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John Burrows Executive Director Center For World Indigenous Studies ()-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=() ||/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\|| ||=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-|| || || || The Fourth World Documentation Project runs entirely on grants || || and private donations. If you find this information service || || useful to you in any way, please consider making a donation to || || help keep it running. CWIS is a non-profit [U.S. 501(c)(3)] || || organization. All donations are completely tax deductible. || || Donations may be made to: || || || || The Center For World Indigenous Studies || || ATTN: FWDP || || P.O. Box 2574 || || Olympia, Washington USA || || 98507-2574 || || Thank You, || || CWIS Staff || || || ||=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-|| ||\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/|| ()=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-() ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: :: This file has been created under the loving care of :: :: -= THE FOURTH WORLD DOCUMENTATION PROJECT =- :: :: A service provided by :: :: The Center For World Indigenous Studies :: :: :: :: THE FOURTH WORLD DOCUMENTATION PROJECT ARCHIVES :: :: http://www.halcyon.com/FWDP/fwdp.html :: :: THE CENTER FOR WORLD INDIGENOUS STUDIES :: :: http://www.halcyon.com/FWDP/cwisinfo.html :: ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DOCUMENT: TS.TXT Indian Nations & Washington State Forming a Basis for Intergovernmental Relations Discussion Paper: State Policy And Indian National Policy PREPARED FOR THE CONFERENCE OF TRIBAL GOVERNMENTS STEERING COMMITTEE 01 May 1985 (Document: TS.anl 050185) CONSTRUCTING A FRAMEWORK FOR TRIBAL/STATE RELATIONS Copyright 1985 Center For World Indigenous Studies [Ed. Note: This article may be reproduced for electronic transfer and posting on computer bulletin boards in part or full, provided that no profit is made by such transfer and that full credit is given to the author, the Center For World Indigenous Studies and The Fourth World Documentation Project.] Fifteen years of starts and stops, conflict and retrenchment, conflict, confrontation and benigned neglect have long characterized the relationship between Indian Nations and Tribes and the State of Washington. Boundaries, land-claims, control over water, civil and criminal jurisdiction over Indians and non- Indians, taxation, fish and other natural resources have all been subjects of dispute. When issues of dispute are not contributors to conflict and confrontation, Indian Governments and the Government of the State of Washington have pretended that the other simply doesn't exist. Since 1970, the State Government and the various Indian Governments have added one more feature to their relationship in the form of "exchanged information" and movement toward mutually beneficial "joint efforts". Even as each of the governments would launch salvos of criticism, initiate legal challenges and otherwise exhibit confrontational behaviour, they continued through the 1970s to seek accommodation and new methods of cooperation. Not until 1980, when U.S. District Judge William Orrick rendered an opinion on PHASE II of the infamous _U.S. v. WASHINGTON_ federal court decision of 1974, where he found that the State of Washington was forced to protect salmon and steelhead runs from environmental harm as a consequence of ensuring Indian Treaty fishing rights, did tribal/state movement toward mutually beneficial cooperation begin to crystalize. Evidence of that movement toward cooperation became increasingly apparent in the field of fisheries management, and then in 1984 new areas of mutually beneficial cooperation were found in the development of the Colville Confederated Tribes Retrocession Legislation, the Quinault Coastal Highway Agreement and the land-claims negotiations concerning the Puyallup interests in the City of Tacoma and the Port of Tacoma. The sequence of Indian Government initiatives to advance the process of mutually beneficial intergovernmental relations with the State of Washington combined political actions and legal actions throughout the last fifteen years. Indian Government officials participated in the Indian Affairs Task Force with State officials and private state citizens in the early 1970s. They participated in the Governor's Indian Advisory Council, the American Indian Policy Review Commission; and in the late 1970s Indian Government officials worked in the formation of coalitions of private state citizens and organizations. Even as this political activity was conducted, Indian Governments either initiated or reacted to legal challenges concerned with fisheries questions, civil and criminal jurisdiction, taxation, water rights, hunting and religious rights and issues concerning retail business, gambling and liquor sales. Though the political and legal activities of Indian Governments were not coordinated under a consistent or organized Indian strategy, the principle effect of these activities was to move the state closer to accepting intergovernmental cooperation instead of confrontation. The state's movement toward intergovernmental cooperation was also a product of a growing awareness among state governments throughout the United States that political and legal confrontation with Indian Governments was contributing to a slow erosion of State Government powers in the fields of natural resources, environment, regulation of commerce, taxation and