Handbook on State-Tribal Relations by the Commission on State-Tribal Relations
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DOCUMENT: STATTRIB.TXT


                            H A N D B O O K

                                  O N

              S T A T E - T R I B A L   R E L A T I O N S

                               PREPARED 
     
                                BY THE 

                 COMMISSION ON STATE-TRIBAL RELATIONS

                   American Indian Law Center, Inc.
                       P.O. Box 4456 - Station A
                         Albuquerque, NM 87196
                         Phone: (505)277-5462

          This material is based upon work supported by the 
     Department of Interior, Bureau of Indian Affairs, under BIA 
     Grant Number K51C1420G030, Ford Foundation and Donner 
     Foundation.  
     
          Any opinions, findings, conclusions or recommendations 
     expressed in this publication are those of the author(s) and 
     do not necessarily reflect the views of the Department of 
     Interior, Bureau of Indian Affairs, Ford Foundation or 
     Donner Foundation. 
     
     
                           TABLE OF CONTENTS
                  
     
     FORWARD
     
     INTRODUCTION
     Early Federal Policy
     The End of Isolation
     The Termination Policy
     Tribal Self-Determination

     CHAPTER ONE: THE STATE-TRIBAL RELATIONSHIP IN GENERAL
     Jurisdiction: Questions and Issues
     Analyzing the State-Tribal Relationship
     Attitudes and Expectations
     A Realistic Look at Goals and Performance 

     CHAPTER TWO: SPECIAL CIRCUMSTANCES OF TRIBAL GOVERNMENTS
     Tribes As Land Owners
     The Tribal Constituency
     Poverty
     Federal-Tribal Relations
     Tribal Governments and Indian Culture
     Can Cooperation Threaten Tribal Governments?

     CHAPTER THREE: FUNDAMENTAL CONSIDERATIONS AFFECTING 
     TRIBAL-STATE AGREEMENTS
     Existing Limits of Jurisdiction
     Transfer of Government Powers
     Written Agreements
     Specific Term
     Notice Before Cancellation
     Enforceability
     Federal Approval

     CHAPTER FOUR: THE PROCESS
     The Context of State-Tribal Cooperation
     The Situation Will Dictate the Solution 
     Isolation Is Costly
     Open-ended or Single-Issue Discussions? 
     The Participants
     Linking Issues
     
     CHAPTER FIVE: THE FEDERAL ROLE
     Federal Preemption
     Involvement of Federal Officials 
     The Responsibility of Federal Officials 
     The Limits of Litigation 
     Federal Legislation -- an Imperfect Tool 
     
     
     
                             F O R W A R D 

          The Commission on State-Tribal Relations was chartered 
     in 1977 by the National Conference of State Legislatures 
     (NCSL), the National Congress of American Indians (NCAI) and 
     the National Tribal Chairmen's Association (NTCA). It is 
     composed of tribal chairmen or presidents and state 
     governors, attorneys general and legislators.  
     
          The National Conference of State Legislatures is a non-
     partisan organization serving the nation's state legislators 
     and their staffs. It is funded by the states and has three 
     basic objectives: 1) to improve the quality and 
     effectiveness of state legislatures; 2) to assure states a 
     strong, cohesive voice in the federal decision-making 
     process; and 3) to foster interstate communication and 
     cooperation. Its headquarters are in Denver, Colorado, with 
     an office of state-federal relations in Washington, D.C.  
     
          The NCSL created a special task force of 20 legislators 
     in March 1977, to study and to improve the relationships 
     between states and tribes. After considering several 
     congressional proposals on state-tribal relations, the Task 
     Force adopted a policy resolution urging states and tribes 
     to reach cooperative agreements. The 43-member Executive 
     Committee of NCSL then approved a project that would help 
     states and tribes develop such agreements.  
     
          The National Congress of American Indians is the oldest 
     national Indian organization in the United States. Founded 
     by Indian leaders in 1944, the organization represents over 
     140 Indian tribes throughout the country. In addition, NCAI 
     has more than 2,000 Indian members who join on an individual 
     basis. Although the primary participating members are tribal 
     governments, NCAI advocates for small groups and communities 
     not recognized or served by the federal government, 
     including disenfranchised Indian people in urban areas. All 
     officials of the organization are Indian people elected by 
     Indian people.  
     
          The National Tribal Chairmen's Association is an 
     organization representing leaders of federally recognized 
     tribal governments. NTCA is committed to the progress of 
     Indian tribal society and to the protection of Indian-owned 
     natural resources. It was established in 1971 to serve as a 
     national voice for its member chairmen in improving the  
     social, educational, economic and government programs among 
     Indian people.  
     
          The American Indian Law Center, Inc., is the oldest 
     national Indian legal and governmental advocacy group. It is 
     an Indian-controlled, non-profit corporation organized for 
     research, training and service to Indian tribal governments 
     and communities in all areas of law, policy and governmental 
     affairs. The law center was formed in 1967 as an institute 
     of the University of New Mexico School of Law and achieved  
     fully independent status in 1978 as an Indian-controlled 
     corporation which maintains a close association with the law 
     school. The law center played an important role in the 
     conception and formation of the Commission on State-Tribal 
     Relations and was asked to provide staff for the Indian 
     tribal participants on the commission because of its unique 
     background of assistance to tribal governments in policy 
     analysis and institutional development.  
     
          The Commission on State-Tribal Relations was formed at 
     a time of heightened public interest in Indian affairs. In 
     the early 1970's, world attention was drawn to Indian 
     problems by the Trail of Broken Treaties and the incident at 
     Wounded Knee. National interest later focused on the 
     struggle of the Passamaquoddy and Penobscot Tribes to 
     establish their land claims in the State of Maine, a state 
     long thought to have resolved its "Indian problems." The 
     American Indian Policy Review Commission Report to Congress 
     called for federal recognition of broad tribal governmental 
     powers on reservations, raising concerns among some state 
     governments and non-Indian residents of reservations. Bills 
     were then introduced in Congress which would have abrogated 
     Indian treaties, severely restricted tribal governmental 
     authority, and deprived the tribes of water rights essential 
     for survival and development. So-called "white backlash" 
     groups formed throughout the West to oppose tribal rights. 
     And an energy development boom was approaching which, while 
     creating opportunities, would also place great demands on 
     both state and Indian governments in the West.  
     
          The growing conflict and antagonism between states and 
     tribes created an obvious need for a more mature approach to 
     the tribal-state relationship. Despite the adversary 
     character of much of the rhetoric, the tribal-state 
     relationship has historically included many areas of  
     cooperation and holds the potential for increased 
     cooperation and co ordination. The role of the commission is 
     to identify these productive relationships and to provide a 
     framework for developing new ones. The commission functions 
     independently of the chartering organizations whose 
     obligations to advocate for their constituent interests are 
     often in conflict.  
     
          No single handbook could deal adequately with all 
     possible issues which might arise between tribal and state 
     governments. Their relation ships are as diverse as the 
     responsibilities and activities of these governments 
     themselves. But a handbook can serve useful limited 
     purposes.  
     
          First, it can contribute to the understanding by both 
     governments of the tribal-state relationship by setting it 
     in proper historical, legal and policy contexts.  
     
          Second, a handbook can analyze the purpose and function 
     of certain critical governmental activities -- not as a 
     civics lesson, certainly, but as an effort to identify 
     common interests better served by cooperation and 
     coordination than by competition and confrontation. The 
     latter dominate the literature available on the subject of 
     state-tribal relations. No balanced and realistic 
     examination of these relationships has been available to 
     those in state and tribal governments whose attitudes and 
     activities shape public policy.  
     
          Third, a handbook can identify the pressures on state 
     and tribal governments and institutions that contribute to 
     either positive or negative relationships between them. It 
     can identify processes and programs which have succeeded or 
     failed and identify the reasons.  
     
          Fourth, a handbook can offer those interested in 
     beginning the process within or between tribal and state 
     governments a guide -- not in the form of a blueprint, but 
     in the form of an analytical tool -- for defining the areas 
     best suited to cooperative relationships, the range of 
     process choices available, the elements critical to each and 
     the pitfalls which must be avoided.  
     
          This handbook attempts to do all these things. It is 
     based on the collective experience and insight of the 
     commission and its staff. This is not a book of advocacy. 
     The commission is well aware of the adversarial aspects of 
     the tribal-state relationship, but believes that areas of 
     conflict must be seen in the context of the total tribal-
     state relationship, in which there is also much common 
     ground.  
     
          All of the members of the commission should be 
     recognized for their interest in and dedication to its work, 
     but special recognition must be given to the leadership of 
     former Speaker Edward Manning of the Rhode  Island House of 
     Representatives, Chairman Joe DeLaCruz of the Quinault 
     Indian Nation, and Senator Sue Gould of Washington State, 
     former and present co-chairmen of the Commission. Among the 
     many dedicated members, Chairman Allen Rowland of the 
     Northern Cheyenne Tribe and Senator Carroll Graham of 
     Montana have shown a particular interest in the commission's 
     work. At the staff level, Tassie Hanna of the National 
     Conference of State Legislatures, Nancy M. Tuthill, Parker 
     Sando, Darrell Knuffke and Sam Deloria of the American 
     Indian Law Center deserve special mention for their work 
     over the years.  
     
          Funding for the commission has been provided by the 
     Ford Foundation, the William H. Donner Foundation, the AKBAR 
     Fund, the Aetna Foundation, the Bureau of Indian Affairs, 
     the Administration for Native Americans and the Community 
     Services Administration. Their interest and support have 
     been invaluable.  
     
          This handbook is among the first words on the subject; 
     if it has value and utility, if state and tribal relations 
     evolve and mature in part because of it, the final words may 
     never be written.  
     
          The commission invites comments and contributions from 
     the many people in the country whose experience with 
     governments at every level can improve this handbook. 
     
     
                        I N T R O D U C T I O N 
                               
          The roots of the peculiar tribal-state relationship are 
     deep in American history. From the earliest days of the 
     European discovery of the continent, the rights of Indian 
     societies to self-government and to land and natural 
     resources have been recognized. All of the European colonial 
     powers, most of the colonies and several states made 
     treaties with Indian tribes or nations in the hemisphere. 
     The United States recognized Indian tribes as political 
     entities and made treaties with them, both during the period 
     of the Articles of Confederation and under the Constitution. 
     The political existence of Indian tribes today is in no 
     sense an historical anomaly.  
     
