Indian Nations & Washington State: Forming a Basis for Intergovernmental Relations. Discussion Paper: State Policy & Indian National Policy
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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. 

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