted Forest Practice Application (FPA) review, both field and office. 

* Coordinated with other agencies to develop recommended conditions on FPAs. 

* Conducted reviews of selected sites both before and after timber harvests. 

* Raised awareness of regulators to environmental problems. 

FY 89 

* Conducted FPA review, both office and field. 

* Coordinated with other agencies to develop conditions for FPAs. 

* Conducted public education (presentations and participation with citizens). 

* Raised awareness of regulators to environmental problems. 

* Conducted envi r onme nt al monitoring (flow monitoring, adult escapement, and habitat monitoring. 

FY 90 

* Conducted FPA review, both office and field. 

* Coordinated with other agencies to develop conditions for FPAs. 

* Conducted public education (presentations and participation with citizens). 

* Raised awareness of regulators to environmental problems. 

* Conducted environmental monitoring (flow monitoring, adult escapement, and habitat monitoring. 

* Developed working relationship with other TFW participants. 

* Training: TFW orientation; Geographic Information System seminar, and ambient monitoring training. 

Conversion of forest lands to urban areas is proceeding at a rapid pace in many parts of Washington, especially on 
the Kitsap Peninsula. 

Because the Kitsap Peninsula is an area of low land gradient, its streams are relatively small and its watersheds are 
riddled with wetlands. In addition to these unique characteristics, the area is rapidly urbanizing. As a result, 
Suquamish Tribe TFW p erso nn el spend a great deal of time on forest practice issues related to conversion of land 
from managed forest to other land use and harvesting in wetlands. Numerous site visits are conducted with various 
parties for wetland harvest areas, before, during and after timber harvesting. 

Tribal TFW staff also have been assisting Kitsap County government during its transition process of developing a 
Forest Practices Application review process. 



MUCKLESHOOT TRIBE 



"Participation by Washington State Indian tribes has been an 
important cornerstone in successful Timber/Fish/Wildlife negotiations 
and plan implementation. Their cultural and economic investments in 
the long-term health of our natural resources are a force In support 
of positive change. They have served as a point of pressure in our 
battle to improve the means by which we protect this state's natural 
resources." 

- Christine Qregolre, Director, Washington Department of 
Ecology 



FY 88 

* Established working relationships with other 
agencies including industry, city, county, state, 
federal, private organizations, and other tribes. 
Obtained equipment for effective office, field 
work, and monitoring. 

* Reviewed 216 Forest Practice Applications 
(FPAs), provided written and oral comments, 

and participated in Interdisciplinary (ID) team reviews. 

* Monitored activities and research within the scope of the 19 projects of the Cooperative Monitoring, Evaluation and 
Research Committee. 

* Attained mitigation by Weyerhaeuser Company to enhance the Green water River with eight permanent fish habitat 
structures. These structures were constructed of logs, and designed by Muckleshoot TFW staff. The endeavor was in 
pan of a mitigation effort for damage caused by a timber harvest 

15 



* Conducted ambient monitoring, including five months of extensive field work. 

* Re-typed several streams, resulting in better fisheries protection. Streams suspected to contain fish were electro- 
shocked, and if fish were found, the re-typing process upgraded the classification of the creek. 

* Participated on the TFW Water Quality Steering Committee; Fisheries Committee; Temperature Steering commit- 
tee. 

* Operated and monitored three thermographs to monitor forest management and fisheries interaction as pan of 
several on-going temperature monitoring studies. 

* Participated on TFW Cultural/ Archeological Committee. 

FY 89 

* Participated in aerial photo shoot by the Department of Natural Resources (DNR). The organization and education 
acquired by the use of these photos greatly assisted in the effectiveness and efficiency for forest practice monitoring. 

* Obtained valuable soils information from the DNR, and were trained in evaluation of slope stability. These re- 
sources have been a most valuable asset in forest practice monitoring. 

* Attended annual pre- and post-harvest reviews with DNR, Plum Creek Timber Co., Champion International, and 
Weyerhaeuser Timber Co. Proposed harvest units were presented and commented upon, making it possible to address 
tribal concerns for resource protection in the design and structure of the timber sales. 

* Re-typed several streams, resulting in better fisheries protection. Streams suspected to contain fish were electro- 
shocked, and if fish were found, the re-typing process upgraded the classification of the creek. 

* Reviewed 3S6 FPAs, provided written and oral comments, and participated in ID team reviews. 

* Developed proposals for cooperative fish and wildlife enhancement projects within the tribe's Usual and Accus- 
tomed Area. 

* Attended various meeting to coordinate activities, direction, monitoring projects, ideas, and field implementation. 
Meetings included: DNR breakfast meetings; Native American Fish and Wildlife Society conferences; American 
Fisheries Society symposiums; New Watershed Perspective Research; Sensitive Areas meetings; Wetlands training; 
geographic information 
system training; rate of 
harvest work groups; commu- 
nity planning; county coordi- 
nation; landowner/developer 
coordination meetings. 
Several training and education 
workshops were also attended. 

FY 90 

* Reviewed Forest Practice 
Applications, provided written 
and oral comments, and participated in ID team reviews. 

* Attended annual pre- and post-harvest reviews for DNR, Plum Creek Timber Co., Champion International, and 
Weyerhaeuser Timber Co Proposed harvest units were presented and commented upon, making it possible to address 
tribal concerns for resource protection in the design and structure of the timber sales. 

* Re-typed several streams, resulting in better fisheries protection. Streams suspected to contain fish were electro- 
shocked, and if fish were found, the re-typing process upgraded the classification of the creek. 

* Reviewed 413 FPAs, provided written and oral comments, and participated in Interdisciplinary Team reviews. 

* Attended various meetings to coordinate activities, direction, monitoring projects, ideas, and field implementation. 
Meetings included: Native American Fish and Wildlife Society conferences; American Fisheries Society symposi- 
ums; New Watershed Perspective Research; Sensitive Areas meetings; Wetlands training; geogra p hic information 
system training; Sustai n abl e Forestry Roundtable (new legislation) participation; rate of harvest work groups; com- 
munity planning; county coordination; landowner/developer coordination meetings. Several training and education 
workshops were also attended. 

In cooperation with the TFW Cooperative Monitoring. Evaluation and Research Committee, Muckteshoot TFW 
personnel operate and monitor three thermographs on the Greenwater River. This is the second year of the project. 
which is examining river temperature trends to «<*«»tmtn» how dearcuts and insufficient streamside vegetation zones 
are affecting water temperatures in a portion of the river. 
16 



The tribes have been Involved In all aspects of TFW throughout the state. For 
example, they have participated in Interdisciplinary Teams, development of Resource 
Management Plana, review of Priority issues, review of Forest Practice Applications. 
and field checking to monitor compliance with the Forest Practice Rules and 
Regulations and the TFW Agreement 

The tribes have been able to provide expertise in review of forest practice impacts to 
fish and fish habitat. Over time they have shown themse Ives to be effective in 
promoting additional protection to streams and Instream habitat and have been an 
Important ally in our efforts to protect fish and fish habitat." 
- Joeeph Blum, Director, Washington Department of Fisheries 



Muckleshoot TFW personnel monitor water and air temperatures at three stations along the river one in an old- 
growth area providing adequate shade; one in an area that has been recently clearcut; and one at the river's mouth. A 
lack of shade from trees and other vegetation along streams can result in higher-than-normal water temperatures, 
which can harm salmon and other fish. This study is particularly important in light of a severely depressed run of 
spring chinook in the river system. 

PUYALLUP TRIBE 

FY 88 

* Developed program and cultivated working relationships with other TFW participants. 

* Reviewed and evaluated Forest Practice Applications (FP As). 

* Developed program support activities. 

* Participated in timber harvest site reviews and Interdisciplinary (ID) team. 

FY 89 

* Represented tribal concerns related to fish and wildlife habitat in watersheds within the tribe's area of interest 
Concerns included in-stream parameters, channel features, riparian zone integrity, fish and wildlife habitat, wetland 
environments, and water quality concerns. 

* Reviewed and evaluated FPAs. 

* Participated in ambient monitoring training. 

* Participated in ID team reviews. 

* Participated in geographic information system (OIS) training. 

FY 90 

* Reviewed and evaluated FPAs. 

* Participated in TFW Program Data Management Subcommittee. 

* Participated in stream rehabilitation project on Little Mintcr Creek in cooperation with state and local agencies and 
the Squaxin Island Tribe. 

* Sponsored development of resource management planning teams for drainage in the tribe's area of concern. Served 
as leader and facilitator of workgroup. 

* Served as tribal representative and secretary for the Sustainable Forestry Roundtable (new legislation) Mixed Use 
Zone Subcommittee. 

* Participated in pre-harvest reviews which directly resulted in conditioning of environmentally sensitive harvest 
proposals. 

* Participated in TFW Cooperative Monitoring, Evaluation and Research Committee's Watershed Threshold Deter- 
mination Subcommittee, 

* Attended two GIS training sessions. 

* initiated efforts to standardize reporting capabilities of the computerized database containing FPA harvest informa- 
tion to reflect watershed rate of harvest information for drainage in the tribe's area of concern. 

The Puyallup Tribe's TFW program was active in a cooperative stream rehabilitation project with the Washington 
Department of Fisheries, Kitsap County Conservation District, landowners, and the Squaxin Island Tribe. The project 
involved the design and placement of log weirs in Little Minter Creek in the Carr Inlet Watershed. Pool development 
and other important fish habitat factors in the stream were enhanced as a result of the project 

NISQUALLY TRIBE 

FY 88 

* After playing an instrumental role in the drafting and completion of the historic Timber, Fish, and Wildlife Agree- 
ment , the Nisqually Indian Tribe began building its TFW program by establishing base level activities. In addition, 
the tribe initiated preliminary habitat assessments of streams within the forested areas of the Nisqually River drain- 
age. 

* In conjunction with the Weyerhaeuser Timber Co.. the tribes proposed initiation of a pilot project to develop a Re- 
source Management Plan (RMP) for the Nisqually River. 

17 



256 



FY 89 

* The tribe maintained and expanded the base-level activities of the TFW program, adding a computerized filing and 
tracking system using a datah«y program to update and, if necessary, collate trends and sort and group data acquired 
in the FPA review task. 

* Nisqually tribal TFW staff continued to assume a leadership role in the RMP process throughout the year, espe- 
cially in the area of fisheries. 

FY 90 

* In early 1990, the Nisqually Tribe's TFW staff directed the completion of the first cooperative RMP in Washington 
State The plan area encompasses nearly 100.000 acres of forested timber land in the Nisqually River drainage It 
centers on the Mashel River, the largest of the Nisqually River tributaries. 

* After presentation to the public and the Washington Forest Practices Board, the Nisqually RMP began its three year 
implementation phase on July 1, 1990. The tribe, continuing its leadership role in the process, proposed the formation 
of implementation sub-committees to oversee the implementation of action items identified in the plan. The tribe 
currently chain the fishe riesSwater quality implementation sub-comm irtee. 

Thirteen parties, including the Nisqually Tribe, state agencies, timber companies, environmental groups and 
others, voluntarily chose to participate in development of the plan. A primary goal of the plan is to find a balance in 
the use of the plan area for timber, fish, wildlife, water and other resources. 

The tribe initialed implementation of certain RMP elements, including establishing an inira-gravel sediment 
analysis projection the Mashel River, and providing for sequential forest cutting in unstable soil areas. The tribe also 
conducted initial development of interim guidelines for protection of wetlands from impacts by forest practices, and 
identified a location for a hatchery satellite rearing pond within the RMP area. In addition, the tribe is establishing a 
process to encourage acquisitions to protect the Nisqually River corridor from non-forestry conversions. 

Developing the RMP enabled the cooperators to team more about each other, their concents, pro gi am i, responsi- 
bitities and philosophies. It built solid, continuing communications which have already helped to clarify and resolve 
issues. This effort contributed in identifying short- and long-term coope r a ti ve efforts to balance timber and other 
natural and cultural resources in the Nisqually River drainage. 

SQUAXIN ISLAND TRIBE 

FY 88 

* The first nine months of the program was spent on setting up the program, reviewing Forest Practices Applications 
(FPAs), and participating on the TFW Cooperative Monitoring, Evaluation and Research Steering Committees. The 
tribal TFW program was active in the evaluation and implementation of the TFW Ambient Monitoring Program, 
which included the training of Northwest Indian Fisheries Commission monitoring teams and the setting up of the 
tribe's own monitoring schedule. 

* Served on TFW Water Quality Steering Committee. 

* Attended workshops on slope stability and ambient monitoring. 

FY 89 

* Fielded one full-time monitoring crew. Approximately 15 stream miles of baseline habitat data was collected. 

* Served on TFW Field Implementation Committee; Sediment, Hydrology and Mass Wasting Committee; Water 
Quality Steering Committee; Cultural Steering Committee. 

Attended workshops on riparian resource management; TFW training; ambient monitoring, valley segments, 
geographic information systems, and wetlands delineation. 

* Conducted mid-winter bald eagle surveys in cooperation with Washington Department of Wildlife 

* Initiated snag recruitment program with three local timber companies. 

* Initialed stream re-classification and stream obstruction mapping. 

* Participated in stream re habilitation project on Little Min ter Creek with state and Kitsap County agencies, local 
landowners and the Puyallup Tribe. 

* P«ticip«ed in TFW Second Annual Review. 



257 



FY 90 

* Increased efficiency of ambient monitoring program by working cooperatively with Washington Conservation 
Corps, which provided the tribe with full-time technicians. Twenty stream miles of data was collected during the field 
season. Maps were developed to show land use, mass wasting and bank cutting, vegetation types, anadromous 
barriers, anadromous fish habitat, and valley segments. 

* Served on TFW Water Quality Steering Committee; Cultural Steering Committee; Thresholds Committee. 

* Attended workshops on ambient monitoring; valley segments, and slope instability. 

* Initiated cooperative efforts with Weyerhaeuser Co. to develop basin-wide plans in the Deschutes watershed to 
address cumulative impacts of timber harvesting to fish habitat. 

* Conducted mid-winter bald eagle and spotted owl surveys in cooperation with Washington Department of Wildlife. 

* Continued stream re-classification and stream obstruction mapping. 

* Initiated Deschutes Road Inventory Project 

* Participated on Thurston County Erosion Control Board to develop ordinances addressing forestry in urban areas. 

* Sponsored field trip for Thurston County Commissioners, staff, developers, and state agencies to review forest 
practice conversions. 

* Participated in TFW Third Annual Review. 

Effects of heavy logging activity and severe winter storms in 1989-90 caused severe damage to the resources in 
the Deschutes River Basin. With the cooperation of the landowner, Squaxin Island TFW personnel performed site 
reviews both in the air and on the ground. Road and in-stream failures were located and recorded. Results of the 
initial survey culminated in the implementation of the Deschutes Road Inventory Project 

In addition, approximately 35 stream miles of baseline fish habitat data has been collected by tribal TFW staff in 
the tribe's area of concern during the past two years. 

POINT NO POINT TREATY COUNCIL: JAMESTOWN KLALLAM TRIBE; PORT 
GAMBLE S'KLALLAM TRIBE; LOWER ELWHA KLALLAM TRIBE; SKOKOMISH 
TRIBE 

FY 88 

* Attended training sessions on cultural resource identification, slope stability, and design and layout of riparian 
management zones. 

* Inventoried stream and habitat conditions in tribal usual and accustomed areas to retype streams and identify 
potential restoration projects. 

* Conducted public education efforts, such as presentations to school groups and citizen groups on habitat protection 
and the TFW process. 

* Worked with county governments on sensitive area planning and implementation. 

* Reviewed U.S. Forest Service timber sale planning on federal lands to ensure consistent habitat protection within 
watersheds. 

FY 89 

* Attended training sessions on cultural resource identification, slope stability, and design and layout of riparian 
management zones. 

* Conducted public education efforts, such as presentations to school groups and citizen groups on habitat protection 
and the TFW process. 

* Participated in citizen-government advisory groups, including Dungeness River Management Teams (DRMT). 

* Conducted stock and habitat analysis of depressed fisheries and development of fisheries enhancement proposals on 
the Dungeness River in cooperation with the Washington Department of Fisheries. 

•Initiated temperature monitoring in the Dungeness and Pysht rivers. 

* Discovered, confirmed and ensured protection of cultural sites on Jimmy Come Lately Creek in cooperation with 
the U.S. Forest Service. 

* Conducted surveys to map distribution and conducted sampling to estimate abundance of salmonids in Jimmy 
Come Lately and Sieben creeks, and Pysht River 

* Participated on TFW Ambient Monitoring Committee. 

10 



• Attended turning sessions on cultural resource identification, slope stability, and design and layout of riparian 

management zones. 

'Reviewed U.S. Forest Service timber sale planning on federal lands to ensure consistent habitat protection in 

watersheds. 



FY 90 

* Participated in Fish Risk Assessment, Wildlife Risk Assessment and Priority Habitat and Species Committees. 

* Restored planning efforts for depressed spring chinook salmon on Dungeness River in cooperation with private 
salmon enhancement corporations, state and federal resource agencies. 

* Continued habitat surveys of Jimmy Come Lately Creek with U.S. Forest Service. 

* Conducted habitat improvement planning in cooperation with U.S. Forest Service in the Skokomish drainage area. 

* Initiated pilot study of sediment sampling in selected Treaty Council area streams. 

* Pushed for recognition of a watershed impact assessment approach through identification of cumulative impact 
analysis of forest practice activities. This resulted in initiation of a problem area basins survey by the Forest Practices 
Board. 

* Conducted ambient monitor- 
ing inventories on Gamble, 
Seabeck, and Snow creeks and 
the Tahuya and Skokomish 
rivers. Landowner contacts 
promoted tribal involvement in 
fisheries protection efforts. 

* Assisted in development of 
Olympic Experimental State 
Forest Plan. 

* Expanded public education/ 
involvement activities to 
include presentations at the 
University of Washington and 

local high schools, professional jm, Uchatowlch. right. Point No Point Tnaety Council habitat biologist. Mlk* Reed, 
organizations, environmental Washington Environmental Council, and others survsy the upper Pyeht River for 
groups, and citizen monitoring Indications of cumulative effects from forest practices in the watershed, 
groups. 

* Attended training sessions on cultural resource identification, slope stability, and design and layout of riparian 
management zones. 

* Reviewed U.S. Forest Service timber sale planning on federal lands to ensure consistent habitat protection in 
watersheds. 




Within the Point No Point Treaty Council Tribes' usual and accustomed area, TFW staff tuve surveyed and 
identified 22 basins requiring special attention by the Department of Natural Resources. In cooperation with TFW 
participants, the tribes are developing a process for review of forest practices in these basins to address our concerns. 

The tribes have made ongoing efforts to coordinate with the Departments of Natural Resources, Ecology, Fisher- 
ies, and Wildlife as well as neighboring tribes to study the cumulative impact of logging on watersheds in the Treaty 
Council area. This work began on the Pysht River and will be extended to additional streams throughout the Treaty 
Council area. Sediment and temperature data collected by the tribes this summer has assisted in assessing critical 
habitat thresholds to ensure greater protection from impacts associated with commercial logging and conversion of 
forest land to urban development. 

MAKAH TRIBE 
FY 88 

'Reviewed 225 Forest Practices Applications (FPAs), providing written and oral comments. Also participated in 

Interdisciplinary (ID) teams and pre file reviews. 

* Re-typed streams for more appropriate fisheries protection. 



259 



* Identified potential and existing resource problems, as well as forest practice violations; contacted agencies and 
landowners 

* Initiated temperature studies on the Sooes River. The drainage was heavily logged in the 1960s and 70s, with a 
corresponding loss of shade for the river. Because the river is the source of water for the tribal hatchery, it is crucial 
that problem areas be identified. 

* Initiated discharge studies in the Sooes, Sail, and Sekiu rivers in an attempt to correlate discharge with stream 
surveys. 

* Conducted weekly spawning surveys in the Sekiu River to document escapement. Information will also be used to 
assess natural productivity of streams and help correlate findings with land management activities, as well as to 
identify important areas in need of protection. 

* Conducted summer low flow salmonid surveys to assess habitat and habitat deficiencies. 

* Conducted bald eagle surveys along a 1 5-mile stretch of the Strait of Juan de Fuca. 

* Hosted TFW Cultural and Archaeological workshop. 

FY 89 

* Reviewed 241 FPAs and provided written and oral comments; participated in ID teams and pre -file reviews. 

* Re-typed streams to provide more appropriate fisheries protection 

* Expanded ambient monitoring program to include monitoring for suspended sediment in the Sekiu River. 

* Identified potential and apparent resource problems as well as forest practice violations; contacted appropriate 
agencies and landowners. 

* Sampled spawning gravels throughout Sekiu River for percentage of silts and sands, which are detrimental to 
salmon egg survival. 

* Continued temperature study in Sooes River. 

* Continued spawning surveys in the Sekiu River and expanded program to include Clallam and Pysht rivers. 

* Continued summer low flow habitat surveys. 

* Discovered two previously unknown cultural sites and registered them with the state office of Archaeological and 
Historical Preservation. 

FY 90 

* Reviewed 262 FPAs and provided written and oral comments; participated in ID teams and pre-file reviews. 

* Completed Sekiu River sediment study. 

* Conducted temperature studies in Crooked Creek and Big River. 

* Expanded spawning gravel sampling for percentage of fine sediment to include the Pysht, Hoko and Clallam rivers. 

* Continued spawning surveys in the Sekiu, Pysht and Clallam rivers. 

* Continue summer low flow habitat surveys. 

* Participated in TFW Cultural and Archaeological Committee, Olympic Experimental Forest Local Technical 
Group, and Pysht River Resource Management Plan Fishery Advisory Group. 

Examining and stemming the effects of sedimentation from timber harvesting and road building has been a focus 
of the Makah Tribe's TFW effort. 

Until recently, little consideration was afforded to fisheries by local forest landowners, and many streams in the 
Makah Tribe's Usual and Accustomed Areas have been heavily impacted. Most of the lower gradient reaches of 
major rivers in the area have suffered impacts including sediment deposition, resulting in loss of salmon pool habitat, 
siltation of spawning gravel, a lack of large in-stream wood for habitat diversity, and temperature problems caused by 
a lack of shade. Though these pressing problems remain, accomplishments have been made to improve river habitat 
areas. 

Tribal TFW personnel have sampled major river drainages in the area for percentages of fine sediment in spawn- 
ing gravel by conducting core samples. Results have indicated levels of sediment which many studies have shown to 
be detrimental to the survival of salmon eggs. Additional efforts are planned to further document fine sediment levels 
and assess the impacts to egg survival and to determine naturally occurring levels of fine sediment. This will help 
show the relationship between sediment and local forest land management and document sediment threshold levels 
detrimental to fisheries. 



QUILEUTE TRIBE 



260 






FY 88 

* Surveyed streams aid creeks to define fish habitat 

* Upgraded water type maps to indicate fish habitat. 

* Consulted with state and private foresters as to operational modifications, when necessary, to protect fish habitat 
and preserve water quality. 

* Monitored and consulted with the U.S. Forest Service on its timber harvesting plans and practices 

* Monitored all other logging related activities as to their potential impact to fish habitat 

* Conducted compliance checks to ensure that the regulations are being carried out 

* Monitored and consulted with the various state and federal natural resource agencies to make sure that their policies 
are in the tribes best interest 

* Attend Department of Natural Resources pre -file and pre-harvest meetings. 

* Participated in seminars, workshops and symposiums to learn about the latest developments in resource manage- 
ment 

* Participated on TFW Cooperative Monitoring, Evaluation and Research Fish Committee. 

FY 89 

* Surveyed streams and creeks to define fish habitat 

* Upgraded water type maps to indicate fish habitat 

* Reviewed all Forest Practices Applications in the Quileute Tribe's Usual and Accustomed Area and conducted field 
reviews of all applications involving existing or potential fish habitat 

* Consulted with state and private foresters as to operational modifications, when necessary, to protect fish habitat 
and preserve water quality. 

* Monitored and consulted with the U.S. Forest Service on its timber harvesting plans and practices. 

* Monitored all other logging related activities as to their potential impact to fish habitat 

* Conducted compliance checks to ensure that the regulations are being carried out 

* Monitored and consulted with the various state and federal natural resource agencies to make sure that their policies 
are in the tribes best interest 

* Participated in ambient monitoring program. 

* Served as member of the TFW ad hoc budget allocations committee. 

* Conducted an extensive gravel sampling program in Dickey River system to establish sediment levels. 

* Conducted temperature monitoring program to establish summer low-flow water temperatures. 

* Initiated identification of tribal cultural sites for protection from timber harvesting and related activities. 

* Conducted ambient stream monitoring surveys. 

FY 90 

* Surveyed streams and creeks to define fish habitat 

* Upgraded water type maps to indicate fish habitat 

* Reviewed all Forest Practices Applications in the Quileute Tribe's Usual and Accustomed Area and conducted field 
reviews of all applications involving existing or potential fish habitat 

* Participated in ambient monitoring program. 

* Consulted with state and private foresters as to operational modifications, when necessary, to protect fish habitat 
and preserve water quality. 

* Monitored and consulted with the U.S. Forest Service on its timber harvesting plans and practices. 

* Monitored all other logging related activities as to their potential impact to fish habitat 

* Conducted compliance checks to ensure that the regulations are being carried out 

* Monitored and consulted with the various state and federal natural resource agencies to make sure that their policies 
are in the tribes best interest 

* Attend Department of Natural Resources prc-file and pre-harvest meetings. 

* Participated in seminars, workshops and symposiums to leam about the latest developments in resource manage- 
ment 

* Continued tribal participation on the local advisory group for the Olympic Experimental State Forest 



261 



* Continued gravel sampling program in Dickey River system to establish sediment levels. 

* Continued temperature monitoring program to establish summer low-flow water temperatures. 

* Initiated Dickey Drainage Sedimentation Study. Core sampling was conducted to collect baseline data on sediment 
levels. 

* Implemented study in the Dickey Drainage to quantify summer rearing habitat for juvenile salmonids, in particular 
coho and steelhead. 

* Investigated debris flows in the Sol Due Ranger District, documenting their impact on fish habitat and their rela- 
tionship to timber harvesting practices. 

* Motivated the Olympic National Forest to assemble a team of specialists to identify sensitive drainages and recom- 
mend remedial action. 

* Worked with the state Department of Ecology to upgrade the status of the Sol Due River to increase riparian zone 
protection. 

As part of its TFW commitment, the Quileute Tribe conducted both an extensive gravel sampling program to 
establish sediment levels in some area streams, as well as a temperature monitoring program to gather data on stream 
temperatures during summer low-water flows. 

Data collected as pan of the two programs is being incorporated into a comprehensive resource monitoring 
database. The database will include information now being gathered on tribal cultural and archaeological sites need- 
ing protection from timber harvesting and related activities, as well as data from coho summer rearing habitat surveys 
now underway. 

HOH TRIBE 

FY 88 

* Reviewed all Forest Practice Applications (FPAs) within the Hoh Tribe's usual and accustomed (U&A) fishing/ 
hunting/gathering area. 

* Determined which FPAs will impact public resources, with emphasis placed on impact on fisheries habitat 

* Conducted field review of all FPAs which indicate the potential to impact public resources and submitted written 
comments to landowners - federal, state, or private - stating the tribe's concerns. 

* Conducted ambient monitoring of streams in tribe's U&A. 

* Performed a key role in ambient monitoring during the last two years. 

FY 89 

* Participated on the Olympic Experimental Forest (OEF) Technical Advisory Board. 

* Investigated all debris flows to determine cause and effect relationships, with particular emphasis on how they 
affect fisheries habitat 

* Proposed enhancement, mitigation and restoration plans to landowners that impact fisheries habitat 

* Influenced the OEF Plan to respond to the need to develop sensitive area plans for every basin in the Hoh River 
drainage. This is currently being implemented. 

* Determined the cause and effect of debris flows in the Hoh River basin. 

* Clarified W AC 222-24-050, which addresses the responsibility for logging road maintenance. 

* Helped develop a methodology, now being used by the Department of Natural Resources in the Hoh and Clearwater 
watersheds, to determine if a head wall is unstable. 

* Helped inventory unstable roads within the Hoh River drainage area and assisted in flagging problem areas. 

* Participated in a study of the effects that landslide sil tation is having on salmorrid habitat using ambient monitoring 
techniques and core sampling. This study utilizes control streams inside the Olympic National Park to compare with 
streams outside the Park to determine if negative impacts are occurring in areas subject to logging. 

* Initiated development of Sensitive Area Plan (SAP) for the Hoh basin. Mitigation for previous damages associated 
with logging will be addressed, as well as restoration and enhancement measures for the habitat This SAP will be 
used as a blueprint for SAP development in other areas of the Pacific Northwest 

* Performed a key role in ambient monitoring program. 



^ 3; 




tm the atympu Experimental Pass KIEF* 
Sris flows 10 determine oust and effect 



cement, minpanor and testoranon plans tr landowners 1 
unstable rnadf within the Hot. River dnrihnge m and assisted in 1 




1 snsams inside the Olympic Vannraflftakattt 
r if negative impacts air occtirrmg m an» subiec: tr toRcmf. 
* Pei funned a key role in ambieiu monitoring program 

The Hon Tribe's TPW piu g iain was responsible for determining one cause and effect of ddbBBahwsaiaatMh 
River basin. It was found thai most debris flows mmair frorr landslides frmr. deenommc hatf-bencfc sidecas: 

ne built prior v> 1973. These debris flows aw having a devastating effect or tht sahnonid habfca: 
: its tributaries, as weTJ as in other river systems. 
e*s investigation ahe was icspcaadhte By clarifying the state law wmcfc addresses the 1 

1: was acfcnowtedaetl by the D epa r mieni of Nannai Resources the if puhhr 1 
.the landowner is responsible and liable 1 




QUINAULT NATION 



FY 88 

* Reviewed 327 Potest Practice Applications (PPAs). ronrtiKtwl 21 field reviews and mm*-?, four pir-tia-ves: 



• Participated on several it- v.' committees, including the Policy Group, AdmimstraDvt Fvul hnntsmematior. 1 
tutoring Committees 
Itnthe Fishery 



* Participated or. Temper*- 
one Wo* Group study and 
mode: devclopmen! procci 

* Participated in the mina- 
nor of me 1 
resource 1 
planning process 

* Updated water type maps 



FY 89 

• Reviewed 1 MD FPAs, 
participated on nine lmeidas- 
apunary (ID) I 




* pic-harvea reviews 

■ on seven! TFW' naiiiii li irct . mclurtmg the Pohcy Group, Atiiiiiritiiau vc Fteic hnptsmei- 
i Monitoring Comminees Ne» commioees lomec were the Weuanc Woitang Jjmur. 



■ Participated in the Anthem M outouiiu g; 
mem Logging Systems, and Geographic iniom 




l%| 



Channe: Motphotogy aru ~ores 



MkShopt 



uti the Temnerannr Wort: Qraur study and mode: drveionmen: prors. 
of unnen: monitoring daa for the TFW 
type maps tr mftea fisn usage of snsaaoa 



* Continued to participate in the Hoh/Clearwaier resource management planning process which was expanded and 
renamed the Olympic Experimental Forest. 

FY 90 

* Reviewed 1.325 FPAs, participated on nine ID teams, conducted 137 field reviews, and attended 17 pre-harvest 
reviews. 

* Continued to participate on several TFW committees, including the Policy Group; Administrative; Field Implemen- 
tation; Research and Monitoring; Wetland Working Group; Fisheries; and Water Quality. 

* Participated on the newly formed S us tai n abl e Forestry Roundubk (new legislation) Task Force. 

* Participated in the Ambient Monitoring, and Slope Instability and Forest M anagem ent workshops. 

* Continued to participate in the collection of field data for the Temperature Work Group study and model develop- 
ment project, and the ambient monitoring project. 

* Updated water type maps to reflect fish usage of stream*. 

* Continued to participate in the Olympic Ex perim ental Forest project. 

* Provided the Forest Practice Board the list of Problem Areas for their statewide program. 

Quinault Nation TFW staff are conducting an important study of post-TFW Riparian Management Zones (RMZ) 
to determine how well the zones are providing for fish habitat, as well as to monitor compliance with TFW RMZ 
compliance. 

As part of the study, each RMZ was sampled every 100 feet The zones were measured and the number of trees 
and snags by species and size class were recorded, as well as the height of 5 percent of the standing trees in the RMZ 
Old and new blow-down trees were documented by species and size. location of the blow-downs, whether in the 
stream, bridging the stream, or away from the stream, was also noted. The amount of large organic debris, crucial to 
good fish habitat, below the average high water mark was also recorded. 

In addition, the Quinault TFW p ro gi a u i is developing a qualitative landslide inventory for the tribe's entire Usual 
and Accustomed Area to locate and map landslides in an effort to determine unstable slopes. The effort will also help 
guide future quantitative landslide survey work. 

YAKIMA INDIAN NATION 

FY 88 

* Reviewed 496 Forest Practice Applications (FPAs). Each of the applications were reviewed to determine if a field 
visit was necessary. 

* Staff were involved in all of the Interdisciplinary (TD) team reviews that were called by the Department of Natural 
Resources (DNR) in the Southeast Region. Landowner and Program staff meet on many of the applications to work 
out details of plans to protect tribal resources while allowing the landowner to realize a profit from timber harvest 
DNR agreed to withhold application approval on Cultural Resource concerns until the landowner made a good faith 
attempt to contact the Program Cultural Resource Specialist and work out a plan to protect cultural resource area*. 

* Re-typed a number of streams as a result of electro-shocking work performed during the course of fisheries re sou rce 
asse s s m ent for FPAs. This process not only provides for better management on a site to site basis, but also provides 
valuable data for future cumulative effects analysis. 

* Co n ducted monitoring and evaluation field visits to determine the effectiveness of conditions placed upon FPAs. 
Riparian Management Zone, (RMZ) data was collected to determine if the DNR regulation had been e nfo r c ed and if 
the RMZs that resulted from the regulation were adequate to protect fisheries and wildlife resources. 

* Co n ducted gravel sampling of the Little Naches River. An analysis was performed to determine the trend over yean 
of sediment loading in this watershed. 

* Completed a video record of slope failures within the Little Naches River watershed. 

* Served on the TFW Cooperative Research Evaluation and Monitoring (CMER) Committee; Wildlife and Ambient 
Monitoring CMER sub-committees. The Chairman of the Yakima Indian Nation, TFW Special Committee, served on 
the TFW Policy Committee. 

* Participated in field testing of methods for data gathering on RMZs within the grant area. 

* Initiated coordination with the Northwest Power Planning Council. Discussions took place regarding activities of 
the CMER Committee as they relate to various Power Council p i ugiauis within the tribe's area of concern. Of 
particular importance was the beginning of d iscussi o n s regarding integration of the CMER Ambient Monitoring 
Program and the Council's Coordinated Information System. 



264 



* Attended Meetings with the various large Mock forest industry landowners to review pre-harvest plans. 

* Attended tribal, state, environmental and forest industry conferences on development of annual review, evaluation 
of budgetary needs and coordination of information exchange 

FY 89 

•Received and processed 817 FPAs. Of this total, 621 were located within the tribe's area of concern Staff made 
113 site visits to seek more specific information. This assessment process resulted in concern s for potential damage to 
tribal resources, and filing of 152 individual reports by program staff. Each report detailed the concerns and included 
recommendations at to conditions that might be placed on the practice so is to rliminatr or reduce the negative 
impacts to an acceptable level 

* Program staff were involved in all of the ID team reviews that were called by DNR in the Southeast Region and 
selected ones in the Southwest and Northeast Regions. Landowners and program staff met on many of the appkea ■ 
bans and were successful in working out de tails of pi ans to protect tribal resources whUe allowing the landowner to 
realize a profit from timber harvest. 

* Conducted monitoring and evaluation field visits to determine the effectiveness of the conditions that were placed 
upon the forest practices. A variety of reports were generated as a result of these ate viae and are also in addition to 
those reported. 

* Coordinated data gathering at a monitoring tool and evaluation tool. 

* Anumberof streams were retyped as a result of electro-shocking work performed during the course of fisheries 
resource assess m ent for FPAs. 

* Compiled location and surrounding habitat data for the Northern Spotted Owl for FT A conditioning recommenda- 
tions. 

* Served on CMER Committee; Wildlife Steering Committee; Ambient Monitoring Steering Committee. The Chair- 
man of the Yakima Indian Nation, TFW Special Committee, served on the TFW Policy Committee. 

* Attended meetings of Sediment, Hydrology and Mass Wasting and Water Quality Steering Committees. 

* Participated in development of Upper Yakima Resource Management Plan (RMP). The Upper Yakima RMP effort 
includes a Policy Group, and a number of Task Groups. Tribal rep re sent atives served on all Task Groups of the RMP. 

* Worked with the Northwest Indian Fisheries Commission field data gathering teams in collection of stream mor- 
phological data and work on Stream Segmentation Study projects. 

FY 90 

* Fisheries, Wildlife, Cultural and Archeological staff continued to participate in review, conditioning, and monitor- 
ing of FPAs and permits. 

* Continued to conduct monitoring and evaluation field visits to determine the effectiveness of the conditions placed 
upon the forest practices within the tribe's area of concern. 

* Continued membership on the TFW Policy Committee; Administrative Committee; CMER Steering Committee; 
and CMER Wildlife subcommittee. 

* Continued work with U.S. Forest Service staff to share information on mixed ownership lands and wildlife, cultural 
and fisheries managements 

* Assisted DNR in development of Forest Practice Application Classification Systems. 

* Continued to meet with forest industry landowners on review of pre-harvest plans. 

* Participated in Sustai n able Forestry Roundtable (new legislation) negotiations 

* Assisted Washington Department of Wildlife with Pnority Habitau arid Species Project 

The Yakima Indian Nation's area of involvement related to Washington State forest practices review is the ap- 
proximately 10,000 square miles of watersheds that drain the eastern slopes of the Cascade Mountain range. This area 
extends from the Canadian border to the Columbia River along the state's south boundary. 

A major fisheries habitat and water quality project initiated and carried out by the tribe's TFW program during the 
past three yean was stream sediment level sampling of the Little N aches sub-basin of the Naches/Tieton watershed. 
This project was expanded during 1989 and 1990 to include the Klickitat River watershed and the Ahtanum sub-basin 
of the the Naches/Tieton watershed. Program staff also participated in field sampling for levels of stream sediment in 
nine of the 15 sub-basins within the 750.000-plus acres of the Yakima River watershed. 

26 



265 



COLVILLE CONFEDERATED TRIBES 
FY 88 

* Reviewed approximately 100 forest practice applications both in the office and field. 

* Delivered written and oral comments to Department of Natural Resources (DNR) and Department of Wildlife 
(DOW) officials. 

* Established communication networks with private timber companies and environmental organizations. 

* Developed program by obtaining technical equipment for the office and field, establishing manual and computer 
filing systems, and developing a computer database as well as beginning a database consisting of field studies. 

* Established professional networks within the tribal organization by working with the tribe's soils scientist, hydrolo- 
gist, and field forester. 

* decked forest practice regulation compliance through on-the -ground inspection of timber sales both on and off 
reservation. Fish and wildlife mitigation plans were written when violations occurred. Field meetings were con- 
ducted with landowners to help educate them with regards to good conservation practices. Several interdisciplinary 
meetings were attended to provide fish and wildlife expertise concerning potential impacts from timber sales. 