                         Early Federal Policy 
                         --------------------
     
          Under the Articles of Confederation, Indian affairs 
     were left to individual states. The framers of the 
     Constitution judged this to be unworkable and the 
     Constitution changed this responsibility by providing that 
     "Congress shall regulate commerce...with the Indian tribes." 
     (Article I, Section 8, Clause 3).  
     
          The federal government also could rely on other 
     enumerated powers in its relationship with Indian tribes: 
     The Treaty Power; the War Power; and the power to create new 
     territories and to admit new states to the Union. Taken all 
     together, as the Supreme Court has observed on a number of 
     occasions, these Constitutional provisions grant the federal 
     Congress plenary legislative power on the subject of Indian 
     affairs, a power which preempts that of the states. 
     
          In early cases, the Supreme Court suggested the 
     political status of Indian nations was solely a matter of 
     the relationship between tribal and federal governments. 
     Federal preemption of state power was exclusive in the 
     geographic areas imprecisely defined as "Indian territory" -- 
     later to be called "reservations." In those early days, the 
     federal government tried to control contact between the 
     tribes and non-Indians and to limit it to government agents, 
     missionaries and federally-licensed traders. The attempt, as 
     the world knows, was notably unsuccessful. The story of the 
     pressures non-Indian society brought on the federal 
     government for Indian land and the record of the 
     government's response to those pressures are too well-known 
     to require repeating.  
     
          Contacts between Indians and non-Indians proved 
     impossible to control. For a time the federal government 
     sought to preserve tribal isolation by removing tribes 
     westward -- a policy which had the added advantage to the 
     government of opening original tribal homelands to non-
     Indian settlement. After the removal policy, reservations 
     were created for the tribes and guaranteed to them as 
     homelands. But neither removal nor the creation of 
     reservations enabled the federal government to control non-
     Indian contacts with Indians or the non-Indian presence in 
     Indian country.  
     
          In the latter part of the 19th Century, the Supreme 
     Court delivered two opinions with far-reaching effect on the 
     governance of Indian reservations. Dramatically narrowing 
     its application of the Preemption Doctrine with respect to 
     territorial jurisdiction over Indian reservations, the Court 
     held in United States v. McBratney, 104 U.S. 621 (1881), and 
     Draper v. United States, 164 U.S. 240 (1896), that Indian 
     reservations are part of the states in which they are 
     located and that states have criminal jurisdiction over 
     crimes committed on Indian reservations by non-Indians 
     against the persons or property of other non-Indians. The 
     court did not require express congressional consent for this 
     exercise of power within Indian territory.  
     
                         The End of Isolation 
                         --------------------
     
          Interaction of Indians and non-Indians might have been 
     relatively rare had the federal government adhered to an 
     isolation policy and maintained reservations for the 
     exclusive use and occupancy of the Indians as promised. But 
     during the latter half of the 19th Century federal policy 
     changed and the United States embarked on an effort to 
     destroy the fabric of tribal cultures, to assimilate Indians 
     into non Indian society and to open remaining Indian lands 
     for non-Indian settlement. A few individual treaties and 
     special statutes had provided for the allotment of the 
     tribal land estate among individual tribal members, but the 
     policy culminated in the General Allotment Act of 1887. As a 
     result of the Allotment Policy, much of the tribal land was 
     allotted in severalty to individual members. The land not 
     allotted to individual Indians was declared "surplus" to 
     tribal needs and opened for homesteading by non-Indians. As 
     a result of this and later sales of allotments by the Indian 
     owners, many reservations developed checkerboard land 
     ownership patterns and non-Indian settlers flowed in.  
     
          The Federal government stopped making treaties with the 
     Indian tribes in 1871. Between then and the revitalization 
     of tribal self-government under the 1934 Indian 
     Reorganization Act, a number of western states were added to 
     the union and many reservations were opened to settlement by 
     non-Indians, who brought with them state governmental power 
     under the principles of McBratney and Draper. During this 
     same period, the federal government tried to consolidate its 
     own power over the tribes with a dominant federal presence 
     on the reservation -- a presence aimed at speeding 
     assimilation by limiting the power and effectiveness of 
     tribal self-government.  
     
          The Indian Reorganization Act (IRA) of 1934 revived 
     tribal powers of self-government while other federal laws of 
     the period authorized the continuing intrusion of state 
     governmental authority in Indian country. Federal Indian 
     policy had mixed goals. For example, the Johnson-O'Malley 
     Act provided for federally-funded contracts with state 
     governments to provide various services on reservations, 
     principally education. Moreover, full implementation of the 
     IRA and the revitalization of tribal government were cut 
     short by the nation's preoccupation with World War II.  
     
                        The Termination Policy 
                        ----------------------
     
          The limited gains under the IRA were further eroded 
     after the war. The Indian self-government policies of the 
     1930's were swept away in the drive to terminate the federal 
     recognition of and relationships with Indian tribes, 
     supposedly to leave them and their problems solely in the 
     hands of the states in which they were located. The 
     Termination Era ran to 1960. Like the earlier 
     assimilationist era of the Allotment Policy, it was the 
     product of mixed federal motives and intentions. History has 
     judged both eras to have been fundamentally anti-Indian in 
     character. Both were surely marked by hostility to Indian 
     culture and identity. Indian people or for the states to 
     whom the unsolved problems were so unceremoniously handed. 
     But in both eras the political rhetoric was filled with 
     expressed intentions -- often sincere -- to "free the 
     Indians from the yoke of federal paternalism" and to "lift 
     them from their status as second-class citizens."  
     
          It soon became clear, though, that regardless of what 
     the proponents intended for termination, the policy would 
     not solve Indian problems by the simple expedient of 
     shifting responsibility for them to the states. The 
     conditions of the larger terminated tribes continued to be 
     matters of federal interest and concern because of their 
     very size and visibility. The economic, social and cultural 
     problems of the smaller tribes also remained largely 
     unsolved by the states.  
     
          The termination of the federal tribal relationship did 
     not even succeed in dissolving tribal governmental powers. 
     In Menominee Tribe v. United States, 391 U.S. 404 (1968), 
     the Supreme Court held that a terminated tribe retained its 
     hunting rights and also its residual sovereign power to 
     regulate its own members' hunting, leaving it exempt from 
     the regulatory authority of the state in which it was 
     located. But as a general rule, termination did greatly 
     diminish a tribe's capacity to participate in or to assume 
     responsibility for the solution to its own problems, and it 
     also cut off special federal financial assistance to either 
     the tribe or the state.  
     
          While the Termination Policy's major impact probably 
     was psychological -- except, of course, for the tribes which 
     were actually terminated-and has been repudiated explicitly 
     and implicitly by both the federal legislative and executive 
     branches, its unpleasant legacy lingers. But the experience 
     of the era may have taught that the mere act of shifting 
     governmental responsibility for a problem will neither ease 
     nor expedite its solution.  
     
                       Tribal Self-determination 
                       -------------------------
     
          The modern era of tribal self-determination began 
     around 1960 with the election of a new administration 
     untainted by the Termination Policy. Throughout the 1960's 
     and 70's the federal government greatly increased the 
     participation of tribal governments in efforts to solve 
     reservation problems and increasingly used them as the local 
     delivery system for federally-supported services. With this 
     impetus, the geographic, social, economic and political 
     isolation of American Indian tribes began to erode rapidly.  
     
          By the early 1970's, more and more tribes were 
     discussing and exploring ways to exercise their governmental 
     powers of taxation and regulation. This trend grew logically 
     from increased tribal program activity, but it also stemmed 
     from increasing interaction with non-Indian society and the 
     realization that there were vacuums in taxation and 
     regulation which must be filled by tribal government. Still, 
     tribes' aggressiveness in expanding the scope of their 
     governmental activities was rarely proportionate to the 
     intensity of the debate. Some expansion of tribal 
     governmental activities may actually have been undertaken 
     primarily as a competitive tactic to block further state 
     encroachment on the reservations but, by and large, such 
     expansion was a response to real needs. 
     
          The issue of criminal jurisdiction illustrates the 
     pattern. In the early 1970's, there was much discussion 
     throughout Indian country of the possibility of tribes, 
     assuming long-dormant criminal jurisdiction over non-Indians 
     by passing ordinances declaring that non-Indians entering 
     the reservation had impliedly consented to tribal 
     jurisdiction. Yet by 1978, when the Supreme Court held that 
     tribes lacked inherent criminal jurisdiction over non-
     Indians, only a handful of the nearly 300 tribes had 
     actually moved to assert such jurisdiction through "implied 
     consent" ordinances. And in most of these cases, the 
     ordinances were a response to serious problems caused by 
     inadequate state and federal law enforcement.  
     
          The most recent court pronouncements allocating power 
     between state and tribal governments are too new to judge 
     definitively, but future competition is assured. In the 
     broad functional area of regulation both criminal and civil 
     -- the issues are unlikely to be put to rest any time soon. 
     Law enforcement will doubtless continue to be a matter of  
     concern. The development of natural resources on and near 
     reservations and the increasing participation of tribes and 
     Indian individuals in the private economy will demand civil 
     regulation on reservations which was never needed before. 
     Economic activity increasingly will involve complex 
     combinations of Indian and non-Indian interests, and as 
     tribal governments attempt to respond to these challenges 
     the boundary line between state and tribal power will be 
     tested ever more frequently. The same economic complexity 
     will complicate the tribal-state tax relationship, with the 
     tribes facing the unpleasant possibility that the exercise 
     of their taxing power may come at the cost of a double 
     state-tribal taxation which will cripple reservation 
     economic development. And to the extent that tribal revenue 
     sources are limited and federal funds are channeled through 
     the states, the advantages of the tribal service delivery 
     systems which have been developed in the past 15 years may 
     be lost.  
     
          But regardless of the details of future tribal-state 
     competition a message lies beneath the federal court 
     decisions over the years and the changes in federal Indian 
     policy: the resolution of particular unanswered questions 
     concerning territorial, personal and subject matter 
     jurisdiction has not resolved the tribal-state relationship 
     into a static one in which all future questions are easily 
     answered. So long as both governments exist there will be a 
     relationship between the two which extends beyond easily 
     applied formulas.  
     