civil and criminal jurisdiction. Though Indian Governments and the State of Washington have clearly moved closer to each other in a spirit of cooperation on a range of issues, the gap remains very wide, indeed, between the governments. The State Government has adamantly withheld its recognition of Indian Nations as distinct peoples; and as nations with governments which exercise separate and inherent political powers. The state claim political control over lands within Indian National territories occupied by non-Indians; and the state continues to assert its regulatory powers over Indian and non- Indian economic activities within Indian National territories. Furthermore, the state asserts its political authority over civil matters within Indian Government jurisdiction such as education, health regulations, housing regulations, marital relations and the delivery of social and health services. All of these assertions of political and legal jurisdiction continue to undermine Indian Governments, and continue to erode Indian Government powers. The numerous "starts-and-stops" initiated by Indian Governments during the last fifteen years to establish a working intergovernmental relationship between themselves and the State of Washington have produced very modest successes, though in the final analysis, what has been achieved hangs on a very slim thread of "occasional mutual self-interest". The State of Washington has not formally recognized the political right of Indian Nations to exist, and it has not recognized the right of Indian Nations to exercise political and legal jurisdiction over people and territories within Indian Nation boundaries. There is no formal commitment between Indian Nations and the State of Washington to consistently seek to resolve disputes through bi-lateral or multi- lateral talks or negotiations. And there is no commitment to an ongoing mechanism for conducting intergovernmental relations. The non-existence of an ongoing, formal intergovernmental mechanism between Indian Governments and the State Government has, as it was observed by the Inter-Tribal Study Group on Tribal State Relations in 1980, contributed to continuing conflict between the State and Indian Governments. Changing State administrations and legislative membership have contributed to capricious state policy toward Indian Nations and ill-advised confrontations, in the name of States Rights. Similarly, Indian Governments experience frequent changes in political leadership, and, consequently Indian Government policies toward the state have frequently shifted between an emphasis on confrontation politics to cooperative engagement. Both the State Government and Indian Governments have experienced considerable erosion of government authorities; and increasing limitations have been imposed by the U.S. Federal Government on the powers of governance. Conflicts between Indian Nations and the State of Washington persist, governmental powers continue to be eroded; and increasingly, the U.S. Federal Government is expanding its authority into areas normally reserved to the State or to the Indian Nation. This trend has continued to accelerate as Indian Nations and the State of Washington continue to engage in conflicts over jurisdictional matters. The constant competition between the State and Indian Nations is, therefore, less a means for refining the definition of spheres of political and legal authority than it is a means for weakening State and Indian Nation powers, while increasing U.S. Federal power and influence. INDIAN NATIONS AND THE STATE OF WASHINGTON FACE OFF Indian Governments have consistently asserted a number of policy views in connection with the State of Washington. These have generally been: The State of Washington has no power to exercise political or legal jurisdiction within the boundaries of an Indian Reservation. The State of Washington is obliged to deliver social and health services to individual Indian citizens as a consequence of their State citizenship. The State of Washington has authority to regulate natural resources, by virtue of the Washington State Enabling Act, only to the extent that Indian Nations specifically relinquished authority as a consequence of treaties or other agreements with the United States of America. Otherwise, the State of Washington has limited authority to regulate natural resources (i.e. fish, game, water) within ceded Indian territories; and the State of Washington has no authority to regulate natural resources and lands within the boundaries of an Indian Reservation. The Indian Government policy position regarding the State of Washington's powers of governance in connection with Indian Nations is that the State has virtually no authority or power in Indian Affairs. While the assertions seem clear enough, the fact is that the actual practice of these positions has varied from one Indian Nation to another. In some instances, Indian Governments have actually permitted State exercise of jurisdictional powers in certain areas without serious contest. This is particularly true in the area of "citizenship rights". This is also particularly true in the area of economic policy where the state is permitted to exercise powers over many, if not all, economic activities within the boundaries of a reservation. In the fields of civil and criminal jurisdiction, Indian Nations have selectively contested the exercise of various state powers in the U.S. Federal Courts, but the results of these contests have not been particularly satisfactory. Often, when Indian Governments have contested state