* Participated at the state level on the TFW 



t would hop* that the members of Congress appreciate the 
fundamental role the treaty tribes play in the Timber/Fish/Wildlif e 
process We would not have TFW If the tribes ware not Involved, 
and without TFW, timber lands management in the Stat* of 
Washington on private land* would be through the courts. 
- Curt Smltch, Director, Washington Department of Wlldlfe 



Wildlife Steering Committee and the Field Im- 
plementation Committee. The committees set 
TFW goals for wildlife and review potential 
research projects and resolves technical problems 
which arise in the field, respectively. 

* Participated at regional pie-harvest sale reviews 
with both the DNR and private industry. Staff also 
attended meetings involving a regional TFW working group which addresses technical issues. 

* Attended and presented information to logging operator training sessions sponsored by the regional TFW working 
group. 

1989 

* Reviewed 354 FPAs. an increase of over 250 percent. Tribal field review of applications off reservation dropped 
significantly because of lack of time. Actual field review of applications remained at approximately 100 applications. 
Written and oral comments pertaining to fish and wildlife were provided on at least 50 state and private timber sales. 

* Local tribal field data collection was increased to help enlarge the database relating to forest practices. 

* Water quality information relating to fisheries such as turbidity, water temperatures, and stream flows was col- 
lected. 

* Collected pre-harvest shade values on one sale to help determine the potential impact from logging on water quality 
and fish habitat. 

* Collected fish population numbers to monitor logging impacts. 

* Conducted ambient monitoring on one stream to quantify changes in stream channel morphology related to logging 
practices. 

* Initiated a pilot program to help monitor sediment in streams. 

* Mapped winter range habitat areas for large ungulates such as elk, moose, and deer. Map locations for sensitive 
animal species were also plotted and a tracking system was developed to help identify these areas when forest prac- 
tice applications are filed. 

* At least 20 on-the-ground meetings were held with logging operators and landowners to discuss good conservation 
practices. 

* Attended at least five on-site Interdisciplinary (ID) team meetings to provide technical assistance to state agencies 
concerning fish and wildlife resources. 

* Continued involvement on state committees and helped provide products such is the Wildlife Issue Paper and ID 
team evaluation, which were presented at the Second Annual TFW Review. 

* Tribal TFW biologists played a major role in the development of priority issues at the regional level The only 
priority issue in the state which helps protect big game winter range was developed cooperatively by the tribes, state, 
and industry in the Cotville region. 

i 



266 



FY 90 

* Enlarged our working area to more properly reflect an area east of the Columbia River where logging activity could 
potentially impact tribal fish and wildlife interests. 

* Increased field monitoring on 350,000 acres of watershed with additional intensive projects such as freeze core 
sediment sampling to help determine the amount of fine sediment in fish spawning areas. 

* Intensively monitored about 87,313 acres of watershed for stream temperatures. 

* Approximately 4 square miles of watershed are being monitored on a long-term basis to better understand sediment 
dynamics on an area winch was heavily impacted from logging. 

* Ambient monitoring crews have monitored at least 1 5 miles of watershed on three streams to date. 

* Experimental techniques used to measure fish egg survival are currently under way in 73,910 acres of watershed. 

* Approximately 46,000 acres of wildlife habitat will be evaluated and monitored before the completion of the budget 
year. 

* Committee participation included the aforementioned groups and, in addition, the Temperature Work Group which 
is a part of the Cooperative Monitoring and Evaluation Research Committee. 

* Participated on the DOW field study of Riparian Management Zones and Upland Management Areas. 

* Participated on Loomis Block Advisory Committee, a group composed of state agencies, environmental groups, 
private industry, and die tribes. The tote of the group is to coordinate land use activities to protect public resources on 
approximately 500,000 acres of state-owned forest land. 

* Continued monitoring on three major watersheds determined by the State Forest Practices Board to be sensitive 
areas. 

The Colville Confederated Tribe's TFW effort has resulted in development of two mitigation plans regarding 
forest practice violations which resulted in tribal fish and wildlife resource damage. One project has been completed; 
the second is expected to be completed in October, 1991. The success of the mitigation projects has reduced the 
number of forest practice violations and continues to be a deterrent against public resource damage. 

In addition to participating in TFW Cooperative Monitoring, Research and Evaluation Committee projects, the 
tribe is conducting its fish and wildlife habitat monitoring program. Some of these projects include intensive sedi- 
ment sampling of streams encompassing approximately 350,000 acres of watershed. It is anticipated that again that 
many acres will be sampled in 1991. About 87,000 acres of watershed are intensively monitored for stream tempera- 
ture; approximately 400,000 acres of watershed are monitored less intensively. Water quality was monitored on 
approximately 31 streams in the spring of 1990. 

Experimental techniques to measure fish egg survival are currently being used in 73,910 acres of watershed. 
Experimental techniques to monitor sediment in about 102,000 acres of watenhed were carried out successfully in 
1989-90. It is anticipated that approximately 46,000 acres of wildlife habitat will be evaluated and monitored in 1991 
and 1992. 

UPPER COLUMBIA UNITED TRIBES: SPOKANE TRIBE; KALISPEL TRIBE 

FY 88 

* Reviewed an average of six Forest Practice Applications (FPAs) each working day. 

•Established database of FPAs for quick retrieval of pertinent information. 

* Participated in Cooperative Monitoring, Evaluation and Research projects. Conducted temperature study on Cha- 
mokane Creek and Cee Cee Ah Creek. 

* Participated in CMER Ambient Monitoring Fisheries Project. 

FY 89 

* C o n ducted stream channel geomorphology research on Cee Cee Ah Creek 

* Co n du ct ed investigation into UCUT salmonid populations feeding habits and benthic invertebrate densities 

* Conducted Sand Creek habitat M**Tf"»— using Ambient Monitoring Fisheries Research methods. 

* Conducted am bient monitoring on LeClerc Creek, Skookum Creek. Ruby Creek. Cee Ah Creek. Tacoma Creek. 
Cedar Creek and Sand Creek. 

* Participated on the following TFW «nm«n<g»f Sediment, Hydrology and Mass Wasting; Cooperative Monitoring. 
Evaluation and Research Committee; Fisheries Committee; and Ambient Monitoring Steering Committee. 



267 



* Attended die following workshops: TFW annual training session: Upper Columbia Basin Soils Workshop; and 
ambient monitoring training. 

FY 90 

* Continued temperature monitoring and modeling on Chamokane Creek and Cee Cee Ah Creek. 

* Continued ambient monitoring on Cee Cee Ah Creek. 

* Continued intensive fisheries population and feeding habits studies. 

* Participated in monthly Upper Columbia Basin TFW meetings and served as co-chair. Attended yearly pre-harvest 
reviews with Department of Natural Resources, Plum Creek Timber Co., and Boise Cascade Corp. 

* Developed TRAX system manual for tracking sensitive animal species within the Spokane and Kalispel area of 
concern. 

* Mapped deer winter range on Forest Practice Application (FPA) map. 

* Mapped all 1990 FPAs on map to address cumulative effects. 

Committee participation is a critical part of die tribal TFW effort The TFW biologist for the Upper Columbia 
United Tribes Fisheries Department, serves as co-chair the Wildlife Steering Committee (WSC). As wildlife manage- 
ment issues are discussed and acted upon in this state wide forum it is imperative that the tribes have representation. 
This representation is needed to protect the wildlife managed both on and off reservations. 

A major accomplishment of die WSC was development of the Wildlife Action Plan which dictates how TFW will 
manage wildlife in the state. This plan has given the tribes ability to participate in setting management goals for 
wildlife, something that was not possible before TFW. 

Northwest Indian Fisheries Commission TFW Activities: 

The NWTFC's activities are an integral part of the TFW process. The Commission's efforts in tribal coordination, 
representation and clearinghouse activities keep member tribes fully abreast of the process and information generated 
to ensure their review and comments are presented. The NWIFC continues to improve its efficiency to conduct these 
and other functions necessary to make TFW a success and provide the greatest possible tribal participation. Following 
is a summary of NWIFC TFW activities for Fiscal Years 88, 89, and 90, along with descriptions of specific efforts to 
address tribal needs. 

FY 88: 

* Consolidated tribal budgets and produced the narrative for the initial request for funding to implement TFW. 

* Participated in the process development committees and the newly formed standing committees for implementing 
TFW. 

* Coordinated the scheduling and documentation of inter-tribal policy and technical meetings to address TFW issues. 
Also coordinated meetings between app ro p riate tribal representatives and other TFW participants to discuss identified 
issues. 

* Provided an information clearinghouse to the tribes, including planning and implementation documents, scientific 
and technical reports, correspondence and data. All received and generated information was provided to the tribes for 
their consideration. When appropriate, die NWIFC also shared information with other TFW participants. 

* Purchased and distributed capital equipment necessary for new tribal TFW technical staff to participate in die 
process. 

* NWIFC staff co-chaired the Cooperative Research and Monitoring Committee, developing procedural guidelines 
and study designs for projects to answer lingering questions from the TFW Agreement. 

* Developed a computerized fish habitat data base and began work, coordinating its integration with geographic 
information systems 

* Initiated an ambient monitoring program to develop and test field methods. Three two-member teams investigated 
various field methods to identify stream characteristics. 

FY 89: 

* The NWIFC continued to participate on all standing and ad-hoc TFW committees as tribal representatives. Staff co- 
chaired die Policy Committee and the Cooperative Research and Monitoring Committee. 



268 



* £■ &**•»•** to coordinate tribal technical and policy caucus meetings, and meetings with other TFW participants, to 
address tribal concerns. 

* Continued to consolidate tribal budget proposal and support efforts. 

* Coordinated and conducted TFW Team-building sessions for all parties for the seven regions in the state. 

* Cre w^—* to provide a clearinghouse function for the tribes and other TFW parties. 

* Established electronic communications link for the tribes to receive TFW information such as meeting notices, 
news items and data transfers. 

* Initiated the development of a map library and clearinghouse including the distribution of revised water type maps. 

FY 90: 

* Participated in the newly formed Sustainable Forestry Roundtable (new legislation) Process, an extension of the 
TFW Process, which includes counties as a participant. 

* The N WIFC continued to participate on all standing and ad-hoc TFW committees as tribal representatives. 

* Continued to coordinate tribal technical and policy caucus meetings, and meetings with other TFW parties, to 
address tribal concerns. 

* Continued to consolidate tribal budget proposal and support efforts. Coordinated development of a funding alloca- 
tion method for justifiable distribution of grant money. 

* Continued to provide a clearinghouse function for the tribes and other TFW parties. 

* The Cultural/ Archeological Committee hired staff to define the scope of education and protection needs of sites on 
forest lands. 

* Participated in the scoping stage for the development of a Forest Practice Application database and linkage with a 
G IS to make access and distribution more efficient. 

* Initiated a pilot project to test methods for reviewing and changing streams and roads digital data gathered and 
developed under TFW. 

* Established a computer application that divides information for distribution, either by hard copy and/or map and 
attribute data to the affected tribe(s). 

* An Ambient Monitoring Coordinator was hired to conduct further research and development of field methods, as 
well as to train and supervise six two-member field teams. The coordinator also provided technical assistance in 
ambient monitoring field methods to participating tribes. 

* Ambient monitoring data collection continued with five two-member teams. The addition of an optical mark reader 
data terminal substantially enhanced computerization and statistical analysis of data collected by field crews. 

COORDINATION OF TECHNICAL ASSISTANCE 

The NWIFC provided mechanisms and forums for the tribes to communicate on TFW issues among themselves 
and between the tribes and other TFW participants. 

Scheduling and documentation of inter-tribal policy and technical meetings to address TFW issues also was coor- 
dinated. Participants included tribal policy officials and staff involved in the TFW decision-making structure that 
includes NWIFC Commissioners, the Commission's Environmental Policy Committee and tribal environmental 
biologists. 

Upon request, the NWIFC coordinated meetings between appropriate tribal representatives and other TFW partici- 
pants to discuss identified issues. 

The NWIFC assisted in the development of coordinated tribal recommendations and responses to TFW issues. 
This included preparations for identified meetings to assess the effectiveness of the TFW Process, such as the TFW 
Annual Reviews. 

Formation and support of a consolidated tribal TFW grant proposal to Congress also was coordinated by the 
NWIFC. This included development of a proposal to allocate TFW funds appropriated to the tribes and tribal organi- 
zations to implement the TFW effort 



269 



NWIFC REPRESENTATION 



The NWIFC assisted in the representation of tribal positions and concerns of the tribes in the TFW Process to 
ensure their consideration and incorporation into this process. 

NWIFC staff also participated on standing and ad-hoc TFW committees as tribal representatives. The Commission 
conveyed tribal positions to these committees and reported back to the tribes. 

The NWIFC participated in the development and distribution of information provided by various TFW commit- 
tees established to implement the TFW Agreement. Many tribal representatives and NWIFC staff served on the 
following committees to review, comment and direct TFW activities: 

* Policy Committee and subcommittees 

* Administrative Committee 

* Cooperative Monitoring Evaluation & Research Committee 

* Training Information & Education Committee 

* Field Implementation Committee 

* Cultural/ ArcheologicaJ Committee 

* Information Management Committee 



INFORMATION 
MANA3EMENT 

Information 
was provided to 
the tribes by the 
NWIFC. including 
planning and im- 
plementation 
documents, 
scientific and tech- 
nical reports, 
correspondence 
and data. All 
received and 
generated informa- 
tion was provided 
to the tribes for 
their considera- 
tion. When 
appropriate, the 
NWIFC also 
shared information 
with other TFW 
participants. 



NUMBER OF FOREST PRACTICE APPLICATIONS 
Source: Department of Natural Resources 




The NWIFC also coordinated the development and implementation of more efficient methods for sharing TFW 
information. This included developing methods to improve the tribes' ability to access and utilize information 
available from all TFW participants. 

Applications for activities related to TFW. such as Forest Practice Applications and Environmental Impact State- 
ments, were provided to the tribes by the NWIFC As agencies computerize their application processes, the NWIFC 
is coordinating to ensure that the tribes have access to that data to allow for quicker responses. 

The NWIFC coordinated development and implementation of a joint co-management habitat information stem 
to share and update data with state agencies. This included field surveys to identify fish presence and barrier 



anadioroous fish. and updated water type maps which affect timber operations and resource protection. For example. 
NWTFC staff identified sources of information, surveyed fishery biologists to update information, determined com- 
puter data access, and de fined procedures for making changes 

A tribal electronic communication system for notification of meetings, news items and information-sharing with 
tribes was initiated by the NWIFC. NWIFC staff continually seeks better ways to convey notification and information 
to the tribes in a more efficient and timely manner. 

The NWIFC coordinated the development and implementation of state -of- the-an computerized information man- 
agement tools, such as databases and Geographic Information Systems. 

NWIFC GEOGRAPHIC INFORMATION SYSTEM (GIS) IMPLEMENTATION 
PROGRAM 

A GIS, combined with the habitat database now being developed, will form the nucleus for long-range planning 
and protection of natural resources. The tribes will utilize this system to negotiate, manage and protect these re- 
sources. Northwest tribal programs have focused on the ability to utilize and develop state-of-the-art information 
gathering techniques. With a GIS the tribes will be able to do their own analysis of federal and state resource infor- 
mation, furthering their ability to act accordingly within government-to-government activities. 

The NWIFC has coordinated efforts with state and federal agencies to incorporate GIS capabilities as a tool for 
resource planning and decision making for the tribes. The Commission has purchased computer hardware and soft- 
ware to handle the dividing and distribution of digital data to the tribes. The Departments of Natural Resources and 
Wildlife have been contacted to establish mechanisms for sharing their store of digital and attribute information. The 
NWIFC has developed additional layers of data to exchange technical information. 

The NWIFC coordinated with the tribes and other parties on the development and implementation of guidelines 
and procedures for establishing GIS and other related databases. This included, but was not limited to, designing 
desired tribal databases, linking existing databases, and establishing procedures to change and update information. 

The NWIFC represented the tribes on committees addressing the development and use of GIS capabilities. Several 
committees have already been formed, such as the Land Information System Regional Planning Committee, the 
Washington State Geographic Information Council, and the TFW Information Management Committee. 

A clearinghouse was provided by the NWIFC for the tribes to receive GIS related information. This included 
meeting notices, documents, reports and studies, computerized and "paper copies" of digital data, and maps. 

NWIFC AMBIENT MONITORING 

The NWIFC assisted the tribes and other TFW participants in establishing a program with the best available field 
methods and training to collect and analyze data for decision-making. 

The NWIFC coordinated with the TFW Ambient Monitoring Program. This includes coordinating with the 
technical staffs of the tribes and the Ambient Monitoring Steering Committee, assisting tribes to implement their own 
data collection, and supervising NWTFC Ambient Monitoring crews. 

Tribal efforts to carry out the Ambient Monitoring Program work plan were coordinated by the NWIFC This 
included providing training and transferring field methods and techniques to tribal and NWTFC field crews from the 
Ambient Monitoring Steering Committee. The NWTFC also assisted in training sessions for TFW participants 
covering the use of field methods and data collection The NWTFC coordinated ambient monitoring field crews to 
augment tribal crews collecting data. The NWTFC also assisted in the computerization of the field data. The method 
to input the data has been improved and will provide a faster turn-around of data for analysis by the tribes and the 
Ambient Monitoring Steering Committee. 



271 
fy-1992 Funding Request with Utilization of Existing and Proposed Funding 






IfflBwIwTHl 

A4m«»nuo«l5 6% 



TRIBAL 



FY- 1992 FUNDING PROPOSAL 




Current Funding 

$2,000,000 






FPAbmaw 
TOTAL R350JJ3 J6M.W7 




RMP/Eiper 






UNDER-FUNDED NEEDS AND EXPANDED 
RESPONSIBILITIES 

• 

It was recognized from the beginning that funding would need to be increased as tribal programs were being de- 
veloped, and as government-to-govemment relations became more a standard operating procedure. Along with this 
development of tribal programs, there have been increasing pressures from increased logging activities, new partici- 
pants, new programs, and new legislation. A key element during the development phase of TFW activities is the need 
for coordinated and systematic long-range planning. This has proven to be extremely difficult given ongoing and ex- 
panding activities within the program. The tribes have recognized that long-range planning will serve to protect tribal 
resources far into the future. 

IMPLEMENTATION OF TIMBER/FISH/WILDLIFE 

A milestone of the TFW process is the Third Annual Review. The third annual review was established for partici- 
pants to evaluate success and failures of the TFW Agreement. Each participant determines whether the Agreement is 
meeting their expectations and if there is a commitment to continue with the process. 

33 



272 



Tribal concerns for the continued implementation of TFW include: 

* Full implementation of a government- to- government process between the tribes and the Department of Natural 
Resources: Policy and technical dispute resolution; forest practice decision-making; conflicting priorities and de- 
mands; and efficient use of limited resources. 

* Full funding for tribal participation: Cultural programs; cumulative effects; research and monitoring; State Environ- 
mental Policy Act review; compliance; data base and GIS management; and education. 

TECHNICAL SUPPORT 

The tribes have shared the use of a few staff with specific expertise spread out over the state. These include two 
geologists, two wildlife biologists and two cultural resources experts. They have provided their expertise when 
possible to tribal TFW staff, which are primarily fisheries and habitat biologists. The current staffing level is inade- 
quate and the TFW and Sustainable Forestry Roundtable (new legislation) processes have proposed additional tasks 
for these, as well as others with needed expertise. Sedimentation problems, wildlife habitat needs, and an inventory of 
tribal cultural and archeological sites associated with forest practices could be addressed with expanded technical staff 
capabilities. 

COOPERATIVE MONITORING, EVALUATION AND RESEARCH COMMITTEE 
(CMER) 

This committee is the technical arm of TFW which reviews, develops and oversees all research and monitoring for 
TFW. CMER relies on TFW participants for experts to provide their time for this process. The tribes need additional 
types of expertise as identified above in Technical Support to independently participate and aid in this effort 

AMBIENT MONITORING 

The tribes and the NWTFC have been able to support a small number of field crews to collect data for the Ambient 
Monitoring Program developed and overseen by a CMER steering committee. The Ambient Monitoring Program is 
charged with collecting the baseline and re-visit site data to evaluate changes and effects related to forest practices. 
This effort was identified by TFW policy representatives as critical to the accurate assessment of the adaptive man- 
agement approach. Because of an expansion of base program needs in the past four years, ambient monitoring and 
field data collection have been severely reduced, endangering long-term planning. The tribes have not been able to 
take on the workload for the program and require additional funding and field staff to continue an adequate effort. 

GEOGRAPHIC INFORMATION SYSTEM (GIS) 

Computer Geographic Information System (GIS) capabilities are being incorporated as a tool to improve natural 
resources assessment and decision making. TFW is expanding the availability and accessibility of digital data neces- 
sary to run a GIS. State agencies are building forest practice application, hydrography, transportation, wildlife priority 
habitats and fisheries presence databases that will be added to existing digital data. The tribes are developing "areas 
of concern" data to aid in their notification of forestry activities. Of the 26 tribes participating in TFW, only five have 
capabilities to utilize this technology. Funding is needed to afford all tribes the ability to coordinate development. 
access and utilize this capability. 

INTERDISCIPLINARY TEAM PROCESS 

The Interdisciplinary (ID) Team Process was designed and implemented by TFW to afford an opportunity to all 
parties to address site-specific issues of concern. TFW participants can form an ID Team of technical expertise to aid 
the DNR in decisions needed to complete a forest practice application. The tribes are contacted to participate on all 
ID Teams. To adequately participate they must have expertise in technical fields related to forest practices, such as 
hydrology, soil science, fishery and wildlife biology, geology, and cultural and archeological resources. Currently 
there are a limited number of staff with this expertise to participate. More technical staff are needed to effectively 
represent tribal interests. 



34 






273 



FOREST PRACTICE APPLICATION REVIEW 






DNR is planning to use their information system, including GIS. to enter data and then allow access to all TFW 
panics The amount of time spent on reviewing Forest Practice Applications (FPAs) is dcp en de ut on marry factors, 
such as the number of applications received, the size of harvest, proximity to other resources, and travel time required 
to visit the site. Normally, the tribes review FPAs for obvious concerns, conduct field visits, pa r ti ci pat e in ID Teams 
to develop site solutions, monitor the timber harvest and compliance to ensure conditions have been followed, and 
follow-up compliance to assess long-term impacts. 

For the past five years the economic value of timber has increased demand, which has increased the number of 
FPAs. This situation has caused TFW participants to focus their anrntion on the large number of FPAs t^StWMS 
and have not been able to fully monitor timber harvest impacts. Follow- up cornpl i an c t or review of resulting timber 
harv est doubles the work load of field staff. As stated above, the number of FPAs per year vary, and thU has an effect 
on the ability to conduct compliance monitoring 



WATER TYPING 






The DNR has developed the Water Typing Process to assess the level of protection strearns ticed m associaoon 
with forest practices. Under TFW, procedures have been established to afford any party the opportunity to make 
corrections. Tribal technical staff 
in the field can review this infor- 
mation and make changes as 
needed. It is planned that this 
process will be included in the 
DNR GIS to improve access and 
updating. The tribes will require 
the ability to access this system 
and continue to focus on submit- 
ting updated inform anon. 

TRAINING, 
INFORMATION AND 
EDUCATION 

Training is a critical and costly 
component of TFW. Annual statewide TFW training sessions were conducted during the fim and second years of 
TFW implementation. These were supplemented by several training sessions on specific topics, such at riparian 
zones, offered by the University of Washington's Center for Streamside Studies, and in sedimentation offered by the 
U.S. Forest Service. Because of the tribal lead role in implementing the TFW Ambient Monitoring Program, funding 
for training of both NWIFC and tribal personnel is crucial. 

Unstable slopes, sedimentation and erosion comprise the largest number of priority issues identified through the 
Forest Practices Application process. As a result, training in hydrology, soils and sedimentation will be particularly 
crucial for tribal TFW personnel. 

Information and education, both internal and external u another importarit pan of TFW. Tribal members, staff and 
policy leaders, as well as the general non- Indian public must be informed and educated about the tribal role in TFW 
and developments in the process that affect them directly. Brochures, newsletters, reports, videotapes and other 

communication vehicles are needed to help the tribes and the public better understand TFW. 



"Stata tribal mentoors nava basn stalwart piayeni not just In TFW but aJso the 


SuataJnwbat Forestry Roundtabte, which 1 hop* wil toon ratify anothwi htstoncal 


agreement on timber operations and resource protection In Washington. Several" 


times when Roundtabie negotiatione were cioss to tailing apart, H wn the 


tonoefcy of the tribal members that puUed the taoHonoJ groups topjeahsf . The tribal 


members are experienced negotiators who have been vaej In reaching and 


holding consensu • agreements Iks these togethe r. 


I was BMV leadership In recognizing the Importance of al natural fweooroos — 


not Just trews , but water qualty , fisheries and wttrJIe — that mads ths tribes a 


crtticaJ ps/tic*pa nt In ths TFW agreement. Theif oontlnuwd roie In TFW, Including 


pa/ticapaton In rterdsSCspensry teams thai review proposed timber harvests on 


certain private lands , his been a *ey contribution In the management of masons 


of acres of forest land In Washington." 


*■ Brian awyta, Co4WJWJawionwr of PuMte Ljstmo 



274 



IMPLEMENTATION OF NEW LEGISLATION AND REGULATIONS 

Approximately 18 months ago, the State Department of Natural Resources (DNR) was facing new legal chal- 
lenges to the Forest Practice Act One such case was Lake Roesiger, where Snohomish County successfully sued the 
Department of Natural Resources over forest practices near the lake. This case is still in legal proceedings, however, 
the Superior Court held that the current forest practice classification scheme was inadequate to properly address the 
requirements of the State Environmental Protection Art (SEP A). 

As a result of the growing concerns by the citizens throughout the state and the legal challenges brought against 
DNR. the Commissioner of Public Lands, Brian Boyle, enlisted the assistance of the tribes and other TFW partici- 
pants to seek a cooperative effort in addressing issues not previously covered in full by TFW. These issues were 
brought forward by the Forest Practices Board, local government and various interest groups in the state. 

After 18 months of extensive negotiations, a draft legislative and regulatory proposal was developed that included 
recognition for the need to ensure the tribes can participate in the implementation of the agreement in the following 
areas: 



Ten Percent Late Successions! Forest for Wildlife Habitat: 






One of the primary and most substantial components of the legislative proposal is that 10 percent of a landowners 
forested property in any Water Resource Inventory Area (WRIA) will be managed primarily for late succession^ 
wildlife habitat. Currently, there are no direct regulatory provisions for the protection of wildlife habitat 

The Department of Wildlife (DOW), coordinating with the tribes as co-managers of the resource, will develop 
wildlife management templates for the forested land base. This land base will provide not only protection of some 
older forest stands but will also be a mechanism to recruit older age classes of forests over time. 

Snag and Woody Debris Habitat: 

Snags will be distributed across the landscape differently, due to geographic conditions, in Eastern and Western 
Washington to protect habitat for cavity-dependent wildlife species. It was recognized that these types of regulatory 
mechanisms need to be in place in order to ensure there is adequate distribution of this type of habitat in the majority 
of the landowners acreage. 

Timing, Size, Distribution of Harvest and Adjacency Requirements: 

Under even-aged forest management there will be restrictions on timing, size, and distribution of harvest These 
requirements should provide a mix of early and mid-successional forest stages to compliment the 10 percent late 
successional stages that are described above. Development of templates will take a landscape management approach 
for the protection of wildlife habitat within each basin. This concept is a major shift in the current management 
system. Species-by-species protection at the individual or population level is being replaced with provisions that will 
provide key habitat components to support species throughout their natural distributions. 

Riparian Ecosystem Protection: 

The legislative proposal intends to manage riparian ecosystems as the focal point for the development of the 
wildlife templates described above. There is a recognition that riparian areas provide probably the greatest benefit for 
all resources. Maintenance and preservation of riparian ecosystems will provide the core for the templates if there are 
no other set-asides required by the Endangered Species Act or other laws. The tribes win cooperatively design 
appropriate riparian landscapes with the Department of Wildlife. 

Funding for Restoration and Rehabilitation of Fish and Wildlife Resources: 

One of the important issue that the legislative proposal addresses is the need for adequate funding from the State 
of Washington to restore and rehabilitate fish and wildlife habitat damaged by past forest practices. The restoration 

36 



275 



fund is a continuation of pilot projects initiated under the TFW Agreement. The original pilot projects were success- 
ful to further justify development of this program. The proposal will provide capital costs to the tribes to develop 
these projects. However, the tribes will need finances for temporary staff during the field season to implement these 
projects with other TFW participants. 

Cumulative Impacts: 

One of the more significant and demanding issues proposed for new legislation is the development and implemen- 
tation of mechanisms to evaluate cumulative impacts from all forest practices within a region or watershed, not just a 
single application. 

The proposed system for evaluating cumulative impacts was designed by the tribes. The cumulative impact 
analysis mechanism is a two-tier process. At the first tier, if a threshold is achieved, it would trigger an intensive 
basin review and evaluation to determine potential impacts, as well as mitigation that can be imposed to avoid further 
degradation of the resources. The second tier would halt timber harvesting for up to three years if a threshold is 
exceeded. Various ecological parameters are potential thresholds for development of the cumulative analysis, includ- 
ing sediments, stream stability, pool riffle ratios, large organic debris and other appropriate factors. The system is 
currently being reviewed by the TFW Cooperative Monitoring, Evaluation and Research (CMER) Committee, which 
is proposing to implement this system on a regional basis. 

The proposed threshold system is a major step toward protection of fish and wildlife habitat Prior to this pro- 
posal, the burden was on the tribes to show actual harm to fish populations in order to get regulatory action by DNR. 
Under this system, the evaluation will shift from identifying actual impact to fish and wildlife populations to that of 
habitat degradation. For many years the tribes have emphasized that habitat instead of fish populations should be 
evaluated. This proposed system requires the tribes to take a lead role to ensure the process is fully and adequately 
developed and implemented. Obviously, prevention is more beneficial and cost-effective than remedial restoration. 

Inventory of Forest Land Base: 

The DNR has never developed an adequate inventory of the forested land base in Washington State. However, the 
legislation proposes to dedicate several million dollars for development of a useable database of state and private 
forest lands in the state. The process expects, and is dependent on, the cooperation, coordination, and participation of 
tribal support The tribes will require financial assistance for information management and continued development of 
tribal capabilities to implement a coordinated geographic information system for the tribes and state. 

Cultural/Archaeological Resources: 

Another issue identified in the legislation was the need for regulatory protection of cultural resources. The current 
system is based on a voluntary process with no assurance from the state that these resources will actually be pro- 
tected. The proposed legislation affords additional protection to cultural resources in several ways: 

1 . The Department of Natural Resources will develop cultural resource management plans on their 6 million acres of 
state owned forest lands. 

2. The Forest Practices Board will work with the tribes, other participants, and the State Office of Archaeological and 
Historic Preservation in order to develop regulations to adequately protect cultural resources as defined under current 
law which includes archaeological and historic sites. 

3. The TFW cultural resource committee will undertake the task of working with the appropriate state agencies in 
order to implement these proposals. 

For this program to be successful, the tribes will need the financial resources to develop infrastructure to develop 
cultural resource management programs, conduct inventories, and provide cross-cultural training with die timber 
industry and the state agencies. 

- 



V 



276 



APPENDIX A 

TFW PROCESS AND STRUCTURE 

For TFW participants, the initial discussions and definition of goals at Port Ludlow were the cornerstone of the 
TFW Agreement. The foundation of the TFW Agreement was built over the next six months and 100 cooperative 
meetings that proposed overall changes of regulations and processes for conducting forest practices. From the TFW 
Agreement, finalized in February of 1987, new regulations were proposed. The public was provided the mandated 
review process, but this time mere was a coalition of TFW participants present in support of regulation changes 
presented at the local hearings. Few comments were submitted because most had already been considered by the 
TFW Process and the Agreement This time when the public review was concluded, all that was left was for the 
adoption of what had been proposed by the TFW Process. 

It was at the Port Ludlow Retreat in July 1986 that the waning factions tested and adopted the TFW Process. The 
TFW Process is embodied in groundrules, a decision-making approach and accepting the concept of adaptive man- 
agement developed and discussed at this retreat. The adopted groundrules include identifying the resource goals of all 
parries, using consensus-built solutions to problems, a commitment of all participants to work on solutions, and a 
commitment to support the resulting agreements to name a few. The complete set of TFW Ground Rules can be 
found in Appendix B. These ground rules are passed for every committee and activity related to forest practices and 
the TFW Process for the participants who are expected to adhere to them. 

The new process of a cooperative "win-win" approach was utilized by the parties at the retreat The participants 
met to determine whether they could communicate and find common ground on issues related to forest practices. All 
committees at the policy and technical level worked towards making consensus decisions on the issues before them. 
They also agreed to disagree. Some issues would require research and monitoring or further discussions, but this 
would not stall the process. This approach has been applicable at policy, technical and field level discussions. Once 
the recommendations or options are developed, they are sent up the TFW organizational chart to be adopted as 
policy, regulation or procedures applied to forest practices. 

Adaptive Management is the process that views natural resource management as experimental. The underlying 
idea is that scientific knowledge and experience gained by agreed-upon monitoring and evaluation will lead to more 
responsive approaches for managing natural resources. Accepting the concept of adaptive management allows flexi- 
bility to test or change regulations and methods instead of giving the perception that they are "etched in stone". 

These concepts and approaches aided the TFW participants in the development of an agreement and continue to be 
used in implementation of their findings. Implementation of the TFW program spelled out in the agreement required 
the continued participation and commitment of the tribes, state, timber industry and environmental groups. To this 
end the participants established the TFW decision-making structure. Each committee has a function designed to carry 
out the Implementation of the TFW Agreement and address newly identified issues. Following is a detailed descrip- 
tion of their function. 

TFW POLICY COMMITTEE 

The Policy Committee is composed of policy representatives from each of the TFW participants. The group 
includes directors of state agencies and policy representatives from federal and tribal governments, and environmental 
groups. The Policy Committee is the TFW Board of Directors, responsible for strategic planning, setting TFW 
priorities, establishing funding levels and strategies, providing leadership and ensuring that their staffs are working 
consistently within the goals and ground rules of TFW. The Policy Oroup is also responsible for interpreting and 
modifying the TFW Agreement, if and when necessary. They are the TFW link between the Sute legislature, the 
Forest Practices Board, various interest groups, and the public. They establish the TFW membership, define and 
direct support staff, such as the Administrative Committee, and respond to current as well as new issues facing TFW, 
such as cumulative effects and dispute resolution. The Policy Oroup meets every other month or on an emergency 
basis to discuss issue papers, receive recommendations from the Administrative Committee, and to provide final 
decisions on issues that may be submitted to the Forest Practice Board. 
38 



277 



ADMINISTRATIVE COMMITTEE 

The Administrative Committee is a group of representatives from the TFW participants which coordinates and 
implements the TFW Agreement. The Administrative Committee provides the day-to-day management and implem- 
entation functions associated with the TFW Agreement The Administrative Committee frames and recommends 
policy. Agreement changes, and work priority changes to the TFW Policy Committee. The committee provides 
completed staff work to the Policy Committee when requested, make operational decisions, set priorities for the 
standing committees, establish new committees, provide internal/external leadership and communications, and 
oversee the TFW budgets and staff. The Administrative Committee meets monthly to receive reports from various 
committees and task groups, as well as approve future operational plans. 

STANDING COMMITTEES 

TFW COOPERATIVE MONITORING, EVALUATION AND RESEARCH COMMITTEE 

The TFW Cooperative Monitoring, Evaluation and Research Committee (CMER) was established to answer 
unresolved issues from the TFW Agreement Policy representatives instructed mis committee to develop a research 
and monitoring program to get them "wherever the truth leads us". CMER initially proposed 19 projects for this 
purpose. These projects are ongoing with the intent to develop interim recommendations, as well as to reach final 
solutions. With the implementation of these projects, CMER has expanded its role to be the "technical arm" of TFW, 
reviewing and considering the incorporation of other relevant research into TFW activities. A goal of this committee 
is to make research available and applicable to field managers through "technical transfer". To accomplish this major 
task, CMER has formed five steering com minces to oversee the original 19 projects and evaluate additional research 
and monitoring activities. The steering committees include Fisheries; Wildlife; Sediment Hydrology and Mass 
Wasting; Temperature and Water Quality; and Ambient Monitoring. 

TFW TRAINING, INFORMATION AND EDUCATION COMMITTEE 

The TFW Training, Information and Education (TIE) Committee was established by the Policy Committee to 
identify, design and conduct training, information and education projects based on the needs of TFW participants 
with emphasis on insuring consistency. Following are the TIE Committee's Goals: 

* Coordinate integrated media projects among the Policy Committee, Administrative Committee, CMER and re- 
gional representatives of each TFW participant groups to minimize duplication of efforts. 

* Review and coordinate training programs for current TFW participants, as well as for new TFW participants 
entering the process. 

* Develop a strategy for coordinating various public groups outside the TFW process to assist in supporting the TFW 
Process. 

FIELD IMPLEMENTATION COMMITTEE 

The Field Implementation Committee (FIC) is a subcommittee of the TFW Administrative Committee and 
operates under the TF vV groundrules. Its function is to facilitate the implementation of the TFW Agreement, the 
Forest Practices Act and regulations at the regional field level by: 

* Defining implementation issues and proposing solutions; 

* Evaluating and facilitating field implementation; 

* Increasing efficiency of application review and approval; 

* Improving coop e r a tive compliance; 

* Dealing with other issues of statewide significance; 

* Working with other TFW committees. 

This group does not review individual situations or Forest Practice Applications. 



278 



CULTURAL/ARCHAEOLOGICAL STEERING COMMITTEE 

The Cultural/Archaeological (C/A) Steering Committer is composed of various participants in TFW and operates 
under the following summarized mission statement: 

* Assist in the development of both a system and a process that will result in the protection of cultural resources 
unJcr the TFW Agreement; 

* Provide oversight and guidance to the Cultural Resource Specialist and the TFW Cultural Resource Program; 

* Serve as both a forum for 
education and consultation 
and as a model approach for 
resolving cultural resource 
management conflicts: 

* Advocate cultural resource 
protection in the Washington 
Stale Legislature and among 
potential funding agencies. 



The C/A Steering Com- 
mittee is intended to have 
open participation of all 
tribes with cultural resources 
in Washington State, as well 
as private timber landowners, 
timber industry representa- 
tives, and various state 
agencies. The committee 
operates under the TFW 
groundrules but also has 
adopted a code of ethics that 
applies to all participants. 



TIMBER/FISH/WILDLIFE 

DECISION MAKING PROCESS 



GOALS 

I 

PROBLEMS 

I 

SOLUTIONS 



AGREEMENT DISAGREEMENT-^ 









■ 






279 



APPENDIX B 



Groundrules for TFW: A Better Future in Our Woods and Streams 

Each of the participants to these discussions agree to these ground rules: 

1. We win attempt to develop a system which provides: 

* Minimum guarantees for everyone; 

* Incentives which maintain and enhance timber, fisheries and wildlife resources; 

* Future flexibility , accountability, better management, compliance with regulations and resource goals. 

2. All participants in the negotiation are to bring with them the legitimate purposes and goals of their organizations. 
All parties recognize the legitimacy of the goals of others and assume that their own goals will also be respected. 
These negotiations will try to maximize all the goals of all the parties as far as possible. 