          The Commission on State-Tribal Relations is content to 
     leave to others appeals to good fellowship or esoteric 
     considerations of ultimate -- and ultimately unanswerable -- 
     questions about tribal and state power. Its focus is solely 
     on the practical issues that are more important to the daily 
     functioning of this complex, permanent and unavoidable 
     intergovernmental relationship: What are the dynamics and 
     mechanics of the relationship? How do they foster or 
     frustrate cooperation? What works and what does not? Why? 
     
     
                        C H A P T E R   O N E 

               THE STATE-TRIBAL RELATIONSHIP IN GENERAL 
     
          One common view of an Indian reservation holds it to be 
     an arena in which tribal and state governments compete to 
     establish their power in some respects and to avoid 
     responsibilities in others. The federal government -- the 
     ultimate arbiter -- is accused of failing to resolve this 
     power struggle, either because it lacks leadership or 
     because it is politically constrained from throwing its 
     considerable weight to one side or the other. This 
     characterization suffers not so much from untruth as from 
     incompleteness. By using only the conflicts and the problems 
     to represent the totality of tribal-state relations, this 
     view presents a narrow and biased picture, one which makes 
     intergovernmental cooperation and coordination seem -- at 
     least by inference -- to threaten tribal or state interests.  
     
          It is more productive to avoid prejudgement and to 
     examine the total governmental system serving an Indian 
     reservation area -- a system including tribal, federal, 
     state and municipal governments in a complex mixture. There 
     are problems in this system, to be sure, and some of them 
     can only be resolved by a definitive outcome in favor of one 
     government or another. But the analytical tools which shape 
     both governments policies today are unduly combative and 
     insufficiently constructive.  
     
          In many respects the relationship between state and 
     Indian tribal governments is like that between any two 
     governments, but it is also unique within the American 
     system. It is not the only intergovernmental relationship 
     with overlapping territorial jurisdictions. It is not the 
     only one with jurisdictional conflict, ambiguities or 
     competition. Nor is it the only one whose jurisdictional 
     differences provide potential advantages for certain special 
     political or economic interests. Its uniqueness lies in the 
     fact that, while both governments deal with many of the same 
     subjects, their relationship to each other is also a facet 
     of the relationship between two cultures or societies. And 
     one of these is perceived to be in a struggle for survival 
     against the pressures of the other.  
     
                  Jurisdiction: Questions and Issues 
                  ----------------------------------
     
          Jurisdiction -- a term often used carelessly in the 
     tribal-state discussion -- means only the power or authority 
     of a government to govern. Its scope may be defined in terms 
     of territory, persons, subject matter or a combination of 
     these elements. There are categories in which the respective 
     powers of states and tribes appear to be clearly established 
     and exclusive. For example, states have exclusive 
     jurisdiction over crimes committed by one non-Indian against 
     another on the reservation;  tribes have exclusive 
     jurisdiction over tribal members on the reservation. There 
     are also areas of ambiguity in which exclusive jurisdiction 
     in one or another government has not been established. In 
     the past, tribal-state conflict has resulted largely from 
     the attempts of the governments to establish their exclusive 
     power in these ambiguous areas or to avoid responsibility. 
     Aggressive governmental policies have sometimes led to 
     attempts to extend a government's powers into an area 
     previously thought to have been the exclusive province of 
     the other by seeking and finding an "ambiguity" in what was 
     thought to be settled law.  
     
          The lives of tribal and state policymakers would be 
     greatly simplified if the jurisdiction of tribes and states 
     were always allocated discretely within the three general 
     categories of geography, persons or subject matter. But 
     while all have a bearing on the issue, none is an invariable 
     determinant. 
     
          Territorial boundaries do exist and serve political and 
     legal functions, but neither tribal nor state jurisdiction 
     is determined wholly on a territorial basis. Despite federal 
     preemption of state power on the reservation in favor of 
     federal and tribal power, a reservation is considered to be 
     a part of the state in which it is located. States have some 
     subject matter and personal jurisdiction over non Indians, 
     even on the reservation, and tribal jurisdiction over non-
     Indians on the reservation is limited. Occasionally tribes 
     have jurisdiction over Indians off the reservation. In most 
     intergovernmental relationships, even if the territorial 
     boundaries of each government overlap, they are clearly 
     defined. But reservation boundaries and the jurisdictional 
     status of areas within original reservation borders are  
     often in dispute.  
     
          Neither state nor tribal jurisdiction is determined 
     solely on a personal basis. The federal government has 
     assumed certain kinds of jurisdiction over both Indians and 
     non-Indians which it would not exercise in an off-
     reservation community. While states generally have 
     jurisdiction over non-Indians on the reservation and tribes 
     have jurisdiction over Indians, there are exceptions in both 
     cases.  
     
          Neither state nor tribal jurisdiction is determined on 
     a subject matter basis. Some categories are exclusively 
     federal; others are arguably concurrent between federal and 
     state or federal and tribal. In still other categories, 
     states and tribes have the same subject matter jurisdiction, 
     but the persons and territory over which it may be exercised 
     is disputed or ambiguous. States are prohibited from 
     interfering in the exercise of tribal self-government, and 
     it is clear that this tribal power of self-government 
     extends beyond the tribal membership for some purposes. 
     Because tribes are considered to have inherent sovereignty, 
     a particular state action may even be found to interfere 
     with a hitherto unexercised tribal power.  
     
          The Supremacy Clause of the Constitution of the United 
     States resolves federal-state jurisdictional disputes. The 
     state-municipal relationship is created and controlled by 
     state law. Interstate conflicts are resolved according to 
     constitutional provisions and a large body of "conflicts" 
     and "choice of law" principles. The plenary power of 
     Congress to legislate on the subject of Indians has been 
     recognized by the federal courts and has been held to 
     empower Congress to override inherent tribal powers. But the 
     tribal-state relationship is riddled with inconsistencies 
     and major questions that are still unresolved. Federal 
     Indian laws and federal recognition of tribal government 
     have preempted state power on reservations, but the scope of 
     this preemption has not been easy to determine over the 
     years. Both federal laws and  federal policy are broadly 
     stated and seem to expand and contract cyclically, providing 
     little opportunity for either tribes or states to anticipate 
     future demands on their governmental systems. Two of the 
     major tests developed by the courts are that tribes lack 
     powers "inconsistent with their status" and that states lack 
     powers which would "interfere with tribal self-government". 
     Both tests invite subjective interpretation. Neither helps 
     unravel the economic and social complexities of modern 
     reservation life.  
     
          The popular view of the reservation as an arena for 
     intergovernmental conflict necessarily presumes that states 
     and tribes are incapable of coordination and cooperation and 
     must therefore definitively resolve all ambiguities and 
     establish areas of exclusive jurisdiction within which to 
     pursue completely separate courses of action. That view is 
     as understandable as it is wrong. For public attention has 
     been riveted and public opinion shaped -- by dramatic state-
     tribal confrontations over land claims, water rights and 
     hunting and fishing rights.  
     
          But such episodic controversies, however dramatic and 
     compelling they may be, are rare. They can scarcely be said 
     to characterize the day-to-day relationship between nearly 
     300 Indian tribes and 25 state governments and thus serve us 
     poorly as guides or models for understanding and improving 
     that relationship. The preferred model, the one on which 
     this handbook is based, is one in which tribal and state 
     governments attempt to coordinate their policies and 
     practices in areas of exclusive jurisdiction and to 
     cooperate to assure adequate governmental service where 
     jurisdiction is undefined.  
     
                Analyzing the State-Tribal Relationship 
                ---------------------------------------
     
          The Commission on State-Tribal Relations has chosen to 
     begin its analysis with the daily intergovernmental 
     relationship, which involves the routine task of governing 
     Indian reservation areas. If structure, rationality and 
     discipline can be brought to this vast area of the  
     relationship, the episodic controversies can be placed in 
     the broader context and the attention of tribal, state and 
     federal governments can be drawn to the intergovernmental 
     relationship as a whole.  
     
     -- Accept existing legal frameworks. 
     ------------------------------------

          The first ground rule to be adopted is that the 
     intergovernmental relationship should be analyzed in the 
     context of federal, state and tribal law as it stands today. 
     Clearly, major changes in the law will change the 
     relationship. But that relationship has suffered for too 
     long from the tendency of all three governments to postpone 
     dealing with coordination problems in the faint hope that 
     some defect or ambiguity in existing law, which makes 
     coordination impractical, impossible or simply difficult, 
     might be changed in the future.  
     
     -- Separate common from divergent interests. 
     --------------------------------------------
     
          Second, the analysis should begin from the point of 
     view of the common interests of both governments and move 
     from there to isolate the divergent interests. Even between 
     governments where there is little rivalry and competition -- 
     between states, for example -- there is a need for 
     coordination and therefore a need to distinguish common from 
     divergent interests. To assume, as many do, that tribal-
     state problems will disappear as ambiguities are resolved in 
     favor of one or the other is to overlook the continuing need 
     for coordination. It also assumes that tribes and states, 
     free to pursue different policies within their exclusive 
     jurisdiction, will pursue irreconcilable paths. In light of 
     the geographic overlap and the similarity of their problems, 
     there is no greater reason to assume that they will respond 
     differently than to assume that they will respond in similar 
     ways that can be coordinated. In the end, states and tribes 
     will decide whether to adopt conflicting or compatible 
     policies on the basis of the merits of the problem before 
     them.  
     
     -- Avoid jurisdictional questions when possible. 
     ------------------------------------------------
     
          Third, once common and divergent interests of state and 
     tribal governments have been identified, the question is 
     this:- to what extent can cooperative or coordinated 
     intergovernmental policy and practice assure appropriate 
     coverage of the ambiguous areas without the immediate need 
     to resolve ambiguities in favor of one government or 
     another? The heart of the question is whether jurisdictional 
     uncertainty is a legitimate reason for inaction and whether 
     certainty will add significantly to the governments' 
     abilities to meet their citizens' needs. Ways should be 
     found to postpone or to avoid the ultimate question of 
     jurisdiction. Failing that, the relationship should be so 
     structured that the resolution of jurisdictional questions 
     occurs in the most convenient and appropriate forum.  
     