jurisdictional powers within the U.S. Court system, the results have tended to deny Indian Government jurisdictional claims while reinforcing state or U.S. Federal claims. The State of Washington has conducted two inquiries into its own policies toward Indian Nations since it became a state within the U.S. Federal System. The first was concluded by the Office of the Secretary of State during the 1950s, and generally approached Indian Affairs as an anthropological discourse with its focus on folk-lore and artifacts of past societies. In 1971, the State published an Indian Affairs Task Force report (Are You Listening Neighbor, State of Washington) which discussed a range of "public issues". This Report made recommendations for actions by State Government, the U.S. Federal Government and Indian Governments. No formal legislative or administrative policy evolved from this report to guide the State Government in its dealings with Indian Governments. On February 15, 1985 the Washington State Office of the Attorney General concluded the State's first comprehensive examination of relations between the State of Washington and Indian Nations in a report entitled, Indian Tribes And The State of Washington. This volume reviews conflicts between the State of Washington and Indian Nations from 1889 to the present. The report also considers optional strategies for dealing with Indian Nations in the event that conflicts arise: litigation, negotiations and federal legislation. While the report does not constitute state policy, its nine conclusions do suggest the probable trend of state policy, and, therefore, its likely emphases if an when such policy is formulated. A review of these conclusions explain the probable position the State of Washington will take if and when it enters in to formal intergovernmental discussions with Indian Governments. THE POTENTIAL BASIS FOR STATE POLICY TOWARD INDIAN NATIONS The Attorney General's report observes that the focus of state-tribal litigation was centered on Indian fishing rights and state taxing jurisdiction during the 1970s, but "Today the major focus has shifted to Indian land claims and assertions of tribal civil jurisdiction over non-Indians, including regulation of water, imposition of taxes, and establishment of land-use controls." The authors (Assistant Attorneys General Dennis D. Reynolds and Jeffrey D. Goltz) note that while other areas of conflict continue, "these areas pose new challenges for the State, local governments, and citizens." The authors go on to note that the State has historically reacted on an ad hoc, and piecemeal basis in tribal-state conflicts. The purpose of INDIAN TRIBES AND THE STATE OF WASHINGTON is to define "a more comprehensive overview" to "facilitate resolution or avoidance of disputes". These are the conclusions of the Attorney General's Report: One reason that the State of Washington and its Indian citizens have frequently been in court is because no one truly understands _what position an Indian tribe occupies within the federal system._ The United States has a federal system of shared national and state authority. Indian tribes, however, occupy a unique position in the federal system. While tribes possess undefined governmental powers, they are not the equivalent of states or foreign nations. In a governmental sense, tribes are truly sui generis [one of a kind]. A unique attribute of tribal governments is that, unlike the national, state, or local governments, those who reside within the boundaries of reservations are not necessarily entitled to participate in the selection of those who make tribal laws. Indeed, non-members constitute the majority on many reservations. This is at odds with a basic notion of the American democratic tradition: consent of the governed. Indeed, it is that very difference between tribal and other governments which has been one of the sources of friction between tribes and non-Indian citizens of the State. The major source of friction is that frequently the tribal claims are actively asserted to change the status quo which has been in existence for approximately one hundred years. Such claims thus threaten long established life patterns, ownerships, and livelihoods. Congress, which enjoys plenary power over Indian tribes, has complicated the picture further by taking various positions throughout history regarding the nature and extent of tribal sovereignty. The vacillations of federal policy have ranged from terminating tribal existence and sovereignty to, at other times, encouraging tribal growth and self determination. The dominance of federal policy has often left the State of Washington reacting to federal policy, rather than developing and implementing its own policy. When federal policy has embraced the view of enhancing strong, independent tribal governments, and urged a theory of Indian immunity from state laws, the level of litigation has increased. Conversely, when federal policy has been to terminate tribes and assimilate them into society, the level of litigation has decreased. Current federal policy is succinctly stated as one of strong recognition of tribal sovereignty. Consequently, the State is left with a difficult objective: how to govern a complex, interdependent society with independent "sovereignties" existing as jurisdictional enclaves within its borders. The uncertainties surrounding the status of Indian tribes within the federal system, together with frequent federal policy shifts, have combined to encourage disputes between the State of Washington and Indian tribes within its borders. Many