3. This effort will receive priority attention, staffing and time commitments. 

4. Give the same priority to solving the problems of others as will your own. 

5. Commitment to search for opportunities: without creativity there will be no plan or agreement 

6. Commitment to listen carefully: ask questions to understand and make statement to explain or educate. 

7. All issues identified by any party must be addressed by the whole group. 

8. State needs, problems and opportunities, not positions — positive candor is a little-used but effective tool. 

9. Commitment to attempt to reach consensus on a plan. 

10. Commitment to be an advocate for an agreed plan. 

11. Attempt to protect each other and process politically with constituencies and general public. 

1 2. Weapons of war are to be left at home (or at least at the door). 

13. Anyone may leave the process and the above groundrules. but only after telling the entire group why and seeing if 
the problem(s) can be addressed by the group. 

14. All communications with news media concerning these discussions will be by agreement of group. Everyone will 
be mindful of the impacts their public and private statements will have on the climate of this effort 

1 5. No participant will attribute suggestions, comments or ideas of another participant to the news media or non- 
participants. 

16. All rights, remedies, positions and current prejudices are available to everyone if the effort is unsuccessful. 

17. Participants are free to. and in fact are encouraged to, seek the best advice from their friends and associates 
informed of the p rogre s s of the discussions. 

18. All of the individuals who are participants accept the responsibility to keep their friends and associates informed 
of the progress of the discussions. 

19. If you hear a rumor, call facilitator before acting on it. 






41 



280 



APPENDIX C 



TFW COMMITTEES AND PARTICIPANTS 






roucv cownrin 



cultural » abchkolocy committex 



JOHN SMITH • COL VILLE CONFEDERATED TRIBES • NORTHEAST 

TED STKONO - COLUMBIA BJVEK INTERTRIBAL FISH COMMISSION 

BILL CAGEY - LUMMI INDIAN BUSINESS COUNCIL 

LARRY KINLEY - LUMMI TRIBE 

JIM ANDERSON -NW INDIAN FISHERIES COMMISSION 

BILL FRANK. J*. - NW INDIAN FISHERIES COMMISSION 

)OE DELACBUZ • OUINAULT TRIBE 

DAVE WHTTENER - SQUAJON ISLAND TRIBE 

TERKY WILLIAMS TULALIP TRIBES 

DON TAHKEAL YAKIMA INDIAN NATION 

POINT NO KXNT TREATY COUNCIL 

TIMBER INDUSTRY: 

DAVE OtOOKER PLUM CREEK TIMBER CO 

NELS HANSON • WASHINGTON FARM FORESTRY ASSN 

BILL JACOBS - WASHINGTON FOREST PROTECTION MM 

DAVE MUMPER - WEYERHAEUSER CO 

STATE: 

FRED OLSON DEPARTMENT OF ECOLOGY 

DICK WALLACE DEPARTMENT OF ECOLOGY 

GLENN MCDONALD - DEPARTMENT OF ECOLOGY AJSFS 

JOSEPH BLUM DEPARTMENT OF FISHERIES 

ILTJY MERCHANT DEPARTMENT OF FISHERIES 

SAM CLARK -DEPARTMENT OF LABOR* INDUSTRIES 

CURT SMITCH ■ DEPARTMENT OF WILDLIFE 

BRIAN BOYLE - DNR 

ART STEARNS - DNR 

KALEEN COTTINGHAM OFFICE OF FINANCIAL MGMT 

aOUSDRIVDAHL WASH DEPARTMENT OF WILDLIFE 

ENVIRONMENTAL 

PAM CROCKER-DA VB • NATIONAL AUDUBON SOCIETY 

TIM CULLINAN - NATIONAL AUDUBON SOCIETY 

DAVEBRICKLIN WEC 

ADMINISTRATIVE COMMITTEE 



ANDELINE FBIMN - COL VILLE CONFEDERATED TUBES 



VERN JOHNSON - LUMM1 

CURT RUSSO- LUMMI 

CHARLES SCOTT - LUMM1 

AL JOHNNIE -LUMMI 

ANNRENKER MAKAH 

MARTIN FOX - MUCKLESHOOT 

LARKY RATTE • - MUCKLESHOOT 

JOHN J. HOLLOWED - NWDC 

JOHN ROSS SPOKANE TRIBE 

MICHELLE STEV IE - SQUAJON 

MTTZI WHTTENEB - SQUAJON 

PAT STEVENSON - STTLLAGU AMISH 

CHARLES SWO - SUQUAM1SH 

LEONARD FORSMAN SUOUAMISH 

KURT NELSON -TULALIP 

CLIFFORD MOSES - YAKIMA INDIAN NATION 

LONNIE SELAN YAKIMA INDJAN NATION 

STATE: 

JAKE THOMAS - DEFT OF COMM DEV - ARCH A HBT PRESERV 

ROB WHTTLAM - DEPT OF COMM DEV ARCH * HIST PRESERV 
ARDEN OLSON DNR - FOREST REGULATION A HIST ASSISTANCE 
TOM ROBINSON - DNR FOREST REGULATION AND ASST 

TRAINING, INFORMATION AND EDUCATION COMMITTEE 



TIMBER INDUSTRY: 

BRUCE BECKETT - NW FORESTRY ASSOCIATION 

JEAN BOLTON WASHINGTON FARM FORESTRY ASSN 

LYNNE FERGUSON - WASHINGTON FOREST PROTECTION ASSN 

JAY GOLDSTEIN - WFPA 



JIM WEBER -CRITFC 

JIM ANDERSON NW INDIAN FISHERIES COMMISSION 

BRUCE JONES- OUINAULT 

TERRY WILLIAMS TULALIP TRIBES 

LARKY WASSERMAN - YAKIMA INDIAN NATION 

TIMBER INMJfTIYl 

BOB MORTON 

J1MHARBERD BOISE CASCADE 

HARRY BELL- ITT RAYONIER 

NELS HANSON WA FARM FORESTRY ASSN 

BOB CUSTA VSON - WA FOREST PROTECTION ASSN 

JEAN BOLTON WASHINGTON FARM FORESTRY ASSN 

JERRY GLTZW1LER - WEYERHAEUSER COMPANY 



STATE: 

GORDIE 2HXGES - DEPARTMENT OF FISHERIES 

DKTK WALLACE -DEPARTMENT OF ECOLOGY 

GARYKESSLER DEPARTMENT OF LABOR A INDUSTRIES 

ROLUE GEPPERT • DEPARTMENT OF WILDLIFE 

LAURA ECKEKT- DNR 

ARDEN OLSON DNR FOREST REGULATION A ASSISTANCE 

JACK HUSLEY - DNR - TIMBER SALES 

KALEEN COTTINGHAM - OFFICE OF FINANCIAL MGMT 

NAK1 STEVENS - PUDST SOUND WATHI QUAUTY AUTHORITY 

ENVIRONMENTAL: 

TIM CULLINAN - NATIONAL AUDUBON SOCIETY 
TOM SHOEMAKER - NATIONAL AUDUBON SOCIETY 
MARCYGOLDE -WBC 

JUDY TURPM . WBC 






STAT* 

JANI GILBERT DEPT OF ECOLOGY 

JONNA VANDYKE -DEFT OF FISHERIES 

MILLARD DEUSEN DEPT OF FISHERIES HABITAT MANAGEMENT 

KAY EICMNGER DEPT OF TRADE A ECONOMIC DE VELOPMFJST 

JANET O-MARA- DEFT OF WILDLIFE 

LAURA BCKERT - DNR 

STEPHEN BERNATH DNR - FOREST REG A ASST 

KEN HWESDNR - FOREST REG * ASST. 

ROB HARPERDNR - PUBUC AFFAIRS 

DAVE DOANDNR - TIMBER SALES 

DEB UNDLEYDNB • FLMC 



OTHXRS: 

KEN RAEDEKE ■ COLLEGE OF FOREST RESOURCES 
RENEE GUIELIERIE - CONSERVATION COMMISSION 
GLENN MCDONALD. DEFT OF ECOLOGY/USFS 
JONI PACKARD - NOAA/NATIONAL MARINE FBI IERIES SVC 
DA VTDMOR MAN OREGON DEPARTMENT OF FORESTRY 
NAKJ STEVENS - FUCET SOUND WATER QUALITY AUTHORITY 
STEVE RALPH - UNIVERSITY OF WASHINGTON 
ANNHEISLER- US FOREST SERVICE 

INFORMATION MANAGEMENT COMMITTEE 



LINNEA COOKSON NW INDIAN FISHERIES COMMISSION 
DENNIS MCDONALD - NW INDIAN FISHERIES COMMISSION 
MARKMOBBS QUKAULT 



42 



281 



timmb Mnn 

SAM Mn . CHAMPION MIWnBW, 

LAWUNCZ KA YMS ■ ITT «AVCNBL MC 
KEITH SIMMONS S1MPSONTIMBER CO 
KATE JULLIVAN - WEYERHAEUSER CO 
n M ROCHELLE ■ " " ^ B AHITW CO 

■Hi 

KAROL ERJCKSON • DEFT OF ECOLOGY 

Did WALLACE -WIT OF ECOLOGY 

ELIZABETH LANZER- DEFT OF ECOLOGY WATER RESOURCES 

PAMELA KNUDSEN DEFT OF FISHERIES - HABITAT MGMT 

MARY ELLEN BRADLE DEFT OF WILDLIFE 

PETE HAUG DEFT OF WILDLIFE 

STEPHEN BERNATH DNR FOREST REGULATION A ASST 

TOM ROBINSON - DM - FOREST MMUHM * ASST 

SCOTT DENKERS - DM • MMMOsM MOMT 



DAVR3I 

STTJART SMITH- DNR FOREST REG A ASST 

MARY SMITH DNR INFORMATION MGMT 

LARRY SUGARBAKER • DM - MOMMON MOMT (OB) 

RONHOLEMAN . DM - MWM MOMT 

JOHNTOOLEY DOE OLYMFU 



DAVTDWHITWILL BOISE CASCADE CORPORATION 
LORINWCX PLUM CREEK TIMBER CO 
KATE SULLIVAN - WEYERHAEUSER COMPANY 

■M 

DAVID ROBERTS DEPARTMENT OF ECOLOGY 
ANDREA COPPING PS WATER QUALITY AUTHORITY 
STEVE BERNATH DNR 
ART MCCOY DEFT OF NATURAL RESOURCES 



FRED GIJ_BERT WASHINGTON STATE UNIVERSITY 
TIM KOLER - OLYMPIC NF - OBOTBCHNKAL SEC 

ROBERT NA1 MAN/ 

KATE OLAUGKLtN UNIVERSITY OF WASWNGTON 

KENNETH RADEKE UNIVERSITY OF WASHINGTON 



DANCANTRELL WBC 



JOHANNA BELL EVERGREEN STATE COLLBOE 

D*. WMiiAM C SMITH - CMUL WASWNGTON UMVBBSTrY 

ITBVl VABOA - CENTRAL WASHINGTON UMVBBSTTY 

CMP MCCONNAHA NW POWER PLANNING COUNCIL 

ROBERTA FEINS POOET SOUND WATT* QUAUTY AUTHORITY 

DR BOB NAIMAN UNIVERSITY OF WASHINGTON 

STEVE RALPH UNIVERSITY OF WASHINGTON 

CURT WTBERO YAKIMA BASIN CENTER 

TATSON COMMITTTI 



JON HANSEN COL VTLLE CONFEDERATED 

DBMS MCDONALD • NW INDIAN FISHERIES COMMISSION 

BRUCE JONES QUTNA ULT 

JEW DKXBON • SOJUAXTN ISLAND TRIBE 

TIMBER INDUSTRY: 

BOB MORTON 

RICHARD T. STEMJNO 

STEVEN TVEIT BOISE CASCADE 

HARRY BEU - ITT RAYOWER 

SOB OUSTAVION - WA FOREST PROTECTION MM 

STEVE ANDERSON ■ WEYERHAEUSER CO 

STATU 

DAVID ROBERTS DEFT OF ECOLOGY 

STEVE KELLER DEFT OF FISHERIES 

GARY KESSLER DEFT OF LABOR A INDUSTRIES 

PETE HAUG • DEFT OF MM 

JOHN MANKOWSKI DEFT OF WTLDUFE 

NANCY STURHAN DNR- FOREST REGULATION A ASST 

KEN HIRES DNR FOREST REGULATION A ASST 



ERIC HANSON YAKJ MA INDIAN NATION 

KM ALTO COL VTLLE CONFEDERATED TRIBES 

MARK MOBBS - QUTNA ULT INDIAN NATION 

MBTHELLESTEVIE SOUAKTN ISLAND TRIBE 

JOHN THOMPON LUMMI INDIAN TRIBE 

PAULKENNARD-TULALB'TRSBl 

TIM BEECHE - SKAOTT SYSTEM COOFERATTVE 

DALE MCCULLOUGH - CRITFC 



DAVID WHTrWTLL BOISE CASCADE CO 

PETE BBSON - WEYCO 

TOM QUNN - UNIVERSITY OF WASHINGTON 

BOB BILBY WEYCO 

GEOROEKI NCASI 

KATE SULLIVAN - WEYCO 

CANDACE PARR BOISE CASCADE 

JEFF LK3HT- WEYCO 

STATE: 

BOB BKXNELL - WASHINGTON DEFT OF WILDLIFE 

DEBORAH UNDLEY DNR 

JOHN ROHRER WASHINGTON DEFT OF WTLDUFE 

SAM WRIGHT WASHINGTON DEFT OF FISHERIES 

JEFF CEDARHOLM DNR 

PETE HAHN - WASHINGTON DEFT OF WTLDUFE 

DAVID ROBERTS WASHINGTON DEFT OF ECOLOGY 

MM MMH - WASHINOTON DEFT of fisheries 

AM RYAN DNR 

LOU HALLOtN - DNR 

STEPHEN BERNATH DNR 

RICHARD BRjLEY DNR 

MBO= PARTON US FISH A WTLDUFE SERVICE 



TTMCULUNAN AUDUBON 
LISA LOMBARD! - WEC 
ARTNOBLE-WBC 



ARTTASKER DM SFS REGION 



LISA LOMBARa WBC 

COOPKRATTVR MONITORING EVALUATION AND I 



RM ALTO - COL VTLLE CONFEDERATED TRIBES 

LEE HOPP1S YAKIMA INDIAN NATION 

DENNIS MCDONALD NW INDIAN FISHERIES COMMISSION 

MARK MOBBS QUINA ULT INDIAN NATION 

TIMBER INDUSTRY: 

BOB BILBY WEYERHAEUSER COMPANY 

BOB MORTON NE WASMNOTON CONSERV DDJT 

BOB MEIER ITTRAYONSamC 

JAMES BOCHELLE WEYERHAEUSER COMPANY 



TFW OROGRAPHIC INFORMATION SYSTEM COMMITTEE 



JOBS MM - NW INDIAN F 

DENNIS MCDONALD NW INDIAN FISHERIES COMMISSION 
DAVESOMERS TULALIP NORTHWEST. SOUTH PUGET SOUND 
LEE HOFFIS - YAKIMA INDIAN NATION 

STATU 

OORDIE ZILLCES DEFT OF FISHERIES 
DICK WALLACE -DEFT OP ECOLOOY 



TTM YOUNG DEFT OF WILDLIFE 

NANCY STURHAN - DNR FOREST REGULATION A ASST 
TOM ROBINSON - DNR FOREST REGULATION A ASST 
DAVEDOAN DM TIMER SALES 



43 



282 



rruAMT nam am- Ktmntao a amst 

LARRY 1UOARBAKRB PW INK>MOMT<0B) 



judyturfin-wbc 



ttw um Columbia turn crow 






STEVEN L lUDD ■ COLVHXE CONFEDERATED 
JOHN SMTTH - COLVHXE CONFEDERATED 
MYIA CLAM ■ OOL VILLI OONFEDCSATED 
ADELINE FREDIN ■ COL VTLLE CONFEDERATED 

TIMBER MMt 

« MCGREEVEY • ROSE CASCADE 

HM HARBERD BOISE CASCADE 

DAVE WHTTWELL ■ MM CASCADE 

MAUBJCE WILLIAMSON - NE WA HUM FORESTRY AW 

DALE1SENBER ■ WA FOREST PRODUCTS 



STATE: 

JOHN MANXOWSK1 DEFT OF WILDLIFE 

TERRI COGSWELL ■ DNR . NORTHEAST REGION 

DICK DUNTON ■ DNR ■ NORTHEAST REGION 

BILL WILBURN - DNR ■ NORTHEAST REGION 

AL MM ■ DNR • NORTHEAST REGION 

BILLZOOKWDF 

KFJTLYN WATSON. WDW- REGION NO. I 

EASTERN WASHINGTON RIP ARI AN COMMITTEE 









IERRY MARCO COLVHXE CONFEDERATED NORTHEAST 
LARRY WASSERMAN- YAKIMA INDIAN NATION 

TIMBER INDUSTRY: 

MDCE MCG REE VEY BOISE CASCADE 

DAVE WKrrWELL • BOISE CASCADE 

BILL HOWARD- BOISE CASCADE 

LEN ROLPH ■ CHAMPION INTERNATIONAL 

WADE C BOYD ■ LONOVIEW FIBRE 

MAURICE WILLIAMSON . NE WA FARM FORESTRY ASSN 

LOREN HICKS- PLUM CREEK TIMBER CO 

ROBERT BILBY- WEYERHAEUSER TECHNOLOGY CENTER 

STATE: 

DAVI D ROB ERTS DEFT OF ECOLOGY 
PHIL PETERSON - DEFT OF FISHERIES 
DUANE FWNNEY - DEPT OF FISHERIES 
SAM WRIGHT- DEFT OF FISHERIES 
ROLUE GEFPERT - DEPT OF WILDLIFE 
>OHN MANKOWSKI ■ DEFT OF WILDLIFE 
TJT CLDERHOLM - DNR . FLMC 
BILL BARBER . DNR ■ SE REGION 
BILL ZOOK - WDF 



ENVIRONMENTAL: 
LUCYREID 
RICHARD RIEMAN 









« 



283 



QUINAULT INDIAN NATION 

Department of Community Services 

Division of Community Development 

Issues of Due Process. Equal Protection, and Fairness in the Application of Land Use 
Development Codes on the Quinault Indian Reservation . 

By: Richard Wells, 

Community Development Manager 

February 25, 1998 

Throughout American history, the various courts of the United States have determined 
that governments possess certain sovereign powers, namely: the power of taxation, the 
power of eminent domain, and the police power. Most laws of this Country are derived 
from the exercise of a government's police power - the restriction of individual rights for 
a valid public purpose. By applying laws of American jurisprudence to Indian tribal 
governments, laws and regulations are written, enacted, and enforced based on the 
exercise of that Indian Nation's sovereign police power, for valid public purposes. 

Planning and zoning laws are fairly recent inventions of the American legal system, and 
even newer in Indian Country. And, although Indian tribes had their own traditional, but 
less defined, methods of planning and use zones, most tribal governments found it 
necessary to accept and adopt the American versions of planning and zoning in order to 
protect its citizens and remaining homelands. 

Planning law has been extensively tested in the U.S. Court system, whereby three 
doctrines have consistently determined the Constitutionality of every conceivable use and 
misuse of planning and zoning laws. These three tenets are: the Equal Protection, Due 
Process, and Fairness. Any law that does not meet the court-determined tests of these 
doctrines are generally found to be unconstitutional. Planning and zoning laws, as applied 
by American Indian governments, are therefore, adjudicated based on historic case law, 
as developed since the first U.S. Court case on zoning in 1926. 

The Quinault Indian Nation applies is planning and zoning laws equally to all people and 
lands within its defined jurisdictional boundaries, regardless of whether the applicant is 
Indian or non-Indian or whether the property is in trust or fee patent ownership. In fact, 
because of the checkerboard and complex ownership of trust and fee simple property and 
interests on the Quinault Indian Reservation, the Quinault Nation is the only 
governmental entity that can provide equal protection to all landowners on the Quinault 
Reservation. The County governments are specifically precluded from applying its laws 
on trust properties, and in the case of the Quinault Indian Reservation, this would include 
only about 22 percent of the area The remaining fee simple properties are interspersed 
among the trust properties in a checkerboard fashion. 






284 



COMMON PLANNING AND ZONING LAWS ADOPTED BY THE QUINAULT 
INDIAN NATION 

• Comprehensive Land Use Plan. The first Comprehensive Plan for the 
Quinault Indian Reservation was adopted by the Quinault Business 
Committee in 1976. The Comprehensive Plan was updated in 1997, but has 
not been formally approved by the Quinault Business Committee. The Plan 
was developed through a series of open public meetings. The Comprehensive 
Plan applies to all lands within the jurisdictional boundaries of the Quinault 
Indian Nation and is enforced equally on both Indian and non-Indian 
landowners. 

• Zoning Code. The first Quinault Nation Zoning Code Was adopted in 1 967 
with the help of the Grays Harbor Regional Planning Commission and 
modeled after the Grays Harbor County's Zoning Code. The Zoning Code was 
revised in 1976 to be in conformance with the Comprehensive Land Use Plan 
for the Quinault Indian Nation. There are only five zoning districts in the 
Quinault Nation Zoning Code: Residential, Commercial, Manufacturing, 
Natural Resource Management, and Coastal. Title 48 - the Quinault Nation 
Zoning Code is enforced equally for all applicants. The following remedies 
are available to all applicants: variances, conditional uses permits, re-zoning, 
and appeals. 

• Building Codes. The Quinault Nation has adopted the following standard 
building development codes: 1994 Uniform Building Code, 1994 Uniform 
Fire Code, 1994 Uniform Mechanical Code, 1994 Uniform Plumbing Code, 
and the 1991 National Electric Code. These codes are enforced by the 
Quinault Nation's ICBO certified Building Inspector. 

• On-Site Sewage Disposal Ordinance. The Quinault Nation's sewage disposal 
ordinance is modeled after the Washington State On-site Sewage Disposal 
Code and uses the same minimum performance standards as stated in the 
Revised Code of Washington (RCW). 

• Forest Practices Regulations. Since about 95 percent of the Quinault 
Reservation is used for commercial forest production, many of the proposed 
developments will involve clearing some part of the forested lands. Whenever, 
a development requires the removal of trees, the Quinault Nation requires a 
Forest Practices Application. 

• Hydraulics Permit. Any use or modification of a surface or groundwater 
resource on the Quinault Indian Reservation requires a hydraulics permit. 

DUE PROCESS 

Each land use development applications received by the Quinault Nation are processed 
the same and in a timely manner. Building Permits can be approved by the Quinault 
Nation Building Official. Applicants have the right to appeal a decision of the Building 
Official to the Board of Appeals under Section 105 of the Uniform Building Code, as 
adopted by the Quinault Indian Nation. Other permits and approvals are processed 
through the Quinault Planning Commission with final approval or denial by the Quinault 



285 



Business Committee. Applicants may appeal the decision of the Quinault Business 
Committee to the Quinault Nation Court. The following table shows the standard process 
for conditional use permits, zone changes, and variances: 



ACTION 


Applicant 


Planning 
Office 


Planning 
Commission 


Business 
Committee 


Application 


X 








Review 




X 






Staff Report 




X 






Advertise for Public 
Hearing (10 days) 




X 






Public Hearing 






X 




Recommendation 






X 




Decision 








X 



The entire process takes a minimum of 30 days from the receipt of a complete application 
to the final decision. During the process, the applicant is allowed to provide 
documentation and oral presentation. The Quinault Planning Commission has the right to 
ask questions, request additional information, and continue the public hearing prior to 
making a recommendation on the application. 

PLANNING STAFF CAPABILITIES 

Presently, there are seven people working for the Quinault Nation Division of 
Community Development under the Department of Community Services. The Division 
Manager, Richard Wells, has a Masters of City and Regional Planning from the Ohio 
State University. The Land Use Planner, William Rychliwsky, has a Masters of Urban 
and Regional Planning from Queen's University in Kingston, Ontario. One of the 
Quinault Nation's Building Inspectors, Alicia Figg, is certified through the International 
Conference of Building Officials (ICBO). In addition, the Quinault Nation's Pubic Works 
Manager holds a Masters of Urban Planning from Eastern Washington University. 

In 1997, the Quinault Nation issued 24 building permits. Of these permits, 20 were 
located on trust lands and four were located on fee simple property. In 1996, there were 
23 building permits issued on trust property, and two on fee simple property. 






COMMON DEVELOPMENT RESTRICTIONS 



Whenever the Quinault Nation receives an application for a land use development on the 
Quinault Indian Reservation, it is processed the same regardless of whether the applicant 
is Indian or non-Indian, whether the land is in trust of fee simple. Therefore, any time that 
an application is not approved, it is based solely whether the application meets the laws 
and regulations of the Quinault Nation. Most of the development restrictions are the same 
types of restrictions that a landowner would face off-Reservation, but some are particular 
to Indian reservations: 



47-Qfll Oft . m 



286 



Not Applying. Anyone can request and submit an application for 

development, however, many people simply do not apply and wrongly assume 

that they will be denied. 

Incomplete Application. All of the application forms provided by the Quinault 

Indian Nation are relatively easy to fill out, and the Planning Staff can provide 

assistance to any applicant. If critical information is not provided with the 

application, then the Planning Staff cannot complete the process. 

No Standing to Apply. In order to prevent frivolous speculation and to protect 

landowners, the Quinault Nation requires that the applicant is the owner or has 

a legal interest in the property to be developed. In lieu of actual ownership, the 

applicant may provide a conditional sales agreement. 

Poor Soils. The Quinault Reservation is characterized by a large percent of 

poorly drained soils that cannot support on-site sewage disposal. This is 

especially true in the areas along the Pacific Ocean coastline of the 

Reservation. 

Small Lot Size. The minimum lot size permitted for on-site sewage disposal 

and on-site well is one acre according to the Quinault Nation's On-Site 

Sewage Disposal Ordinance which uses the performance standards of the 

Washington State Sewage Ordinance. In the past, land developers subdivided 

property down to less than 1/4 of an acre in areas that do not percolate, 

without going through the processes required by the Quinault Nation. The 

unsuspecting purchasers of those lots assumed that they could develop these 

lots. In one such subdivision, Santiago Estates, this would have caused over 

600 failed sewage systems within a 1/2 mile radius of each other, if allowed to 

be fully developed. Presently, there are six documented failed sewage systems 

from developments that occurred 25 to 30 years ago. 

Wetlands. In addition to the abundance of poor soils, the Quinault Reservation 

contains many wetland areas. 

Multiple Trust Ownership. Some parcels on the Quinault Reservation have 

over 200 undivided ownership interests, being administered by the Bureau of 

Indian Affairs, Branch of Realty. In order to obtain a lease on such a property, 

Federal Regulations require consent from at least 51 percent of the owners and 

allow the BIA to sign for the remaining owners of undivided interest. A 

purchase of trust property requires 100 percent owner consent, as well as BIA 

approval. 

Multiple Trust and Fee Simple Ownership. Another situation that occurs on 

Indian reservations is partial non-Indian ownership in an undivided parcel. In 

the past, many non-Indians that purchased partial interests in Reservation 

lands did not understand the complexity of such ownership. 

No Electrical Power Service. Currently, most of the parcels on the Quinault 

Reservation do not have immediate access to electrical power. In order to 

provide drinking water and enough water to operate toilet flushing to meet 

health and safety requirements, most property owners need wells, which are 

powered by electricity. 






287 



COORDINATION EFFORT WITH COUNTIES 

The Federally-established boundaries of the Quinault Reservation overlap the political 
boundaries of both Grays Harbor and Jefferson Counties. In the past ISO year, the 
Quinault Nation has numerous incidents that demonstrate the Counties inability or 
unwillingness to protect the interests of the Quinault Nation. They also have continually 
failed to recognize that the people of the Quinault Nation have different "community 
values" than the adjacent non-Indian population. 

- 

More recently, there have been great strides in the efforts to coordinate activities of 
mutual benefit and interest between the Quinault Nation, Grays Harbor County, and 
Jefferson County. In 1989, the Quinault Nation began negotiating with the two Counties 
for a Memorandum of Understanding (MOU) regarding land use activities on the 
interspersed fee simples lands on the Quinault Reservation. This historic effort by an 
Indian tribe and a county government follows the recommendations in the U.S. Supreme 
Court Decision under Brendale v. Yakima Indian Nation. In addition, open 
communication has now been established between the respective planning offices when 
dealing with land use developments that may have an impact of the other political entity. 



5 



288 



TESTIMONY OF 
MICHAEL T. PABLO, CHAIRMAN 

CHAIRMAN OF THE CONFEDERATED 

SALISH AND KOOTENAI TRIBES 

OF THE FLATHEAD NATION 

APRIL 7, 1998 

HEARING ON TRIBAL 

SOVEREIGN IMMUNITY 

S 1691 

Double Tree Guest Suites 

16500 South Center Parkway 

Seattle, Washington 



289 



Mr. Chairman, Vice-chairman and Senators of the 
Committee. I thank you for the opportunity to testify before 
you today in regards to Tribal Sovereign Immunity and I 
understand the focus today is on civil and property rights. 

Mr. Chairman, In 1942 the Ninth Circuit Court of Appeals 
in Montana Power Co. v. Rochester confirmed tribal ownership 
of the bed and banks on the south half of Flathead Lake up to 
the high water mark. In 1982 the Ninth Circuit court again 
confirmed ownership of the bed and banks when the tribes 
moved to regulate docks and structures being built on these 
tribal lands. The U.S. Supreme Court denied cert thus 
upholding the decision. 

To regulate use of tribal property the council adopted 
the Shoreline Protection Ordinance (64-A revised). In that 
Ordinance the regulatory board was designed as a 7 member 
board with 4 members and 3 non-members. The 3 non-members 
designated were the then 3 Lake County Commissioners. The 
Council felt this would give non-members an elected voice 
when they requested permitting for construction on tribal 
property . Those county commissioners participated for only 
1/2 day of the first Shoreline Protection Board meeting then 
walked out. The Council then advertised at large for 3 non- 
members to sit on the board and today this is a very 
successful program with total permits issued on 1707 docks 
and structures with 1601 of those permits issued to non- 
members for use of tribal property . 

As we are a Steven's Treaty Tribe we have the exclusive 
right of taking fish on the reservation in order to protect 
the fishery habitat we also have an Aquatic Lands 
Conservation Ordinance 87A. The Shoreline Protection Board 
also regulates activities covered by this Ordinance. Since 
the implementation of Ordinance 87A there have been 891 
permits issued, 267 to non-members, 156 to other tribal 
programs, 39 to State agencies, 48 to counties and towns and 
286 to other government agencies. There is no charge for 
these permits. 

We have a bird hunting and fishing cooperative agreement 
with the State of Montana which regulates all non-member bird 
hunting and fishing on the reservation. All non-member 
sportsman must buy the Tribal /State permit even if they are 
hunting on their private land. Tribal, State and Federal 
officers all enforce the regulations and the regulations are 
established by a joint committee consisting of 3 non-members, 
3 members and a representative from the U.S. Fish and 
Wildlife Service. The recommendations from this committee 
are then approved by the State of Montana fish and game 
commission and the Tribal Council. Neither the Tribes nor 

Michmml T. Pablo, Testimony - Pagm 2 



290 



the State relinquished any jurisdiction claims by signing 
this agreement. 

When we contracted under P.L. 93-638 the federal power 
utility which serves over 16,000 meters representing all 
reservation homes and businesses (and some off reservation) 
we established a Utility Board and a Consumer Council. Both 
of these entities have non-member and tribal member 
representatives. The Utility Board oversees management of 
the utility and the consumer council is the advocate for the 
consumer and has equal authority to the board in recommending 
rate changes in a public, federal rate making process. 

We also have a cooperative law enforcement agreements 
between the Tribes, State of Montana, all cities on the 
reservation and within counties on the reservation except one 
Lake County, which refused to sign the agreement. This 
agreement went into effect in 1994 and provides for cross- 
citation authority, stop-and-detain provisions and emergency 
powers from law enforcement officials. Our Tribal officers 
are also cross-deputized with the Montana highway patrol. 
This agreement is working very well as evidenced by the 
enclosed article from the Missoulian of April 26, 1996. As 
stated by Captain Richard Chase of the Montana Highway 
Patrol's Missoula office "the program is working 
exceptionally well with us." 

. 
Mr. Chairman, knowing that government action will 
necessarily impact the activities permitted on the 
Reservation and in recognition of the fact that many non- 
tribal members live on our reservation we have taken steps to 
provide everyone the opportunity to play an active role in 
promulgation and implementation of our governmental 
regulations and ordinances. 

Our Tribal Administrative Procedures Ordinance provides 
for direct public participation in the regulation process, 
access to governmental information similar to the Federal 
Administrative Procedures Act, and provides any one who 
believes an agency has caused them injury the right to appeal 
that action to an Administrative Law judge. We have 
repeatedly changed proposed tribal regulations because of the 
non-Indian input in the public review process. 

We have utilized Tribal funds to greatly expand and 
improve our justice system by; 

E- Jill 

1. Development of an independent prosecutor's office. 
All prosecutors must be licensed by the Montana State Bar and 
currently all prosecutors are non-members. 

2. We have established a separate Defenders office 
which includes both civil and criminal defense. This office 



Michael T. Pablo, Testimony - Page 3 



291 



includes six attorneys all are non-members and all are 
members of the Montana State Bar. There are also two non- 
attorney advocates. 

3. We have expanded our Tribal Appellate Court to which 
trial court decisions may be appealed. The full panel 
consists of three attorney justices, including the Chief 
Justice and two non lawyer justices. Currently all attorney 
justices are non-members licensed by the Montana Bar. Two 
attorney justices and one lay justice sit on each appeal. 
Reconsideration is heard en banc and each side in the appeal 
has the right to recuse one justice in each appeal without 
stating cause (this is also the case in our trial court). 
This provides additional opportunity for a fair and impartial 
decision. Should additional justices be needed we have an on 
call pool of attorney and lay justices. Further, our Tribal 
Judges all routinely attend judicial training at the National 
Judicial College, University of Neveda. 

In 1995 we also adopted a Tribal Governmental Immunity 
Ordinance. This Ordinance provides limited waivers of 
immunity for injunctive, declaratory or mandamus relief for 
tribal government infringement of any civil or constitutional 
rights arising under the Tribal Constitution and By-laws or 
the Indian Civil Rights Act. It also provides for waiver of 
immunity when an officer, agents or employee of the Tribes, 
acting within the scope of authority allegedly causes serious 
personal injury or death through negligence. We also waive 
immunity up to the limits of our general liability insurance 
coverage. These limited waivers provide opportunity for 
individuals, governments, and other parties to obtain fair 
and impartial justice. 

I also need to point out that any tribal governmental 
action that would infringe on a question of any civil rights 
or property rights under the Indian Civil Rights Act may be 
reviewable in the federal courts. 

Mr. Chairman, we are all too familiar with the distrust, 
anger and fear associated with lost property or property 
rights. The Confederated Salish and Kootenai Tribes with the 
signing of the Hellgate Treaty ceded, relinquished and 
conveyed to the United States nearly 21 million acres that we 
know as western Montana. With that we reserved 
approximately 1.25 million acres for our exclusive use and 
homeland and the Treaty was properly ratified by the Senate. 
However, the promises made by the United States did not last 
long. With the western expansion the Reservation, over the 
strongest objections from the Tribes, was illegally US Court 
of Claims opened to non-Indian settlement. Since that 
illegal opening the Flathead allotment Act has been amended 
approximately 80 times, each time over the objections of the 
Tribes. Each time we lost, rights and property. 

Michael T. Pablo, Testimony - Page 4 



292 



Now even today with the safeguards and protections that 
we have built into our governmental structure to protect all 
rights of all individuals, it does not seem to be enough. We 
are asked once again to give and get nothing in return. 

To move to waive any government's sovereign immunity - 
be it tribal, state or federal would result in judicial chaos 
by authorizing any one person or entity to file frivolous 
lawsuits that would virtually bring justice to a standstill. 
No government could survive the slaught of rediculus lawsuits 
this proposed move would bring. 

I request the committee to carefully consider this issue 
and to strengthen tribal sovereignty by giving tribal 
government the resources necessary to build more protections 
into government and not to tear down tribal sovereignty by 
removing sovereign immunity. 

Mr. Chairman, lets continue to follow President Ronald 
Reagan's Indian Policy Statement of 1983 to strengthen Tribes 
"by removing the obstacles to self-government and by creating 
a more favorable environment for the development of healthy 
reservation economies. Tribal governments, the federal 
government and the private sector will all have a role... 
Our policy is to affirm dealing with Indian Tribes on a 
government-to-government basis and to pursue the policy of 
self-government for Indian tribes without threatening 
termination. " 

I have included for the record two letters of September 
of 1997, signed by 8 attorneys general from Western States 
that have Indian reservations within their States . The 
attorneys general opposed the waiver of sovereign immunity in 
the Interior Appropriation Bill at that time and state that 
"such action is a frontal assault on the court decisions and 
laws which since Chief Justice John Marshalls landmark 
opinion in Worchester v. Georgia 31 US (6Pet) 515 (1832) 
have governed relations between the national government and 
the nation's first citizens". They further state that "if 
successful this cladestine effort would drive a wedge into 
the heart of the doctrine of tribal sovereignty which has 
protected native cultures and native rights and has served as 
the foundation of Indian self-government in this country." 

I have also included for the record a State of Montana 
Proclamation from Governor Marc Racicot recognizing Tribal 
sovereignty and the government-to-government relationship 
between the State and Tribes. I will close by reading the 
Proclamation . 



Michael T. Pablo, Testimony - Page 5 



293 



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294 



Attorney General of New Mexico 

M Drt*»«r ISOt 
Sama Fe, New Masko 17504-1 501 

ttMBMM 

FaxS0syt.27-6tt»- 

TOM VD AU MANUEL TLTERLV A 

ABMMxO<mnt - Deputy Auarejr Gw«r»; 

Siptobcr3,1997 

The. Honorable HI Clinton * 

President of the Vviiai Statu 
1616 Pennsylvania Avenue 
WeaUngton, DC 20530 



Dear President Clinton: 






In our capacity as the AnomevsGefle.^ of several Indian stites, we arc writing tc express our alarm 
concerning legislation pending la the Senate that constitutes a frontal assault on the court dedrtont 
and laws which, sines Chief Justice John Marshall "i landmark opinion In ffarcktsier v. Georgia. 31 
VS. (6 Pat) 515 (1832), have governed relations between the national governraear and th* nation's 
first citizens. If euoretsnil. this clandestine effort, led by a Western Senator, would drive ■ wedge 
Into (be heart nf the doctrine of tribal sovereignty which hu protected native cnmireeiadiudve 
rights and has served as the fouadarbn of Indian self-government in. this country. 

Mr. Pre ridrat , what jj raort disturbing about these pusidve emesdnieaU u thai they arnoont to a 
rcpcdiatioD of the bi-partisan efforts of recent decades that have enlarged and r eafiarn cd the natian'i 
comrnitment » equal justice and equal eppcramity far nitivc peoples. We refer to legislation such 
w the Indian avil Rights An of 1561, the Education Act of 1 975 (whichbs* enabled hatf the tribes 
to take over and oparate their own school systems) and the Indian Child Welfare Act of 1*78. Wo 
tear the beneficial efleots of (hose, aad other, lams wouM be eououlate4 If tbo ndlcil, e0«trfv« 
changes in the Senate bill arc approved, and *o attempt to reviv» the tailed polidee of the 1950*» 

tCQdflalllOIl C7B- 

h addition, you. should be aware that (he extreme budget outapropoaed in these epproprieiicntuiere 

wonld harxn many vital ongoing programs In Indian country. While tribal law enforcement officers 
do the best they can with the resources they have* Cone^eatiotnUftmd^rbrtiiballawen&rccneBt 
on the reservation is a national disgrace. Even though violent crime has continued to drop over the 
I**t rive years nationwide, Eft has become more vjolem for the 1.2 mlmcn Native American* living 
on or ueer Indian reservations. Likewise, since Indians ar* among the moat impoverished 
Americana, | ejesejj »»>■ «*»«fn«*ti jr*** ^~«—t>yUi*a mtt afjeajeaajBjga) "i««<Hf *» «Aytian, health 
«zk!om environment on many of the reservations. 