          A tax collection agreement setting out a uniform system 
     in which one government collects taxes at an agreed rate and 
     rebates a portion to the other government avoids the issue 
     of tax jurisdiction with respect to particular combinations 
     of wholesalers, vendors, consumers and the location of the 
     transaction. So long as each government is satisfied with 
     the system, there is no need to litigate taxing jurisdiction 
     in the myriad combinations that exist in a complex economy.  
     
          Cross-deputization of law enforcement officials does 
     not avoid the ultimate question of jurisdiction. When formal 
     criminal charges are brought against an accused the question 
     of jurisdiction must be faced. But cross-deputization does 
     bring the jurisdictional debate to the courtroom where it 
     belongs, removing it from issue at the time of arrest when 
     neither the conditions nor the parties are appropriate for 
     complicated legal arguments.  
     
          It is impossible to write a single, simple definition 
     of the legal relationship between state governments and 
     tribal governments. It is also unnecessary. Tribal and state 
     governments needn't focus exclusively on the resolution of 
     all ambiguities so that authority rests exclusively with one 
     government or the other. States and tribes can identify many 
     areas of government in which cooperative arrangements can be 
     made that will result in substantial savings and better 
     service to their citizens. This can be done without 
     sacrificing the legitimate interests of either government or 
     the cultural diversity which the present situation allows.  
     
                      Attitudes and Expectations 
                      --------------------------
     
          The greatest barrier to improved tribal-state 
     relationships is the set of attitudes and expectations held 
     by some members of both governments, the public, the press 
     and the legal profession. These attitudes, as noted, are 
     frequently -- and perhaps exclusively -- shaped by the 
     narrow and inaccurate emphasis on conflict in tribal-state 
     relations. In the absence of any balanced view, people are 
     likely to be persuaded to the notion that the only 
     interaction between their governments is unavoidable combat. 
     It can be no surprise, then, that a citizen so persuaded 
     sees the imperative to elect to his government gladiators 
     rather than conciliators or negotiators. People in 
     government tend to do and say what they are expected to do 
     and say, actions and utterances which set up continued 
     expectations among people and institutions outside of 
     government. Because of such expectations, there remains 
     political profit in classic demagoguery, racism and base 
     appeals -- in both-state and tribal governments. But the 
     existence of those elements -- and they do, of course, exist 
     -- does not support a thoroughly negative intergovernmental 
     relations policy between tribes and states.  
     
          It makes no more sense to avoid cooperation until 
     generosity of spirit pervades tribal-state relations than it 
     does to forego cooperation until a coherent and 
     comprehensive body of jurisdictional law supplants the 
     present one.  
     
          Governments, like most social institutions, have goals 
     and principles so broadly stated as to be impossible to 
     disagree with. And, like most institutions, they fall far 
     short of the loftiest of these. It is unrealistic to judge a 
     society or a government -- one's own or another-solely by 
     its stated goals. Its actual behavior may be quite different 
     because of the influence of various interests, the 
     practicality or impracticality of its goals, the character 
     of those running the government, the degree of 
     accountability its electorate demands. It is equally 
     unrealistic -- and unduly cynical -- to characterize a 
     society or a government as simply the product of the selfish 
     struggle between special interests. While there can be no 
     guarantee that the political process will rise above its 
     baser urges, undue cynicism may very well guarantee that it 
     does not.  
     
          The gap between the ideal and the real, between goals 
     and achievement, is found throughout human society. One of 
     the historic communications barriers between tribal and 
     state governments has been that, when considering their 
     intergovernmental relationship, each has tended to idealize 
     itself and to be harshly realistic, if not cynical, about 
     the other. When the goals of each are compared, they are 
     often found to be complementary or compatible except on the 
     subject of each other. Their performances often seem to fall 
     short in the same ways and for the same reasons. There may 
     be differences of degree but there are few differences in 
     kind.  
     
          Cultural pluralism is a fact of human life throughout 
     the world, and America takes great pride in its attempt -- 
     not always successful -- to accommodate cultural diversity 
     in its social and political systems. But cultural diversity 
     is also a potentially divisive and destructive force in 
     history, and both state and tribal governments must define 
     their roles with respect to the cultural realities of their 
     jurisdictions. Governments are not the same as societies, 
     and governments must be aware of the right of people to 
     cultural self-determination. At the same time, cultural 
     differences, ethnic loyalties and even racism should not be 
     magnified or encouraged in order to mask the inability or 
     unwillingness of governments to cooperate and to deliver 
     effective government services to the people of the 
     reservation.  
     
          Although often encouraged to think in terms of separate 
     state, tribal and federal systems, the people living on 
     reservations can also see that they are served by a total 
     governmental system having three parts: tribal, state and 
     federal. As they evaluate this total system they may be 
     convinced for a time that the system's problems can be 
     blamed on the "other" government, the one with which they do 
     not personally identify. On the other hand, they may also 
     eventually conclude that they have the right to expect that 
     the three components of government which have power over 
     them will work together to meet their needs and provide them 
     with a quality of government that compares favorably with 
     any in the nation.  
     
               A Realistic Look at Goals and Performance 
               -----------------------------------------
     
          A necessary precondition to bringing about an improved 
     state-tribal relationship is that each government have a 
     sound and realistic understanding of its own goals -- both 
     stated and unstated -- and its own performance, including 
     its shortcomings. This does not mean that a public 
     confession of inadequacy is the required first step. It does 
     mean, however, that neither government should view itself -- 
     as has been the tendency in the past -- as a group of 
     philosopher-kings trying to cope with a group of incompetent 
     and dishonest political hacks on the other side. The process 
     does require that each government enter into it with  
     skepticism toward its own as well as the other government's 
     propaganda and rhetoric.  
     
          An example from the commission's fact-finding meetings 
     illustrates the point. A small conference to discuss state-
     tribal coordination in hunting and fishing regulation was 
     attended by a representative cross-section of state and 
     tribal officials. Although attitudes varied widely among the 
     participants, some tendencies were evident. State officials 
     generally viewed themselves as scientific professionals 
     seeking to manage and conserve a resource; tribal officials 
     saw themselves as dealing primarily with the traditional 
     relationship between Indian people and nature, involving 
     both subsistence and religious uses and ideas. State 
     officials tended to view tribal management policies and 
     practices as amounting to no regulation at all; tribal 
     officials tended to view the states as managing the resource 
     to serve sports or commercial interests and to dew Indians 
     access for religious and subsistence purposes.  
     
          In the course of discussion, several interesting 
     changes in attitudes occurred. After a period during which 
     both sides relaxed their initial hostility (possibly 
     encouraged by the fact that they were able to talk in the 
     abstract and not in a specific, local political context), 
     they began to view each other as fellow bureaucrats with 
     many common problems. State officials eventually conceded 
     that some of their scientific management principles had only 
     recently begun to replace a more traditional system of 
     setting bag limits -- one known to them as SALY  (same as 
     last year). They conceded that "scientific game management" 
     is administered in light of the reality of the politics of 
     state game commissions and the economic expectations of 
     motel, bar, liquor store and gas station owners throughout a 
     particular game habitat. They conceded, too, that their 
     coordination problems with the fish and game departments of 
     neighboring states are often worse than those with tribal 
     departments and less susceptible to solution.  
     
          On their part, tribal officials eventually conceded 
     that while subsistence and religious considerations continue 
     to play an important part in tribal game management, it 
     overstates the case to say that these are the sole factors 
     influencing reservation management. Wasteful hunting and 
     fishing, even in small degrees, cannot be allowed to hide 
     behind legitimate Indian cultural practices.  
     
          Both sides, it seemed, had entered the meeting viewing 
     themselves ideally as purists and viewing the others with 
     suspicion and cynicism. Both sides conceded in the course of 
     the meeting that their own idealism was overstated. Most 
     importantly, both sides left the meeting with a greater 
     understanding of their counterparts as professionals dealing  
     with many of the same problems. And, although the problems 
     may have been different in detail, they represented real-
     world considerations that required compromise from idealized 
     positions. Both sides seemed to realize that their initially 
     overstated attitudes toward themselves and the other 
     government represented the roles they were expected to play 
     in the tribal-state relationship.  
     
          Neither government should stop with a realistic 
     assessment of its own goals and performance. It should also 
     undertake the same kind of analysis with respect to the 
     other government, keeping in mind that it is not compiling 
     an adversary's brief to persuade a court or to sway public 
     opinion but rather it is attempting to function rationally 
     in an intergovernmental relationship by arriving at an 
     accurate view of the behavior of the other government. 
     Whether or not a self-serving characterization of the 
     tribal-state relationship is considered necessary for public 
     consumption, it is misleading as a basis for a government's 
     own view of the relationship. There, accuracy, insight and 
     understanding are essential.  
     
          Some fundamental questions are these:  
     
          -- What does the other government say its goals are?  
     
          -- What do its goals really seem to be as judged by its 
             performance?  
     
          -- What moves it to act?  
     
          -- What does it fear? 
     
          -- And, especially, what does it seem to fear from our 
             government?  
     
          It is also helpful to identify and examine the negative 
     impressions one has of the other government:  
     
          -- Why do we have this impression?  
     
          -- Is it based solely on fact or is it partly an 
             impression or attitude which helps to justify a lack 
             of communication or coordination?  
     
          -- Does the negative behavior, performance or attitude 
             of the other government really set it apart or do we 
             have similar problems with other governments with 
             which we deal?  
     
          -- Do we ourselves have the same problem which we tend 
             to overlook?  
     
          What is the significance of the final total after 
     taking account of all that is good about one's own 
     government and all that is bad about the other? Can all the 
     negatives justify a refusal to deal with the other 
     government, or do they simply give us clues as to how to 
     work effectively in an unavoidable relationship? What is the 
     cost to one's own government and its constituents of 
     refusing to work with the other government?  
     