of these disputes also arise because Congress does not adequately perform its role. Often the issue between the State and its Indian citizens is one of Congressional intent embodied in either a treaty or a statute. Congress could have made its intent clear and, thereby, avoided or lessened the range of conflict. But that intent is often not clear, perhaps because of the nature of the political process. Consequently, the details of the Congressional intent are frequently worked out by administrative or judicial interpretation. All Indian-State disputes are not alike. They involve different issues, different factors, and different sets of tribal, state, federal, and individual interests. Further, the various disputes have different histories. Because of these differences, different approaches to dispute resolution both are necessary and desirable. * * * While none of these three approaches --- negotiations, litigation, and legislation --- is the one single solution, our experience with them all should teach us how to approach the disputes now facing the State of Washington. Simply stated, the solution must be tailored to fit the problem at hand. The State of Washington's first serious inquiry into the nature of relations between itself and Indian Nations reflects many of the same conclusions arrived at by the Inter-Tribal Study Group on Tribal State Relations in its report entitled Tribes And States in Conflict: A Tribal Proposal (1980). Unlike the Attorney General's report, however, the Inter-Tribal Study Group on Tribal State Relations suggested that dispute resolution could be best handled through a Tripartite Intergovernmental Mechanism which includes representation from the Federal Government, Indian Governments and the State Government. (NOTE TO READER: The Inter- Tribal Study Group on Tribal State Relations was formed in November 1979 with assistance of a grant from the Donner Foundation. Membership included: Joe DeLaCruz, Chairman of Quinault; Russell Jim, Councilman of the Yakima Nation; Calvin J. Peters, Chairman of Squaxin Island; Mary Jo Butterfield, Councilwoman of Makah; Jim Wynn, Councilman of Spokane; Shirley Palmer, Councilwoman of Colville; Russell Penn, Chairman of Quileute and Cliff Keeline, Chairman of the Muckleshoot.) The similarities between the Attorney General's February 15, 1985 Report and the Inter-Tribal Study Group on Tribal/State Relations Report are quite striking. Both reports contain a primary conclusion that uncertainties about "the position that Indian Tribes occupy in the Federal System" contributes to conflicts between Indian Governments and the government of the State of Washington. The Tribal Study of 1980 asserts: "Indian Nations and Tribes are not now, nor have they ever been, a part of the U.S. Federal System of Governments." The Attorney General's Report simply indicates the uncertainties connected to the definition of Indian Tribes in the U.S. Federal System contributes to the high incidence of tribal/state conflicts in court. The Inter-Tribal Study Group on Tribal State Relations observed that the position of Indian and non-Indian citizens within the boundaries of Indian Reservations and their divided loyalties between the State Government and Indian Governments contributes to conflicts and undermines the exercise of legitimate powers of Indian Governments. The Attorney General's Report observes that the rights of non-Indian citizens within the boundaries of Indian Reservations are not protected and that this situation is "at odds with a basic notion of the American democratic tradition: consent of the governed." In terms of these two reports, it is obvious that people within the State of Washington's government and people within Indian Governments are moving toward a common analysis of the problem between Indian and State governments. While neither has begun to arrive at a common solution -- on this there remains a considerable gap -- it does appear, however, there is now a basis for serious discussion on the creation of an intergovernmental framework between Indian Governments and the Government of the State of Washington. Before such a framework can be established, some working principles must first be defined and agreed to. COMMENTARY ON STRATEGY: The most fundamental issue concerning Indian Nations and tribes is a political issue: What is the political status of Indian Nations and Tribes in relations to the United States of America, the U.S. Federal System and the State of Washington? For the State of Washington, this is a troubling issue that is presently unanswered. For Indian Nations, this is a vexing problem because until this question is answered the conflicts they have with surrounding governmental jurisdictions (city, county, state and federal) will persist without concrete solutions being defined. The question of Indian Nation Political Status is fundamental to the serious conduct of government-to-government relations. Without a clear definition of Indian Nation Political Status, the federal government will be unable to recognize Indian Governments as a legitimate counterpart in negotiations. Indian Governments will continue to be viewed as "bureaucratic" extensions of the Bureau of Indian Affairs (which is the way Indian Governments are viewed despite the rhetoric about sovereignty, self-government and self-determination.) Unless and until the political status of Indian Nations is defined, the State of Washington will continue to regard Indian Nations as sui generis anomalies which are neither a part of the U.S. federal system, nor, separate