295 



Stpteabm2,l997 
Paie2 

If the*e rides an adopted, wt will be saying to Native American ehfldm thai they are not going to 
have the opportunities of other American children. All i n dicato r ! and Studies show thai Neriv 
American children are the poorest and hive the least chine* for luccfcas basod on thdr 
circumitaaeaa. ftawyfciy triSt tha rcrcnua they need to provide) rmnnomlf OPPO nrmftUe fee tbtir 

members will aeveraly impact the youngest and poorest citizens of this country. 

These arc outrageous, far-reaching amendments. Their powerful sponsor, Senator Gorton, hat 
boasted publicly mat he Is "trying to break up the system". We urge you to do all in your power to 
block this legislation, 

- 

*m Anomey General 
TO/hn 

The following Attorneys General have agreed to joic me in signing this letter. 

Pranldo Sue Del Papa, Nevada 
Jamas E. Doyle, WUeo aim 
Dr»w Edmundsoa, Oklahoma 
Hubert H. Humphrey XH, Minnesota 
Hardy Myara, Or»gon 

Heidi Heitkamp, North Dakota 

iii"itiiiiifin i i : Tf isyrini 
SeacSoflmsdorBruceBabhitr 

Senators Lott and Datchls 

Senator Ootloti 

Ir|tfa««rtHtiu jMB| jfrj Igajtjbal 

National Co ogress of American Iadi ins 

■ 

■ 

■ 



•■• 



296 



ATTORNEY GENERAL ««x <&*f 

STATE OF MONTANA 




wwOmSm 
Septembers, 1097 



. 



iTiftllr 



The Honorable Max Baueus 
United State* Senate 
7M Hart Senate Office Bufldlng 
Washington. DC 20510 

Deer Sanator Baucus: 

I am writing to express my opposition to H.R. 2107, f 120. the Department of Interior 
appropriations pfll. I urge you to strongly support eiTotts to remove thb amendment poo* - 
to tn passage of the ML 

Section 120 would automaficafly wafte the sovereign irnmunBy of any tribal go v ernme nt 

receMng tribal priority allocation funding from the United States Bureau of Indian Affairs. 
My objections tp this amendment to Interior's appropriations Hi am savers!. 

Fasti ft b contrary tc democratic principle to allow such a sut^tarrtiv* amendment to be 
attached at the s te vet idi hour, wfihout notice, to a M not ip ecg caB y focused on the 
complex subject of federal Indian-law., Second, it places the federal g overn men t, which 
has a fiduciary relationship wttn the tribes, In the pes Bon cf fenang tnlsalgcvenvrierrts to 
accept uncondWonal waivers of sovera^ irnmunfty or tece the turiher frnpeverishment of 
their tribal members. Triad, the language fbtetfgoes too far. This rider represents a tar 
reaching chance in Indian law and Congress should rratcortsidef such a dramatic chanje 
wflhautbenofg of further research and the opportunity forluflCongm ssto no i h ea ring! 

Passage of the appropriations bfi w«fi this language would frustrate ongc^ activities cf 
those in state bcai errf trfcoJ govenrriont a who ate tebc)rtng cuuu o <at»/eV totrcprovetho 
d«^wortinB i e iatb ii ai i M «n°09th>«goven v nan fc It would drive a wedge between the 
local and state governments and the tribal goverrmente w8ft whom we rnusi work, and 
would create devastating economic hafrisNps to many Natfve Americans. I reoogntea that 
Con gre ss has the fuA authority to step ki and change matters of Indian tew, and that this 
Issue at an approp riat e one far debate. Nonetheless, f the issue boo uutnp ott rsj . I ought 
to be reeorVad ki a proceee which affords e teir opportunity far ft* dtecuseton and debate. 



jmjyijpBKpacaaatt 

Aiwr lea* itnitm aw 



297 



The Honorable Max Baucus 
Septembers. 1»7 

PageZ 






WhBo I strongly befeve It is in the best interests of both tribal and nontrfbai dtizorw lor 
tribal governments to fofiow the leads of states and enact limited waivers of sovemign 
Immunfty, this substantive amendment to the Interior appropriations bR and the process 
fay which It has arisen, is unfair In both form and content Passage of thb rider wtt have 
■ chfliing effect on the recent progress ins Montana Tribes and State have made by 
working together to overc o m e some of the logical resuRs of decades of :he conflicting and 
shifting pofcies of the federal government I urge you to vote against this amertinrart. and 
to support efforts to remove ft prior to the appmp nab ons bffi passing from the Senate. 










Jpnvsafarlrb 






. 





















298 






&tate of jfflontana 

llroclamuHuu 



•' 






WHEREAS, it is desirable to all of us who live in Montana to achieve mutual 
goals dirough an improved relationsliip between sovereign governments, namely tile Stale 
of Montana and die Indian Nations located within Us borders. The respective sovereignty 
of die state and each federally-recognized tribe provides autliorilj for eadi to exist and to 
govern; and 

WHEREAS, there art seven federally -recognised Indian tribes in die state. Each 
tribe lias an independent relationship with each other and with tiie state and its political 
subdivisions; and 

WHEREAS, diese seven Indian Nations and die State of Montana liave liistorical 
reiationsliips and unique rights sluiped by federal and stale constitutions, statutes, and 
treaties with the United Slates government and Executive Orders of die President. 

NOW, THEREFORE, I, MARC RACICOT, Governor of the State o/ Montana, 
do liereby affirm t/iat die Stale of Montana recognizes die fundamental principle and 
integrity of the govemment'tO'govemment reLnkmsliip between the Slate and die Indian 
Nations located in Montana, and it is upon tins principle dial a mutually beneficial 
approach to conflict resolution must rest. 










IN WITNESS WHEREOF. I have hereunto 
set my hand and caused the GREAT SEAL OF 
TIIE STATE OF MONTANA to be affixed. 
DONE ai (he City of Helena, (he Capital, this 

ICJU/l day of MuiJl , in the 

year of our LORD, one thousand nine hundred 
and. 



~Mm*. &*J. 



MARCHACICOT 



299 



THE CONFEDERATED SAUSH AND KOOTENAI TRIBES 

OF THE FLATHEAD NATION 

P.O. Bo» 27S 

Pablo. Montana 59655 

(400) 675-2700 

FAX (406) 675-2806 

March 12, 1998 



The Honorable Ben Nightborse Campbell, Chairman 

Committee on Indian Affairs 

SH-838 Hart 

United States Senate 

Washington, DC 20510 

Attn: Paul Moorehead 




I 



»«»»■■ Omtfo, Jr 






Dear Chairman Campbell, 



I understand that the Indian Affairs Committee has scheduled two field hearings on 
Tribal Sovereign Immunity. The first will be held on April 7, 1998 in Seattle, where the 
focus will be on civil and property rights. I understand a second field hearing will take place 
on April 9, 1998, in Minneapolis, where the focus will be tort claims. Clearly a major 
component of these hearing will be how tribal sovereign immunity affects the rights of non- 
Indians on allotted reservations. 

For various reasons I would like to urge the Committee to consider an elected official 
of the Confederated Salish and Kootenai Tribes as a witness at this hearing. As you know, 
our reservation was severely allotted pursuant to the provisions of the Flathead Allotment Act 
and subsequent home-steading by non-Indians. As a result, we have a very large population 
of non-Indian reservation residents. While we have had disagreements with what is really 
a small group of vocal antagonists on our reservation over the years, we have also had a 
comparatively good rapport with the vast majority of the non-Indians who work and/or live 
on the Flathead Reservation. 

Relative to the bearing, we believe our experience in dealing with the non-Indian 
community and how we offer legal protections may be instructive to Committee members and 
the public. The inner workings of the many institutionalized boards we have established to 
ensure the non-Indian community has input into tribal decision making could also be 
instructive. For instance, we have established the Shoreline Protection Board which deals 
with the issuance of permits for construction activities on Flathead Lake as well as permits 
under our Aquatic Lands Ordinance. This Board has issued thousands of permits to non- 
Indians as well as to state and local governments, with total cooperation. We have entered 
into a comprehensive Fish and Wildlife Agreement with the state of Montana involving 
licensing of non-Indians on the reservation. When we took over management of the large 
electric utility on our reservation under a "638" contract, we established both a Utility Board 
to directly oversee the management of the utility (now known as Mission Valley Power) and 



Honor aw with your fret* met at the 100th Annual Arlee Celebration, July 1-5, 199»! 



300 



■ Consumer Council to represent the users of the utility. Both of these boards have had and 
always will have non-Indians serving on them. This has not been token representation either. 
Since its inception, the Consumer Council has generally had more non-Indian members than 
Indians. 

In short, we have always pursued an inclusive, as opposed to an exclusive approach 
in dealing with our non-Indian neighbors and believe that full due process does exist for all 
persons on this reservation. In the area of contract dispute for instance, plaintiffs have full 
recourse here and we appoint lawyers and professional court advisors in many criminal and 
civil proceedings respectively. We have also negotiated a host of agreements with the state 
that further reflect the progressive attitude of our Tribal Council. We carry general liability 
insurance and routinely waive tribal immunity from suit up to the limits of that liability. 

For these reasons, as well as the fact that we have highly regarded lawyers in our 
Legal Department who will be assisting me in drafting our testimony and will be able to 
anticipate and respond to the likely accusations by witnesses critical of tribal governments, 
we would respectively request that we be allowed to present verbal testimony at either of the 
forthcoming hearings although our areas of expertise might be most appropriately addressed 
at the Seattle hearing. Please contact me to let me know your thoughts on this matter. 

Thank you for your support. This is going to be tough year for Tribes but we arc 
confident that you will continue to support the basic and fundamental rights of Indian tribes 
to continue in their roles as governing bodies. 

Sincerely, 



Michael T. Pablo 
Chairman 





























































301 



COW CREEK BAND OF 
UMPQUA TRIBE OF INDIANS 




TESTIMONY OF SUE M. SHAFFER, CHAIRMAN 

COW CREEK BAND OF UMPQUA TRIBE OF INDIANS 

Before the United States Senate Committee on Indian Affairs 

April 7, 1998 



Introduction 



Mr. Chairman, I am Sue Shaffer, chairman of the Cow Creek Band of Umpqua Tribe 
of Indians. Thank you for inviting me to appear and testify in these proceedings. 

While I am proud to appear here on behalf of our Tribe, I sincerely regret the 
necessity of appearing to defend our sovereignty in proceedings apparently generated from 
issues having little or nothing to do with the Cow Creek Tribe. 

I hope that the persons and groups responsible for the necessity of these hearings will 
soon come out from behind technical arguments, isolated cases and media-friendly 
catchphrases to candidly state their apparent belief - that tribes have no right to exist if we 
might cut into a non-Indian constituent's profit margin. I pray that these modern day tribal 
terminators be released from action against tribes based on fear, greed or revenge. 

Tribes do not exist to deprive anyone of rights or property as we struggle to 
reconstitute our shattered and dispersed people. We do not deserve scorn, insult or to be 
terminated yet again under the guise of "equal justice." 

Mr. Chairman, I have 2 primary points that I would like to make today after 
providing a bit of important background information, these are: 1) Cow Creek Tribal 
sovereignty has and will continue to benefit our local non-Tribal community as well as the 
Tribe; 2) Cow Creek Tribal sovereignty has not been and will not be a barrier to good 
business and community relations. The corollary of these points is simple but profound: 
limitation on Cow Creek sovereignty are limitations not only upon our Tribe but also 
limitations on our ability to effectively work with and support the non-Tribal community. 



2371 N.E. Stephens, Suite 100 

Roseburg,OR 97470 

(541) 672-9405 



302 



Testimony of Cow Creek Chairman Shaffer 
April 7, 1998 
Page 2 

Tribal Sovereignty in the Context of Cow Creek History and Goals 

The mission of the Cow Creek Tribe is to create an opportunity for our members to 
live well and raise their children in their ancestral homeland - the center of our world - in 
peaceful concert with our neighbors. Three elements absolutely essential to the fulfillment 
of this mission are Tribal sovereignty, Tribal membership support and the good will of our 
neighbors. These three elements are not incompatible. Each of these elements - especially 
Tribal sovereignty - is indispensable to the creation and protection of the social and 
economic foundations from which the Cow Creek Tribe is building toward its goals. 

A summary of Cow Creek Tribal history is simple, tragic and necessary to an 
understanding of the importance of our sovereignty to us and our neighbors. Our 
homeland was opened to non-Indian settlement by the United States government before 
the U.S. legally owned the land. Noting this oversight, the U.S. sent its Indian Agent to 
negotiate a treaty with our Tribe - people who at the time had no clear understanding of the 
English language or anglo-American conceptions of property boundaries. Our 1853 treaty, 
ceding over 800 square miles of our homeland without anything resembling fair 
consideration, was executed, ratified by the U.S. Senate and then completely ignored for 128 
years during which there were no promised treaty benefits or services provided. During the 
following generation, our people were systematically rounded up and removed or killed if 
they did not manage to hide far enough back in the hills or fully integrate into non-Indian 
society. The following two quotes provide a glimpse of the anti-Indian sentiment of that 
era: 

". . . outrages at variance with every principle of justice and revolting to humanity have been 
committed against the Indians in this district, and the perpetrators are running at large ... a few 
arrests would be a wholesome example . . . How mortifying that we have so reckless a population 
as to demand the presence of troops to protect the natives against the barbarities of our own 
citizens. Scenes have been enacted by whites in this district against the Indians, that would 
disgrace the most barbarous nations of the world . . ." [Indian Agent Joel Palmer, May 12, 1854, 
writing to Washington D.C. from Port Orford] 

"General Palmer, Superintendent of Indian Affairs, has decided to take the Indians now 
collected on the Umpqua reserve, to the Willamette, and our people are much pleased with the 
prospect of deliverance from the nuisance of an Indian reserve in their neighborhood. These 
reserves afford protection to hostile Indians, as well as friendly, and our people are either in 
favor of extermination or colonization." [From "Volunteer" at Deer Creek, Oregon [Roseburg], 
December 28, 1855, printed in the Oregon Statesman of January 8, 1856] Because of this physical 
annihilation, the Cow Creek Tribe was not in a position to successfully assert its sovereignty for 
many years. However, despite being forcibly dispersed, the Cow Creeks continued to meet and 
provide for each other as much as possible and our Tribe did not die. Even legislative 
"termination" in 1954 did not shake us from our certainty in our Tribal sovereignty. 






303 



Testimony of Cow Creek Chairman Shaffer 
April 7, 1998 
Page 3 

Most of our tribal families remained in or returned to our aboriginal homeland, even 
though the land reservation promised in our 1853 treaty (an area over 100,000 acres against 
which non-tribal governments have collected taxes ever since) never occurred. The Cow 
Creek Tribe has had to purchase every square foot of our present Tribal trust lands. As a 
result, unlike the majority of western tribes, we are not yet able to provide even basic 
residency to our membership. Because we have no residency reservation, Cow Creek 
families have always struggled to buy their own homes and have paid property taxes; there 
have been no tax exemptions available for Cow Creek Tribal members. 

Despite our history, Tribal development efforts continue to focus on benefitting our 
surrounding communities as well as our Tribal membership, and we have not asked for 
any handouts or bailouts. All we have insisted upon is the recognition of our sovereignty; 
from which no one has been harmed and many people (Tribal and non-Tribal) have 
benefitted. 

Cow Creek Sovereignty Benefits the Non-Tribal Community 

Since the legal restoration of our sovereignty in 1982, the Cow Creek Tribe has created 
a Tribal economy from scratch. We have been fortunate enough to translate the 
combination of Tribal sovereignty, Tribal membership support and the good will of our 
neighbors into our present position as the second largest employer in our area, providing 
over 750 jobs (primarily for non-members, many of whom have never before had steady 
employment) in our timber depressed region. We are proud to provide Tribal employees 
fully paid health insurance (as well as heavily subsidized dependent coverage), to pay over 
fourteen million dollars ($14,000,000) annually in wages, benefits and payroll taxes into our 
community and that Tribal jobs have allowed many families to wean themselves from 
reliance on state and federal welfare programs. 

Over the last three years Tribal construction projects have added over thirty six 
million dollars ($36,000,000) to the Oregon economy. Furthermore, the Cow Creek Tribe 
voluntarily donates six percent (6%) of its net gaming revenues to local governments and 
charities; an amount far in excess of any local taxes our Tribe would pay without 
sovereignty. These figures are just the tip of the iceberg and none of it would have been or 
will continue to be possible if Tribal sovereignty is diminished. Even as I testify here today, 
our Tribe is aggressively pursuing several economic diversification projects which should 
provide several hundred new jobs in our area; for Indians and non-Indians alike. All of 
these prospective jobs depend on Tribal sovereignty and are particularly important since yet 
another resource based business (Glenbrook Nickel) has recently closed in our area, putting 
another 300 persons in the unemployment lines. 



304 



Testimony of Cow Creek Chairman Shaffer 
April 7, 1998 
Page 4 

Our track record clearly reveals that the Cow Creeks are far from tax evaders and 
rights abusers. Being cast as such, as we along with other tribes have been in earlier tribal 
sovereignty hearings, is truly offensive. Despite and because of our sovereignty, the Cow 
Creek Tribe is generous with, protective of and concerned over our local non-Tribal 
community and our generally high level of community respect underscores this fact. Our 
sovereignty is apparently only offensive to those who have no firsthand knowledge of our 
Tribe. 

Cow Creek Sovereignty is not a Barrier to Good Business and Community Relations 

Our way of conducting Tribal business is non-confrontational and cooperative. The 
Cow Creek Tribe is not an angry or vengeful sovereign. We have no desire to take anything 
from anybody just because we may have the right to do so or because it might be to our 
short term political or economic advantage. While we have had every opportunity to do so, 
we have not beat the drum of sovereignty in protracted court battles or in an aggressive 
manner. Rather, we believe, and have experienced, that it is possible to conduct ourselves 
in a manner that is fair to our partners, as well as our detractors, without being destructive 
of Tribal sovereignty. As a result, despite our rapid growth over the last eight years, the 
Cow Creek Tribe has not raised sovereign immunity as a defense in legal proceedings either 
internally or externally, nor have we been accused by any of our neighbors or members of 
denying or restricting property rights or due process. 

When law or common sense requires us to negotiate formal agreements with 
neighboring governments, organizations or business partners, we do so without hesitation 
and with every intention of carrying our full share of whatever burden such arrangements 
may impose. All we ask is that our negotiating partners accept and respect our sovereignty. 
As a result, despite being protective of our sovereignty, we have been able to preserve and 
promote our sovereignty in a manner beneficial to the Cow Creek Tribe as well as those 
with whom we do business. For example, when undertaking construction projects we have 
contracted with the county building department to undertake inspections and apply local 
building code standards as a matter of Tribal law, so long as the county agreed that it could 
not force us to obtain a non-Tribal building permit. Another example is our local fire 
service arrangement under which we pay the local fire district at the prevailing rate for local 
property owners, so long as the fire district accepts our Tribal property valuations. Yet 
another example is our agreement with the Oregon State Police (OSP) whereby the OSP is 
paid eighty dollars ($80) per hour per officer for regulatory and oversight activities on 
certain Tribal lands. These arrangements have resulted in remuneration that all parties 
agree is cost effective and fair. 



305 



Testimony of Cow Creek Chairman Shaffer 
April 7, 1998 
Page 5 

It has always been our Tribal philosophy and practice to build our communities 
(Tribal and non-Tribal) in a cooperative manner for the common good in furtherance of 
our desire to help build and support strong and independent families. As a result, our Tribe 
has enjoyed local support at a level almost unheard of in Indian Country. Examples of non- 
business community efforts with which our Tribe has been actively involved include our 
joint efforts with the local offices of die U.S. Forest Service and Bureau of Land 
Management on cultural resources matters and our strong interaction with the South 
Umpqua Historical Society and the Pioneer/Indian Museum in Canyonville, Oregon. Right 
now, our Tribe is working with the YMCA and the City of Canyonville to establish a Day 
Care/Learning Center in Canyonville through which needed services to Canyonville as 
well to the surrounding communities of Myrtle Creek, Riddle, Days Creek, Tiller, Azalea 
and Glendale. 

CoDcluaion 

Any effort to limit tribal sovereignty as it currently exists would be a great injustice to 
die Cow Creek Band of Umpqua Tribe of Indians. To quote the honorable Senator Mark O. 
Hatfield at the dedication of Chief Miwaleta Park in the heart of our homeland in 1987: 

". . . there has been justice denied for many generations; stains on the history 
books of our nation which relate to the Cow Creek Band of the Umpqua Tribe . 
. . but die wonderful thing is, even though we cannot remove those stains on 
our history, we can rewrite history. And we have the freedom, and the 
privilege, and the responsibility to rewrite history to correct the wrongs of the 
past, to compensate through restitution and other methods that are open to us 
for things that have happened to our history for which we are not very proud." 

The Cow Creek Tribe is not looking for any handouts from this Committee or any 
other group. We intend to use our own resources to the greatest extent possible to provide 
our people with the opportunity to live and raise their children peacefully and fruitfully in 
their ancestral homeland. Congressional limitation of tribal sovereignty is but another 
impending stain on the history and reputation of the United States. Restriction of Tribal 
sovereignty would expose and reduce our resources in a manner destined to return us to 
die brink of extinction as a people. 



306 



Testimony of Cow Creek Chairman Shaffer 
April 7, 1998 
Page 6 

In closing, Mr. Chairman, let me state firmly that Cow Creek Tribal sovereignty is not 
for sale and we will not remain idle in the face of threats to strip away our sovereignty by a 
congressional act. Cow Creek sovereignty has survived the "exterminators" of the mid 
180Cs, bounty hunters who physically hunted us down, as well as the congressional 
terminators of the 1950's who sought to destroy us with legislation. Please do not allow our 
sovereignty to be stripped by modem tribal terminators; people we have never harmed and 
have no intention of harming. Please do not advance or endorse anti-tribal sovereignty 
legislation and allow the shameful repetition of a history we all should have learned so 
much from already. 

Thank you very much, Mr. Chairman. I would be happy to answer any questions you 
or the members of the Committee may have. 



* 






* 

- 
■ 

i 



307 



COW CREEK BAND OF 
UMPQUA TRIBE OF INDIANS 

Resolution No. 98-9 

RESOLUTION OF THE COW CREEK BAND OF 
UMPQUA TRIBE OF INDIANS OPPOSING S. 1691 

WHEREAS, the Cow Creek Band of Umpqua Tribe of Indians (the "Tribe") is organized 
under the Indian Reorganization Act of June 18, 1934 (48 Stat. 984), the provisions of the 
Cow Creek Band of Umpqua Tribe of Indians Recognition Act of December 29, 1982 (P.L. 97- 
391), as amended by the Cow Creek Band of Umpqua Tribe of Indians Distribution of 
Judgement Funds Act of October 26, 1987 (P.L. 100-139), and the Cow Creek Tribal 
Constitution, duly adopted pursuant to a federally-supervised constitutional ballot, on July 
8, 1991; and, 

WHEREAS, pursuant to Article ED, Section 1 of the Tribal Constitution the Cow Creek 
Tribal Board of Directors (the "Board") is the governing body of the Tribe; and, 

WHEREAS, pursuant to Article VII, Section 1 (a) of the Tribal Constitution, the Board has 
the power to "negotiate with the Federal, state, and local governments on behalf of the Tribe 
and to advise and consult with representatives of the Department of the Interior or any 
other federal, state, or local department, agency, or office on all activities of those agencies 
or offices that may affect the Tribe"; and, 

WHEREAS, pursuant to Article VII, Section 1 (b) of the Tribal Constitution, the Board has 
the power to "represent the Tribe before Federal, state, and local governments and their 
departments and agencies"; and, 

WHEREAS, pursuant to Article VII, Section 1 (d) of the Tribal Constitution, the Board has 
the power to "administer the affairs and assets of the Tribe"; and, 

WHEREAS, pursuant to Article VII, Section 1 (t) of the Tribal Constitution, the Board has 
the power to have such other powers and authority necessary to meet its obligations, 
responsibilities, objectives, and purposes as the governing body of the Tribe"; and, 

WHEREAS, S. 1691, the "American Indian Equal Justice Act," has been submitted to the 
United States Senate for consideration; and, 

WHEREAS, the Tribe finds that S. 1691 is a contemporary version of tribal termination 
because of the overbroad manner in which it would strip tribal sovereignty; and, 



Cow Creek Band of Umpqua Tribe of Indians Resolution No. 98-9 



308 



WHEREAS, the Tribe finds that S. 1691 is premised on inaccurate and derogatory findings; 
and, 

WHEREAS, the Tribe finds that S. 1691 purports to resolve controversies not at issue with 
the Tribe yet would apply to the Tribe in a manner contrary to the best interests of the Tribe; 
and, 

WHEREAS, the Tribe has previously enacted several Tribal laws to address issues raised by 
S. 1691 and these Tribal law solutions have successfully resolved any issues of the type 
raised by S. 1691 without federal legislative intervention; and, 

WHEREAS, the Tribe finds that, despite the apparent misconceptions of sponsors and 
supporters of S. 1691, Tribal sovereignty has allowed the Tribe to be generous with, 
protective of, responsive to and concerned over our local non-Tribal community; and, 

WHEREAS, the Tribe has several ongoing commercial and intergovernmental 
relationships with non-Tribal entities that have not been impaired in the manner that S. 
1691 suggests such relationships are necessarily impaired by the fact of tribal sovereignty; 
and, 

WHEREAS, the Tribe finds that S. 1691 would violate the federal/tribal trust relationship, 
Tribal treaty rights and generations of well-established federal Indian legal principles based, 
apparently, on premises and intentions having nothing to do with facts and circumstances 
related to the Tribe; 

WHEREAS, the Tribe finds that passage of S. 1691 would result in the repetition of historical 
injustices to Tribes which have over and again had to be overturned at great expense to both 
tribes and non-tribal people in the United States; and, 

WHEREAS, the Tribe finds that S. 1691 would expose Tribal resources and assets in a 
manner detrimental to the Tribe as well as the local non-Tribal community; and, 

WHEREAS, the Tribe finds that sponsors and supporters of S. 1691 have, by association, 
wrongfully maligned and accused the Tribe of misdeeds such as tax evasion as arguments in 
favor of S. 1691; and, 

WHEREAS, the Tribe believes that S. 1691 has been introduced, among other things, to 
further personal, political and commercial agendas not expressed in the bill itself and that 
have nothing to do with the Tribe (e.g. disputes, old and new, with Tribes other than Cow 
Creek; active lobbying in favor of S. 1691 by the Petroleum Marketers Association when Cow 
Creek has no interests in petroleum industries); and, 

WHEREAS, the Board has determined that it would be in the best interests of the Tribe to 
formally oppose S. 1691 by all reasonable means and to request that members of the Oregon 
federal congressional delegation also oppose S. 1691; 



Cow Creek Band of Umpqua Tribe of Indians Resolution No. 98-9 



309 



THEREFORE BE IT RESOLVED that the Tribe, by and through the unanimous vote of the 
Board, hereby expresses its official opposition to S. 1691; and, 

BE IT FURTHER RESOLVED, that the Tribe hereby requests that members of the Oregon 
federal congressional delegation oppose S. 1691 by all reasonable means; and, 

BE IT FURTHER RESOLVED, that the Tribe hereby commits itself to any and all reasonable 
measures to defeat S. 1691; and, 

BE IT FURTHER RESOLVED, that any and all actions heretofore or hereafter taken by any 
authorized Tribal officer regarding the substance of the foregoing resolutions be, and hereby 
are, ratified and confirmed as the act and deed of the Tribe taken or made by such officer(s) 
within the scope of their duties to and/or employment by the Tribe; and, 

BE IT FURTHER RESOLVED, that neither this Resolution nor or any document or 
representation related herewith or therewith shall constitute a waiver of the sovereign 
immunity of the Tribe or its officers acting in their official capacity beyond the scope of any 
such waiver properly and expressly granted in accordance with applicable Tribal law; and, 

BE IT FURTHER RESOLVED, that the actions authorized and taken by this Resolution 98-9 
are intended to advance the sovereign self governance of the Tribe, and to protect the 
political integrity, economic security and health and welfare of the Tribe; and, 

BE IT FURTHER RESOLVED, any prior Tribal regulations, resolutions, orders, motions, 
legislation, codes or other Tribal law which are materially inconsistent with the purpose of 
this Resolution 98-9 are hereby repealed to the extent of any such inconsistency. 

CERTIFICATION 

It is hereby certified that the Cow Creek Tribal Board of Directors, governing body of the 
Cow Creek Band of Umpqua Tribe of Indians, composed of eleven (11) members of whom 
( 11 ) . constituting a quorum, were present at a meeting duly held on the 25th day of March, 
1998, adopted the foregoing RESOLUTION OF THE COW CREEK BAND OF UMPQUA 
TRIBE OF INDIANS OPPOSING TO S. 1691 by the affirmative vote of _H_ for and 
against. 



Sue Shaffer, Tribal Chairperson 
Tom W. Rondeau Sr., Tribal Secretary 



Cow Creek Band of ItapsjM Tribe of Indian* Resolution No. 98-9 

-3- 




310 



I \ •_ -.- -— -- "T-"^ I 



ALL INDIAN PUEBLO COUNCIL 

STATEMENT ON TRIBAL SOVEREIGNTY 
Roy W. Bernal, Chairman 
All Indian Pueblo Council 



Chairman Campbell and Honorable Members of the Senate Committee on Indian Affairs, my name 
is Roy BemaL I am the Chairman of the ALL INDIAN PUEBLO COUNCIL, the prehistoric alliance 
of the nineteen Pueblos located in what is now the state of New Mexico. I appreciate the opportunity 
to appear before the Committee to share some of the observations and concerns of the Pueblo tribes 
in New Mexico. 

Origins of Tribal Sovereignty. Tribal sovereignty, although some sources link it with the sovereignty 
of the United States, actually predates that of the United States. Organized tribes existed before the 
European incursions into North America. The Pueblo peoples have lived in the Southwest region of 
the North American continent for thousands upon thousands of years. Since time immemorial, our 
Peoples have lived in well-organized communities. When the Spanish colonizers entered the region 
in the 1500's there were well over 40 independent Pueblo nations living along the great Rio Grande 
River. Each Pueblo had a well-organized system of self-government with an efficient system of law 
and order that protected society as well as the rights of individuals. 

Pueblo life was built upon a foundation of work, together with religious observances and practices. 
We had a highly developed agricultural economy that brought no man's labor and did not practice 
slavery or feudal labor. Each Pueblo family had its own land for purpose of cultivation. Each clan and 



311 



Pueblo gave aid to the others. Whole Pueblos banded together in hunting, food gathering, farming, 
irrigation and care of the land. 

The significance of Indian self-government was acknowledged from the outset of European contact. 
The Pueblos hold as evidence of their sovereign powers, the Canes of Authority, presented to the 
autonomous Pueblos by the governments of Spain ( 1620). Mexico ( 1821 ). the United States of 
America ( 1863) and the State of New Mexico (1980). The Lincoln Cane, presented to the Pueblos 
in 1863 by the United States, symbolizes to all the world the perpetual acknowledgement and 
commitment of the United States to honor our sovereignty, protect our resources, and enhance our 
welfare - in the spirit of trusteeship, honesty and equality. Likewise, our Pueblo Canes are symbols 
to our peoples that all power and authority exists in their own form of government: that their 
government is responsible to the people: and that they own allegiance to the United States of 
America. 

The existence, independence and sovereignty of Indian governments was recognized not only in the 
United States Constitution but also in various commonwealth documents predating the United States 
Constitution such as the Articles of Confederation. In the Wheeler case.' the United States Supreme 
Court observed that tribal sovereignty does not consist of delegated powers granted by express acts 
of Congress, but rather of "inherent powers of a ...sovereignty which has never been extinguished." 2 
For Congress to contemplate interfering with these ancient doctrines, great caution should be 
employed. 






■ United States v. Wheeler. 435 U.S. 313(1 978). 
2 Id. at p.322. 



312 



The Significance of Sovereignty and Self-Go\"ernment. The United States and its Courts have 
recognized the significance of tribal sovereignty and self-government. Tribal powers of self- 
government and the inherent element of sovereignty are mutually dependent: one cannot exist without 
the other. A tribe should decide how hs government is organized, how its sovereignty should be 
manifested, and the circumstances under which a tribe should honor claims. In 1946 the United States 
decided that claims could be made against it for certain civil cases. Just important as an act of the 
sovereign internal powers of the United States so must the tribes be accorded that same right. 
Individual tribes, not the heavy hand of a separate government, the United States, should make those 
decisions. 

• 
Credentials of Complainers. Doubtless certain persons have complained about being treated unfairly 

by tribes and have asked Congress to step forward and take drastic action. A few disgruntled persons 

should not carry the day. We submit that these complaints are unique and not the status quo. Let us 

remember, in any controversy or case there are at least two sides. Any non-prevailing party is usually 

angered, and sometimes embittered. He will continue to attack his opponent, his opponent's lawyer, 

and his own lawyer. He will attack the system as being unjust, immoral, and unconstitutional. He will 

allege unblushingly that the trier of facts has been bribed, is in league with the devil, or both. To heed 

a few disappointed persons such as these complaining to Congress and other authorities with their 

wrongful assertions or inevitable exaggerations, would Congress upset existing tribal sovereignty, the 

concept of self-governance, and the necessary independence that tribes enjoy? Are non-tribal courts 

better, fairer, more learned, better informed, more conversant with Indian tradition? The answers to 

these queries are. of course, a resounding "No!" It is a sad fact that the multitude of persons who 



313 



believe they have been treated fairly and even-handed by tribes do not feel compelled to come 
forward. 

Cultural Differences. Tribes have endured and prevailed because of our strong traditions of 
communality and consonance. These traditions are evident in issue resolution among tribal members 
and others, as well. This is in stark contrast with the peculiarity of the Anglo-Saxon, which has 
believed that Nature should not be accommodated but should be challenged and defeated. This notion 
of adversity is carried out in Anglo-Saxon justice: Truth and Justice will emerge if adversaries battle 
toe to toe until the survivor is declared the winner. The traditional tribal approach is based on finding 
points of agreement rather than emphasizing disagreements. The imposition of the Anglo-Saxon 
philosophy on tribes is completely inappropriate and high-handed. Congress should not do so. 

Civil Rights and Property Rights. Without any command from Congress, tribes already deal with 
issues of property rights and civil rights. Because of diminishing Federal dollars, the New Mexico 
Pueblos must pursue businesses aggressively to generate funds to provide services to their members 
and to protect tribal lands. Our businesses include gaming enterprises. Indian arts and crafts shops, 
tribally-owned truck farms with patrons harvesting for themselves, and other retail operations. 
Business judgements are exercised on the basis of practicality rather than Congressional mandate. A 
member of the public patronizing a tribally-ovvned business, who suffers an injury, typically a slip and 
fall instance, expects care, and we clearly understand the denial of responsibility involves the denial 
of a property right. Insurance companies providing liability coverage are instructed by tribes to deal 
with such cases and not raise any immunity defenses. If these cases are not settled amicably, and the 



314 



vast majority are. they are arbitrated and the arbitrations are enforced by tribes. We submit that 
Congress should acknowledge that tribes have a sense of priority which is at least equal to that of the 
United States. 

Removing Immunity - Disastrous Results. One need not speculate as to the harmful effects of 
removing sovereign immunity which protects tribes in their acts of self-government. From 1968 to 
1978. the United States Tenth Circuit Court of Appeals adopted the view that the 1968 Indian Civil 
Rights Act permitted suits against tribes by aggrieved plaintiffs alleging violations of civil or property 
rights. Lawyers artfully characterized many causes to fall into those categories. During this decade, 
brought to a close by the holding by the Supreme Court in Santa Clara Pueblo v. Martinez J case, 
there was a proliferation of cases in Federal Courts which assumed immediate jurisdiction (the 
plaintiff not ha\ing first to proceed through any other court system, including tribal court, the logical 
forum). These matters included contract disputes, routine personnel issues, brief incarcerations by 
police, and tribal membership questions. ( Martinez involved a membership issue). Even tribal judges 
were sued, notwithstanding the doctrine protecting the judiciary dating from English common law. 
The proposed American Indian Equal Justice Act would open those doors again 4 



3 Santa Clara Pueblo v. Martinez . 436 U.S. 49 (1978). holding that the Indian Civil Rights 
Act did not generally waive tribal immunity. 

4 As an example, non-tribal courts have dealt from time to time with membership issues. It 
is hard to imagine a forum less equipped to deal with such questions than the courts of the 
United States. Each tribe varies in its criteria for membership. Most are based largely on 
heritage: others on clan membership and moieties. Some questions turn on paternal 
ancestry, and others on maternal lineage. Tribal religious leaders are reluctant to share this 
culturally-based information with outsiders. Based on partial and inaccurate information. 
non-tribal courts make jarringly erroneous decisions, but ones with long-lasting, lingering 
effects. 



315 



During the last twenty years, tribal courts in New Mexico have resumed their rightful function of 
dealing with a myriad of proceedings. Tribal governments are freer to operate without the constant 
threat of frivolous lawsuits. Members of tribal governments must be free to use their best judgements 
in making governmental decisions without concern for petty lawsuits, the same as members of 
Conuress and chief executives of the United States. 

The forum proposed by S. 1691 would involve the condemnation of tribal properties by other 
governments, ranging from the United States to local communities. Moreover, tribal lands would be 
similarly exposed to actions by privately owned utilities. Not only would tribal lands be threatened, 
but also the integrity of boundaries would be ignored. A shameful chapter in American history 
permitted the condemnation of Pueblo lands; as a result, many unwanted facilities, including high 
speed freeways, high pressure pipelines, high voltage power lines and railroads abound in heavily 
populated segments of Pueblo lands. 

It goes without saying, as well, that already overburdened non-Indian courts would suffer a significant 
increase in caseloads. 5 



In New Mexico tribal courts hear and decide thousands of cases each year. These involve 
tribal governments, either as plaintiffs or defendants; they also involve as parties automobile 
financing firms, department stores, construction contractors, gaming suppliers, disgruntled 
employees, oil companies, advertising agents, surveyors, and all manner of other persons, 
tribal and non tribal, of every description imaginable. The sheer volume of these cases is 
overwhelming. To permit or encourage these cases to go to other court systems would be 
most ill advised and understandably upsetting to neighboring judicial jurisdictions. 



316 



Conclusion. Congress must not strip tribes of tribal immunity. This would be the antithesis of the 
govemment-to-government relationship, the announced national policy of the United States and 
would be an exercise of unbridled power over reason. 

Re^ectfully submitted, 
i 




*Z&*>. 



RoV W. Bernal 
Chairman > 
TH1 



IE ALL INDIAN PUEBLO COUNCIL 
| 





















. 