          It will not always be possible to achieve coordination 
     of tribal, state and federal policy and practice affecting 
     Indian reservation areas. But the focus must shift from 
     where it is today -- laying all problems at the door of 
     "jurisdiction" -- to where it ought to be -- making 
     intergovernmental coordination and cooperation one of the 
     standards to which governmental performance is held to 
     account. This does not mean that intergovernmental 
     cooperation must bury legitimate social and governmental 
     interests at all costs. Rather, it means that tribal, state 
     and federal governments should be required to articulate the 
     reasons for the failure of coordination efforts and to 
     replace hostility, suspicion and fear with rationality. The 
     needs of reservation areas are too great in the modern world 
     for state and tribal-governments to fail to coordinate their 
     efforts. Where their jurisdiction or their responsibilities 
     as governments are unclear, both tribes and states have 
     naturally shown a greater interest in activities which 
     produce revenue or which affect significant political or 
     economic interests than they have in more routine or costly 
     functions of government. As a result, the negative aspects 
     of the tribal-state relationship have appeared not only in 
     the debilitating competition to assert power; they have also 
     been found in gaps where no government authority or service 
     is effectively present. That situation works to the 
     detriment of all of the residents of the reservation. 
     
     
                         C H A P T E R   T W O 

              SPECIAL CIRCUMSTANCES OF TRIBAL GOVERNMENTS 

          Intergovernmental relations in general have been 
     thoroughly documented. There is an extensive literature on 
     the operations of federal, state and municipal government in 
     the United States. Organizations such as the Advisory 
     Commission on Intergovernmental Relations and professional 
     groups such as the American Society of Public Administration 
     continue to focus attention on the subject. Modern tribal 
     government is much less well-documented. And it is rarely 
     described in a form that will permit helpful comparisons 
     with state and municipal government.  
     
          To determine the potential for improved tribal-state 
     relations, it is important to understand first the special 
     circumstances of tribal governments and their reservations. 
     There is a tendency for state governments, realizing that 
     they are dealing with unusual circumstances in tribal 
     governments, to assume that tribal governments are so exotic 
     as to defy understanding. State and tribal officials alike 
     may better understand the special problems of their 
     intergovernmental relationship if they give particular 
     thought to the unique circumstances of tribal governments.  
     
          Indian governments are uniquely American, but even 
     within that framework they are governments with unique 
     characteristics and limitations. Their ability and 
     willingness to enter into structured and stable 
     relationships with state and municipal governments are 
     affected by these special circumstances. 
     
                         Tribes as Land Owners 
                         ---------------------
     
          First of all, Indian tribes are usually major 
     landowners within their own jurisdictions. In many ways 
     their relationship to land and natural resources differs 
     from that of any government in the American system and calls 
     for a special responsibility to the Indian societies which 
     tribal governments serve. The implications of this landowner 
     status are many. An Indian tribe must relate to the 
     reservation economy both as a government and as a 
     participant, because it is also landowner and entrepreneur. 
     This dual role, when analyzed from a standard American 
     governmental perspective, greatly complicates the tribe's 
     performance of its governmental functions of regulating, 
     taxing and delivering services.  
     
          Lacking a healthy reservation economy to provide a 
     revenue base, tribal governments for many years were forced 
     to rely exclusively on their proprietary interests to fund 
     their activities. Landowner's and entrepreneurial devices 
     were most often used as the vehicles for tribal  
     participation in economic development -- leases, tribally-
     owned enterprises and joint ventures. Tribal regulatory and 
     taxing powers were frequently not exercised in conjunction 
     with the business arrangement. This led lessees and others 
     doing business with tribes to conclude that revenue issues 
     and the conditions for doing business were dealt with 
     exclusively in lease and other business provisions, and to 
     forget that tribes -- like states and other governments 
     throughout the world -- retained the power to tax and 
     regulate as well as to offer business concessions.  
     
          Even in the best of circumstances it would be difficult 
     to combine the functions of government and 
     landowner/entrepreneur. But tribes have attempted to do so 
     in a situation further complicated by:  
     
          -- a political constituency which is predominantly poor 
             and which expects tribal enterprises to favor job 
             creation over profit, an expectation which 
             complicates the tribe's participation in business;  
     
          -- a constant anxiety that economic achievement will be 
             used as an excuse to terminate the federal-Indian 
             relationship and therefore the recognition of tribal 
             governmental powers and nature;  
     
          -- a concern that increasing involvement in the complex 
             non-Indian economy will destroy Indian culture and 
             create a rationale for additional political 
             incursions by state and municipal governments;  
     
          -- a federal policy which stresses economic 
             development, but whose funding pattern is 
             preoccupied with the social welfare symptoms of 
             poverty rather than the capital investment which was 
             crucial to the development of much of the non-Indian 
             economic growth in the western states.  
     
                        The Tribal Constituency 
                        -----------------------
     
          The second characteristic of Indian tribes is that they 
     have a unique idea of citizenship. Unlike state citizenship, 
     which is virtually coextensive with residency for American 
     citizens, tribal citizenship is governed by the membership 
     provisions which are defined in tribal constitutions or 
     ordinances. Once an individual is admitted to tribal 
     membership, he or she normally does not lose it. Depending 
     on the tribe, it is possible for an individual to become a 
     member and never be on the reservation at all. And it is 
     also possible to live one's entire life on a reservation, be 
     culturally and genetically of the local tribe, and yet not 
     be eligible for membership in the tribe. These unusual 
     aspects of tribal citizenship are due in part to tribal 
     custom and in part to the pressures of federal law.  
     
          Because of the importance of membership and the 
     combined tribal-federal significance attached to it, major 
     policy decisions such as constitutional amendments usually 
     must be submitted to a tote of the entire tribal membership, 
     which often includes a substantial non-resident population. 
     People who move permanently from a state lose their 
     citizenship in that state and with it their standing to 
     participate in the political life of their former home and 
     society; not so with the members of most Indian tribes.  
     
          Tribes also have two additional constituent groups to 
     take into account: non-member, non-voting non-Indians, who 
     live in Indian country and over whom tribal jurisdiction is 
     quite limited; and non-voting, non-member Indians whose 
     jurisdictional status is unclear. These nonmembers can 
     affect public attitudes toward tribal government and tribal 
     rights; they have an effect on the attitudes of appointed 
     and elected officials of state, federal and tribal 
     governments. Like the added dimension of tribal proprietary 
     interests, the complex tribal political constituency vastly 
     complicates the job of public policymaking for tribal 
     governments as compared with the already-complex problems 
     faced by state governments.  
     
          State government constituency also has unusual 
     characteristics. State and municipal governments are 
     constitutionally required to extend both services and the 
     franchise to reservation Indian people despite the fact that 
     they lack jurisdiction over them. For years, many state and 
     municipal governments resisted both of these duties, and the 
     resulting legacies of bitterness and mistrust remain. It is 
     a problem which complicates state and municipal governmental 
     functions, and the time must come when both tribal and state 
     governments accept it as a complication of the tribal-state 
     relationship which can be dealt with in an emotionally 
     neutral way.  

                                Poverty 
                                -------
     
          Third, the fact that the majority of the resident 
     constituency of most tribes lives in poverty has a special 
     impact on the policymaking of tribal governments. Most 
     American governments balance their responsibilities to the 
     poor against their responsibilities to other economic groups 
     -- a task which carries its own difficulties and which 
     generates a particular kind of public debate over values, 
     priorities, strategies and tactics. Tribes, with their 
     endemic economic imbalance, have a different kind of 
     balancing problem and, because of their lack of economic 
     diversity, also have fewer tools to work with and options to 
     choose among.  
     
                       Federal-Tribal Relations 
                       ------------------------
     
          Fourth, the unique relationship of tribal governments 
     to the federal government, as it has developed historically, 
     has created special problems in defining the role of the 
     tribal government. Municipal governments must adjust to 
     superior state power, but these relationships are well-
     defined in state law. Municipalities derive their power from 
     the state rather than from an inherent right of self-
     government. The states themselves are in a perpetual process 
     of defining their own relationship with the federal 
     government, and there is a constant tension between state 
     sovereignty and federal supremacy. The Supremacy Clause of 
     the U.S. Constitution provides a definitive resolution of 
     conflicts, and there are quite specific judicially-developed 
     rules to determine when federal power has preempted state 
     power. But the federal-tribal relationship is different. It 
     involves a continually shifting balance between federal 
     trusteeship and tribal self-determination-policies that are 
     simultaneously professed by the federal government, that are 
     unevenly applied over time and through changing federal 
     administrations and that are, at bottom, inherently in 
     conflict.  
     
                 Tribal Governments and Indian Culture 
                 -------------------------------------
     
          And finally, by no means the least important but 
     perhaps the least understood, is the special relationship of 
     Indian tribal governments to Indian culture. Non-Indian 
     American governments are drawn philosophically and 
     structurally from the cultural background of the majority 
     society which these governments serve -- that of Euro-
     American culture. Ironically, because of federal Indian 
     policy, many tribal governments are also constitutional 
     governments patterned along similar lines, alien to the 
     Indian societies they are expected to govern. Some observers 
     have noted that Indian tribal governments are subject to 
     criticism from two perspectives at once: they are too 
     heavily influenced by non-Indian ideas of government and are 
     not "Indian" enough for some critics; at the same time they 
     are inadequately equipped to meet the challenges facing 
     Indian people and societies in the modern world and, by this 
     argument, are too "Indian" -- or insufficiently "non-Indian" 
     -- for other critics. 
     
          To date, no model Indian government has emerged which 
     is generally considered to embody traditional Indian 
     governmental processes and, at the same time, to be adequate 
     to the complex modern challenges of taxation, regulation and 
     the delivery of services, although there is no reason why it 
     cannot be done. This kind of debate is unique to tribal  
     government and rarely occupies the agendas or complicates 
     the problems of state and local non-Indian governments in 
     the United States.  
     
          Non-Indian governments are also partly responsible for 
     the perpetuation of the culture and social values of the 
     majority society in America, from their control of 
     compulsory education to their basic commitment to a 
     republican form of government and some form of free-
     enterprise economy. But tribal governments are seen by many 
     as protectors of Indian cultures whose existence is 
     perceived to be constantly threatened. Thus, tribal 
     governments tend to sense that every major policy decision 
     and every significant new direction taken could conceivably 
     lead to irreversible damage to a threatened culture. It is a 
     culture whose position is the more precarious because it has 
     no ties resembling those fundamental links between American 
     and European societies -- a culture which, in fact, has no 
     ties, no counterparts and no source of renewal anywhere on 
     earth but on the reservation.  
     