from the federal system. The State of Washington will continue to regard Indian Nations as little more than "peculiar minority organizations". The process of establishing a framework for government-to- government relations between Indian Governments and the State of Washington can be a step in the direction of "defining the political status of Indian Nations and Tribes". Indeed, because this issue is seen as a major stumbling block by, at least, some elements of the State and Indian Governments, it is essential that the issue become a center-piece of informal and formal talks between Indian Governments and the State of Washington. It is also clear, that the issue cannot be fully settled until the United States of America is brought into the discussions. Indian Government relations with the State government and the federal government will be conditioned by how Indian Nation political status is defined. If working principles concerning government-to-government relations can be defined and agreed to, they will be largely determined by how Indian Nation Political Status is defined. There are three forms of political status which characterize nations throughout the world. These are: ABSORBED STATUS, FREE ASSOCIATION STATUS AND INDEPENDENT STATUS. These are terms of reference which describe the relationship between nations. Each status varies in its characteristics as follows: Nations related to one another in political terms. Their status among nations in the world is largely dictated by whether they have either been coerced into a relationship either by violent confrontations, or political expedience, or a choice of the nations involved. In the case of Indian Nations, they possess no political status in terms of the categories presently given as attributes of a nation's status. Indian Nations may be described as "unwilling conscripts who have come under the domination of a State" (read U.S.A.). Indian Nations need not remain in the condition of obscurity, they may choose to change their present situation by seeking to achieve one of the following forms of nation Political Status. ABSORBED STATUS Indian Nations may choose to socially, economically and politically absorb into the United States by claiming minority status as members of a larger population. Indian Nations may choose to absorb into the United States as a group by seeking to establish their nation as a State within the federal system of governments. This form of absorption is called national political absorption and essentially suggests that the Indian Nation seeks to share in political power with the federal and other state governments -- and the Indian Nation is willing to subordinate its interests to that of a larger state, though sharing in political power which is delegated under the U.S. Constitutional system. Indian Nations may choose to simply disband and encourage individuals to integrate into the U.S. social and political system. All of these variations of the form of status known as absorption reject assertions of distinct political existence of an Indian Nation. FREE ASSOCIATION STATUS Indian Nations choosing this form of status seek to retain their distinct political character and large measures of internal sovereignty, but they accept the dominance of a greater power to regulate and control their foreign affairs and national defense. Indian Nations may choose a form of association called "commonwealth", "free associated state", "protectorate" or "trust territory". Puerto Rico is a commonwealth, the Federation of Micronesia is a free associated state, the Alaska was a Trust Territory before becoming a state of the United States, and San Marino is an example of a protectorate. INDEPENDENT STATUS Indian Nations may choose to claim total independence from the United States, and thus be regarded as a foreign nation. Such "foreign states within a state" exist in South Africa with the presence of Lesotho and Swaziland, and in Italy with the presence of the independent city-state of the Vatican. When the Washington State Attorney General speaks to the question of "defining the position that Indian Tribes have in the U.S. Federal System" he is referring one of these forms of political status. The application of one of these forms of status to a particular nations determines how their governments deal with one another. The political status of a nation determines how it conducts political, economic and social relations with surrounding political entities. The absences of a political status produces confusion and conflict between a nation and its neighbors. As a basic issue, therefore, Indian Nation Political Status must be resolved before a formal government-to-government mechanism can be established. The decisions concerning a form of political status is largely up to each Indian Nation and then agreement with neighboring governments must be secured (this is particularly true with Absorbed Status and Free Association Status.) The basic strategy of Indian Governments seeking to establish a framework for intergovernmental relations with the State of Washington and/or the United States government must include a clear analysis of Indian Nation Political Status. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- To have a current Center For World Indigenous Studies Publication Catalogue sent to you via e-mail, send a request to jburrows@halcyon.com http://www.halcyon.com/FWDP/cwiscat.html Center For World Indigenous Studies P.O. Box 2574 Olympia, WA U.S.A. 98507-2574 FAX: 360-956-1087 OCR Provided by Caere Corporation's OmniPage Professional