317 




Roy W. Bemal. Chairman 

J. Steve Juanico. Vice Chairman M» + j b j t ^-iJJ 

Amaaeo Skije, Secretary-Trtasurtr y. JHJ^ Jr 

■ 



ALL INDIAN PUEBLO COUNCIL 
OFFICE OF THE CHAIRMAN 

3939 S»« P«*o NE. SniU E Port Offic Box 3256 Atupil^l.NM 17190-3236 (505)M1-1992 






March 2, 1998 

Honorable Ben Nighthorse Campbell 
Chairman, Senate Indian Affairs Committee 
838 Senate Hart Building 
Washington, DC 205 10 

Re: March 1 1* Oversight Hearing: Tribal Sovereign Immunity 



Dear Senator Campbell, 

The All Indian Pueblo Council is comprised of the nineteen federally recognized Pueblo 
Indian nations located in the state of New Mexico. First mentioned in written history in 
1S98, the All Indian Pueblo Council has represented the common goals of the nineteen 
Pueblos for a thousand years. In modern times, the Council operates under a written 
constitution and is mandated to preserve and protect the common goals of the nineteen 
Pueblo nations. Providing oral testimony to Congress regarding the governmental right 
of the Pueblos to waive or maintain their sovereign immunity from lawsuit is considered 
a constitutional duty of the All Indian Pueblo Council. 

I write today to request that as Chairman of the All Indian Pueblo Council I be afforded 
the opportunity to present to the Senate Indian Affairs Committee testimony regarding 
the unique situation and status of the Pueblo nations. Considered the most traditional 
tribal governments remaining in America because our governments continue to 
incorporate traditional leaders, values, and customs the Pueblo Indian nations contribute 
a lasting tribute to tribal sovereignty. Our traditional governments operate in modern 
times with modern solutions. 

If Congress desires a intelligent presentation on the strength, vitality, and ability of tribal 
governments to carry out their governmental responsibilities in America, I believe the 

Pueblo governments must be made a part of this exchange Your granting of this request 
is of up most importance to the Pueblo leaders. 



318 



AJPC/ Testimony 
March 2, 1998 
Pafe2 



The All Indian Pueblo Council, on behalf of the nineteen Pueblo Indian governments 
located in the state of New Mexico stands ready to provide critical testimony to the 
Senate Indian Affairs Committee on the immunity of tribal governments from lawsuit on 
March 1 1, 1998. We look forward to hearing from you. 



Very Truly, 










The nineteen Honorable Pueblo Governors 

The Honorabl e Pete V. Domenici 

The Honorable Jeff Bingaman 

The Honorable Bill Redmond 

The Honorable John McCain 

The Honorable Daniel Inouye 

Mr. Gary Bohnee 

Ms. Patricia ZeU 

Mr Paul Moorehead 















. 











319 

Mary T. Wynne, Chief Judge 

Office of the Chief Judge • Judges Chambers 

Col vi lie Tribal Court, P. O. Box 150, Nespelem, WA 99155 

(509)634-8880 or FAX (509)634-8566 

Mr. Chairman, I am pleased today to be able to address the Senate Select Committee on 
Indian Affairs regarding property rights and civil rights in Indian country. I am limiting my 
comments and discussion of these rights in conjunction with the proposed legislation of Senator 
Gorton, S.1691. 

In my view, S. 1691 is bad law and should not be enacted. It should not be enacted for 
many reasons, but in the time allotted today, I can only touch on a few. 

First, S. 1691 is premised on a false assumption. The proposed transfer of civil rights 
cases and all cases where a tribe is a defendant from tribal to state or federal court is premised on 
the false assumption that tribal courts are not capable of adjudicating and protecting civil rights, 
or rendering just and fair decisions when the tribe is a defendant. As Justice Pearson, retired 
Chief Justice of the Washington Supreme Court so aptly put it, "Anyone who would pass a law 
based on this belief simply has not done his or her homework." 

Second, the proposed act constitutes invidious discrimination of the worst kind. If 
enacted, this law would put tribal governments in an utterly unique category: not only would the 
law reach into the tribes most valuable and needed asset, it's public funds, by allowing a foreign 
government to open the door to those funds, but it places adjudication of issues related to public 
funds in foreign forums, state and federal courts, and subjects those disputes to resolution under 
foreign law: state and federal law Such an action is unprecedented. It singles out only tribal 
governments for such treatment. It is discrimination of the most destructive sort. Tribal Courts 
are where "the rubber meets the road" when it comes to the ability of a sovereign to regulate as a 
unique government, possessed of political integrity. The law of any society is the reflection of the 
composite of knowledge, memories, beliefs, mores and culture of the people who enact it To 
remove issues that define civil rights, the most obvious area of the law where a society defines it 
perception of itself and its people, or cases involving the public treasury, subjects some of the 

Ptgel 



320 



most jealously guarded areas of tribal life and society to the views and interpretation of a foreign 
nation, people who do not have the same history, beliefs or cultures. This bill singles out only 
tribes as governments deserving of such treatment. 

The best way to meet false assumptions or discrimination is with the facts. Although I 
have practiced in courts from South Dakota to Washington State, I have chosen to provide the 
Committee with background information regarding operation of the Cotville Tribal Court, as well 
as with statements made by persons intimately familiar with the development of tribal courts 
across the country. As a licensed attorney in the States of Washington, North Dakota, and South 
Dakota, the First Vice President of the National American Indian Court Judges Association, 
President of the Northwest Tribal Court Judges Association, and the Chief Judge of the Colville 
Tribal Court, I have chosen to put the Colville Tribal Court under a microscope not because of its 
uniqueness in Indian country, but because I believe it is representative of tribal courts in the 
United States. In addition to being a member of three state bar associations in the states 
previously mentioned, I am also licensed to practice in, or have sat on the bench of thirty three 
tribes spanning half a continent. Accordingly, I have had the unique opportunity to see first-hand 
the operation of numerous courts across the country. 

AttachBMats 

Included in the attachments with this written testimony are letters containing opinions on 
the fairness and equity of tribal courts, received from numerous attorneys, all of whom regularly 
practice in tribal court. In addition, I have included letters received by the Colville Tribal Court 
describing the professional forum it presents, from the perspective of sitting judges of jurisdictions 
surrounding the reservation, the attorneys who present case after case in this forum, as well as 
from the State of Washington- Office of Child Support Enforcement who regularly try child 
support cases in the Colville Tribal Court 

I have also included in the attachments the Constitution of the Colville Confederated 
Tribes and the Policies and Procedures of the Court which sever the administrative operations of 
the Court from the Council. The Colville Civil Rights Act is also attached, along with both civil 
and criminal cases interpreting and applying that document as a living, viable statement of rights. 
In adopting these statues and constitutional amendments the Colville Business Council knew and 
intended that its actions be subject to judicial reviews. Under the law the Colville Reservation has 

Page 2 



321 



restrained the Council or ordered the Council to pay damages or reinstate employees. The system 
developed on the Colville Indian Reservation represents a deep respect for legislative process and 
judicial review. The result is a system that ensures fairness for all and protects tribal sovereignty 
and rights. 

A Comment From The United States Supreme Court 

Let me start with the United States Supreme Court. According to the Honorable Sandra 
Day O'Connor, "today in the United States, we have three types of sovereign entities - the 
Federal government, the States, and the Indian tribes. Each of the three sovereigns has its own 
judicial system, and each plays an important role in the administration of justice in this country. 
The part played by the tribal courts is expanding .... The tribal courts, while relatively young, are 
developing in leaps and bounds.... The role of tribal courts continues to expand, and these courts 
have an increasingly important role to play in the administration of the laws of our nation." 

Modern day Tribal Courts are the cornerstones of civil and property rights protection in 
Indian Country. Their fairness and equity stand unquestioned by all who have completed objective 
reviews of the courts of tribes since the early days of the Reagan and Bush administrations in the 
1 980's These reviews have been conducted by senior scholars and magistrates from the leading 
courts in the United States. Whenever tribal courts have been the subject of close scrutiny, they 
have not only survived the test of their detractors, but have been applauded for the level of justice 
administered on reservations. Even investigations which began with apparent hostile intent have 
ended by stressing the strengths of tribal courts and noting that their weaknesses stem from the 
lack of funding and not pervasive bias (American Indian Law Review, Volume 22, page 288). 

And From the United States Attorney General 

Attorney General Janet Reno has stated that "While the federal government has a 
significant responsibility for law enforcement in much of Indian country, tribal justice systems are 
ultimately the most appropriate institutions for maintaining order in tribal communities." She has 
gone on to say that, "With adequate resources and training, they (tribal courts) are the most 
capable of crime prevention and peace keeping Fulfilling the federal government's trust 
responsibility to Indian nations means not only adequate federal law enforcement in Indian 
country, but enhancement of tribal justice systems as well " Attorney General Reno has also 

Page 3 



322 



stated that Tribal courts are essential mechanisms for resolving civil disputes that arise on the 
reservation or otherwise afreet the interests of the tribe or its members " 

Objective Review A Financial Support 

Always looking to improve a tribal court system that is charged with protecting the civil 

rights of members and non-members under tribal law and applicable federal law the Colville 

Confederated Tribes commissioned an independent review by Retired Washington State Supreme 

Court Justice Vernon Pearson and the Office of the Administrator for the Courts for the state. 

The purpose of the study was to analyze the court's operations and functioning as a separate 

branch of government within the tribe. In 1991 the final report of Justice Pearson included the 

following statement: 

"The Confederated Tribes have taken an important step in attaining 
credibility of its tribal court decisions. While no evidence was 
found that the tribal council had ever tried to unduly influence court 
decisions, the constitutional recognition of the judiciary as a 
'separate branch of government' is an outward manifestation that 
the Confederated Tribes do have an independent judiciary " 

In 1991, the Reagan-Bush Civil Rights Commission issued its final report following five 
(S) hearings held across the country on the enforcement of civil rights on reservations. The final 
report recommended no changes in federal law and rejected proposals to bring the tribal judiciary 
under the control of the federal courts. In its place, the Commission identified Congress as the 
greatest limitation on the efficiency of tribal courts, and reported that greater financial support 
should exist for the tribal court systems. 

Financially, the Colville Tribal Court is funded by both the Department of the Interior, 
Bureau of Indian Affairs and the Colville Tribal Governme nt . Combining all of these funding 
sources, the overall funding for the tribal court is generally less than one sixth of that received by 
courts in the surrounding jurisdictions Based on this disparity in resources, a transfer of cases 
from the Colville Tribal Court to that of state and county courts, as required by the proposed 
legislation of Senator Gorton, would require significant budget increases for these state and 
county courts. At the federal level, a transfer of the same case load from the Colville Tribal 
Court, the federal court would require a budget increase far beyond that of even the state court 
system. During fiscal year 1997, the Colville Tribal Court heard 3,441 cases with a total court 

Page 4 



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budget of approximately $290,000 This calculates to an average cost per case of $85 in tribal 
court. In contrast, the Okanogan County Superior Court, with a budget of $517,401, heard 996 
cases, resulting in an average cost per case of $519. In that same time period, the federal district 
court for Eastern Washington heard 967 cases with a budget of $1,978,397, at an average cost of 
$2,045 per case. In addition to the higher levels of funding, the county superior courts have 
access to a legal infrastructure maintained by the State of Washington Office of the Administrator 
of the Courts, that is not available to the Colville Confederated Tribes. 

A sample of 520 civil cases randomly selected at the Colville Tribal Court produced the 
following results: 

► 180 of the 520 civil cases had been adjudicated 

► Of the 180 adjudicated cases, 59 cases involved non-tribal members (33%) 

► Of the 59 civil cases involving non-tribal members, 32 cases were decided in 
favor of the non-member (54%) 

History of the Tribal Courts on the Colville Reservation 

The Colville Tribal Courts (including administration, trial, and appellate divisions) were 
organized under tribal statutes in 1952. In 1991 Amendment X to the Constitution of the 
Confederated Tribes established the judiciary as a "separate branch of government" (See Exhibit 
1, Colville Confederate Tribes Organizational Chart). Jurisdiction and the qualifications of the 
judges are prescribed by tribal statute, with the constitutional provision creating a tribal and 
appellate system providing the term forjudges and their compensation, the procedure to fill 
vacancies, and for removal and discipline of judges. 

Currently, the courts handle a broad range of criminal, civil, administrative, and child 
welfare cases applying and interpreting tribal statutory and customary law, as well as federal and 
state law. In addition to clerks and judges, the justice system includes three licensed attorneys in 
the tribal prosecutor's office, two licensed attorneys in the public defenders office, a list of court 
appointed attorneys, all of who are licensed attorneys, a probation office with six probation 
officers, and a legal services office with three attorneys and two para-legals. All criminal 
defendants are afforded representation through court appointed attorneys, as are all parties on 
minor in need of care cases. 

Page 5 



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It should not escape notice that the Colville Tribe has provided greater legal protection 
then mandated by federal law. The Colville Tribe provides for a legal services program to provide 
assistance to members in civil matters. That program is often in court or representing members 
against the Tribes. Moreover, while the Indian Civil Rights Act provides that a criminal defendant 
may be assisted by counsel at his or her own expense, the Colville Tribe has funded an 
independent public defender program, who represents criminals defense at the Tribe's expense 

Encompassing over 1,300,000 acres, the Colville Reservation includes significant portions 
of the towns of Omak and Grand Coulee. Regular travel on and off the reservation is common 
for both Indian and non-Indian living in these communities. As such, cases coming before the 
Colville Tribal Court involving non-Indians are common, I estimate at 1/3 the total case load. In 
many instances the tribal court is called upon to enforce orders and decrees of state courts, and 
must issue for litigants, judgements and decrees that can be recognized in state and federal court. 
Therefore, to appropriately exercise tribal sovereignty, the court system must have judges who are 
adequately trained to decide complex and important legal issues, and they must operate in such a 
manner that the orders, judgements, and decrees issued will be credible and enforced by other 
courts. For the past fifteen years the Colville Tribal Court has had on staff two full-time, law- 
trained judges with the appropriate experience to hear complex cases involving jurisdictional 
issues. These judges have been licensed attorneys with extensive experience in private practice, as 
well as experience before the state and federal bench. It is not unusual for the judges of the 
Colville Tribal Court to be called upon to sit as pro tern judges for the courts of other tribes and 
state and local communities surrounding the reservation. In additional, the Colville Tribal Court 
also keeps on staff a magistrate who handles more routine matters such as criminal arraignments. 

Credibility & Partnerships 
A measure of the credibility of the tribal court of the Colville Confederated Tribes has 
been shown to be its ability to decide cases freely and without pressure or influence from the 
legislative branch of the tribe. Also of credit to the tribal court is the vigor in which it grants due 
process of law that is afforded under the Indian Civil Rights Act. To further insure and protect 
personal civil rights, the tribe has passed its own Colville Tribal Civil Rights Act, Colville Tribal 
Code 1.5. The Act is frequently litigated, with both member and non-members recovering against 
the Tribes consistent with its terms and with regular application as a living and viable set of rights 

Page 6 



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afforded to all members of the reservation community. See attachment VI, Colville Tribal Civil 
Rights Act and cases applying and interpreting that Act. Note that in several cases, as noted by 
the former law trained public defender whose letter is attached, the tribal court, in applying the 
unique culture, traditions and history has applied a more strict standard to the Tribes in 
prosecuting tribal members, (i.e., high expectation of privacy must be expected when camps are 
searched since the history and culture establishes that persons who living in this community 
frequently maintain campsites as a home.) 

Solution Not Destruction 

Testimony to the Committee would be incomplete without a discussion of solutions that 
would have long-term positive impacts on the administration of justice in Indian Country for 
Indians and non-Indians alike. In contrast to the efforts of Senator Gorton in S. 1691 to fix a 
problem that does not exist, there are areas of tribal court operations that could be positively 
assisted. 

Solution #1: As is typical for Indian programs as a whole, tribal courts are sorely 
underfunded. A brief comparison detailed earlier in this testimony shows that the Colville Tribal 
court receives less than one-sixth (1/6) the funding of the closest state-funded superior court. The 
funding gap becomes even wider in a comparison with the federal district court, which receives 
over 24 times the funding per case than does the Colville Tribal Court. These facts must be 
viewed in light of the fact that tribal courts exercise far broader jurisdictional authority than either 
federal or state courts. Placed in this context, the compelling need for adequate funding for any 
court system is essential to its ability to provide judicial services to the citizens of its community. 

Solution #2: With the coordination of the National Center for State Courts, state, federal 
and tribal judges and experts from throughout the nation worked for several years to formulate a 
series of recommendations designed to enhance justice in Indian country through the On Common 
Ground work group. These recommendations include Congressional action to repeal the 
sentencing limitations in tribal court contained in the Indian Civil Rights Act, repeal of the 
criminal jurisdictional restraints contained in the Oliphant decision, and the extension of full 
territorial jurisdiction to tribes and tribal courts. These recommendations will be supplemented 
into this record. 



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Solutions U3 A 4: With the growth of tribal courts, as they take their legitimate place as 
recognized forums for dispute resolution, and with the growth of tribes as governing bodies that 
interact more and more with the surrounding communities, leading scholars have begun to re- 
examine the ancient rulings of the Supreme Court which define federal plenary authority over 
tribes. More and more frequently, scholars and practitioners alike are propounding various 
methods to limit federal plenary authority over tribes by harmonizing that power with the federal 
trust responsibility the United States has towards tribes. I welcome and support this body, the 
United States Senate, in any effort to address tribal courts, and urge you to begin a national 
dialogue which addresses such solutions. (See attachment VIII, #3 & #4. ) 

Conclusion 

The Col vi He Tribal Court is only one of over 350 tribal courts in the United States. By 
examining this court's operations and caseload while viewing it as one of 350+ tribal courts, and 
by gaining an understanding of the current tribal court functions, the impact on state and federal 
courts of the redistribution of tribal court workloads and the impact on the development of 
property and civil rights such an intrusion presented by S. 1691 becomes clear. Hopefully, as I 
conclude my testimony, Committee members will have a more thorough knowledge of tribal 
courts and the equitable forum they represent in Indian country. It is also my sincere hope that 
members of the Committee as well as Congress as a whole will see the superficial nature of 
arguments supporting passage of S. 1691, as well as the misinformation contained therein. 

Once again, thank you for this opportunity to present my personal views. I will gladly 
address any questions of the Committee. 















Page 8 



327 



Mary T. Wynne 

Vita 

P. O. Box 3940 (509)634-8880 

Omak, WA 98841 (509)634-6907 

PERSONAL INFORMATION 
Children: Ryan, age 16 

Emily, age 14 

Chaz, age 1 1 

EMPLOYMENT HISTORY 

12/92 to Chief Judge, Colville Tribal Court (Nespelem, WA) 
Date Trial court judge for Colville Confederated Tribes. Duties include supervision 

of a staff of 14, budget and administrative oversight, and hearing cases for 
a court of general jurisdiction. The Colville Tribe has a very active criminal, 
misdemeanor, administrative, juvenile, domestic and general civil court 
docket, so many cases involve complex litigation. 

6/88 to Assistant United States Attorney, (District of South Dakota) 

12/92 Trial attorney for the United States. Focused on financial crime and 

forfeiture as the Chief of the Financial Litigation and Unit Chief of the 
Forfeiture Unit for that District. Handles a broad variety of cases, ranging 
from RICO and Continuing Criminal Enterprise prosecutions to rape and drug 
cases. 

3/82 to Private Practice of Law, Wynne & Holm, PC (Rapid City, SD) 

6789 Focused initially on criminal representation, but practiced evolved exclusively 

civil with focuses on representation of Indian Housing Authorities for Sioux 
Tribes located in North and South Dakota, Indian contractors, racial 
discrimination and Indian trust land cases. 






6/79 to Chief Judge/Administrator, Northwest Intertribal Court System 

3/81 (Edmonds, WA) 

Trial Judge and chief administrative officer for a circuit court providing judicial 
services to fifteen different tribes located on the western coast of 
Washington. Duties included supervision of a staff of thirteen persons and 
administration of a budget exceeding $300,000.00. 

1 /78 to Staff Attorney - Legal Services, Fort Berthold Reservation (North Dakota) 

6/79 Representation of tribal members in federal, state and tribal court. 

Page 1 of 4 



328 



ONS: PAST AND PRESENT 



Mary T. Wynne 
VKa 4/1/98 






North Dakota State Bar Association 
P.O. Box 2136 
Bismark, ND 58502 



South Dakota State Bar Association 
222 E. Capital Avenue 
Pierre. SD 57501-2596 

Federal District Court 
District of South Dakota 
400 S. Philips 
Sioux Falls. SD 57104-6851 

Cheyenne River Sioux Tribe 
Cheyenne River Sioux Tribal Court 
P. O. Box 120 
Eagle Butte. SD 87625 

Lower Brule Sioux Tribe 
Lower Brule Sioux Tribal Court 
P. O. Box 187 
Lower Brule. SD 57548 

Rosebud Sioux Tribe 
Rosebud Sioux Tribal Court 
P. O. Box 129 
Rosebud, SD 57570 

Standing Rock Sioux Tribe 
Standing Rock Sioux Tribal Court 
P. O. Box 363 
Fort Yates. ND 58538 



Federal District Court 
District of North Dakota 
Box 1193 
Bismark, ND 58502 

Eighth Circuit Court of Appeals 
1114 Market Street - Room 511 
St. Louis, Mo 63101 

Washington State Bar Association 
201 Fourth Avenue - Fourth Floor 
Seattle, WA 98121 -2330 



Crow Creek Sioux Tribe 
Crow Creek Sioux Tribal Court 
P. O. Box 247 
Fort Thompson, SD 57339 

Oglala Sioux Tribe 
Oglala Sioux Tribal Court 
P. O. Box 280 
Pine Ridge, SD 57770 






Sisseton Wahpeton Sioux Tribe 
Sisseton Wahpeton Sioux Tribal Court 
P. O. Box 568 
Agency Village, SD 57262 

Three Affiliated Tribes of the Fort Berthold 
Reservation / Fort Berthold District Court 
P. O. Box 969 
New Town, ND 58763 



Turtle Mountain Band of Chippewa Indians 
Turtle Mountain Chippewa Tribal Court 
P. O. Box 900 / Tribal Complex Bldg 
Belcourt, ND 58316 



Yankton Sioux Tribe 
Yankton Tribal Court 
P. O. Box 980 
Wagner. SD 57380 



Page 2 of 4 



329 



Mary T. Wynne 
Vita 4/1/98 

Swinomish Indians 
Swinomish Tribal Court (NICS) 
P. O. Box 277 
LaConner. WA 98257 

Qumault Indian Nation 
Quinault Tribal Court 
P. O. Box 99 
Taholah, WA 98587 

Skokomish Indian Tribe 
Skokomish Tribal Court 
N. 80 Tribal Center Road 
Shelton, WA 98584 

Squaxin Island Tribe 

Squaxin Island Tribal Court (NICS) 

SEE 70 Squaxin Lane 

Shelton. WA 98584 

Lower Elwha Tribal Community 
Lower Elwha Tribal Court (NICS) 
1666 Lower Elwha Road 
Port Angeles, WA 98362 

Makah Indian Tribe 
Makah Tribal Court 
P.O. box 115 
Neah Bay, WA 98357 

Nez Perce Tribe 
Nez Perce Tribal Court 
P. O. Box 305 
Lapwai, ID 83540 

Nooksak Indian Tribe 
Nooksak Tribal Court (NICS) 
P. O. Box 157 
Deming, WA 98244 































. 



Upper Skagit Indian Tribe 
Upper Skagit Court System (NICS) 
2284 Community Plaza 
Sedro Woolley, WA 98284 

Sauk-Suiattle Indian Tribe 
Sauk-Suiattle Tribal Court (NICS) 
5318 Chief Brown Land 
Darrington, WA 98241 

Spokane Tribe 
Spokane Tribal Court 
P. O. Box 225 

Wellpinit. WA 99040 

Suquamish Indian Tribe 
Suquamish Tribal Court (NICS) 
P. O. Box 1209 
Suquamish, WA 98392 

Lummi Tribe 

Lummi Tribal Court (NICS) 
2616 Kwina Road 
Bellingham, WA 98226 

Muckleshoot Indian Tribe 
Muckleshoot Tribal Court (NICS) 
39015 172nd Avenue, SE 
Auburn, WA 98002 

■ 

Nisqually Indian Community 
Nisqually Tribal Court (NICS) 
4820 She-Nah-Num Drive SE280 
Olympia, WA 98513 

Port Gamble Indian Community 

Port Gamble S'Klallam Tribal Court 

(NICS) 

P. O. box 280 

Deming, WA 98244 



Page 3 of 4 



330 



Mary T. Wynne 
Vita 4/1/98 

Puyallup Tribe 
Puyallup Tribal Court 
2002 E. 28 lh Street 
Tacoma, WA 98404 



■ 



Hoh Indian Tribe 
Hon Tribal Court (NICS) 
HC 80, Box 917 
Forks, WA 98831 



Jamestown S'Klallam Tribe 
Jamestown S'Klallam Tribal Court (NICS) 
1033 Old Blyn Highway 
Sequim, WA 98382 



Confederated Tribes of the Chehalis 
Reservation/ Chehalis Tribal Court (NICS) 
P. O. box 536 

Oakville. WA 98568 



Coeur D'Alene Tribe 
Coeur D'Alene Tribal Court 
Coeur D'Alene Sub-Agency 
Plummer, ID 83851 



Confederated Tribes of the Coville Reservation 
Colville Tribal Court 
P.O. Box 150 
Nespelem, WA 99155 



RELATED MEMBERSHIPS AND EXPERIENCE 






Rosebud Sioux Tribal Court of Appeals 
Chief Judge from 1987 - 1989 

Puyallup Tribal Court of Appeals 
Associate Justice since 1993 

Spokane Tribal Court of Appeals 
Associate Justice and Judge Pro Tern Since 
1995 

Northwest Tribal Court System 
Appellate Court Justice for eight Tribes as 
appointed. 

Native American Rights Fund 

Board of Directors member since 1997 

appointed 

National American Indian Court Judge's 

Association 

First Vice President & Board of Directors 

Member since 1993 



Northwest Tribal Court Judges 
Assocation President since 1993 

National Judicial College 

Faculty member since 1993. Instructor 

for tribal, state and federal judges on ' 

various course for judicial training and 

education. 

Indian Law Committee, South Dakota 
Bar Association 

Worked with tribal courts throughout 
South Dakota on opinion writing, 
publication and distribution. 

Indian Law Reporter 
Numerous opinions were issued and 
published as Chief Judge of the Rosebud 
Sioux Tribal Court of Appeals and as a 
trial judge for the fifteen tribes 
participating in NICS 






331 



NORTHWEST TRIBAL COURT JUDGES ASSOCIATION 

HONORABLE NARY T WYNNE HONORABLE JULIAN HNKHAH —WM— II— If HONORABLE BERTHA INLLER HONORABLE CMARLEEN 

Bert Hortxc MONEY. Board —f 

Ytttaa THM Court CmMnM SdWi 1 Ko 

P. Bo. 1 51 TrtbN Court P Box 271 

MtaMMNM 
(Mq«M-*i21 



|K»|U*JWF„ (SO»MU-«12SFi. («2»> 774-7704 Fu 

NORTHWEST TRIBAL COURT JUDGES ASSOCIATION 
RESOLUTION 98-01 : 

WHEREAS, the Northwest Tribal Court Judges Association ("Association") is the oldest and established 
association of tribal court judges in the Northwest. 

WHEREAS, the objectives and purposes of the Association include; (a.) to foster the continued 
development, enrichment and funding of tribal justice systems as a visible exercise of tribal sovereignty and 
self-government, (b.) to provide continuing education for tribal judges and tribal justice staff members in 
order to promote and enhance the operation of the tribal judiciary, (c.) to further the public knowledge and 
understanding of tribal justice systems, and 

WHEREAS, the Association's Board of Directors are delegated with responsibility to carry out the 
objectives and purposes of the Association; and 

WHEREAS, Senator Slade Gorton (R-WA) has introduced S. 1692 entitled the "American Indian Equal 
Justice Act" which would require Indian tribes, tribal corporations and tribal members to collect excise and 
sales taxes on sales to non-members of the Indian tribe, would waive tribal immunity of Indian tribes and 
subject the tribes to suit in the district courts of the United States and state courts, and which would waive 
tribal immunity for civil rights actions alleging a violation of the Indian Civil Rights Act; and 

WHEREAS, Senator Ben Nighthorse-Campbell, Chairman of the U.S. Senate Committee on Indian Affairs 
has requested "[i]n furtherance of the Committee's resolution to fully air the issues implicated by this 
legislation.. .the formal views of the Association on [the legislation]";' and 

WHEREAS, this legislation if approved would effectuate an abrogation of treaty rights, the federal 
government's trust responsibility to Indian tribes and nations, two hundred years of federal Indian law and 
policy, and international human rights, and 

WHEREAS, the sovereignty of Indian Tribes proceeds the U.S. and is recognized by the U.S. Supreme 
Court in such cases as Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557 (1832) in which Chief Justice 
Marshall stated that Indian nations were: "Distinct political communities having territorial boundaries, 
within which their authority is exclusive, and having a right to all lands within those boundaries, which is 
not only acknowledged, but guaranteed by the United States"; and 

WHEREAS, this legislation would clearly infringe on the inherent sovereignty authority of an Indian tribal 
to make its own laws and be ruled by them. Williams v. Lee, 358 U.S. 217 (1959); 



332 



NWTCJA Relation 98- 
American Indian Equal Justice Act 
Page 2 of 3 

WHEREAS, tribal authority over the activities of non-Indians on reservation lands is an important aspect 
of tribal sovereignty, Montana v. United Slates. 450 U.S. 544 (1981), Washington v. Confederated Tribes 
of the Colville Indian Reservation, Ul U.S. 134 (1980), Fisher v. District Court, 424 U.S. 382 (1976); and 

WHEREAS, Indian tribes have long been recognized as possessing the common law immunity from suit 
traditionally enjoyed by sovereign powers. Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877, 889- 
893 (1986), Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), Puyallup Tribe v. Washington Dept of 
Game, 433 U.S. 165 (1977); and 

WHEREAS, the United States Government and the governments of its 50 states as sovereigns were entitled 
to elect or not elect to waive sovereign immunity and to set limitations on such waivers as they found 
appropriate and likewise, tribal governments possess the same right of election; and 

WHEREAS, the findings of S. 1691 fail to recognize the fact that many tribal governments having exercised 
the power of self-government have already waived immunity from suit for a wide range of actions where 
the tribes found such waivers to be appropriate; and 

WHEREAS, the U.S. Supreme Court held in Santa Clara Pueblo v. Martinez, that suits against an Indian 
tribe under the Indian Civil Rights Act ("ICRA") are barred by tribal sovereign immunity from suite and 
the "providing a federal forum for issues arising under [ICRA] constitutes an interference with tribal 
autonomy and self government..."; and 

WHEREAS, "[t]ribal forums are available to vindicate rights created by the ICRA... [and] [t]ribal courts have 
repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting 
important personal and property interests of both Indians and non-Indians. "Santa Clara Pueblo': and 

WHEREAS,, this bill if adopted, would be a clear abrogation of Section 402 of the ICRA which provides 
that any further grants of Indian country jurisdiction to states could only be accomplished "with the consent 
of the tribe occupying the Indian country"; and 

WHEREAS, civil jurisdiction over the activities of non-Indians on reservation lands "presumptively lies in 
the tribal courts' Iowa Mutual Insurance Co. V. LaPlante, 4890 U.S. 9 (1987); and 

WHEREAS, this bill would be in direct contravention of Congressional finding (6) of the Indian Tribal 
Justice Act (25 U.S.C. 3601) which articulated that "Congress and the Federal courts have repeatedly 
recognized tribal justice systems as the appropriate forums for the adjudication of disputes affecting personal 
and property rights"; and 

WHEREAS, Indian Tribal justice systems are committed to providing fair and just proceedings meeting the 
guarantees of due process and equal protection, and have consistently demonstrated their ability to conduct 
such proceedings; and 

WHEREAS, the Northwest Tribal Court Judges Association has devoted the past four decades to providing 
continuing judicial education in order to promote and enhance the operation of tribal justice systems; 



333 



NWTCJA Resolution 98- 
"American Indain Equal Justice Act" 
Page 3 of 3 






NOW THEREFORE, BE IT HEREBY RESOLVED, that the Northwest Tribal Court Judges Association 
opposes the adoption of S. 1691, "American Indian Equal Justice Act," as an unwarranted and egregious 
infringement on tribal sovereignty, self-government and jurisdiction in direct contravention of tribal treaty 
rights, the federal trust responsibility and federal law. 

"•CERTIFICATION*** 

The foregoing resolution was considered and adopted by the Board of Directors of the 

Northwest Tribal Court Judges Association on the 3 day of Apr i JJ 998 and the vote was 3_ in favor, 

and ° opposed, and P abstaining. 










3e\iichet^ DEMMERT, SECRETARY 
Northwest Tribal Court Judges Association 



























334 
NORTHWEST TRIBAL COURT JUDGES ASSOCIATION 




MMm-UfciW 



RESOLUTION M-tt 

WHEREAS, a meeting ofthe Northwest Tribal Court Judges Association ("Association")* as 
called and duty convened in Beanos Ferry, Idaho, on February27, 1998; and 

WHEREAS, a notice ofthe elections for the thiee vacancies in the At-laige Member, Delegate 
to the National Tribal Court Judges Association and Secretary/Treasurer positions 
was sent in a timely fashion to the Membership ofthe Association; and 

WHEREAS, election of these vacancies ofthe Board, did take place at the Kootenai River Inn, 
in Bonners Ferry, Idaho; 

THEREFORE, BE IT RESOLVED, that the following were elected to the Board of Directors 
for the vacancies named above, as Callows: 

National Delegate: James Steele; . Chief Judge of Coeur d' Alene Tribal 

Court; Plummer, Idaho; 

At-Large Director Bertka Mffler, Judge of Yakama Tribal Court; 

Toppenish, WA; 

Secretary/Treasurer Michelle Demmert; Associate Judge, Northwest 

Intertribal Court System. Edmonds, 
WA 

FURTHER, BE IT RESOLVED mat the above-elected Board of Directors and delegate shall 
serve the remainder ofthe term, which is to November 1998. 

CERTIFICATION 

1 HEREBY CERTIFY that the foregoing Resolution reflects the election results of 
February 27, 1998, by the Association, with a quorum present and voting. 







-m^fatm-ms-uL-i ^-M^m^i^_ ^l^ 



335 












ATTACHMENT I 



COLVILLE TRIBAL CONSTITUTION 



PROVIDES FOR TRIBAL COURT 
AS A SEPARATE BRANCH OF GOVERNMENT 












336 



COUTITUTION AMD BY LAWS Of TNE CONFEDERATED TRIMS 
OF THE COLVILLE RESERVATION 

NMM 

Wt, the people Of the Colville Reservation in the Stat* Of Washington, (n order to fora a recognized 
representative council to handle our Reservation affairs, and in order to improve the aconoaic condition of 
our te I vet and our posterity, do hereby establish this Constitution and By-Lews. 

ARTICLE I - PURPOSE 
The object and purpose shall be to promote and protect the interests of the Colville Indiana and to 
prasarv* peaceful and cooperative relations with the Offic* of Indian Affairs, it officers and appointees. 

ARTICLE It - GOVERNING ROOT 
Section 1. The governing body of the Confederated Tribes of the Colville Reservation shall be a council 
kno»n as the Colville Business Council. 

Section 2. The Business Council shall consist of fourteen (H) Councilaen to be elected from the 
district as set forth hereafter. 

Section 3. The representation froa the districts hereby designated shall be as follows: Inchetiua 
district, four councilman; Nespelea district, four councilaen; Omak district, four councilaen; Keller district, 
two councilaen. 

Section 4. The Business Council shall have the power to change the districts and the representation froa 
each district based upon community organization or otherwise, as d ae a a d advisable, such change to be aade by 
ordinance, but the total number of councilaen shall not be changed, as provided for in Section 2 of Article II 
of this Constitution. 

Section S. The Business Council so organized shall elect froa within its own number (1) a chairman; (2) 
a vice-chairman; and froa within or without its own membership (3) a secretary; and say appoint such other 
officers and coaaittees as stay be deeaed necessary. 

Section 6. No person shall be a candidate for membership in the Business Council unless he shall be a 
member of the Confederated Tribes of the Colville Reservation and shall have resided in the district of his 
candidacy for a period of one year next preceding the election, and be at least twenty-five (25) years of age. 

Section 7. The Business Council of the Confederated Tribes of the Colville Reservation shall be the sole 
judge of the qualifications of Its members. 

ARTICLE III - NOMINATIONS AND ELECTIONS 
Section 1. The first election of the Business Council under this Constitution shall be called, held and 
supervised by the Superintendent of the Reservation and the delegates who were selected by the Districts and 
who prepared this constitution, within sixty days after its ratification and approval. 

At the first election, the two candidates receiving the highest number of votes in the 
Inchelium, Nespelea, and Omak districts shall serve two years; the candidate receiving the highest number of 
votes in the Keller district shall serve two years. 

The two candidates receiving the next highest number of votes in the Inchetiua, Nespelea, and Omak 
districts shall serve one year; and the candidate receiving the next highest number of votes in the Keller 
district shall serve one year. Thereafter, elections for the Business Council shall be held every year and shall 
be called at least sixty days before expiretion of the terms of office. 

The terms of office of a councilaen shall be for a period of two years, unless otherwise provided 
herein. (That ajatej mmmiti. SEBAmmjmrm VI). 

Section 2. The Business Council, or an election board appointed by the Council, shall determine rules 
end regulations governing all elections. 

Section 3. Any qualified member of the Confederated Tribes aay announce his candidacy for the Business 
Council within the district of his residence, in accordance with Section 6 of Article II. 

Section *. The Business Council, or a board appointed by the Business Council, assisted by the 
Superintendent of the Reservation, shall certify to the election of the Business Council members within five 
days after election returns. 



337 



Section S. Any enrol led member of the Confederated Tribes of the Colvi I le Reservation uho it eighteen 
(18) years of ago or over shall bo entitled to vote. flaw Mf in — m a W . SEB A mmdm ml WQ. 

ARTICLE IV - VACANCIES AND REMOVAL FROM OFFICE 
Section 1. If a councilman or official shall die, roaign, bo roarwarl or recalled froa office, 
panaanontly leave the Rosorvation, or ahall be found guilty of a felony or al ideas s n or involving dishonotty In 
any Indian, state, or Federal Court, the Business Council shall declare the position vacant and the district 
affected shall elect to fill the unexpired tera. flaw unUn mmmiit SEE ,4mm+mnt B). 

taction 2. The Business Council say by majority vote expel any member for nagloct of duty or gross 
■isconduct. Before any vote for expulsion is taken in the matter, such member or official shall be given a 
written atatoaant of the charges against hta at loast five days before the Meeting of the gusinssa Council 
before which ha la to appear, and ho Shall be given an opportunity to answer any and all charges at the designed 
Council aoetlng. The decisions of tha Business Council shall bo final. 

section 3. Upon receipt of a petition signed by one-third (1/3) of the eligible voters in any district 
calling for the recall of any aeaber of the Council representing said district, it shall be the duty of the 
Council to call an election on such recall petition. 

Ho eaabers aay be recalled in any such election unless at least <-0X of the legal voters of the district 
shall vote in such election, (IUm attstai aaaasai Bat at enmr/VJ. 