          This special relationship of tribal government to 
     Indian culture dominates every facet of tribal policymaking 
     and inculcates a caution and a conservatism which are marks 
     of most tribal policy. Tribal governments cannot ignore this 
     overriding concern. It is not only an important tribal value 
     and hence a major expectation tribal members have of their 
     governments, it is also a major expectation of many non-
     Indians in the press and the public at large -- an 
     additional source of pressure on tribal governments. They 
     can no more pursue public policy by ignoring cultural 
     realities than could any other government.  
     
          It can be very difficult to identify the precise 
     cultural dimension of many specific policy problems facing 
     Indian tribal governments. Although in many instances the 
     Indian cultural considerations can be identified and 
     explained, in other instances the exact demands of Indian 
     culture can be misidentified or used to mask other 
     considerations. The existence of special requirements based 
     on cultural considerations may raise problems not 
     encountered by state government. Accommodating them within a 
     cooperative intergovernmental relationship will require a  
     special effort by both governments.  
     
             Can Cooperation Threaten Tribal Governments?  
             --------------------------------------------
     
          A number of thoughtful tribal advocates have questioned 
     whether an improved tribal-state relationship would have a 
     debilitating effect on Indian culture or would weaken the 
     tribal-federal relationship and prompt another attempt by 
     Congress to abandon its historic recognition of tribal 
     political existence and its complex responsibilities to 
     Indian tribes. This question is not frivolous. It reflects 
     fears which flow from sad experience and it deserves a 
     serious response. But it is also important because of the 
     insight it offers into how the seemingly precarious status 
     of Indian tribes in the United States sometimes has a  
     paralytic effect on tribal policies.  
     
          It is obviously beyond the scope of this handbook and 
     beyond the competence of the Commission on State-Tribal 
     Relations to pass judgment on the complex questions of 
     culture change among Indian tribal societies. Whether a 
     particular course of action will have a destructive or 
     constructive influence on the natural process of culture 
     change to which Indian cultures -- like all cultures -- are 
     always subject is a matter for the Indian people themselves 
     to judge. But the dangers any particular course of action by 
     tribal governments might pose to Indian cultural survival 
     should be determined on the merits of that course of action, 
     not solely by whether it happens to involve coordination or 
     cooperation with state or municipal governments. It is easy 
     to imagine a program of tribal-state cooperation which 
     strengthens tribal culture by ensuring tribal control of an 
     area of government which might otherwise be dominated by 
     federal, state or municipal standards and practices. One can 
     just as easily imagine a state-tribal agreement which fails 
     to recognize and protect essential tribal interests. But the 
     difference between the two lies not in the fact of 
     intergovernmental cooperation, but in the nature of the 
     agreement.  
     
          The essence of a successful tribal-state agreement is 
     that both governments have found a basis for cooperation 
     that protects their legitimate interests. Even in situations 
     where tribal and state interests are in vigorous conflict 
     and where the historic relationship has been negative, 
     examples of coordination and cooperation can be found. It is 
     apparent, then, that both governments can find a basis for 
     distinguishing competing from common interests and that many 
     already have decided that a wholly negative 
     intergovernmental relations policy is in the interest of 
     neither party.  
     
          As with the cultural impact, the likely political 
     impact of an improved tribal-state relationship is a matter 
     of judgment. Federal Indian policies and programs date from 
     the earliest days of the nation. Because of their age and 
     historical background they have a complex rationale based on 
     several different motivations. In the classic formulation of 
     Chief Justice John Marshall over 150 years ago, Indian 
     societies have, within limits, inherent rights to self-
     government, to land and natural resources and to a separate 
     culture, none of which is derived from the American 
     Constitution but which to some degree must be protected 
     under the Constitution. In theory, perhaps these rights 
     should stand on their own. But the Supreme Court observed 
     nearly a century ago in United States v. Kagama, 188 U.S. 
     375 (1886), that special federal protective measures are 
     necessary because the Indians'  non-Indian neighbors and 
     state governments are most likely to treat them unfairly and 
     take advantage of their unfamiliarity with the majority  
     society.  
     
          At the same time, a major strain of federal Indian 
     policy has been to "civilize," or, in the modern euphemisms, 
     to acculturate and assimilate Indians into the "mainstream" 
     society "when they are ready." An equally persistent strain 
     of American policy, related to the former and perhaps more 
     modern in its expression, is that a rationale for Indian 
     status and the complex of federal Indian programs is the 
     economic underdevelopment of reservations and the endemic 
     poverty of Indian people.  
     
          Many observers, and many of the Indian people 
     themselves, believe that the Indians' worst enemy is the 
     dominant federal establishment which exercises such great 
     control over their lives and affairs. Why, then, do the 
     Indians seem to cling so tightly to their relationship with 
     the federal government? Indian spokesmen have answered this 
     question often and clearly: the primary Indian goal is 
     survival as distinct peoples, cultures and societies -- 
     preservation of identity. Historically, it has seemed that 
     one of the conditions which makes Indian survival a 
     continuing possibility in America is the relationship of the 
     tribes to the federal government and the maintenance of the 
     complex Indian status in law and government, even with all 
     the disadvantages that status entails. It has never seemed 
     to be a realistic, possibility for the tribes to work out a 
     new relationship which would sort out the disadvantages from 
     the advantages of the present arrangement.  
     
          The apparent conservatism of tribal policy comes, then, 
     from a conviction, based on experience, that any substantial 
     change in the present Indian status poses a potential threat 
     to the federal-tribal relationship and hence to the 
     conditions apparently necessary for continued Indian 
     survival within American society. As perceived -- probably 
     accurately -- by the tribes, the Indian right to political 
     existence established in American law by the immortal John 
     Marshall is in reality much more fragile than the sovereign 
     existence of other nations and might not be able to 
     withstand the pressures of the American legal, political and 
     economic systems on its own. As Indians point out, there is 
     little likelihood that the international community would 
     decide that the rationale for the sovereignty of, say, 
     Switzerland, Luxembourg, Liechtenstein or Monaco will vanish 
     if and when it can be established that those countries are:  
     
          1) insufficiently culturally distinct from neighboring 
             countries;  
     
          2) insufficiently threatened by the hostility of 
             neighboring countries; or  
     
          3) insufficiently poor. 
     
          The nation, and especially the state governments which 
     deal directly with tribal governments, must recognize the 
     complexity of the dilemma in which the tribes find 
     themselves and the difficulty of making policy in these 
     circumstances. On the one hand, tribal political existence 
     has survived for 200 years of European occupation and is so  
     embedded in federal law, policy and programming that it is 
     likely to survive indefinitely in some form. But it is 
     probably not possible for the nation to make a binding 
     guarantee to the tribes that their existence -- socially and 
     politically -- will be a matter of right for as long as they 
     choose to maintain it or that they will retain the 
     governmental power they feel they need to function 
     effectively on the reservations.  
     
          Lacking such a guarantee and convinced that the 
     survival of Indian societies depends to a large extent on 
     the survival of Indian governments, tribes ironically 
     perceive that they must be in a state of obvious cultural 
     distinctness, obvious hostility from their neighbors, and 
     obvious poverty in order to justify their existence. If 
     tribes seem to lack enthusiasm for a close relationship with 
     even well-intentioned state governments, here is a point to 
     remember: states stand to inherit governmental authority on 
     reservations if tribes lose it; federal Indian policy makes 
     them natural rivals so long as tribal governments are not  
     considered permanent.  
     
          There can be no guarantee that Congress will not 
     radically change its historical policy and, in effect, 
     punish tribal governments for developing constructive 
     relationships with state and municipal governments by 
     limiting tribal powers and expanding state powers on 
     reservations. But it should be made clear to Congress, the 
     states and the American people that if poverty and the 
     hostility of their neighbors are necessary ingredients of 
     continuing tribal existence, Indian societies are paying a 
     heavy price to insure their own survival. The likelihood of 
     reducing the enormous human and financial cost of 
     contemporary reservation problems under these conditions is 
     negligible. 
     
     
                       C H A P T E R   T H R E E 
     
                      FUNDAMENTAL CONSIDERATIONS 
                   AFFECTING TRIBAL-STATE AGREEMENTS 
     
          The tribal-state relationship could take any of a vast 
     range of forms, from the most solemn, formal treaty-like 
     agreement designed to settle a complex water rights issue 
     all the way to a casual verbal understanding between the 
     lowest levels of governments that achieves day-to-day 
     coordination. When considering the tribal-state 
     relationship, there is a tendency to use terms such as 
     "negotiating process" and "agreement" which imply more 
     formality and structure than may be necessary. In this 
     handbook, "negotiation" or "negotiating process" refers to 
     any discussion of common problems between state and tribal 
     governments regardless of the degree of formality or the 
     level of government at which the discussion occurs. The term 
     "agreement" refers to any kind of understanding between the 
     two governments. Where formal negotiations or agreements are 
     intended, we will be specific.  
     
          Tribal, state and federal officials often make several 
     assumptions about tribal-state agreements:  
     
          -- that the exact limits of existing tribal and state 
             jurisdiction must be defined and agreed on first;  
     
          -- that a specific term is necessary;  
     
          -- that there must be provisions requiring notice and a 
             waiting period before cancellation by either party;  
     
          -- that an agreement must be enforceable; and  
     
          -- that federal approval is required for a tribal-state 
             agreement. 
     
          These assumptions do reflect relevant considerations, 
     but clearly they are not all necessary to all forms of 
     cooperation and coordination between tribal and state 
     governments. Laying the groundwork for an increasingly 
     rational and cooperative intergovernmental relationship does 
     not consist of reducing the tribal-state relationship to a 
     set of structured, enforceable formal agreements. In fact, 
     insisting on unnecessary formality may prevent informal 
     working understandings across broad areas of government.  
     
          To determine the requisite degree of formality, it is 
     necessary to identify in general terms the relevant state 
     and tribal interests at stake, the legal constraints and the 
     desired outcome. Although there may be problems that cannot 
     be approached without directly addressing complex or 
     controversial issues, it is usually better to begin with 
     areas where common interests are clear and agreement can be 
     reached as informally as possible and then to move 
     incrementally toward the complexities as the need arises.  
     