ARTICLE V - POWERS AMD DUTIES Of THE COUNCIL 
Section 1. The Business Council shall have the following powers, subject to any liaitations imposed by 
the Statutes or the Constitution of the United Ststes, and subject to all express restrictions upon such powers 
contained in this Constitution and attached By-Laws: 

(a) To confer with the Commissioner of Indian Affairs or his representatives and reccaaend 
regarding the uses and disposition of tribal property; to protect and preserve the Tribal 
property, wildlife and natural resources of the Confederated Tribes, to cultivate Indian Arts, 
crafts, and culture; to administer charity, to protect eh health, security, and general welfare 
of the Confederated Tribes. 

(b) To exclude froa the restricted lands of the Reservation persons not legally entitled to 
reside thereon, under ordinances which aay also be subject to review by the Secretary of the 
Interior. 

(c) To recoaaend and help to regulate the inheritance of real and personal property, other than 
allotted lands, within the Colville Reservation. 

(d) To regulate the domestic relations of aiabirs of the Confederated Tribes. 

(e) To promulgate and enforce ordinances, subject to review by the Secretory of the Interior, 
which would provide for assessments or license fees upon non-atabers doing business within the 
Reservation, or obtaining special rights or privileges, and the saaa aay be applied to members 
of the Tribes provided such ordinances have been approved by a referendum of the Confederated 
Tribes. 

ARTICLE VI - AMENDMENTS 
This Constitution and By-Laws aay be amended by a majority of the qualified voters of the Confederated 
Tribes voting at an election called for that purpose. Provided, that the Tribal Council shall have adopted the 
amendment by a two-thirds (2/3) vote, but no amendment shall become effective until it shall have been approved 
by the Commissioner of Indian Affairs. 



CONSTITUTIONAL AMEXOMEXTS 
AME MOMENT I 

Article II Section 1, By-Law: Tiae and Place of Meetings and Procedure - Regular meetings of the 
Business Council shall be held on the second Thursday of July, October, January and April, at Nespelea, 

Washington, at a designated building or hall. glmaatW *y O y W i Mat TrtimJm* IS. 19*6. A fftw n d ty At** a ammamT 

e/amtiam AJfmn afa- $. 1947) 



AMENDMENT II 
Article IV, Section 1. Vacancies and Removal From Office. ■ If a coincilman or official (hall dla, 
resign, be r— owed froai office, permanently leave the reservation, or (halt be found guilty of a felony or 
mi edema anor involving dishonesty in any Indian, State or Federal court, the Business Council shall declare the 
position vacant and appoint a member from the district affected to fill the unexpired term. (Unm—dtj rnwjtJ.iei.rf 
TribaJm* 15. 1946. .tmini i mfty Aaky Ciinanliifi a/jmemml AJfdn A/ay $. 1947.) 

AMENDMENT III 
Article VII, Membership of the Confederated Tribes of the Colville Reservation. - There shall be added 
a new provision governing membership of the Confederated Tribes of the Colville Reservation which shall reed 
as follows: 

Section 1. • The membership of the Confederated Tribes of the Colville Reservation shall consist of the 
following: 

(a) All persons of Indian blood whose names appear as members of the Confederated Tribes on 
the official census of the Indiana of the Colville Reservation as of January 1, 1937, provided 
that, subject to the approval of the Secretary of the Interior corrections may be made In said 
roll within two years from the adoption and approval of this am endme nt. 

(b) All children possessing one-fourth or more Indian blood, bom after January 1, 1937, to 
any member of the Confederated Tribes of the Colville Reservation maintaining a permanent 
residence on the Colville Indian Reservation. 

(c) All children possessing one-fourth or more Indian blood, born after January 1, 1937, to 
any member of the Confederated Tribes of the Colville Reservation maintaining residence 
elsewhere in the continental United States, provided that the parent or guardian of the child 
indicate a willingness to maintain tribal relations and to participate in tribal affairs. To 
indicate such willingness to maintain tribal affiliation, the parent or guardian shall, within 
six months after the birth of the child submit a written application to have the child 
enrolled. The application shall be accompanied by the child's birth certificate together with 
any other evidence as to the eligibility of the child for enrollment in the Confederated Tribes 
of the Colville Reservation. If the certificate and application are not filed within the 
designated time, the child will not be enrolled. 

Section 2. The Business Council of the Confederated Tribes shall have power to prescribe rules and 
regulations governing future membership in the tribes, including the adoption of members and loss of membership, 
provided: 

(a) That such rules and regulations shall be subject to the approval of the Secretary of the 
Interior. 

(b) That no person shall be adopted who possesses less than one-fourth degree Indian blood. 

(c) That any member who takes up permanent residence or is enrolled with a tribe, band or 
community of foreign Indians shall lose his membership in the Colville Tribes. 

Alien Indians may be deleted from the rolls after they have been given an opportunity to be heard in 
their own behalf. The tribe shall also take appropriate action to correct the existing tribal roll and, if 
necessary, delete from the rolls alien Indians whose names appear on the rolls of the Confederated Tribes and 
who have abandoned tribal relations. The Colville Confederated Tribes shall not deprive anyone of vested 
property rights, such as allotments or inherited interests. (Adopcd ay Camjeal lemml THfcn- same 30. 1949. 4/fmmi t> 
Ckmmmmm aamr o/lndum Again April 14. 1950.) 

AMENDMENT IV 
That Section 3, of Article IV, Vacancies and Removal From Office, is hereby amended to read: 

Section 3. By the eligible voters of any district filing with the Colville Business Council a 
typewritten or printed petition, signed by at least one-third (1/3) the number of those who were eligible to 
vote in the last preceding election, charging that a council member representing such district has violated his 
oath of office or committed an act or acts of malfeasance, or an act or acts of misfeasance while in office, 
a demand may be made for a recall of such council member provided the act or acts complained of are set forth 
in concise language and the signature of each petitioner has alongside it those of two witnesses thereto and 
the petitioner's post office address. 



339 



The Council shall, at its next meeting after the filing of such petition, determine whether the petition 
■s filed aeets the req-ji resents of this section of the Constitution and if it finds that such requirements have 
been complied with, shall call a special election on such recall petition, said election to be held not sooner 
than 30 days after the date of such Council action. 

The ballot to be voted on at such special election shall contain the charging part of the petition 
hereinabove referred to. 

No member may be recalled at any such election unless at least forty percent (40X) of the eligible 
voters of the district shall have voted at such election and unless a Majority of those voting vote in favor 
Of recall. (Adopted ay Omfedetmud Tribes May 9. 1919. Appeared by Aging Cmmntiituner oflndiom AJfmn Jmty 2. 1959.) 

AMENDMENT V 
There shall be added to Amendment II, Membership of the Confederated Tribes of the Colville Reservation, 
a new provision governing membership of the said tribes which shall read as follows: 

Section 3. After July 1, 1959, no person shall be admitted to M em b e rship in the Confederated Tribes of 
the Colville Reservation unless such person possesses at least one-fourth (1/4) degree blood of the tribes which 
constitute the Confederated Tribes of the Colville Reservation. (Adopted by *V CohdUt Confederated Tribe* en May 9. 19S9. 
Approved by mat Aemng Cmmdirianer of Indian AJfidrt Jtdy 2. 1959.) 

AMENOMENT VI 
Section 1 of Article III, Nominations and Elections shall be amended to read as follows: 

Section 1. The first election of the Business Council under this Constitution shall be called, and held 
and supervised by the Superintendent of the Reservation and the delegates who were selected by the Districts 
and who prepared this Constitution, within sixty (60) days after its ratification and approval. 

At the first election, the two (2) candidates receiving the highest number of votes in the Incheliua, 
Nespelem, and Omak Districts shall serve two (2) years; the candidate receiving the highest number of votes in 
the Keller District shall serve two (2) years. The two (2) candidates receiving the next highest number of votes 
in the Incheliua, Nespelem, and Omak Districts shall serve one (1) year; and the candidate receiving the next 
highest number of votes in the Keller District shall serve one (1) year. Thereafter, elections for the Business 
Council shall be held every year and shall be called at least fifteen (15) days before expiration of the term 
of office. 

The term of office of a councilman shall be for a period of two (2) years or until his successor is 
elected and i rata I Vtd.Adop-iby aW Confederated Tribes Monk 4, 1972. Approved by aW Depmty Cvmmdtiivntraf Indian Affairs April 
5.1972.) 

AMENDMENT VII 
Section S of Article III, Nominations and Elections, shall be amended to read as follows: 

Section S. Any enrolled member of the Confederated Tribes of the Colville Indian Reservation who is 
eighteen (18) years of age or over shall be entitled to vote in all tribal elections. (Adopted by aW Confederated 
Tribes Mart* 4, 1972. A ppn m n l by aW Depmy C ammm srimwr of Indian Again April 5, 1972.) 

AMENDMENT VI 1 1 
Article VI Petition for i 



Section 2. The Tribal membership is granted the power to cause to be placed upon the General Election 
ballot for a vote of the membership amendments to the Tribal Constitution and By-Laws by filing exact wording 
of the proposed amendment, signed with valid signature and enrollment number and date of signature by at least 
one-third (1/3) of the enrolled tribal — atari who were 18 years or older at the last past General Election. 
The proposed amendment as contained in the petition shall be placed on the ballot at the next General Election 
if the Business Council finds that there are sufficient verified signatures on the petition as provided in this 
section. 

The petition shall be received by the Business Council at least 90 days prior to the next scheduled 
General Election. Any petition submitted less than 90 days before the next General Election shall be void for 
ell purposes. Delivery shall be made within normal business hours to the tribal Chairman at Nespelem, or in the 
absence of the Chairman to any other business council mamhir or business council staff at Ne s p e lem. Provided, 
that no signature shall be valid which is dated more than 180 days prior to the submission to the Business 
Council of a valid petition containing all signatures. 



340 



within 60 days of the adoption and approval of thU amendment, the lutinMS Council anal I adopt by 
ordinance procedures necessary for implementation of this aaandaant. Including procedures for verification of 
signatures and petitions, ff ff rimt lf ** C im f t i iiw ui Tribt* July 3. 1984. A p p u i w dby ** S*cni**y of** birrior .Uqml 1. 1984. 

AMENDMENT IX 
Article VII H— fair ship of the Confederated Tribes of the Colville Reservation. 

Section 4. All Indian blood identified and stated as being possessed by all persona whose names appear 
as aeabers of the Confederated Tribes of the Colville Reservation on the officiel census of the Indians of the 
Colville Reservation of January 1, 1937, shall be considered Indian blood of the Tribes which constitute the 
Confederated Tribes of the Colville Reservation: 

(1) Provided, that no tribal aaabers' blood degree will be decreased as a result of this 



(2) Further provided, that pursuant to procedures which shall be adopted by the Colville 
Business Council, any 

(a) applicant for aenbership, or 

(b) Tribal aaaber who is listed on the official Census of the Indiana of the 
Colville Reservation of January 1, 1937, or 

(c) Tribal aaaber descended froa a tribal aaaber whose naae appear* on the 
official census of the Indians of the Colville Reservation of January 1, 
1937; may petition the Tribes, to officially recognize for enrollment 
purposes that a tribal a a aber whose naae appears on the official census of 
the Indians of the Colville Reservation of January 1, 1937, possesses Indian 
blood that is not listed on the official census of the Indians of the 
Colville Reservation of January 1, 1937, and such Indian blood, when properly 
authenticated by clear and convincing proof, shall be recognized as blood of 
the Colville Tribes. (Appnrti by OaMMai Tribe* Atoc* 22. WML Appmtd by 
Stcn-ry of** Interior May 19. 19**) 



AMENDMENT X - JUDICIARY 






Section 1. There shall be established by the Business Council of the Confederated Tribes of the Colville 
Reservation a separate branch of government consisting of the Colville Tribal Court of Appeals, the Colville 
Tribal Court, and such additional Courts as the Business Council aay determine appropriate. It shall be the duty 
of all Courts established under this section to interpret and enforce the laws of the Confederated Tribes of 
the Colville Reservation as adopted by the governing body of the Tribes. 

The Business Council shall determine the scope of the jurisdiction of these courts and the 
qualifications of the judges of these courts by statute. 

Section 2. Court of Appeals. The Colville Tribal Court of Appeals shall consist of a panel of individual 
justices appointed by the Business Council, with the recommendation of the Chief Judge, to terms of six years. 

Section 3. Tribal Court. The Colville Tribal Court shall consist of a Chief Judge who shall be appointed 
by the Business Council for a term of six years, subject to a vote of confidence every three years in 
conjunction with that year's general election by a majority of the qualified voters of the Confederated Tribes 
participating in the vote of confidence. 

Section *. Compensation and Term. Except for the teres of the Justices of the Tribal Court of Appeels 
and the Chief Judge of the Tribal Court, the term of any appointed judge shall be determined by the Business 
Council. The compensation for the services provided shall be determined by the Business Council and such 
compensation shall not be diminished during the respective terms of the Justices and Judges unless removed froa 
office as provided in this Article. 

Section S. Vacancies and Removal froa Office. 

a. If a Judge or Justice shell die, resign, be removed under subsection b or recalled froa 
office under subsection c, the Business Council shall appoint a replacement to fill the 
unexpired term. 

5 



341 



b. A Judge aay be removed from office prior to the expiration of a term for good cause pursuant 
to a tilt of Impeachment filed with the Business Council and approved by a 2/3 majority of all 
of the members of the Business Council. The Business Council (hall convene a Special Session 
to vote on the lilt of Impeachment after allowing the Judge an opportunity to present a defense 
to the till of Impeachment. The decision of the Business Council shall be final. 

c. A Judge amy be removed from office for good cause prior to the expiration of a tana by a 
majority of the voters of the Confederated Tribes of the Colville Reservation at a special 
election called for that purpose. A special election under this subsection shall be called by 
the Colville Business Council within 10 days sfter a Petition for Recall naming the specific 
Judge, setting forth the specific charge or charges and signed by at least 1/3 the number of 
those eligible to vote in the last preceding election is filed with the Business Council. The 
results of any election under this subjection shall be final. 

Section 6. Discipline. Upon petition of any Colville Tribal Judge or Justice, or by a majority of the 
Business Council, presenting specific reasons for imposing discipline on any Justice or Judge of any Court 
established pursuant to this Article, the Colville Tribal Court of Appeals shall be convened to consider, and 
where necessary, impose discipline upon the Justice or Judge according to Rules of Judicial Conduct to be 
adopted by the Tribal Court of Appeals that are not inconsistent with the Constitution of the confederated 
Tribes of the Colville Reservation. 

Section 7. Implementation. This Article shall take effect upon the appointment of the Chief Judge by 
the Business Council after ratification of this Article by the electorate and its approval by the Department 
of Interior as provided in Article VI. (Approved by me Confederate Tribe* October 20. 1990. Approved by me Secretary of me 
buerior April 17. 1991.) 



•T-LAUS OF THE CONFEDERATED TRIBES 

ARTICLE I - THE BUSINESS COUNCIL 

Section 1. Chairman of the Business Council. The Chairman of the Business Council shall preside over 
all meetings of the Business Council. He shall perform all duties of the Chairman and exercise authority 
delegated to him by the Business Council. He shall vote only in the case of s tie. 

Section 2. Vice-chairman of the Business Council. The Vice-chairman of the Business Council shall assist 
the Chairman when called upon to do so. In the absence of the Chairman, he shall preside. When so presiding, 
he shall have the rights, privileges and duties as well as the responsibilities of the Chairman. 

Section 3. Secretary of the Business Council. The Secretary of the Business Council shall conduct all 
correspondence and keep a complete and accurate record of all matters transacted at Council Meetings. It shall 
be his duty to submit promptly to the Superintendent of the jurisdiction copies of all minutes of regular and 
special meetings of the Business Council and the Tribes. 

Section 4. Appointive Officers. The duties of all appointive committees and officers appointed by the 
Colville Business Council shall be clearly defined by resolution of the Business Council at the time of their 
creation or appointment. Such committees and officers shall report form time to time as required, to the 
Business Council and their activities and decisions shall be subject to review by the Business Council upon 
petition of any person aggrieved. 

ARTICLE II - TINE AND PLACE OF MEETINGS AMO PROCEDURE 

Section 1. Regular meetings of the Business Council shall be held on the second Friday of July, October, 
January and April, at Nespelem, Washington, at a designated building or hall. (Mm tectum m ma a emt See Amendment I.) 

Special meetings may be called by written notice signed by the Chairman or by a majority of the Business 
Council members, and when so called the Business Council shall have power to transact business as in regular 
meetings. 

Section 2. - Quorum. No business shall be transacted unless a quorum is present. A quorua shall consist 
of eight (8) councilman. 

Section 3. • Order of Business. The following order of business is established for art meetings: 

1. Call to order by the Chairman. 

2. Roll call. 

3. Ascertainment of a Quorum. 

4. Reading of the minutes of the last meeting. 



342 



5. Adaption of the minutes by ■ vote or co—on consent. 

6. Unfinished business. 

7. Mew business. 

8. Adjournment. 



Section *. - Report of Meetings, tt shall bo the duty of e»ch member of the Business Council to make 
reports concerning the proceedings of the Business Council to the members of the district from which he is 
elected. 



ARTICLE III - RATIFICATION Of CONSTITUTION AND BY-LAWS 

This Constitution and By-Laws shall be in full force and effect whenever a majority of the adult voters 
of the Confederated Tribes voting at an election called by the Commissioner of Indian Affairs, In which at least 
thirty percent (SOX) of the eligible voters vote, shall have ratified such Constitution and By-Laws and the 
Commissioner of Indian Affairs shall have approved same. 

CERTIFICATION OF ADOPTION 

Pursuant to the request of a majority of the Indians of the Colville Reservation to obtain for 
themselves a representative organization, this Constitution and By-Laws was duly submitted by the Commissioner 
of Indian Affairs for ratification and was on February 26, 193S, duly ratified by a vote of 503 for, and 76 
against in an election in which over 30 percent of those entitled to vote cast their ballots. 

Signed: Harvey K. Meyer, Superintendent, Colville Agency 

Signed: Gus Uhftelaw, Chairman, Constitutional Committee 

APPROVAL Signed: John Collier, Commissioner of Indian Affairs 












■ 















. Revised 4/23/91 by Office of Reservation Attorney 
Confederated Tribes of the Colville Indian Reservation 






343 






Criminal Div.: Civil Div.: 
ChiefClerk ChiefClerk 
Clerics Clerks 



t 

X 



H 

"8 



I 

B 

e 
U 



© 



344 






ATTACHMENT II 



COLVILLE TRIBAL COURT 
POLICIES AND PROCEDURES MANUAL 



ENSURES DAY TO DAY ADMINISTRATION OF THE COURT 
REMAINS SEPARATE AND INDEPENDENT OF COUNCIL INTERFERENCE 































345 



INTRODUCTION 



PURPOSE 

Amendment X of the Colville Confederated Tribes Constitution designates the Colville Tribal Judiciary as a 
separate branch of government. As a separate branch of government, the Colville Tribal Court is independent and not 
subject to any outside influence which might appear to detract from its impartiality and quality of justice. To fully 
implement the Court as a separate branch of government, the Court has developed a policy and procedures manual that 
covers administrative organization of the Court. This manual outlines the policy toward the various phases of the 
administrative structure of the Court and how those policies are to be administered. Consequently, each staff member 
will be able to use this manual as a guidebook when he/she needs to apply policy in a given situation. These written 
policies and procedures should increase understanding, eliminate the need for personal decisions, and help to assure 
uniformity throughout the organizational structure of the Court. 

AUTHORITY/REVISION 

The authority to develop this manual is established by Amendment X of the Constitution of Confederated Tribes 
of' the Colville Indian Reservation. This manual will supersede any prior manuals, resolutions, or written policies unless 
expressly incorporated by reference herein. 

Any revisions to this Policy and Procedures Manual must be submitted in writing to the Chief Judge. The Chief 
Judge will distribute proposed changes to Court staff, allow 15 days for comments and then either implement or deny 
the changes. 

CONSTRUCTION 

This manual is designed to give guidance to employees and supervisors of the Court to handle all administrative 
actions. All terms are to be given their common meaning unless a specific definition has been given. All gender 
designations will mean both male and female, unless specifically indicated otherwise. If any part of this manual is 
determined to be invalid, the remainder shall be deemed valid and shall not be affected by the decision. 

COURT STAFF 

All members of the Court staff and support staff are covered by this Colville Tribal Court Policy and Procedures 
Manual. Those employees are the judges, clerks of court, administrator and any temporary employees or trainees who 
are under the supervision of the Chief Judge, clerks of court or administrator. No action will be taken to remove any 
staff members from the administration of the Court without notification to, discussion with, and concurrence of the Chief 
Judge or his designate. 

CHAIN OF COMMAND 

If an individual has a concern or problem with a Court employee, that concern should initially be discussed with 
the employee. If unable to resolve the problem satisfactorily, the concern should then be directed to the employee through 
the Chain of Command by contacting his supervisor (SEE Administrative Organization Chart on page 2). Conversely, 
if an employee has a concern or problem, that concern should be directed to his immediate supervisor or if the supervisor 
is the problem, to the next level supervisor. The Chain of Command should always be adhered to, both upward and 
downward. Any deviation from this procedure should be brought to the attention of the Chief Judge as administrative 
head of the Court. 



cw-a. t-+j o»i r«&r -^ ft— *rm x— -J chwwkuuhi crroucrno. r.v I 



346 



ADMINISTRATIVE ORGANIZATION CHART 
COLVILLE TRIBAL COURT 



Chief Judge 






Associate Judges 



Administrator 



■ 



Senior Clerk 









Clerks of Court Trainee 



Temps Janitor 



C:\*MO\MA*WU.\0*GA*. CK, Kmriimd April IS, ltfS 









■ 












cnww cu »wu crraucr.no. r** l 



347 



ATTACHMENT III. 



COLVILLE TRIBAL CIVIL RULES 






PROVIDES ALL PERSONS A RIGHT TO A JURY 

COMPRISED OF ALL MEMBERS OF THE TRIBAL COMMUNITY 

BOTH MEMBERS AND NON-MEMBERS 









348 



SCOPE AND PURPOSE OF RULES AND DEFINITIONS 

Rule 1. Purpose and Scope of Rule 

The Colville Tribal Rules of Civil Procedure shall consist of this Chapter, which 
shall determine their application. These rules shall govern ail aspects of procedure in 
dvil maters in the Cdville Tribal Court, except as otherwise provided by tribal law. 

All chapters of the court rules shall be interpreted in such a manner as to be 
consistent with each other and consistent with achieving a just and timely resolution 
of the pending case. However, should any part of this chapter expressly conflict with 
another part of the Code, the rules shall be followed unless otherwise legislated by 
the Cdville Business Council after the adoption of these rules. In the event that no 
rule of court appears within this chapter or Code: (1) parties may submit a stipulated 
order setting forth a procedure which shall, if acepted by the trial court, govern the 
conduct of the case; or (2) the court may order a specific procedure or procedures 
be adopted in order to bring the case to an orderly conclusion. 

Rule 2. Definitions and Terms 

(A) Spokesman . "Spokesman" shall indude all persons admited to practice 
before the Court. 

(B) Judgment . "Entry of judgment" occurs on the date the signed order is file 
stamped by the court. 

(C) Order . "Order" shall mean every document in any proceeding signed by the 
judge induding proposed orders prepared by the parties, their representatives, or the 
court. 

(D) Tribes . "Tribes" shall mean the government of the Confederated Tribes of 
the Colville Reservation. 

(E) Tribal . Tribal" shall refer to matters pertaining to the Tribes. 

(F) File Stamp . "File Stamp" shall mean the stamp placed on a document by 
the court to indicate when the document was received by the court. It shall indicate 
the date/time received and the court which received it. 

(G) Motion to Reconsider . (Language to be submitted by ELM). 

(H) Service . Delivery to spokesman is delivery to party except for initial 
documents. 

0) Judgments . A judgment is a final order of the court, which disposes of a 
daim in whole or in part and becomes final when the signed order is file stamped by 
the court. 



Page I 



349 



may, in addition, order that the witness be paid reasonable and necessary travel and 
living expenses incurred in responding to the subpoena. 

RULE 19. Jury Trials 

(A) Jury trial request; fee. 

A jury trial shall be held if requested by either party to the case at least 
fourteen (14) days before the trial. The party who requests a jury trial shall pay to the 
court a jury fee established by Rule of Court. Payment of the jury fee may be waived 
by the chief judge upon the request of a party if payment of the fee would result in 
severe hardship to the party. 

(B) Jury trial continuance; fee. 

The party who requests a jury trial and fails to provide at least five days notice 
by a written motion to continue the trial shall be liable for the payment of jury fees. In 
addition, fees and costs may be assessed for a pro tern judge, at his discretion. 

(C) Jury lists; eligibility; non-members. 

1) To be eligible to serve as a juror on a civil case a person must: 

a. be a resident of the reservation for at least one year; 

b. be eighteen years of age or older, 

c. not have been convicted in any court of a felony, within the 
past five (5) years prior to date of being summoned; 

d. must not at the time the list is made, or at the time of the trial, 
be holding the office of tribal police officer or tribal council 
member, nor be employed by the Court or Court of Appeals. 

2) Any non-tribal member who is a resident of the reservation may 
register for jury duty by supplying a statement of his qualifications for 
such status under this section to the tribal council's secretary. The 
secretary shall provide this list to the court each year. 

3) Each year the Tribal Council shall authorize the Enrollment 
Department to provide a list of eligible tribal members to the court for 
selection as jurors. 

4) The derk shall request from the counties voter registration lists for 
eligible non-tribal members to be called in for jury duty. 

(D) Selection of panel; jury summons; failure to appear; excuse from jury 

Pag* ft 



duty. 



350 



1) The court clerk shall randomly select a specified number of names 
from the jury list quarterly. Those names shall be placed on a master 
list. This master list shall be sent to the Tribal Tribune for publication in 
the month prior to the beginning of the jury duty term. The clerk shall 
also send a jury summons to each person on the list advising them that 
they are subject to jury duty for a three month period. The summons 
shall be sent by certified mail. Along with the summons will be a 
questionnaire that is to be completed and returned to the court. 

2) When a jury trial has been confirmed, the derk shall send notice to 
each juror when to appear. The notice shall be sent by postcard and 
must be mailed no later than seven (7) days prior to the jury trial. If more 
than one trial is scheduled for the month, all the dates may be included 
on the postcard. 

3) Potential jurors may request to be excused from jury duty when it 
would work an undue hardship on the juror. If a juror is requesting to be 
excused, he must send a written request to the court when he receives 
his jury summons. The court will review the requests on a case-by-case 
basis and determine if there is adequate cause to excuse the juror. The 
court may excuse jurors indefinitely or may only excuse for a limited 
period of time. When jurors are requesting to be excused because of 
severe medical problems, a doctor's slip must be submitted with the 
request. If the court does not feel that adequate reasons are provided 
for excuse from jury duty, notice shall be send to the juror advising him 
that his request was denied and he will have to appear when required. 

4) If a potential juror is unable to appear and is not eligible to be 
excused, he may send a substitute jura in his place. The substitute jura 
must meet the requirements fa jury duty. It is the responsibility of the 
called jura to notify his substitute when he is to appear for jury duty. If 
the substitute fails to appear, the called jura will be responsible and 
may be held in contempt of court fa failing to appear. When the 
substitute jura appears, he will be required to fill out the questionnaire 
and must indicate on the fee fam which jura he is appearing fa. 

(E) Jury selection. 

On the day of the trial, the derk shall put all the juras' names into a container. 

Pag» <! 



351 



Those persons whose names are in the container shall be known as the jury panel. 
After the judge calls the court to order, the judge shall direct the derk to draw from 
the jury panel container, at random, the names of seven (7) members of the jury 
panel. Those members shall then be seated in the jury box. The derk shall make a 
list of the names in the order in which they were called. 

(F) Oath to panel. 

The court shall administer an oath or affirmation to all prospedive jurors of the 
entire jury panel, that each of them will truthfully answer all questions propounded to 
them as to their qualifications to sit as jurors in the action. 

(G) Removal for cause; examination by Court, parties. 

1) After the first seven (7) members of the jury panel have been seated 
in the jury box, the judge shall examine each of them as to their 
qualifications, and excuse any who appear to the judge to be biased, 
prejudiced, unable to fairly and effectively perform the duties of a juror 
or otherwise not qualified to serve as a juror. The judge shall permit the 
parties or their spokesman to similarly examine and ask for the removal 
of persons for cause, without any limit to the number of persons so 
challenged or removed, except that all such challenges must be made in 
good faith. 

2) After all disqualified persons have been excused from the jury box, 
enough additional names will be drawn by the derk to replace the 
disqualified persons. The derk shall add their names to the list in the 
order in which they were called. The procedure for challenges for cause 
shall continue until seven (7) qualified persons are seated in the jury 
box. 

(H) Peremptory Challenges. 

After the seven (7) qualified persons have been seated in the jury box, each 
party shall have the right to remove any three persons from the jury without cause or 
stating any reason. The parties shall alternately remove persons, or waive their turn 
to do so. until they have exhausted their peremptory challenges. 

(I) Trial jury; alternate. 

After all the challenges have been made, the remaining seven (7) jurors shall 
be the jurors for the trial. At the condusion of the trial, when the case will go to the 
panel for deliberation, the court shall select one of the jurors as an alternate. That 



juror will be excused and the remaining six win deliberate and render a verdict. 

(J) Oath of jurors. 

Prior to the presentation of the case at trial, the court shall administer the jury 
oath or affirmation to the trial jury as prescribed by law. 

Rule 20. Jury Instructions 

(A)lnstructions to jury - Requests. 

No later than three (3) days before the start of a jury trial, any party may submit 
proposed jury instructions on the law. Copies of the proposed instructions must be 
served upon and received by all parties to the action at least three (3) days before the 
commencement of the trial. 

(B) Written Instructions • jury questions. 

The court may give instructions to the jury during the trial. These instructions 
shall be written and constitute part of the record. The court shall make all rulings on 
requested instructions and objections, advise the parties of the final instructions to be 
given, and read to the jury the written instructions before the final arguments. The 
written instructions shall be given to the jury when they retire for deliberation. Any 
request by the jury to be further informed of any point concerning the action shall be 
communicated to the judge in writing and signed by the jury foreman. The 
spokesmen for the parties shall be given the opportunity to be present if they are 
available and can be present within a reasonable period of time. The judge may 
instruct the jury in writing or explain the instructions in open court which shall be 
made part of the record. 

Rule 21. Order of Trial 

(A) Motions . Any requests for an order from the Court regarding legal 
questions, procedures or the rights of parties and which cannot be settled by the 
parties may be presented to the judge in a motion. 

(B) Opening Statements. At the trial, opening statements shall be made in the 
following order: 

1) The plaintiff shall make his opening statement setting forth the charge 
or daim for relief against the defendant. 

2) The defendant shall have an opportunity to state his position before 
or at the conclusion of the plaintiff's case presentation. 






353 









ATTACHMENT IV 



COLVTLLE TRIBAL CIVIL RIGHTS ACT 
AND TRIBAL COURT CASES INTERPRETING 



PROVIDES A SYNOPSIS OF TRIBAL CIVIL RIGHTS 

AND THEIR INTERPRETATION AND ENFORCEMENT 

IN TRIBAL CIVIL AND CRIMINAL CASES 















354 



CHAPTER l-S COLVILLE TRIBAL CIVIL RIGHTS ACT 

1-5-1 Tjjfc 

This Chapter ihall be known u the Civil Rights Act of the Confederated Tribes of the Corville Reservation. 

1-3-2 Civil RiihB of Persons Within Tribal Jurisdiction 

The Confederated Tribes of the Corville Reservation in txerasing powers of self-government shall not 

(a) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, 
or of the press, or the right of the people peaceably to assemble and to petition for a redress of 
grievances; 

(b) violate the right of people within its jurisdiction to be secure in their persons, houses, papers, and 
effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported 
by oath or affirmation, and particularly describing the place to be searched and the person or thing to be 



(c) subject any person for the same Tribal offense to be twice put in jeopardy-. 

(d) compel any person in any criminal case to be a witness against himself; 

(e) take any private property for a public use without just compensation. 

(f) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of 
the nature and cause of the accusation, to be confronted with the witnesses against him. to have 
compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of 
counsel for his defense; 

(g) require excessive bail, impose excessive fines, inflict cruel and unusual punishments; 

(h) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of 
liberty or property without due process of law. 

(i) pass any bill of attainder or ex post facto law; or 

(j) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a 
Tribal jury of not less than six persons. 

1-5-3 Ritht of Action 

Any person may bring an action for declaratory and/or injunctive relief only, against any executive officer or 
employee of the Confederated Tribes, or any employee or officer of any governmental agency acting within the 
jurisdiction of the Corville Tribal Court, to protect the rights set out in f 1-5-2 of this Chapter. 

l-3-« Corville Tribal Court 

Actions brought under §1-5-3 shall be brought only in the Courts of the Confederated Tribes of the Corville 
Reservation; notwithstanding the fact that a court of another jurisdiction may have concurrent jur i sdiction 

1-3-3 Sovereitn Immunity 

When wit is brought in the Corville Tribal Court under § 1-5-4 to protect rights set out in §1-5-2. the sovereign 
immunity of the Corville Tribes is hereby waived in the Courts or the Tribes for the limited purpose of providing 
declaratory and injunctive relief, where appropriate under the law and facts asserted lo protect those rights; 
provided, the immunity of the Tribes is not waived with regard to damages, court costs, or attorneys fees. 

1-5-6 Other Law Unaffected 

The laws of the Confederated Tribes, insofar as they do not violate the rights set out in §1-5-2 of this Chapter, dull 
be unaffected by this Chapter. The Tribal Rules of Civil Procedure, the Tribal Statutes of Limitations, and all other 
rules of practice and procedure shall apply to suits brought under this Chapter. 

1-5-7 Custom And Tradition To Be Respected 

In construing this Chapter, the Tribal Court shall consider, when properly presented to the Court, the history. 
, and traditions of the tribes and bands which make up the Co n federated Tribes. 



355 



1-5-8 Insurance 

Notwithstanding any other provision of this Chapter or the Corville Tribal Code; with respect to any claim made 
under this Chapter, in the Courts of the Confederated Tribes, for which the Tribes carries an active and enforceable 
policy of liability insurance, suit may be brought for damages up to the full available amount of the coverage 
provided in the insurance policy: provided, no judgment on any such claim may be for more than the amount of 
insurance carried by the Tribes; and further provided, any such judgment against the Tribes may only be satisfied 
pursuant to the provisions of the policy or policies of insurance then in effect. 

Chapter 1-5. Adopted 02/04/88, Certified 02/16/8*. Res. 1988-76 













































356 



S vs. CTEC CONSTRUCTION 

21 Indian Law Rptr. 6027 (Colville Tribe. Crt, Feb 1994) 

FACTS: 

Appellant, S, a non-Indian, was hired as a mechanic by Defendant, Coville 
Confederated Enterprise Corporation-Construction (CTEC), on to work on the Silver 
Creek Road Project (Silver Creek), a project located within the boundaries of the 
Colville Reservation. Pursuant to the Tribal Employment Rights Ordinance (TERO), S 
completed a form when he was first hired, but was uninformed of the functions of this 
office. CTEC submitted a compliance plan to TERO for Silver Creek designating S as a 
key employee for the mechanic position. TERO certified that at this time no qualified 
tribal member was available for this position. S was thereafter placed on the payroll 
and worked on Silver Creek for approximately two years until its completion, including 
the winter months when he continued work as a mechanic at Post and Pole. 

Thereafter, S began working on CTEC's new project, the Cash Creek Project 
(Cash Creek), also located within the boundaries of the Reservation. TERO sent verbal 
and written notice to CTEC that S had not been certified as a key employee for Cash 
Creek and that qualified tribal members were available for the position and must be 
employed in place of S. S then received verbal notice of his immediate lay-off which 
was followed by S's receipt of written notice in the form of final paycheck which stated 
"FINAL CHECK." 

ISSUE: 

Did the action of CTEC terminating S, a non-Indian tribal employee, solely for the 
purpose of replacing him with a qualified Indian employee violate the non-Indian 
employee's due process rights? 

HOLDING: 

Yes. Evidence found that S was wrongfully terminated as a result of his Anglo 
Saxon heritage. The termination was REVERSED and S is to be reinstated with full 
back pay in the amount of $9,945.82, plus statutory interest. 

REASONING: 

At the hearing in this matter CTEC testified that S was terminated because 
TERO ordered that he be terminated. TERO stated that S is not a member of any 
Indian Tribe and qualified Indian tribal members were available to perform S's current 
position. TERO objected to S's continued employment with CTEC and recommended 
that S be displaced. The Court found that S's termination solely for the purpose of 
replacing him with a qualified Indian employee does not constituted "good cause" to 
terminate and violates public policy which in this tribal community prohibits invidious 
racial discrimination. The Tribal Bill of Rights is supportive of this proposition stating 
that a termination of an employee for the effect of replacing him with a qualified Indian 
employee would be racially based. 



357 



CLASS ACTION vs. COLVILLE INDIAN HOUSING AUTHORITY 

Class action suit against Coville Indian Hosing Authority (CIHA) brought by tribal 
members (plaintiffs) for specific performance and breach of contract. Plaintiffs filed a 
Motion for a Preliminary Injunction and the Tribal Court issued an Order restraining the 
tribe from raising the tribal members' monthly rent until disposition of this case. 

FACTS: 

Plaintiffs consist of at least 41 people who have entered into contracts with the 
CIHA. CIHA is established by the tribal government as an agency of the Colville Tribe 
to provide access to low-income housing on the Colville Indian Reservation. Said 
contracts were entered into about 12 years prior to this action. CIHA had made 
determination to raise the rents which ranged from an increase of 11% to 450% more 
than what the participants were currently paying. CIHA proposed rent increase was 
based on regulations of the Department of Housing and Urban Development (HUD) 
which primarily financed the project. CIHA sent written notification of monthly rent 
increases to plaintiffs. Plaintiffs argued that pursuant to their negotiations they were 
lead by CIHA to believe that their monthly payments would never exceed $105/month 
CIHA denies plaintiffs' allegations and contends that the written contract expressly 
provides for rent increases. In addition, CIHA alleges they are bound by HUD 
regulations. Plaintiffs request relief from the Court by reforming the contract to eliminate 
disputed sections and insert sections which are consistent with their understanding of 
the contract; that the demand by CIHA for plaintiffs to pay a rent increase be declared a 
breach of the reformed contract; that CIHA be restrained from raising the monthly rent; 
or in the alternative, find that the new payments, as determined by CIHA, breach the 
contract. 

ISSUE: 

The relevant issue is whether the contract, as negotiated and intended by the 
parties, provides, in part, for rental increases, and in determining same, can the court 
issue a temporary order restraining the tribe from raising the rent? 

HOLDING: 

The tribe was enjoined from raising tribal members' rent pending resolution. 












8 

F I L z :• 



1 IN THE COURT OF THE 

OF THE COLVILI 

COLViLLE h.ic.,. ZCuiu 



-~ C7?c:. : : -7 
2 CONFEDERATED TRIBES OF THE COLVILLE RESERVATION- ' ' - -' 



3 

COLVILLE CONFEDERATED TRIBES, 
4 Plaintiff, 

5 

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7 RD, 

Defendant. 
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I. 
19 FINDINGS 



Case Nos. 94-17105; 94-' 
17106; 94-17107; 94-17108; 
94-17109 



ORDER GRANTING MOTION TO 
SUPPRESS EVIDENCE 






This matter came before the Court for hearing on the 
Defendant's Motion For An Order To Suppress Evidence on the 25th 
day of May, 1994. The Defendant appeared through counsel, Jeffrey 
Rasmussen, Public Defender. The Tribes were represented by Wayne 
Rasmussen, Deputy Tribal Prosecutor. Officer William C. Evans of 
the Colville Tribal Police Department presented testimony as to the 
facts in the case and was the only witness called. From the file, 
the record, and sworn testimony adduced at hearing the Court the 
facts in this case are as follows: 



20 There is no dispute concerning the facts in this matter. On 

21 April 2, 1994 at about 5:10 a.m., Sgt. William Evans of the 

22 Colville Tribal Police was dispatched to Mid Valley Hospital in 

23 Omak, Washington concerning an alleged assault which had occurred 

24 at HUD Residence No. 4104 in the Albert Orr housing complex in 

25 Omak. The housing complex is located on the Colville Indian 

26 Reservation. After arriving at the hospital, Sgt. Evans 

7 

ORDER GRANTING MOTION 
28 TO SUPPRESS EVIDENCE - 1 Wl*f, Citing thh eve u~: 

1 CTrR II 



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interviewed Ramona Sanchez, victim of an alleged assault, who 
identified the assailant as one Juan Carson. Carson is 16 years of 
age and member of the Confederated Tribes of the Colville Indian 
Reservation. During his interview with the alleged assault victim, 
Sgt. Evans was provided information that Carson might have gone to 
HUD Residence No. 4108, which is also located in the Albert Orr 
Housing complex. 

Sgt. Evans called for and received backup assistance from 
Officer J. Storey and Reserve Officer J. Goss. Together they went 
the Ramona Sanchez residence then to HUD No. 4108. The officers 
did not obtain an arrest warrant for Juan Carson nor a search 
warrant for HUD No. 4108, which is owned by the Defendant, Noreen 
Lezard. According to Sgt. Evans' testimony, the police were aware 
that the HUD Residence No. 4108 is owned by Noreen Lezard. 

When the police officers approached the Lezard residence, Sgt. 
Evans knocked on the front door and a partially clothed young male 
answered. The young male identified himself as Juan Carson and, 
according to the testimony of Sgt. Evans, acted as though he might 
attempt to flee; however, Sgt. Evans did not testify that Juan 
Carson actually attempted to flee. Consequently, the police 
entered the Lezard home and placed Juan Carson under arrest. The 
record indicates that Juan Carson does not reside at the Lezard 
residence and that the police did not request or obtain consent to 
enter the home. Sgt. Evans also testified that through the open 
door he observed a female cross the hallway in the interior of the 
Lezard home and he thought the person might have been a juvenile. 



ORDER GRANTING MOTION 
TO SUPPRESS EVIDENCE - 2 









1 After placing Juan Carson under arrest, the police Bade a 

2 protective sweep of the immediate area around Carson. The sweep 

3 did not extend beyond the room occupied by Carson when the arrest 

4 was made. Carson was clothed only in shorts and asked the officers 

5 whether he could retrieve his clothing tram a bedroom in the Lezard 

6 home before leaving the residence. The police agreed and followed 

7 Carson to the bedroom. Sgt. Evans testified that he observed 

8 Noreen Lezard, whoa he recognized, sleeping in a bed through an 

9 open bedroom door while accompanying Carson to retrieve his 

10 clothing, but he did not attempt to wake her or obtain her consent 

11 to proceed further into her home. 

12 Instead, Sgt. Evans accompanied and entered the southeast 

13 bedroom with Carson where he discovered two juveniles upon whoa he 

14 detected the odor of alcohol. The juveniles, which included the 

15 Defendant's son, were then placed under arrest. 

16 Sgt. Evans also testified that after he had entered the Lezard 

17 hose and was in transit to the bedroom to along with Carson, he 

18 heard the sound of voices coming from another bedroom with a closed 

19 door. Sgt. Evans testified that he ascertained the voices were 

20 those of juveniles; however, he did not state any reasons why he 

21 believed the persons in the closed bedroom were juveniles. 

22 After Sgt. Evans arrested the first two juveniles, he asked 

23 Carson if he know who was in the bedroom froe which Evans heard 

24 voices. Carson identified the occupants of the bedroom and told 

25 the Sgt. Evans they were juveniles. Evans then entered the second 

26 bedroom where he found two additional juveniles who were partially 

7 

ORDER GRANTING MOTION 

28 TO SUPPRESS EVIDENCE - 3 



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or completely unclothed. Evans detected that both juveniles had 
been consuming alcohol and placed them under arrest. 

According to Sgt. Evans' testimony, it was only after the 
above-described events, including the arrest of Carson and four 
juveniles from two closed bedrooms that Sgt. Evans went to and 
entered the southwest bedroom to wake the Defendant. Evans 
testified that he detected the odor of alcohol coming from the 
sleeping defendant and called out to awaken her. The record 
indicates that Evans did not detect the odor of alcohol wafting 
from the Defendant's body until after he entered her bedroom. He 
managed, with some difficulty, to awakened Lezard, advised her of 
the situation. 

Without administering the Miranda warning, Evans began 
questioning Lezard. Evans asked Lezard whether she was aware there 
were intoxicated juveniles in her home. Lezard replied that she 
was aware of it, that they had gotten drunk together, and she 
wanted a lawyer. Subsequently, the Defendant was taken into 
custody for Contributing to the Delinquency of a Child. A criminal 
complaint charging Lezard with five counts of Contributing to the 
Delinquency of a Child, CTC 5.3.02, was filed on April 4, 1994. 



II. 

ISSUES 






The Defendant contends that the incriminating evidence against 
her which was obtained by the police after entering her home and 
effecting a warrantless arrest of Juan Carson should be suppressed. 
The Defendant asserts that the evidence was obtained through a 
violation of her right to be free from unreasonable search and 



ORDER GRANTING MOTION 
TO SUPPRESS EVIDENCE - 4 






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seizure under the Indian Civil Rights Act (ICRA) , 25 U.s.c. Sec. 

1302(2), the corresponding provision of the Colville Tribal Civil 

Rights Act (CTCRA) , CTC 56.02(b), and CTC 2.2.07. 

The Defendant also contends that her involuntary confession 

after being awakened by Sgt. Evans should be suppressed. Lezard 

contends that she was in custody when Evans proceeded with 

questioning her and should have been given the Miranda warning 

before Evans proceeded with questioning which amounted to a 

custodial interrogation. 

III. 
APPLICABLE LAW 

Both the Tribes and the Defendant have cited state and federal 
authority to support their respective arguments concerning 
suppression of evidence obtained though a warrantless arrest, and 
the events that followed. It is apparent that some discussion is 
needed as to what standards should apply to admissibility of 
evidence obtained through a warrantless searches. This discussion 
is undertaken in light of the alleged violation of the Defendant's 
guarantee against unreasonable search and seizure under ICRA and 
CTCRA, and CTC 2.2.07. 
A. Warrantless- Searches 

The tribal standard applicable to the seizure of evidence 

obtained through a warrantless searches is as follows: 

An officer may search or seize property without a warrant 
in circumstances under which warrantless searches are 
permitted under federal criminal lav. 

CTC 2.2.07. The meaning of the statute is clear. Evidence of a 



crime during a warrantless search may be seized only under 

ORDER GRANTING MOTION 
TO SUPPRESS EVIDENCE - 5 



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circumstances permitted under federal criminal law. It would 
appear that evidence seized under such circumstances should be 
admissible at trial. A corollary to those principles is that a 
police officer may not seize property during warrantless search in 
circumstances not allowed under federal criminal law. Further, 
such property may not be used as evidence of the defendant's guilt. 

The clear directive from CTC 2.2.07 is that the Court will 
look to federal common law to determine whether evidence was 
properly obtained through warrantless search and seizure. State 
common law standards for warrantless searches under the Washington 
Constitution are not in accord with CTC 2.2.07. Moreover, 
Washington State Supreme Court interpretations of Federal 
constitutional standards applied to warrantless searches, while 
instructive, are not binding on the Tribal Court. 

Although CTC 2.6.09 instructs the Court as to the priority of 
applicable law it should follow, that section does not apply when 
it has been superseded by a specific section elsewhere in Code. 
Section 2.2.07 supersedes Section 2.6.09 by specifically directing 
the Court to apply the federal law with regard to evidence obtained 
by the police during warrantless search and seizures. 
B. Civil Rights Guarantees / 

The Indian Civil Rights Act prohibits the tribal police from 
violating "the right of the people to be secure in their persons, 
houses, papers, and effects against unreasonable search and 
seizure." 25 U.S.C. Sect. 1302(2). Although the prohibition 
sounds very much like that of Amendment IV of the United States 

ORDER GRANTING MOTION 
TO SUPPRESS EVIDENCE - 6 



364 



1 Constitution, the legislative history of the Act makes it clear 

2 that the Congress enacted ICRA with a dual purpose. The first is 

3 to provide litigants coming before the Tribal Court with protection 

4 similar to, but not coextensive with, the constitutionally-based 

5 guarantees arising from the Bill of Rights. The second purpose for 

6 the enacting ICRA was the furtherance of tribal self-government and 

7 cultural autonomy in tribal systems and law. For that reason, the 

8 Court of Appeals has looked to federal common law interpreting the 

9 constitutional protection arising from the Bill Of Rights as 

10 advisory in applying the corresponding provisions enumerated in 

11 ICRA. Colville Confederated Tribes v. St. Peter . Case Nos. AP92- 

12 15400, AP92-15507-15510, 20 Ind.L.Rep. 6108 (1993). 

13 For the reasons stated above, the Court rejects the Deputy 

14 Prosecutor's strenuous assertion that ICRA requires that the 

15 relevant provisions of the Bill of Rights, along with federal case 

16 law interpreting its protection, be automatically adopted as Tribal 

17 Law. It appears to the Court that the Deputy Prosecutor, in 

18 advocating the position of his Office, and in an attempt to defeat 

19 the Defendant's Motion to Suppress, made that assertion in lieu of 

20 applying Washington case law. The Court does not read CTC 2.2.07 

21 so broadly as to require the Tribal Court to adopt, without careful 

22 examination, federal case law interpreting a defendant's Fourth 

23 Amendment rights with regard to warrantless search and seizures. 

24 The Defendant does not offer evidence that a reasonable 

25 expectation of privacy under Tribal Law is greater than under 

26 federal law. Rather, she asserts that the more protective state 



11 



ORDER GRANTING MOTION 



28 TO SUPPRESS EVIDENCE - 7 






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law standard should be applied by the Tribal Court. Based upon the 
discussion supra , the Court is precluded from applying principles 
of state lav by CTC 2.2.07 when engaging in a warrantless search 
and seizure analysis under 25 U.S.C. Sect. 1302(2). 

Absent a showing that the right to be free from unreasonable 
search and seizures under Tribal Law is more protective than that 
provided under federal law, the Court will look to principles of 
federal case law when deciding whether evidence obtained through 
warrantless search and seizures is admissible. 

The civil rights guarantees under CTCRA, CTC 56.02, and 
specifically under CTC 56.02(b), mirror the corresponding 
protection under the Indian Civil Rights Act. Because of the 
similarities between CTCRA and ICRA, the Court recognizes CTCRA as 
a statement of tribal policy similar to that shown in the 
legislative history of ICRA. Thus, the Court interprets CTCRA as 
a statement of tribal policy that litigants are afforded the 
protection enumerated in the statute and the Act was adopted in 
accordance with principles of tribal self governance, self 
determination, and preservation cultural autonomy in tribal systems 
and law 

Further support for this view is apparent from CTC 1.1.07(d), 
which requires that the various provisions of the Tribal Law and 
Order Code, including CTCRA, "be construed as a whole, to give 
effect to all of its parts in a logical, consistent manner." In 
reading CTC 56.02(b) In pari materia with CTC 2.2.07, it appears to 
the Court that the Tribal Business Council intended that federal 






ORDER GRANTING MOTION 
TO SUPPRESS EVIDENCE - 8 






366 



1 criminal law concerning warrantless search and seizures should be 

2 considered a statement of tribal civil rights. However, the Court 

3 has found no statute or tribal case law which requires the Court to 

4 strictly adhere to federal court interpretation of Article IV of 

5 the United States Constitution. Rather, the general principles set 

6 out in CTCRA strongly suggest that the Business Council intended 

7 that the standards flowing from its principles be developed through 

8 a growing body of tribal common law. 



From the events described above, it can fairly be said that 
the tribal police obtained a windfall of evidence against Noreen 
Lezard's after entering her home. The Defendant does not challenge 
the authority of the police to arrest Juan Carson; however, she 
argues that the evidence obtained upon further intrusion into her 
home was the subject of an illegal search. 
Plain Vi ew Doctrine 

The Tribes argue there was no search of Lezard's home and that 
all evidence obtained from the interior of the residence, following 
Juan Carson's arrest, was inadvertently discovered and should be 
admissible under the plain view doctrine. The Tribes argue that 
the tribal police had a duty to remain with and accompany Carson 
while he retrieved his clothing from a closed bedroom in Lezard's 
home. Therefore, their presence in the interior of the home, it is 
reasoned, was legitimate, and allowed them to freely exercise their 
innate sensory abilities to detect the fruits of criminal activity. 

There is a we 11 -developed body of federal case law concerning 



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exclusion of evidence obtained through illegal search and seizure. 
In the seminal case of Weeks v. United States , the United States 
Supreme Court adopted the exclusionary rule as a remedy for 
violations of the Fourth Amendment to the United States 
Constitution. The Supreme Court held, as a matter of federal 
constitutional law, that the Court does not have the right to 
retain for evidence materials seized in violation of one's Fourth 
Amendment rights. In another case which forms the foundation for 
application of the exclusionary rule, the court held that all 
evidentiary fruits of the initial illegality must be excluded. 
Silverthorne Lumber Co. v. U nited States . 251 U.S. 385 (1920). S_ge. 
aiafi, Maop v. Ohio. 394 U.S. 721 (1069), Davis v. Mississipp i. 394 
U.S. 721 (1969). 

For the exclusionary rule to be applied to suppress evidence, 
there must be a search or seizure to obtain property, an object, or 
information and the search or seizure must violate the right to 
privacy under the Constitution. The Supreme Court has held that a 
search, within the meaning of the Constitution, involves a 
trespassory invasion into a constitutionally protected area, 
involving physical entry. Lee v. United States . 274 U.S. 559 
(1927). The court has also held that a person's home is the 
quintessential private zone for Fourth Amendment protection. 
Pavton v. New York . 445 U.S. 573 (1980). Moreover, the simple 
language of the Amendment applies equally to seizures of persons 
and to seizures of property, id at 585. 

It is a basic principle under federal law that nonconsensual 









ORDER GRANTING MOTION 

TO SUPPRESS EVIDENCE - 10 









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physical entry of a person's hone by the police, without a warrant, 
absent one of the limited warrant exceptions, is considered an 
unreasonable search. Katz v. United States . 389 U.S. 347. See 
Alfifl, Untied States v. Chadwick. 433 U.S. 16 (1977); United States 
v. Karo . 468 U.S. 705 (1984). Three of the warrant exceptions 
pertinent to this case, discussed Infra. , are the plain view 
doctrine, consent, and entry due to exigent circumstances. 

The premise for the Court's inquiry is that when the police 
first entered Lezard's home, it was an unconsented invasion of a 
constitutionally protected area. Katz . supra . However, when Carson 
opened the door to Lezard's home and identified himself, under the 
plain view doctrine, the Defendant concedes that the subsequent 
entry of her home by the police to arrest Carson falls within one 
of the warrantless exceptions. That interpretation is well- 
supported by the law. See . Coolidae v. New Hampshire . 403 U.S. 448 
(1971). fififi also . United States v. Winsor . 846 F.2d 1569 (9th Cir. 
1988); United States v. Peters . 912 F.2d 208 (8th Cir. 1990). The 
Defendant does not challenge the warrantless entry of her home on 
the theory that police lacked probable cause to place Carson under 
arrest. Pavton . supra . 

The Defendant also concedes that following Carson's arrest, 
the police were justified in making a protective sweep of the 

immediate area near Carson. Maryland vs Buie . 494 U.S. 325, , 

, 110 S.Ct. 1093, 1099-1100 (1990); Chimel v. California . 395 

U.S. 752, reh'g denied, 396 U.S. 869 (1969). However, following 
Carson's arrest and securing the immediate area to ensure officer 



ORDER GRANTING MOTION 

TO SUPPRESS EVIDENCE - 11 






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safety, the Defendant argues that further intrusion into her home 
amounted to an unreasonable search. Moreover, under chisel , there 
is no comparable justification for their protective sweep to extend 
to any room other than that in which the arrest occurred, id., at 
762-63. 

The federal courts have held that once the police have made a 
warrantless entry of a residence, placed the suspect under arrest, 
and completed their protective sweep, the dangers they sought to 
avoid are eliminated. Thus, barring other exigencies, the police 
are then obliged to leave the residence. United States v. Oouns . 
921 F. 2d 442 (2d Cir. 1990) . £ejj Alftfi, Scheneckloth v. Bustamonta. 
412 U.S. 218 (1973); Maryland v. Buia . 494 U.S. 325, 335-36; Chimel 
v. California , supra . The Court concurs with this reasoning based 
upon the facts of this case. 

The Tribes argue that the police had a duty to accompany 
Carson to a bedroom within the interior of Lezard's house so that 
the arrestee could retrieve his clothes. It reasons that the zone 
of danger which justifies the search incident to arrest, including 
the justification for making a protective sweep, traveled with 
Carson. The Tribes also argue that because the police had a duty 
to remain with the arrestee, the plain view doctrine continued to 
operate such that they were able to repeatedly make evidentiary 
windfalls which the Defendant now strives to exclude from evidence. 
The Plain View Doctrine 



The Court is aware of authority for operation of the plain 
view doctrine during a protective sweep of the premises, assuming 



ORDER GRANTING MOTION 

TO SUPPRESS EVIDENCE - 12 



370 



1 the police officer is engaged in lawful activity. United States v. 

2 Tisdale . 921 F.2d 1095 (10th Cir. 1990, cert, denied, 112 S.Ct. 

3 596; United States v. Deloado . 903 F.2d 1495, (11th Cir. 1990), 

4 cert, denied, 498 U.S. 1028. However, for the doctrine to apply, 

5 the officer engaged in a search or seizure must be legally in a 

6 position to seize the item. Washington v. Chrisman . 455 U.S. 1 

7 (1982). 

8 When one with authority consents to warrantless entry of a 

9 home, the Supreme Court has held that the privacy exception no 

10 longer exists. Illinois v. Rodriguez . 497 U.S. 177 (1990) . 

11 Accordingly, the police may use their innate visual, olfactory and 

12 auditory senses, under the plain view doctrine, to seize evidence 

13 which is immediately recognizable as fruit of a crime. There is 

14 also authority to support the view that one with a common right to 

15 occupy the premises can consent to warrantless entry by the police. 

16 United States v. Matlock . 415 U.S. 164 (1974). The court has held 

17 that such consent is effective consent for the absent, 

18 nonconsenting cotenant. Id. See also . United States v. Menia . 953 

19 F.2d 461 (9th Cir. 1991), cert, denied, 112 U.S. 1983. Under the 

20 reasoning of Rodriguez . supra . once a cotenant has consented to 

21 warrantless entry, operation of the plain view doctrine would not 

22 be considered an intrusion upon the other occupant's reasonable 

23 expectation of privacy. 

24 The facts of this case show that Carson, a juvenile, did not 

25 reside in the Lezard home. The police did not request, nor was 

26 Carson capable of giving consent to enter the house. Therefore, 

>7 

ORDER GRANTING MOTION 

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Lezard's privacy expectations were very much in place when the 
police accompanied Carson into the interior of her home. The 
Tribes seem to characterize their duty to accompany Carson into a 
closed bedroom within Lezard's home, in light of the fact that 
Carson was dressed only in shorts, as exigent circumstances which 
would justify that the police remain in the residence, United 
States v. Ocruns . supra . much less further intrusion. 

The Court is far from persuaded that in balancing Carson's 
need to retrieve his pants against Lezard's privacy rights under 25 
0.8. Ct Sec. 1302(2) and CTC 56.02(b) the scale tips in the Tribes' 
favor. This is consistent with the general principle that while an 
arrest warrant gives authority to enter a person's home to execute 
the warrant, Pavton . supra , an arrest warrant is not enough when 
police enter the home of a third person to serve the arrest 
warrant. The rationale for this rule is that an arrest warrant 
does not protect the rights of the third party in whose house the 
arrest was made. Steaaald v. United States . 451 U.S. 204 
(1981) . 

The facts in this case differ significantly from those upon 
which the Tribes rely to extend application of the plain view 
doctrine. In Washington v. Chrisman. 455 U.S. 1 (1982), a police 
officer accompanied a suspect to his dormitory room and stood in a 
hallway open to the public while the student opened the door to 
retrieve his identification from the room. Through the open 
doorway the officer observed evidence of criminal activity. The 
court held that the plain view doctrine prevented the observation 



ORDER GRANTING MOTION 

TO SUPPRESS EVIDENCE - 14 






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and subsequent intrusion into the room from being denominated a 
search. The rationale is that the officer was not in a 
constitutionally protected area when the observation was made. 

If the same reasoning were applied to the seizure of Carson 
based upon observations made through the doorway of Lezard's home 
application of the plain view doctrine might give rise to the same 
result. However, that question is not before the Court because, at 
oral argument, the counsel advised the Court the Defendant is not 
challenging Carson's arrest. 

It is quite another matter when applying the reasoning of 
Chrisman to Sgt. Evans' observations and the seizures which 
followed when he entered deep into the interior or Lezard's home 
and closed bedrooms. The space outside of the bedroom was within 
a constitutionally protected area. Moreover, when Evans initially 
observed the Defendant lying in her bed through on open bedroom 
doorway he did not testify she was doing anything more than 
sleeping. What Sgt. Evans' testimony clearly shows is that it was 
only after he had entered the Defendant's bedroom, tested odors 
coming from her body for the smell of alcohol, roused her out of 
her sleep and interrogated her, that he obtained evidence that 
implicated her in criminal activity. The rationale followed by the 
court in Chrisman simply does not apply in this case. 

Consent 

In Illinois v. Rodriguez , supra, the court held that the 
consent given to the police to enter a constitutionally protected 
area by a previous tenant was effective against a current tenant. 

ORDER GRANTING MOTION 

TO SUPPRESS EVIDENCE - 15 



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In that case the former tenant was an adult who had moved away a 
short time before and entered her former residence to collect her 
belongings. The salient facts in the instant case are that Carson 
is 16 years of age and did not reside at the Lezard residence at 
the time of his arrest. No evidence was offered to show that 
Carson ever lived at the Lezard residence, but was only in the 
house. Moreover, the police knew that the home was owned by Lezard 
and should have known that Carson had absolutely no authority to 
consent to entry by the police, or their further intrusion into the 
interior of Lezard *s home, or into the bedrooms. If the Court 
would follow the reasoning of Rodriguez in this case, a juvenile 
visitor could, at any time of the day or night, effectively consent 
to police entry of virtually any private area within the owner's 
home. 

The Miranda Rule 

The Defendant also asserts that because Sgt. Evans did not 
advise Lezard of her rights, and she did not waive the same, the 
incriminating testimonial evidence she gave should be excluded 
under the reasoning of Miranda v. Arizona . 384 U.S. 436 (1966). In 
that case the court held that after the police have taken a suspect 
into custody, the suspect must be advised of and waive his or her 
rights before the testimonial evidence given may be used in a 
criminal prosecution. The remedy for failure to comply with that 
practice is exclusion of the illegally seized evidence. 

The Defendant's contention that she should have been given the 



ORDER GRANTING MOTION 

TO SUPPRESS EVIDENCE - 16 






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Miranda warning before Evans' interrogation commenced turns on 
whether she was in custody. Under Miranda and its progeny, the 
question of whether a suspect is in custody depends upon whether 
the suspect feels free to break off the conversation with the 
police officer and terminate the encounter. Michigan v. Chestnut . 
486 U.S. 567 (1988); United States v. Mendenhall . 446 U.S. 544 
(580) . That determination is to be made from the totality of the 
circumstances . 

At least part of the very statement that the Tribes wish to 
use against Lezard clearly show she believe she was not free to 
terminate the conversation with Evans. Her statement, "I want a 
lawyer", is difficult to construe any other way. Moreover, the 
highly coercive circumstances which surrounded the interrogation 
lead to a similar conclusion. Lezard was wrested out of a dark 
pool of sleep by a police officer standing in her bedroom during 
the early morning hours, who then began asking questions which 
obviously were focused on her suspected involvement with the 
criminal activity in her home. 

From the totality of the circumstances described above, Lezard 
must have believed she was in custody when Evans' interrogation 
began. Accordingly, Sgt. Evans should have given Lezard the 
Miranda warning prior to beginning his interrogation concerning her 
knowledge of the criminal activity he had discovered in her home. 
Fruit of the Poisonous Tree Doctrine 

The principles first established in Silverthorn Lumber Co. v. 
United States , supra . gave rise to the doctrine that all 

ORDER GRANTING MOTION 

TO SUPPRESS EVIDENCE - 17 



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evidentiary fruits which were discovered as the result of an 
illegality must be excluded. However, for the "fruit of the 
poisonous tree" doctrine to operate, there must be some causal 
connection between the illegality and evidence obtained through the 
following search and seizure. Davis v. Mississippi , sjjpjca. See 
also, Wong Sun v. Onited States. 371 U.S. 471 (1963). 

In this case the initial illegality was Sgt. Evans 1 intrusion 
into the constitutionally protected interior or Lezard's home 
following Carson's arrest. When Evans beyond the area reasonably 
necessary for the protective sweep and into the interior of 
Lezard's hose, he engaged in a warrantless invasion of the 
Defendant's constitutionally protected space. Because Evans had no 
right to be there, what followed was a search. The windfall of 
incriminating evidence which Evans seized, including testimonial 
evidence from Lezard, is causally connected to the initial 
intrusion into the Defendant's constitutionally protected area of 
privacy. Id. at 485-86 (citations omitted) . Accordingly, all of 
the evidence seized following the initial illegality is fruit of 
the poisonous tree which may not be used against Lezard. 

CONCLUSION 
Application of the above principles of federal criminal law to 
the facts of this case, as required by CTC 2.2.07, leads to the 
conclusion that all incriminating evidence which was obtained by 
the police from the interior of Noreen Lezard's home, following the 
arrest of Juan Carson, was obtained through an illegal search and 






ORDER GRANTING MOTION 

TO SUPPRESS EVIDENCE - 18 









1 arrest of Juan Carson, was obtained through an illegal search and 

2 seizure. Because such illegal search and seizures are prohibited 

3 under the Indian Civil Rights Act, 25 U.S.C. Sec. 1302(2) and the 

4 Colville Tribal Civil Rights Act, CTC 56.02(b), such evidence may 

5 not be used against Noreen Lezard in the present criminal matter 

6 and should be excluded. 

7 While there were alternative means which could have been taken 

8 to obtain some or all of the above evidence which would not have 

9 violated the Defendant's statutory privacy rights, the Court has 

10 not been apprised of any attempt by the police to follow any of 

11 those alternatives. Although the criminal activity which occurred 

12 within the Defendant's home was a serious matter involving 

13 juveniles, and successfully prosecuting persons who contribute to 

14 such harm is of great importance to the Tribes, successful 

15 prosecution is not a justifiable end when the means involve 

16 violation of the Defendant's privacy rights. Accordingly; 

17 It is ORDERED, ADJUDGED and DECREED that the Defendant's 

18 Motion To Suppress is GRANTED. 

19 Dated this __l_rday of September, 1994. 



" v^d^rSC^ 



Brian H. CollTnsT Associate Judge 



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ORDER GRANTING MOTION 
28 TO SUPPRESS EVIDENCE - 19 



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IN THE TRIBAL COURT OF THE 
COLVILLE CONFEDERATED TRIBES INDIAN RE! 



COLVILLE CONFEDERATED TRIBES, 
Plaintiff, 



GREGG S. PAVEL, 
Defendant. 



COLVILLE CONFEDERATED TRIBES, 
Plaintiff, 



JOSEPH PAVEL, 

Defendant . 



eg,,' ^> /Q/ e o 

ERVJiTION-S/j, 



Case No. 93-1644 5; 
93-16449; 
93-16450 



v : c>. 



?3 






ORDER OF MOTIONS HEARING 



Case No. 93-16444; 
93-16451; 



93-16452 



THIS MATTER came regularly before this court for a Motions 
Hearing scheduled on November 2, 1993. - The following persons were 
present: Frank La Fount sine, Tribal Prosecutor; John Sloan, Attorney 
At Law; Gregg S. Pavel, the Defendant; and Joseph Pavel, the 
Defendant. 

The court, having reviewed the records and files herein, and 
being fully advised in the premises, finds this court has 
jurisdiction over criminal acts committed by any enrolled Indian 
when such act is committed within the boundaries of the Colville 
Indian Reservation. The Court further finds that no exigent 
circumstances existed that merit a warrantless search of the area 
of the pickup closed off by the camper (that is, the box of the 
pickup) , nor did they exist to justify searching the snuff box in 
the cab of this pickup. The snuff box was too small to contain a 
weapon and the testimony of the officer did not support a 
conclusion that he was looking for a weapon. No inventory search 
was being conducted. The objects seized were not in plain view and 
the area was either secure or readily capable of being secured. 
Therefore, no reason existed not to get a warrant and no legal 
exception allowed breach of the defendant's right not to be 
searched without a warrant, now, therefore, 



When Citing tfcb cam l 

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IT IS ORDERED, ADJUDGED, AND DECREED that: 

1. The motion to dismiss for lack of jurisdiction is DENIED. 

2. The contents of the snuff box found in the pickup cab are 
suppressed. 

3. The evidence taken from the covered the box or back of the 
truck is suppressed. 

DONE IN OPEN COURT this 2nd day of November, 1993 and signed 
this tZ. I " day of January, 1994. 




I certify that I served this document on the following partus on 
I - •£> | l &l by R (regular mail), C (certified mail, 

return receipt requested), at his/her last known address (LKA); 
I (interoffice mail); f (personal service); or (other, specify): 

S5S5 \ E \~rk\~ ~ ; \ ,^<^ : — 



Signed^ 



I # S 



*0 JUgjS^ 



it ftx-^ 









379 



IN THE COURT OF THE 
CONFEDERATED TRIBES OF THE COLVILLE RESERVATION 

o M^ 
COLVILLE CONFEDERATED TRIBES ) NO. 93-16048 g ZZ 

Plaintiff, ) r= <_ 

) fn F ~n 

v. ) ORDER REGARDING^ *£ r- 

) ELEMENTS OF ASSAfu7r£: £ 

FRED CLARK, ) £ ° 

Defendant. ) p. 



THIS MATTER came before the Court for oral argument of the parties on July 
6, 1994. The facts of the matter are simply stated: The prosecution charged the 
defendant with assault. The Defendant proffered a standard jury instruction stating 
words alone are not sufficient to sustain a conviction for the crime of assault. The 
Plaintiff objected to the proffered instruction on the grounds that words alone are 
sufficient to sustain a conviction under 5.1.03 of the Colville Tribal Law and Order 
Code. The question then in a simple one: in order to obtain a conviction in the Colville 
Tribal Court for assault under the laws of the Colville Tribes, must the Tribes show that 
the Defendant committed an action in addition to mere words? The Court finds in the 
affirmative. 

The Court finds that more than more words are required for a conviction of 
assault based upon two separate and independent grounds. First the wording of the 
statute itself, upon close examination, compels the conclusion that an act hy the 
perpetrator is required. Second, the assault section of the criminal code must be read 
in harmony with the other sections of the Code, notably Title 56 of the CCT, which 
protects the rights of the citizens of this community to freedom of speech. Each of these 
grounds will be examined in turn. 

First, CCT 5.1.03 states: "Any person who shall threaten bodily injury to another 
person through unlawful force or violence shall be guilty of assault" This section 
appears to the Court to be stating that in order to convict, the prosecution must show 
that the defendant threatened bodily injury and that the threat was conveyed either 
through unlawful force or through unlawful violence. Black's Law Dictionary defines 
"force" as power in motion or in action. It defines the word "violence" unjust or 
unwarranted exercise of force, usually with the accompaniment of vehemence, outrage or 
fury. Both definitions capsulate the common meaning of each term and each definition 
contains action or movement as a pivotal component. Therefore, the Court is compelled 
to the conclusion that the plain meaning of the terms contained in this statute require 
that the words be accompanied in some way with an action as a critical element of this 
statutory definition of a crime. 

Second, the Court notes that Title 56 or the CCT protects the rights of all 
members of this community to freedom of speech and was enacted subsequent to the 

When Citing this case use: 

1 CTrR 3TI 



assault statute. Accordingly, to any extend that Title 56 conflicts with the earlier 
provisions of the Colville Tribal Law and Order Code, Title 56 should be read as 
controlling on the specific issue in conflict. This is precisely such an issue if the statute 
were interpreted consistent with the position of the prosecution. Accordingly, to the 
extent that the prosecution's position is correct. Title 56 would still mandate that the 
jury be instructed that more than mere words are required to convict under the assault 
statute. The sole exception to this finding would be if the Tribe were to proffer 
sufficient evidence to show that the speech at issue constituted "fighting words" and was 
therefore not protected speech. However, the Court does not at this time have sufficient 
evidence to make a ruling on this issue. 

For all of the reasons above stated, the Court finds in favor of the Defendant and 
concludes that mere words alone are not sufficient to sustain a conviction of assault 
under CCT Section 5.1.03. 

IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT PLAINTIFF'S 
OBJECTION IS OVERRULED. 

IT IS FURTHER ORDERED THAT DEFENDANT WILL DRAFT A JURY 
INSTRUCTION CONSISTENT WITH THIS OPINION, FILE THE SAME AND 
SERVE IT UPON OPPOSING COUNSEL A MINIMUM OF SEVEN DAYS PRIOR TO 
THE TRIAL IN THIS CASE. 



Dated this 13th day ol July, 1994. 




























381 



IN THE TRIBAL COURT OF THE 
CONFEDERATED TRIBES OF THE COLVILLE RESERVATION 
COLVILLE CONFEDERATED TRIBES, 

Plaintiff, 
vs. 
RONALD B. WILEY, 

Defendant. ) 



w *"ul TRIBAL COURT 

JAN 8 1 1996 
COLVILLE INDIAN RESERVATION 




NO. 94-17260 
MEMORANDUM OPINION 






SUMMARY 

The Colville Tribal Court grants Defendant's Motion to 
Dismiss without prejudice because the citation fails to state the 
essential elements of the charge in violation of his due process 
rights. 

FULL TEXT 

BEFORE WYNNE, Chief Judge 

WYNNE, Chief Judge 

Before this Court is Defendant's Motion to Dismiss the 
charge of Possession of Alcohol in the Nespelem Celebration 
Circle Grounds. 

On July 4, 1994, the Defendant was arrested for possessing 

alcohol in Nespelem Circle Celebration Grounds, Nespelem, WA. 

The citation specifically charged the Defendant with "Alcohol 

Circle Grounds," in violation of Colville Tribal Code 

CCT V. WILEY 

MEMORANDUM OPINION 

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1 CTrR _jp/ 



A-t on 1 cm _ 1 1 



382 



(hereinafter M CTC") 5.6.01. 

On January 25, 1996 a Motions Hearing was held, Chief Judge 
Mary T. Wynne presiding. Present at the hearing was Wayne 
Svaren, Tribal Deputy Prosecuting Attorney, and Jeff Rasmussen, 
Defendant's Attorney. 

Defendant argued that the charge should be dismissed because 
the citation is insufficient to give the Defendant adequate 
notice of the offense. The Tribes, on the other hand, argued 
that the citation was sufficient to give the Defendant adequate 
notice. 

On January 25, 1996 the Court issued a written Order 
dismissing the charge, without prejudice, for failure to state a 
claim. 

The Court has reviewed the file and applicable tribal law, 
and hereby enters this Memorandum Opinion consistent with the 
Court's January 25, 1996 Order. 

GENERAL DISCUSSION 

Due process under CTC S 56.02(h) 1 is "that process which is 



CTC I M.MQO mkk 

The Coo/cdcralcd Tribe* of Itae Cotvilk ReaervMioa n cxercisinc powen of iclf-«.overon>eoi ihall not 

(h) doajr to toy penoa within iU jurudiclioo ±c canal protection of in Uwi or deprive aajr penoa of tbert j 
or property wkkool due procex of low. (Tfhuii odded.) 



CCT V. WILEY 
MEMORANDUM OPINION 
PAGE 2 









383 



due": notice and opportunity to be heard. Swan v. CBC, CV92-12121 
[19 Indian L. Rep. 6113, 6114] (Colv.Tr.Ct. 1992). Under the 
Indian Civil Rights Act, 25 U.S.C. $ 1302(8), 2 adequate process 
is: (1) person must receive notice within a prescribed time; and 
(2) person must be made aware of the nature of the hearing by the 
clear and plain words of the notice. Stone v. Swan, CV90-1087 [19 
Indian L. Rep. 6093, 6095] (Colv.Tr.Ct. 1992) .'. 

Factors to consider in determining whether the timeliness of 
notice is sufficient: (1) sufficient time to contact attorney; 
(2) sufficient time to prepare case. Sisseton-Wahpeton Sioux 
Tribe v. Seaboy, 17 Indian L. Rep. 6027, 6028 (Intertr.Ct.App. 
1989 ) . 



Section 1302(t) of she Indian Civil Rights Act. 25 U.S.C. II 1301-1902 rad: 
No Indian m exercising power* of self govcraaicol shall: 

(t) deny to My person within its jurisdiction the eaual protection of Hi Uwi or deprive any person of liberty 
•r sts uuty without due process of Lsw. (Fmphssri added.) 






Sti also Hvko r. Fart UcDrrmm Trial Cornea. 20 Indian L. Rep 6020, 6021 (W.Nev.BIA Cl.App. 1993><duc process mandates reasonable 
advance sauce of bearing, the nature ^t^ i^Arict k^ to t^xxria^ io\k ^cai^. In Rt C<rtJM Quaaan U: Na^o S<iaat. 16 Indian L Rep 
60(6. 6092 (Nsv.Sup Ct 19«7)(procodursl due process under the Indian Ovi Rights Act require, notice, an ooporturury to be heard sad to defend 



Under the Indian Civd Rights Act, parties to this scuou should he cautious m evaluating due process in Anglo terms As Ok court staled 
■ rVstea Tribal assists. aVsard v. Ssasbr, 17 Indian L. Rep. 6065 (Ci Ind App . roses 1918): 

When snslyzsng due process claims, it r T-f~*~* » — *■'*•"- asssSn. *— * I ' *"*• ~ » — i—* rf saT. p-~— 

sad ecjusj protecoou in rnmrilianrr with both sborigiasl sad modern tribal lsw. Indus* Tribes, whose legal traditions are rooted in more 
iafinanl traditions sad customs, sre markedly different from English consmon law, upon which she United Stales' notions of due process 
■n finssilis 1 irimlii i sVrtwti C csnai inr* a/sV Qhawl mm* r^a sw a s saaf Tribe afOUahcmmJio. App. 17-01 (C.B r^tswssosal Sap. 
Ct Pah. 17. IMS). II sasaaa L. Rep. at 6007 (Apr. 19M) . . 