          The delivery of services, the management of executive 
     branch resources and the coordination of regulatory and tax 
     policy and practice generally can be approached informally, 
     enabling both governments to avoid ultimate jurisdictional 
     questions. So doing helps avoid unintended gaps in service 
     or jurisdictional vacuums in tax and regulatory enforcement. 
     On the other hand, the governments are less likely to be 
     able to avoid defining jurisdictional limitations where the 
     imposition of sanctions is involved because constitutional 
     and statutory limitations of tribal and state governmental 
     power in favor of individual rights differ. When these 
     rights are asserted the limits of a particular government 
     are tested. 
     
                    Existing Limits of Jurisdiction 
                    -------------------------------
     
          A major cause of tribal-state conflict is 
     jurisdictional uncertainty. As between two governments, 
     jurisdiction can be exclusive or concurrent. When it is 
     exclusive, one government has the power to the exclusion of 
     the other. When it is concurrent, each government 
     independently has the power over the same territory, persons 
     or subject matter. Tribes and states have areas of exclusive 
     jurisdiction and a few areas where their jurisdiction is 
     considered to be concurrent, that is, both have power at the 
     same time. But the troublesome area in the relationship is 
     the area of jurisdictional ambiguity; there, each government 
     commonly seeks to establish its own exclusive jurisdiction 
     to resolve the ambiguity.  
     
          Resolving a jurisdictional ambiguity definitively and 
     exclusively in favor of one government or another negates -- 
     to that extent -- an intergovernmental relationship and 
     replaces it with the discretion of a single government. 
     Concurrent jurisdiction, on the other hand, can be 
     troublesome where government policy and practice are 
     conflicting and uncoordinated. Because of the uniqueness of 
     their relationship, tribes and states have sought definition 
     of the scope of their powers in the absence of other means 
     to manage the problems which might result from the 
     concurrent exercise of government power. Because of the 
     nature of federal Indian law, it is unlikely that either a 
     federal court or the Congress will conclude that tribal and 
     state powers are concurrent, although any decision made will 
     likely leave additional ambiguities. But tribes and states 
     can agree to leave ambiguous jurisdictional areas undefined 
     for the time being and enter into discussions of policy and 
     practice which will determine whether there is a practical 
     necessity to resolve ambiguities into exclusive state or 
     tribal power. Where government policy and practice are 
     identical or compatible there is no need to resolve 
     ambiguities; moreover, an additional outcome of this process 
     may be to define much more precisely the questions which 
     must be resolved.  
     
          Thus the jurisdiction of tribe and state need not be 
     definitively agreed upon at the beginning of a negotiating 
     process between the two governments. It is helpful to have 
     some agreement as to the scope of the EXCLUSIVE jurisdiction 
     of each and the scope of the areas of ambiguity, but to 
     attempt to remove all ambiguities at the outset would be to 
     remove from the discussion the largest share of the basis 
     for the intergovernmental relationship. Coordination of 
     government policy and practice with respect to areas of 
     exclusive jurisdiction would facilitate many important 
     government goals, just as it does between states or on a 
     council of governments level in a metropolitan area. But the 
     real usefulness of the process suggested by the commission 
     lies in the attempt to coordinate in areas of ambiguity such 
     that establishing exclusive jurisdiction becomes 
     unnecessary.  
     
     
          It is important to stress that the agreements which 
     result from such a process will not by their own force 
     concede or bring about concurrent jurisdiction. Under 
     present federal law, the jurisdictional relationship between 
     state and tribal governments can be changed only through a 
     formal process prescribed by the 1968 Indian Civil Rights 
     Act involving a tribal referendum or by a new act of 
     Congress. These agreements can neither enlarge nor diminish 
     the existing scope of tribal or state power. And if an 
     agreement cannot be reached or later proves unworkable, both 
     governments are back in the ambiguous situation where they 
     began. The process examined and recommended here assures 
     that the governments will seek judicial definition of the 
     scope of their jurisdiction -- or congressional adjustment 
     of their relative powers -- only after they have tried and 
     failed to coordinate the exercise of their powers in such a 
     way as to make the ambiguities benign and of academic  
     interest and only where the need to resolve ambiguities is 
     compelling.  
     
                     Transfer of Government Powers 
                     -----------------------------
     
          Some recent attempts to resolve problems cooperatively 
     have involved the purported transfer of government power 
     from one jurisdiction to another, for example, in attempts 
     to find a means for the involuntary civil commitment of 
     reservation Indians to state institutions. One reason these 
     attempts failed was that both governments seemed to be  
     operating on the assumption that the only way to deal with 
     the problem was to give state courts jurisdiction to conduct 
     proceedings to commit reservation Indians to mental 
     institutions or juvenile facilities.  
     
          The 1968 Indian Civil Rights Act requires that a 
     transfer of jurisdiction from tribal to state government can 
     be accomplished only with the consent of the tribe as 
     expressed in a popular referendum. But the goal of achieving 
     the involuntary commitment for treatment of the mentally ill 
     or juvenile offenders could have been reached by less 
     drastic means. The states and tribes could have sought a 
     method to enable state institutions to accept reservation 
     Indians on the basis of tribal court commitments. There is 
     ample precedent for this in the common practice of housing 
     patients or prisoners from one state in the institutions of 
     another on the basis of home-state court action. If the 
     state is concerned about the adequacy of the tribal court 
     procedure, the negotiation process itself and the final 
     agreement provide opportunities for addressing these 
     concerns to the satisfaction of the state while still 
     preserving tribal prerogatives.  
     
                           Written Agreement 
                           -----------------
     
          For some kinds of tribal-state agreements, a written 
     document is essential to spell out the obligations and 
     benefits for each government. At the same time, most tribal-
     state agreements are entirely voluntary and self-enforcing 
     coordination arrangements. There may be circumstances, for 
     example, in which an official of one government lacks the 
     power to conclude a written agreement on the part of his 
     government but may be willing to exercise his own discretion 
     along the lines of an agreed-upon course of 
     intergovernmental cooperation. In such a case, a sincere 
     commitment to follow the agreed plan may be sufficient to 
     accomplish the substantive purpose of the agreement. To 
     insist on a written document may defeat the purpose of the 
     negotiation and make minimal cooperation impossible. A 
     written agreement could, for example, create political 
     problems for one or another government.  
     
          Given the history of many individual tribal-state 
     relationships, there will be a natural tendency to prefer 
     written agreements to oral promises. But the caution which 
     leads one government to insist upon a written agreement may 
     be matched by a corresponding caution in the other 
     government which prefers to operate on an oral understanding 
     until the relationship has stabilized to the point where a 
     written agreement can be justified. Both governments should 
     remain as flexible as possible, use the formal structure not 
     for its own sake but where necessary, and remain sensitive 
     to each other's problems.  
     
                             Specific Term 
                             -------------
     
          It may be advisable for each agreement to have a 
     specific term or to provide for periodic review and renewal. 
     As most tribal-state agreements deal with voluntary 
     coordination and cooperation, however, either government can 
     probably effectively cancel an agreement at any time. Such 
     provisions would only have a normative effect, then, and 
     usually should not be insisted upon in the face of 
     reluctance or opposition from the other government.  
     
                      Notice Before Cancellation 
                      --------------------------
     
          Like the question of a specific term, a requirement of 
     prior notice before cancellation may have only normative 
     value in a voluntary agreement. Nonetheless, it may be a 
     reasonable requirement for situations in which personnel or 
     equipment must be acquired or redeployed in the event of 
     cancellation. Both governments should be aware that if they 
     adopt a pattern of canceling agreements without notice and 
     without an orderly transition process the possibility of 
     future agreements suffers.  
     
                            Enforceability 
                            --------------
     
          Most of the tribal-state agreements which are now in 
     effect rest on the exercise of discretion by legislative and 
     executive branches of the respective governments and are 
     largely voluntary and self-enforcing. These are areas of 
     government in which the powers of state and tribal courts to 
     review the actions of their own governments are 
     traditionally quite limited, and there are obvious problems 
     connected with proposing that one government submit itself 
     to the jurisdiction of the other's courts to enforce an 
     agreement. 
     
          Some legislative proposals would grant federal courts 
     jurisdiction to enforce tribal-state agreements. But if this 
     jurisdictional grant is drawn too broadly, states and tribes 
     may be discouraged from entering into agreements which are 
     essentially voluntary and discretionary, fearing the 
     surrender of important prerogatives to the judgment of a  
     federal court.  
     
          There are not enough data to define the scope of need 
     for additional enforcement mechanisms for tribal-state 
     agreements, although there may be such a need. Many disputes 
     between tribes and states are now settled in federal courts. 
     As agreements become more widespread and the experience is 
     analyzed, and as the governments explore such mechanisms as 
     binding arbitration to settle disputes, the need for 
     mandatory enforcement mechanisms should become clearer.  
     
                           Federal Approval 
                           ----------------
     
          Contrary to the misconception of many state, tribal and 
     federal officials, not all possible agreements between 
     tribal and state governments require federal approval. The 
     question of whether a particular agreement is subject to 
     federal approval depends on the subject matter of the 
     agreement, its intended effect, and the content of pertinent 
     federal and tribal law. A tribal-state agreement on the 
     allocation of water rights would require federal approval. 
     An agreement between the Nez Perce Tribe and the State of 
     Idaho designating a "Chief Joseph Day" would not. 
     
     
                        C H A P T E R   F O U R 

                             THE PROCESS 

                The Context of State-Tribal Cooperation 
                ---------------------------------------
     
          A tribal-state relationship exists whether the two 
     governments attend to it or not. Even with no specific 
     efforts devoted to it, this relationship will be good in 
     some respects and poor in others depending on a number of 
     factors. In this section we examine some of the 
     considerations which are relevant when governments want to 
     undertake a deliberate effort to improve the 
     intergovernmental relationship. To yield results, any 
     process aimed at such change must be understood in the 
     proper context. Each government must have a realistic view 
     of its own goals and policies and those of the other 
     government. Each government should begin with the assumption 
     that the problems of inter governmental coordination 
     stemming from the tribal-state relationship  are of the same 
     nature and character as the problems stemming from any 
     intergovernmental relationship; they are not totally 
     different merely because states and tribes happen to be 
     involved. Many states share coordination issues with 
     neighboring states. They are handled routinely through 
     various coordination techniques. But often when states 
     encounter similar coordination problems with an Indian tribe 
     they perceive them as problems of a totally different 
     character requiring very different solutions -- or sometimes 
     requiring only the "solution" of attacking the tribe's 
     jurisdiction.  
     