Whoa eaatriag the sreaa of due process m she contest af as Indian tribe, courts should sot simply rely oa ideas of due process rooted 
m the Anglo- American system sod then attempt lo apply ssese concepts to tribal governmenti as af they were states or the federal 
sssajaaaajsj That is not lo »*y that the general concepts ofdue process scafysis with regard lo ststc sod fcoeral gov rjnearnts arc wholly 
assSJsV ataa to Indian gov cr ass es t! , but these pe ocedesu are eerlaisly sot dispositive nor roatrntliag is the tribal cootcit One should 
tread lightly whes aoalyzirsg the scope sod nature of tribal sovereignty sod not make assumptions based upon s history sod legal tradition 

CCT V. WILEY 
MEMORANDUM OPINION 
PAGE 3 



I. THE CHARGE AGAINST THE DEFENDANT IS 

DISMISSED WITHOUT PREJUDICE BECAUSE THE 
CITATION 18 INSUFFICIENT. 

The Defendant argues that the charge should be dismissed 
because the citation fails to provide adequate notice of the 
offense charge. The Court agrees. 

A citation issued to a defendant must include "the name of 
the person [charged], his address, that date of birth and sex, 
the date, tine, and place and description of the offense charged, 
the date on which the citation was issued, and the name of the 
citing officer." CTC § 2.3.02. 

Specifically, and in order to comport with the above due 
process standard, a charging document, whether citation or 
complaint, must contain: (1) the description (elements) of the 
crime charged; and (2) a description of the specific conduct of 
the defendant which allegedly constitute the offense, cct v. 
Stensgar, 92-15437, 6 (Colv.Ct.App. 1992); CCT v. James, 94- 
17157/17158, 6-7 (Colv.Tr.Ct. 1994). 

In Jattes this Court held that a citation issued to the 
defendant was sufficient. Explaining the standard the Court 



ftwa ntalEUnlm tat 17 I 

CCT V. WILEY 
MEMORANDUM OPINION 
PAGE 4 



385 



looks to in evaluating a citation, Judge Wynne Stated: 

Under the Indian Civil Rights Act, as 
adopted in CTC 56, a defendant must be 
appraised of the elements of the crime 
charged and the conduct of the defendant 
which is alleged to have constituted the 
crime. CCT v. Stensgar, 92-15437, page 6 
(1992). A complaint which omits a statutory 
element of the charged offense, the document 
is constitutionally [statutorily] defective 
document for failure to state a claim and is 
subject to dismissal. Id. In Stensgar, this 
Court adopted the Washington state two-prong 
test for testing the sufficiency of a 
complaint stated in Auburne v. Brooke, 119 
Wn.2d 623 (1992) : 5 (1) do the necessary facts 



In Cuy c/Ambmrn >•. Broott, 119 Wo. 2d 623. 836 P 2d 212 (1992) the court stated: 

Relying on Leach, the respondeat ekies srgue that whik misdemeanor complaints have to satisfy 
the essential e l c sn en ts rule, misdemeanor and | roes misdemeanor citations do not have to state the ftytfial 
elements of the crime charged. This appears to be a misunderstanding of a distinction drawn in Leach. Leach, 
113 w n 2d at 697-98. 782 P 2d 552 states as follows: 

Although the consuftitiemal requirement for adequate notice is the same whether that 
notice is given by complaint or by citation and notice, there is s logical basis for reasonably 
distinguishing between misdemeanor defendants issued citations and those served with complaints. 
Complaints must be more detailed since they arc issued by a prose c utor who was not present at the 
scene of the crime. Defining the crime with more specif -cky in a ctenpUast assists a defendant in 
determining the particular incident to which the complaint refers. Citations, however, are generally 
issued by law enforcement officers who have personal contact with defendants at the scene. 
Dcfessxants charged by citation are necessarily aware of the particular incidents for which officers 
are charging mem. They presumably know the facts underlying their charges. Further, die citation 
charging procedure permit* officers to initiate prosecutions without unjuatifiable expense and delay. 
In addition, the procedure lander CrRIJ 2.1(b) facilitates an officer's ability to charge iWmdsnts 
at the scene and then to release those persons for whom jailing is unnecessary. Differing 
procedures and requirements for charging by complsint and by citation and notice do not violate 
due process and equal protection rights. (Footnotes ex citations omitted ) 

The crocs co n c had c from this that the sxsx ss ss a tj of the crime need not be stated in a citation even 
when it is used ss the final charging drrumrnl in a criminal prosecution If we accepted this ccin t nstion. she 
effect would be that one defend a n t charged by complaint would be afforded a ssaasaxsssl of the essential elrmrnts 
of the enme charged while another defendant charged with the i d entic al crime by citation used ss s final 
charging gsassxtaxtas would not have to be given a statement of the c sscnual elements of tbe crime charged. Lessen 
does not lead to such sa tt 1 — result. 

Tn understand the distinction sa Leach, it is helpful to look to the purpose and function of charging 
Baa ax ex e a a at e X. The pnmary purpose u to give sjotice to an s ec s w ed so a d efen s e can be prepared. [Kjormk. 117 
Wo 2d si 101, 112 P 2d 86) There are two aspects of this notice function involved in a charging axsxeatsxeat 
(1) she dta ci sy txa s (elements) of the crime charged; and (2) s description of the specific conduct of the 
defendant which allegedly constituted that crime. As we recently made clear in JJoovtt, {Kjonvik, 117 Wa 2d 
at 98. 812 P 2d M| the 'eon eolcung at Leech requires that the defendant be apprised of axe elements of the 

CCT V. WILEY 
MEMORANDUM OPINION 
PAGE 5 



appear in any form, or by fair construction 
can they be found, in the charging document; 
and if so, (2) can the defendant show that he 
or she was nonetheless actually prejudiced by 
the unartful language which caused a lack of 
notice. Id. at 7. 

James, 94-17157/17158 at 6-7. 

Applying the above standard to the facts at bar, the first 

question the Court must address is whether the citation issued to 

the Defendant contains all necessary facts sufficiently 

describing all elements of the crime charged and a describing the 

specific conduct of the defendant which allegedly constitute the 

offense. The Court believes not. 



crime charged and tic conduct of Ac defendant which U alleged la have conrtituicd thai crane.' Lnch noted 
that often charging dcrumrntt are written by alleging specific facta which aupnort each clement of the r rim r 
charted. llnsc*. 113 Wn 2d at 688. 782 P 2d 5S2J 

A Ithoof h Leach Mated nut the facta need not be aa detailed in a citation hecauee it it ieaued at the 
acene of the alleged crime, k aid not my mala citation need not act out me eaaential ctcmmti of the crime 
charged. In fact, tench specifically held mat a citation describing an offenae aa DWI (me well known acronym 
for Driving While Intoxicated) waa sufficient because it wai *a c o m pl ete — — I of Ac statutory I ami n i l 
crmttkuimg ml offenae charged'. {L—ck, 1 13 Wn.2d at «95. IB P.2d 5521 Ann a anrntinhniinni 
engendered by Lmck mould have been put to rent by imaU r. Mem. 115 W. 2d 555. 799 P 2d 734 (1990). 



Sinon we reaffirm Lane* and fMa. m further mnfcdnsj herein, the proper anelyeie by which to 
consider mc eufTKicncy of meae charging document! it mat round in our recent Demi on in Smt ». JJoravat, 
117 Wo. 2d 93. H2P.2dt6(199l). AJamnc herd tm af ilimull of a crime mure he included in ml charging 
dm ami el (Footnote omitted ) k alto held mat the rwmirutinnalily of a charging namunmj em be firit rained 
on a pp ea l but aria be more liberally construed in favor of va lid ity if not i hal b n gi i l until after nmtjt AJormt, 
117 Wa.2d at 102, 112 P 2d to We iho held Out if such iaaus ia raised for the fir* lane on appeal, me 
2-prang IQomti lest asks: (1 ) do the necessary facta appear in any form, or by fair construction can mqr he 
found, in the charging document, and. if kj. (2) cm the defendant mow that he or die waj aooethe leu actually 
prejudiced by the inartful language which caused a lack of nonce. The tint prong of the test looks to *e fnes 
of me charging document itself and mere meat be tome language ■ mt document giving at least some evir a ti on 
lift nil ins, il n I Warned*, 117 Wn 2d at 106. !12 P 2d 86] One data not reach mc second or prejudice 
prong unlest mere it aome language relating to the e l emen t how e v er saarrAd—in me c aw i md . m the eases 
before us, the csntiona make no attempt to Mate toe elemeou or me facta aucti o n i n g tat clemcnu. they rnercry 
stale the numerical code sections drfining the ofTcnaea and toe liuca of the orTcnaea alleged 



sbmaW. 119 Wo 2d at 628 36. 

CCT V. WILEY 
MEMORANDUM OPINION 
PAGE 6 



387 



The citation issued to the Defendant charged him with 

violating CTC S 5.6.01, "Alcohol Circle Grounds." CTC § 5.6.01, 

Violation of Tribal Ordinances, states: 

Any person who shall violate any Tribal 
Ordinance or any other Council enactment 
designed to preserve the peace, health, 
safety, welfare and morals of the 
Reservation, for which violation a punishment 
is not prescribed under any provision of 
this Code or the Ordinance or enactment 
itself, shall be guilty of Violation of 
Tribal Ordinance. Violation of Tribal 
Ordinance is a Class B offense. 

CTC § 5.6.01 is an enabling statute allowing an officer or 

prosecutor to charge a defendant for violating an ordinance or 

Business Council enactment which is not enumerated in the 

Colville Tribal Code. By itself, CTC S 5.6.01 is not a valid 

statute to charge a defendant. If an officer or prosecutor is 

charging a defendant under CTC § 5.6.02, a reference must also be 

made to the appropriate ordinance or enactment in which the 

defendant is to have alleged to have violated. 

In the present case, there are two possible resolutions in 

which the officer could have charged the Defendant under.* 

Resolution 1982-333 states in pertinent part: 

Colville Confederated Tribes Annual 4th of 



Two other rcacojuooi cited by both p.nic, Rea otutioo 1992-230 and Rcto t ution 1993-320, are apecific, dated prohjfcmooi which do 
aoc apply taader the facts of ttm case. 

CCT V. WILEY 
MEMORANDUM OPINION 
PAGE 7 



July Celebration Grounds Regulations: 
1. The use and possession of alcoholic 
beverages, drugs, and/or controlled shall not 
be allowed. 

The foregoing regulations have been approved 
by the Colville Business Council, and any 
person who violates regulations 1 through 4 
shall be guilty of an offense and upon 
conviction shall be punished as provided in 
Section 5.6.01 of the Tribal Law and Order 
Code. 

Resolution 1987-404 states: 

It shall be a Class D offense under the 
Colville Tribal Law and Order Code for any 
person to possess and/or consume alcohol 
within the Nespelem Circle Grounds until 
further notice. Signs shall be posted in the 
area advising of said prohibition. 

Because the citation issued to the Defendant did not contain an 

addition reference to one of the above resolutions, the citation 

failed to give the Defendant notice of the specific offense which 

he was charged. 

In addition, the mere wording of the citation, "Alcohol 

Circle Grounds," fails to list the essential elements of the 

offense. That is, in order for the Defendant to be cited for 

violating the above resolutions, the Defendant would have had to 

either possess or consume alcohol. Neither possession or 

consumption is alleged in the citation. Thus, the citation 

failed to give an adequate description (elements) of the offense 



CCT V. WILEY 
MEMORANDUM OPINION 
PAGE 8 



389 



charged and failed to describe the specific conduct of the 
defendant which allegedly constituted the offense. 

As to the second prong, whether the defendant was prejudiced 
do to the insufficiency of the citation, the Court believes so: 
(1) Defendant has not had the opportunity to adequately prepare 
his defense; and (2) arguing this matter at trial would be 
impossible without knowing the specific offense charged. 7 

ACCORDINGLY, it is ORDERED, ADJUDGED and DECREED: 

1. This matter is dismissed without prejudice because the 
citation fails to state the essential elements of the 
offense and fails to properly cite the violation; and 

2. The Clerk of the Court is to serve a copy of the 
Memorandum Opinion on all parties. 



3o<* 



DATED THIS Z*s- dav of January, 1996. 




I torck? etniiy tut 1 mr—t • cooy •* *■» < « — " ■ » <*>■ 



t-Rcpiu< Ma* C-CuiifWrf; LKA-U* Kaom A Mm*; 
l-lMcraffm M»l. rrtnoul Scmcr. 0-O*cr<Seecif]r) 



Sim »c Court is <i»MiMt tea Ma w«hox ,wj«<iri, md iirmi aMm of •• , « rt i « nin< tej u 

CCT V. WILEY 
MEMORANDUM OPINION 
PAGE 9 



COLVILLE 


CONFEDERATED TRIBES, ) 






Plaintiff, ) 


vs. 






LONNIE R 


ABRAHAMSON , ) 






Defendant. j 



390 



'3 APR95 1^50 
COLVILLE TRIBAL COURT 

IN THE TRIBAL COURT .OF. THE 
COLVILLE CONFEDERATED TRIBES INDIAN RESERVATION 



No. 95-18021 



FINDINGS OF FACT AND 
CONCLUSIONS OF LAW 






I . HEARING 

1.1 An evidentiary suppression hearing was held on March 
27, 1995 on Defense counsel's motion to suppress 
evidence obtained in the arrest of the Defendant for 
Driving While Under the Influence of Intoxicating 
Liquor or Drug (DWI) . 

1.2 Present at the hearing were: 

Wayne Svaren, Deputy Prosecuting Attorney 
Jeff Rasmussen, Public Defender 
Lonnie R. Abrahamson, Defendant 

1.3 Oral arguments were heard by Chief Judge Mary T. Wynne. 

II. FINDINGS OF FACT 

Based on the March 27, 1995 hearing, and a thorough 
review of the file, the Court finds the following: 
2.1 On January 17, 1995, at approximately 9:30 p.m., 

Corporeal (Cpl.) Evans, Tribal Police, was dispatched 

FINDINGS OF FACT AND 
CONCLUSIONS OF LAW 
PAGE 1 



391 



to a one car accident on SR 155 near mile post 53, 
within the exterior boundaries of the Colville 
Confederated Tribes Reservation. 

2.2 When Cpl. Evans arrived at the scene of a one car 
accident he observed a single car, license plate number 
WA KJH 427, that appeared from the tire tracks to have 
slid off Highway 155 into a snow bank. 

2.3 Cpl. Evans noticed an individual, later identified as 
the Defendant, standing behind the driver's side door 
of the vehicle and no other possible individuals at the 
scene. 

2.4 At the suppression hearing, Cpl. Evans testified that 
the Defendant stated the following unsolicited 
statements: 

2.4a M I was driving and just slid off the road." 

2.4b "I only had a six beers." 

2.4c "Can you pull me out? I want to go home." 

2.5 At the suppression hearing, Defendant testified: 

2.5a That he did not own, or ever own, the vehicle 
but, rather, the vehicle was owned by his 
sister, Pamela Abrahamson. 

2.5b That Darrel Nanpuya was in the vehicle with 



FINDIKGS OF FACT AND 
CONCLUSIONS OF LAW 
PAGE 2 



392 









hi* when the vehicle slid off the road. 
2.5c That he stood outside the vehicle 

approximately 30-40 minutes prior to Cpl. 

Evans arriving at the scene. 
2.5d When asked by Mr. Svaren, "Do you recall your 

contact with Cpl. Evans?," Defendant 

responded, "Yes." 
2.5e When asked by Mr. Svaren, "Did he (Cpl. 

Evans] ask you any questions?," Defendant 

responded, "No. I can't recall." 
2.5f When asked by Mr. Svaren, "But you spoke to 

him [Cpl. Evans]?," Defendant responded, "I 

guess not . " 
2.5g When asked by Mr. Svaren, "Did he [Cpl. 

Evans] ask who was driving the car?," 

Defendant responded, "Yes." 
2.5h When asked by Mr. Svaren, "What did you tell 

him [Cpl. Evans after he asked you if you had 

been driving]?," Defendant responded, "I told 

him that I was driving." 
2.5i When asked by Mr. Rasmussen, "Did you say 

what Officer Evans said you said?," Defendant 



FINDINGS OF FACT AMD 
CONCLUSIONS OF LAW 
FAGS 3 



393 



responded , "No . ■ 
2.5f When asked by Mr. Rasmussen, "Had you been 

drinking?," Defendant responded, "Yes*. Can't 
recall how much." 

2.6 At the scene, Cpl. Evans noticed the following: 

2.6a Strong odor of intoxicants on the Defendant's 

breath ; 
2.6b Defendant's speech was thick and slurred; 
2.6c While standing, the Defendant was weaving 

from side to side; and 
2.6d Defendant was disorientated. 

2.7 Cpl. Evans also reguested a registration check from 
Tribal Police Dispatch and was informed that the 
vehicle was registered to the Defendant.' 

2.8 Having determined that field sobriety tests would be 
dangerous to the Defendant because of a slippery road, 
no field sobriety test were done at the scene. 

2.9 Based on Cpl. Evans' investigation at the scene, Cpl. 
Evans placed the Defendant under arrest, handcuffed the 
Defendant and placed Defendant in his patrol car. Cpl. 



fined AbnhMtton* Defmdani'i inter. 

FINDINGS OF FACT AMD 
CONCLUSIONS OF LAW 
PAGE 4 



for *• which he •Uefolly dran. The car wo i cK i l ry nf inuva to 



' 



394 



Evans did not read the Defendant his Miranda rights 
when he placed him under arrest. Defendant was 
transported by Cpl. Evans to the Tribal Police 
Department . 

2.10 Upon arrival at the Tribal Police Department, Cpl. 
Evans administered three (3) field sobriety tests: 

2.10a Nostagmus Stagmus Gaze Test: Defendant 
failed. 

2.10b Walk and Turn Test: Defendant failed 

because he weaved from side to side; had 
to grab onto something two times; 
stepped off the line three times; and 
had to use his arms to balance himself. 

2.10c On Leg Stand Test: Defendant failed 
because he swayed from side to side; 
grabbed a corner of a desk three times; 
kept foot off the floor only for four 
counts; weaved from side to side; and 
had to use his arms to balance. 

2.11 Defendant was advised by Cpl. Evans of his Miranda 
rights at 10:18 p.m.. Defendant refused to sign 
"Statement of Constitutional Rights" for until he 



FINDINGS OF FACT AND 
CONCLUSIONS OF LAW 
PAGE 5 



395 



1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 



talked to an attorney. Defendant talked to an attorney 
and then signed the form. 

2.12 Defendant was advised by Cpl. Evans his "Implied 
Consent Warning for Breath" at 22.21 p.m. and Defendant 
signed this form. 

2.13 After the Defendant was read both rights, Cpl. Evans 
checked Defendant's mouth and waited the fifteen 
minutes before administering the actual BAC test. 

2.14 BAC test was administered and completed at 22:55 p.m.. 

III. CONCLUSIONS OF LAW 

3.1 In criminal cases, Rules of Court, CTC § 4.1.11, 

mandate this Court to following the following 

applicable law: 

In all the Court shall apply, in the 
following order of priority unless 
superseded by a specific section of the 
Law and Order Code, any applicable laws 
of the colville Confederated Tribes, 
tribal case law, state common law, 
federal statutes, and federal common law 
and international law. (Emphasis added.) 

In other words, this Court shall look sequentially to 

laws and powers of the Colville Tribe, to the law of 

other tribes, and then to other sources of law such as 

state, federal and international. Only when prior 

Colville Court decisions, Colville ordinances, and 



FINDINGS OF FACT AND 
CONCLUSIONS OF LAW 
PAGE 6 






396 



other tribal case law, are silent on issues before this 
Court, will this Court look to state and federal law. 
Extrinsic case law is advisory only. CTC v. St. 'Peter, 
AP92-15400, AP92-15507-15510 (1993); Pouleyv. CCT, 
CV94-14286 (Colv.Tr.Ct. 1994); Harris v. Vargas, CV94- 
14539, 3 (Colv.Tr.Ct. 1994); see also CCT v. Wiley, 
AP93-16237, 15 (Colv.Ct . App. 1995) (United States 
Constitution not binding on Tribal Court) ; CCT v. 
Stensgar, 92-15437, 6 (Colv.Tr.Ct. 1993) (Washington 
State and United States Constitutions not binding on 
Tribal Court); CCT v. Stensgar, AP92-15068 (1993) (Court 
not bound by Washington Court Rules) ; CCT v. Condon, 
AP92-15313 (1993) (Court not bound by Federal Rules of 
Evidence); CCT v. Sam, Nos. AP92-15379/80, AP92- 
15414/15 (1992) (Washington laws regarding sentencing 
not binding on Court) . 
3.2 "No police office may arrest any person for any offense 
defined by this Code . . . except ... he shall have 
probable cause to believe that the person arrested 
committed the crime." CTC $ 2.2.04. 2 



2. Under CTC I 2.2.04, two odicr riwori ow exial for in officer to make an arrest (I) oflduc occurred m ihc prcaeace of *c ofTic 

and (2) I— i of an arreat warrant. Nadaer exception are applicable to the facta of tht t case, 

FINDINGS OF FACT AND 
CONCLUSIONS OF LAW 
PAGE 7 



397 



3.3 To make an arrest, an officer must have probable cause 

that a violation of a law has occurred. Southern Ute 

Tribe v. Williams, 18 Indian L. Rep. 6049, 6050' (S.Ute 

Tr.Ct. 1990) . In defining probable cause, the Williams 

court stated: 

[Wjhether probable cause exists is an 
objective test, there must be facts which 
would lead a reasonable person to determine 
that the officer had grounds to believe that 
a violation of law has occurred [and in the 
case of a vehicle stop] and the individual 
being stopped has committed the violation. 
Although probable cause requires more than a 
mere hunch, suspicion or speculation, it does 
not require that the officer have proof of 
guilt beyond a reasonable doubt. Whether the 
officer subjectively believed probable cause 
did or did not exist is not a factor when 
making an objective determination in regards 
to probable cause. See 1 W. LaFave and J. 
Israel, Criminal Procedure § 3.3(b) (1984). 

Williams , 18 Indian L. Rep. at 6050. See also CCT v. 

Adolph, 80-3354, 7 (Colv. Tr.Ct. 1981) (probable cause 

exists on less evidence that is required to convict an 

individual) ; Southern Ute Tribe v. Price, 18 Indian L. 

Rep. 6117, 6118 (establishing probable cause by 

information given by informant) . 

3.4 Cpl. Evans testified that when he arrived at the scene 

of a one car accident he observed a single car that 

appeared from the tire tracks to have slid off Highway 

FINDINGS OF FACT AND 
CONCLUSIONS OF LAW 
PAGE 8 



398 



155 into a snow bank. He also noticed an individual, 
later identified as the Defendant, standing by the 
driver's side door of the vehicle and no other possible 
individuals at the scene. The Defendant told Cpl. 
Evans that he had been driving and had consumed 
alcohol. At the scene, Cpl. Evans noticed the 
following: (1) strong odor of intoxicants on the 
Defendant's breath; (2) Defendant's speech was thick 
and slurred; (3) while standing, the Defendant was 
weaving from side to side; and (4) Defendant was 
disorientated. Cpl. Evans also reguested a 
registration check from Tribal Police Dispatch and was 
informed that the vehicle was registered to the 
Defendant. Based on all of this information, Cpl. 
Evans placed Defendant under arrest for DWI . From 
these facts, the Court concludes that a reasonable 
person would have concluded, based upon those things 
the officer observed, that an offense, DWI, had been 
committed and the Defendant had committed the offense. 
Therefore, the arrest was legal because it was 
supported by probable cause and the Defendant's motion 
to suppress evidence based on an invalid arrest is 



FINDINGS OF FACT AND 
CONCLUSIONS OF LAN 
PAGE 9 



399 



denied. 
3.5 The corpus delicti rule is rooted in early Anglo 

jurisprudence. 1 The rule was established by the' courts 
to protect a defendant from the possibility of an 
unjust conviction based upon a false confession alone. 4 
The requirement of independent proof of the corpus 
delicti before a confession is admissible was 
influenced somewhat by those widely reported cases in 
which the "victim" returned alive after his supposed 
murderer had been tried and convicted, and in some 
instances executed. 1 It arose from judicial distrust 
of confessions generally, coupled with recognition that 
juries are likely to accept confessions uncritically* 
and often give more deference to the testimony of 
police officers who may of been the only other witness 
to the admissions. 7 This distrust stems from the 



. Ov*ar. 106 W« 2d 549. 575-76 (19*6); set also feamU % Hmmtat), 15 w«d 147 <N. Y. 1 136); r*mmk ft 1mm. 31 
CM. 546 (1167). am ft Manet*, 43 Wa. 27J. 16 r 516 (1906); Note, free/mf** Cmwm DeMot Atamm m* Pefmiull 
m. 103 II Pi I. Rev 6)1 (1933). 



mremenm. 106 W. 2d m 576. Smut, ,. Ume4 Smm. J4I U.S. 147. 73 SO 194. 99 L Ed. 192 (1954). 

&».*«.. FrrrySCese. 14 HomTt SUM Trail 1311 (1660); Trim! of Sieve* mmd Jessie Boom, 6 Amoka i 
t ft ■— ft , 102 Or. 431. 203 P. 311 (1921); Note, 103 U. P. I. Rev. M *4«-47. 



t. mremenm. 106 W« 2d m 37*: Oi 1.) ■ fa ttt lm Cmmiimu, 79 rU«v L Rev 935. 1073 (1966); Note. I0S U Pi I. Rev M 

•42-43. 

7. HmU, 19 w. Apv « 420. 

FINDINGS OP PACT AMD 
CONCLUSIONS OP LAW 
PAGE 10 



400 



possibility that the confession may have been 
misreported or misconstrued, elicited by force or 
coercion, based upon mistaken perception of the' facts 
or law, or falsely given by a mentally disturbed 
individual. 1 Thus, the corpus delicti rule was 
established to prevent not only the possibility that a 
false confession was secured by means of police 
coercion or abuse but also the possibility that a 
confession, though voluntarily given, is false.' 
3.6 Washington State courts have recognized that proof of 
the corpus delicti in a case charging driving or being 
in physical control of a vehicle while intoxicated 
differs from many crimes where identity is not an 
element of the corpus delicti. 10 Proof that a car ran 
off the road, caused an accident or stopped in a 
traveling lane does not establish that an element of 
the offense was committed. Likewise, proof that 
someone was intoxicated does not prove that person 






I. Note. 103 U.Pa.L.Rcv. at 642-46; Note, Ctmfaskm Corroborate* k Ht» fort.- A RrpUcrmrm far tV Corpm Dtbci Rmir, 46 

For*Ml L Rrv 1205 (197*) 

9. trmurum. 106 W».M M 576-77, Nat. Crimmml Uw-C*fasiav-A*mbi*Xiy a/ Corrabormmrt BrUme*. 42 N.C.L.Ho.. 219, 221 
(1963). 

10. Suit a Hamncl. 19 W.App. 417. 419 (I97«) 

FINDINGS OF FACT AND 
CONCLUSIONS OF LAW 
PAGE 11 



401 



drove or was in control of the car. Inherent in the 
offense is the requirement that the intoxicated person 
was the driver or was in control. Under Washington 
State case law, corpus delicti cannot be proved without 
proving someone's criminal agency which in turn 
requires identification of a particular individual who 
is under the influence. Thus, the corpus delicti of 
the offenses charged here cannot be established absent 
proof connecting the petitioners with operation or 
control of a vehicle while intoxicated." 

3.7 Defendant has not offered any tangible reasons for this 
Court to adopt this ancient Anglo rule. It has been 
the experience in this Court that jurors in a tribal 
court carefully and critically evaluate the testimony 
of witnesses, especially police officers. 

3.8 There is nothing in the record or cited by the 
Defendant that establishes a sufficient foundation for 
a finding by this Court that tribal court juries are 
not capable of critically evaluating all evidence in 
each case, including correctly weighing a confession in 
light of all evidence, or lack thereof, in the record. 



II. trmmnm. 10* Wa.U tf $74. 

FINDINGS OP PACT AMD 

CONCLUSIONS OP LAW 
PAGE 12 



402 



In addition, there is nothing in the record that tribal 
court juries are not capable of evaluating the weight 
of an alleged statement in light of the Tribe's' burden 
of proof. 

3.9 Until a record is established showing that this 
principle of Anglo-Saxton jurisprudence is rationally 
applicable within the tribal context, the Court will 
adhere to its ruling in CCT v. Friedlander and not 
adopt the corpus delicti rule." 

3.10 Self-incriminatory statements made by a defendant 
stemming from a custodial interrogation may be excluded 
if the procedural safeguards set forth in Miranda v. 
Arizona** are not followed. These safeguards are 
commonly referred to as Miranda rights. 14 CCT v. 
Friedlander, 82-5359, 2 (Colv.Tr.Ct. 1983); CCT v. 
Martin, APA191-11042, 3 (Colv.Ct. App. 1992). 

3.11 By its definition, custodial interrogation means that a 



la to holding , ihii Court note* that many Anglo court! and legal comnteouion are alao critical of the corpue delicti rule. Sm r €.$.. 
Opptr ». Vmiri Skua. 341 U.S. M. 75 S.Ct. 1 58, 99 L Ed 101 (1954); Siau v. Purtrr, 315 N.C. 222. 357 S.E.2d 417 (19(5); 
Suu k YathUla. 44 Hawaii 352. 354 P 2d 916 (1960); Sutr r. Gtortt, 109 N H. 531. 257 A 2d 19 (1969); C. McCorauca. Ov id cie 
I 145 (M ed. 19*4); Note. 46 Fordham I. Rev. 1205; Co—mi. 20 U CI. A L Rev 1055; Annot . Cambomttm jftm+MM 
.45 A.L.R.74 1316 (1956). 



13. CU* t MlnmJm v. Artumm. 314 U.S. 436. U SO. 1602. 16 1 Ed 2d 694 (1966). 

14. Under Tribal aaoptioa of Miranda, die defendant aural be auormed prior to cuatodiai aucrrogauoo (1) right to reaaaia ana*; (2) 
naytaaag be or abe aayacaabc uted again* him or her at trial; and (3) right to the ai a iataa ra of a hiwyor prior to nn r i rio nin g and during 

Mat 

FINDINGS OF FACT AND 
CONCLUSIONS OF LAW 
PAGE 13 



403 



defendant must be advised of his or her Miranda rights 
if: (1) defendant is in custody; and (2) defendant is 
interrogated. 

3.12 For Miranda purposes, a suspect is in custody as soon 
as a suspect's freedom of action is curtailed to a 
degree associated with formal arrest. 15 The sole 
inquiry is whether the suspect reasonably supposed his 
freedom of action was curtailed. 16 

3.13 Interrogation has been defined as "any words or actions 
on the part of the police . . . that the police should 
know are reasonably likely to elicit an incriminating 
response from the suspect." 17 The latter portion of 
this definition focuses primarily upon the perceptions 
of the suspect, rather than the intent of the police. 
Interrogation reflects a measure of compulsion above 
and beyond that inherent in custody itself." 



Noci bmdu* ucl»gin accord. Set Suit •>. Short, 113 Wn 2d 35. 40. 775 P 2d 458 (1989); Suut v. Harris, 106 Wo 2d 784, 789, 
725 P 2d 975 (1916). crn. dmird, 480 U.S. 940, 107 S CI IS92. 94 L.Ed.2d 7SI (1987)). 



Short, 113 Wn.2d at 41. 773 P 2d 4St; see olso Stole v. Sorgrm. HI Wn 2d 641, 649. 762 P 2d 1127 (1988) (cenphaaizinf dial the 
critical inquiry it whether the auapect's "freedom of movement wai rcitnclcd"). 



4, 63 Wa.App. J4I. 344-43, 828 f.2d at MtO (l992Kdf«« Rhode MM ». tiuiit. 446 U.S. 291. 301. 100 S.Q. 1682. 
64 L.Ed.2d 297 (19(0). 

II. Stm <r. Wort. 31 Wo App 443. 441, 794 P 2d Jl (1990). rev W m other ground,. Stole v. Bones, 1 17 Wo 2d 701, lit P 2d 1088 

FINDINGS OF FACT AND 
CONCLUSIONS OF LAW 
PAGE 14 



404 



3.14 General on-scene questioning as to facts surrounding a 
crime or other general questioning of citizens in the 
fact finding process is not an interrogation. 
Friedlander , 82-5359 at 2. 

3.15 Cpl. Evans testified that when he arrived at the scene 
of the one car accident, the Defendant, without being 
questioned, said, "I was driving and just slid off the 
road. I only had a six beers. Can you pull me out? I 
want to go hone." At this point, the Defendant was 
neither in custody or being interrogated. Such 
unsolicited, volunteered comments of the Defendant do 
not fall within the safeguards of Miranda. 

3.15 Normally, because of the non-testimonial nature, the 
administration of field sobriety tests do not require 
the advisement of Miranda rights. 1 * However, when Cpl. 
Evans placed the Defendant under arrest, handcuffed him 
and placed him in the patrol car the safeguards of 
Miranda apply: Defendants freedom of movement was 
curtailed and Cpl. Evans should know that any words or 
actions on the part of the him or an other officer 
would reasonably likely to elicit an incriminating 



i» 



Nan >■<■» «m» b» m m tnot4. Set Hitirmmm >. Whim*m Camiy District Omn. 105 W« 2d 796. 104-M. 711 T U 7»« (!««) 



FINDINGS OF FACT AND 
CONCLUSIONS OF LAW 
PAGE 15 






405 



response from the Defendant. 

3.17 When a defendant is subjected to custodial 
interrogation he or she first must be read their 
Miranda rights. In addition, a Defendant must be 
advised prior to the administration of a BAC test the 
right to refuse the test. CTC S 9.3.01. 

3.18 Cpl. Evans testified that he read the Defendant his 
Miranda rights at 22:18. This corresponds to the time 
on the Datamaster BAC Verifier that the observation 
period began. Thus, Defendant was advised of his 
rights prior to the conducting of the BAC test. After 
the Defendant was advised of his right to consult an 
attorney, he exercised that right by consulting an 
attorney by phone. After the conversation, at 22:21, 
Defendant was read his Implied Consent Warning advising 
him the right to refuse the BAC test. After the 
Defendant was read both rights, Cpl. Evans checked 
Defendant's mouth and waited the fifteen minutes before 
administering the actual BAC test. The physical 
checking of the mouth and the beginning of the fifteen 
minute observation period is when the test officially 
started. Therefore, this Court holds that both rights 



FINDINGS OF FACT AND 
CONCLUSIONS OF LAW 
PAGE 16 



406 



were given prior to the conducting of the BAC test and 
the results of the test are admissible as evidence at 
trial. 

IV . ORDER 
ACCORDINGLY, it is ADJUDGED, DECREED and ORDERED that: 

4.1 Defendant's motion to suppress evidence because of an 
illegal arrest is denied. 

4.2 Defendant's motion urging the Court to adopt the corpus 
delicti rule is denied. 

4.3 Defendant's motion to suppress statements made at the 
scene of the incident prior to the advisement of 
Miranda rights is denied. 

4.4 Defendant's motion to suppress the results of the field 
sobriety test because defendant was not advised of his 
Miranda rights is granted. 

4.5 Defendant's motion to suppress the results of the BAC 
test is denied. 

4.6 The Clerk of the Court shall set this matter for trial 



on ^lpn/ 91 , 1995, at Q'OO (O 
DATED this _L2jrday of April, 1995. 






FINDINGS OF FACT AND 
CONCLUSIONS OF LAW 
PAGE 17 

R Re»uW KCui. C -Certified. LKA-Ult K — Addreji. 
Ilaicrtyricc Mi* F-F«na»al Savin; O-OftcffSawiy) 




407 
























ATTACHMENT V. 

STATEMENTS FROM PEOPLE WHO PRACTICE 
IN TRIBAL COURT OR HAVE EVALUATED A TRIBAL COURT 



PROVIDES A VIEW OF DAY TO DAY TRIBAL COURT FUNCTIONS 

BY THOSE WHO APPEARED ON MULTIPLE CASES 

OR MAINTAIN INTIMATE FAMILIARITY THROUGH 

EVALUATIONS OR WORK WITH TRIBAL COURT 






408 



VERNON R. PEARSON 
JUSTICE OF THE HMMMflQM SUPREME COURT, ■aflMBD 

3408 117th Ave. N.W. 
GJg Harbor, WA 1 
253-265-2577 

Apr! 2,199* 



The MOMWBMi Ben Nighthorse Campbell 
Senate Select Committee on Indian Affairs 
Washington, DUX 

Dear Senator Cam pbeM, 

I served on the Washington State Supreme Court from 1982 to 1 WO. I was 
Chief Justice from 1987 to 1989. From 1987 to 19921 chaired a national 
coo » ul ta k i ng oouncM setup by the Confefeooe of Chief JuettopoftheU n Ki d 

Sta tes . This council cortsfted of tribal court, »l*l* court and federal court judges 
ana lawyers. ■ aeon exzensrveiy wnn creanng sohjdotis vo junsaicoonaj conmcts 
between these three court systems. Ft ■tvorved much study of tribal court 
s ymnm s tnroouyni to umw states ana resuRBO w j— w— agreements 
between stale and tribal court systems in about twenty states with significant 
Indian populations. These included among others, Washington, Arizona, 
L/Kianoma, Norm uaKota, Minnesota, aucrugan ana Wisconsin. 

in s dd Hi on | hi ve nMtfjdJ wwbI idfcel courtr in Ok la ho ma , Artwrw and 

Washington. In my state of Washington I have visited the Quinnault Tribal Court, 
the CorviBe Confederated Tribal Court and the Yaidma Tribal Court. I know many 
tribal judges here and throughout the country. 

It is my understanding that your Committee is now considering a bill, 
b I o» i , wTucn wouw anect tne ngnts or numerous careens m wasnington ana 
other states. This bifl, if enacted, would result in many thousands of cases being 
re m o ved front tribal cum la throughout the country, and shifted to state and 
reaeraj courts, a » Dasoo on a premise mat tnoaj courts are no* enrorcwig tne 
ctvfl rights of people who use those courts. It also presumes, with regard to 
sovereign immunity, tribal courts a re not rendering fai r, impartial and independent 
judgements whan the tribe Is a party, or when non-members of the tribe are 
involved. Because of my background and experience wfth these courts, I can 
offer valuable comments with regard to these presumptions. 



In 1991. et the request of the CorvtBe Trtoal Council. I < 
comprehensrveevaJuabon of the CohriUe Tnbal Court System. At that time, the 
Cotvffle Court was not a ^oonstJ tuBon ef" court as today. The evaluation 
conducted included case statistical review, budget analysis, independence and 
competency of the Judiciary, clerk of court review, auditing of acounts and 
receipting of money, etc^ In ahortj I dM a IU1 and c om prehensive review of this 



APR- 2-98 THU 10:08 AM 206 759 6473 



409 



Page Two 

Vimon R. I 

Latter ofAprt 2, 199* 



; 



cJearty the CorvtBe Court passed the test in each 
■Ml the judteacy of Ms MM court 
surrounding state courts. The 
tt» CoMM TMM Court raMtMni 
bo. 1 
i Mown those cim involving 




■y n»»w occurea Before vm uorvuw cnoaj meruoers. aoopceo a 

aendraent to provide for a separation of powora, making tha court 
system truly independent. Tha consblutwnai separation of power s now in piaca 
as it is in many tribal