          Tribal governments have a different kind of problem. 
     Tribes often ascribe all of their coordination problems with 
     state government to anti-Indian, anti-tribal-government 
     state policies. They fail to realize that at least some of 
     the problems arise from the inevitable intergovernmental 
     frictions which always occur between neighboring or 
     overlapping jurisdictions. A state may have exactly the same 
     problem with neighboring states or with the federal 
     government, but the tribe often fails to realize this and is 
     therefore unable to suggest ways of managing the conflicts.  
     
          Of course, there are some intergovernmental issues 
     unique to the overlapping and unclear jurisdictional 
     distribution between tribal and state government. And, of 
     course, some problems between the governments are based on 
     racism and an obstinant refusal to respect any of the other 
     government's legitimate prerogatives. But it is only common 
     sense to begin with the assumption that tribal-state 
     coordination problems have the same causes -- and are 
     amenable to the same solutions -- as coordination problems 
     between any two governments with common interests and 
     overlapping jurisdictions, and then to remain sensitive to 
     the possibility that a particular tribal-state problem is 
     unique or is grounded in attitudes on the part of one or the 
     other which have nothing to do with legitimate governmental 
     interests.  
     
          The history of this complex intergovernmental 
     relationship teaches that even a process that does not 
     result in a specific written agreement may still be 
     beneficial. Many tribal-state relationships suffer from the 
     lack of communication between the governments and from the 
     fact that each government may be unclear as to its own goals 
     and the reasons for them. In a publicly antagonistic 
     relationship in which the parties rely only on the other 
     government's rhetoric for understanding its position, each 
     government may assume that the issues dividing them are more 
     extensive and intractable than they really are. Or they may 
     impute to the other government motives and problems which do 
     not exist.  
     
          A discussion process which does not produce an 
     identifiable formal result may achieve a beneficial purpose 
     by increasing communications between the two governments at 
     all levels, by leading each government to define its own 
     goals more precisely vis a vis the other, and by defining 
     the issues dividing the two governments precisely -- all of 
     this, perhaps, for the first time. The movement of the 
     tribal-state relationship from a state of generalized 
     suspicion and antagonism to one where unreconciled issues 
     are defined precisely and where each government's position 
     is held for reasons of deliberate policy is a sign that the 
     relationship is maturing into a manageable intergovernmental 
     relationship not unlike many others in the nation. Separate 
     governments will guard their prerogative to adopt policies 
     independently. In the past, it has often seemed that the 
     inability of tribes and states to cooperate was a policy in 
     itself rather than an incidental by-product of legitimate 
     governmental and social interests.  
     
                The situation will dictate the solution 
                ---------------------------------------
     
          This handbook presumes to offer no single prescription 
     for solving all problems of tribal-state relations for the 
     simple reason that no such prescription exists. The shape of 
     the process must be tailored to the circumstances of each 
     situation. In some instances, the will to cooperate and the 
     facts of the case are such that success can be reached by 
     any of a number of routes. Sometimes, what succeeded in one 
     situation may fail in what appears, superficially at least, 
     to be an analogous situation but which actually differs 
     greatly due the kinds of pressures brought to bear on both 
     governments, the personalities of the people involved, etc. 
     If there are no "never fail" recipes for success in 
     improving tribal-state relations, neither are there 
     impenetrable layers of mystery surrounding the elements of 
     these intergovernmental relationships and ways to improve 
     them. If one understands the dynamics of one's own and the 
     other form of government, the likelihood is greater that an 
     approach will be chosen which will produce success.  
     
          There is tendency to assume that the overall 
     improvement of tribal-state relations requires a highly 
     publicized ceremonial process. But it can begin, in fact, 
     anywhere in state or tribal government where there is an 
     interest. Where it begins depends upon the overall strategy 
     of the process and how it is designed to achieve results.  
     
          Tribal-state relations are usually handled for the 
     tribe by the tribal chairman and the tribal council. Because 
     of the greater size and complexity of state government, 
     often the first question considered by both states and 
     tribes in seeking to begin a process is whether there should 
     be a single entity in state government whose role it is to 
     address Indian tribal governments. State policy toward the 
     Indian tribes should be uniform, runs the argument, but each 
     agency of state government now tends to make its own policy. 
     Some have good working relationships with the tribes, while 
     others seem to be in continual combat. If the state had a 
     single designated agent to deal with the tribes, state 
     policy would tend to become more uniform and the tribes 
     would not be forced to work with a confusing plethora of 
     state agencies.  
     
          This analysis may lead to the creation of a special 
     legislative committee on Indian affairs charged with 
     improving the relationship with the tribes. In the executive 
     branch it may lead to the creation of an Indian specialist 
     position in the governor's or the attorney general's office, 
     or to the creation of an Indian affairs commission.  
     
          The tribal-state relationship is horizontal in nature, 
     cutting across nearly all vertical areas of government such 
     as education, health, law enforcement, roads, economic 
     development, welfare, and taxation. The tribal-state 
     relationship, then, does have a common element of "Indian 
     affairs" but that horizontal common element is always found 
     in the context of a particular vertical area of state 
     government. There is no "Indian affairs" issue without 
     reference to a particular subject of governmental interest -
     - education, taxation, health, etc.  
     
          But there are problems with the approach of seeking a 
     uniform state policy on tribal-state relationships. In some 
     of the vertical areas, cooperation and coordination will be 
     easy to achieve and no doubt already exists to some extent. 
     In other areas there may be serious problems which cannot 
     easily be resolved. To impose a "uniform" state policy 
     across state government may be more likely to turn back 
     progress already made in the "easy" areas than to speed 
     progress in the difficult areas. Both the state and the 
     tribe should carefully consider the present state of the 
     relationship before concluding that a uniform state policy 
     toward the tribes is a sensible approach.  
     
          There are other reasons why the pursuit of a uniform 
     state policy may be futile. Each vertical area of government 
     functions within a system composed of people, organizations 
     and institutions with legal, political, professional and 
     economic interests in that particular area of government. 
     Among these are the governor, possibly the attorney general, 
     the responsible executive agency, substantive and 
     appropriations legislative committees and subcommittees. 
     Superimposed on these are the various non-governmental 
     constituent groups which have an influence on the 
     functioning of the system -- an influence which does not 
     appear on the organizational charts but which in some cases 
     is con trolling.  
     
          The important decisions regarding these vertical 
     categories of government are made largely within this system 
     -- decisions about new legislation, policy, the allocation 
     of resources, the distribution of funds, eligibility for 
     services, standards and guidelines, the location of offices 
     and the creation of new positions. Control of these matters  
     is often jealously guarded by the power centers within the 
     system and one should not underestimate the difficulty of 
     implementing changes within a vertical area of government 
     without the active support of many if not all of the 
     elements of the system.  
     
                          Isolation Is Costly 
                          -------------------
     
          A process which emphasizes a specialized Indian 
     committee, task force, agency or liaison position is likely 
     to pay a very heavy price in its isolation from the main 
     flow of decision-making in each vertical area of state 
     government, especially as it tries to involve itself in the 
     details of government. Any specific agreement arrived at 
     between a tribe and a state using a specialized "Indian" 
     negotiating vehicle will still have to gain the backing of 
     the various elements controlling the affected vertical 
     category. Frequently, of course, the acceptability of an 
     agreement is directly proportional to the involvement in the 
     negotiating process of those who regularly control the 
     system. 
     
          This is one of the reasons for the relative 
     ineffectiveness of state Indian affairs commissions. These 
     commissions are commonly appointed by the state governor and 
     consist of state agency heads or Indian affairs specialists 
     from state agencies and official or unofficial 
     representatives of the various Indian tribes and Indian 
     communities in the state. Tribes are often wary of state 
     Indian commissions, in part because they seem to have little 
     effect on state policy. State agency heads often devote 
     little time and attention to them and are also skeptical of 
     them because they represent a process outside the normal 
     flow of decision-making and thus have the potential of 
     raising policy issues outside the context of that flow.  
     
          Relegating all Indian business to a central point in 
     state government may also give rise to another kind of 
     problem. Once such a responsibility is assigned to an agency 
     of government or a legislative committee, all other agencies 
     or committees will tend to relax their own efforts in Indian 
     affairs and rely on the agency or the committee with special 
     Indian responsibilities to "resolve the Indian problems." 
     They also tend to remain on guard to see that their own 
     "turf" is not violated. In the end, critical tribal-state 
     coordination problems go unattended, while the Indian 
     specialists spend their time trying to avoid controversies 
     with either tribes or state agencies. Concentration into a 
     single agency, then, often pays too high a price in 
     professional and political isolation.  
     
          But the opposite approach, complete dispersal of the 
     responsibility for Indian affairs to each vertical unit of 
     state government -- the "Indian desk" approach -- brings its 
     own problems and penalties. If each agency is responsible 
     for its own tribal relationship the needed uniformity and 
     coordination in state Indian policy may suffer. There is 
     also then no forum in which to assess the general 
     performance in this area of intergovernmental relations.  
     
          These two flawed approaches -- concentration in a 
     single agency or dispersal -- appear to be the product of 
     the very human, very understandable desire to find an easy 
     solution to a complicated problem. But neither has been 
     equal to the challenge. The quality of the relationship a 
     state agency has with the Indian tribes is simply a function 
     of the normal evaluation and oversight of that agency by the 
     governor, the legislature, the press and the public. It need 
     be no more complicated than that. If the head of the highway 
     department, for example, had continual problems with the 
     federal Department of Transportation and neighboring state 
     highway departments, public and legislative attention would 
     soon focus on him with the attendant questions about his 
     ability to do this important part of his job.  
     
          Similarly, those who control each vertical category of 
     state government should be responsible for working out a 
     satisfactory relationship with the Indian tribes. And they 
     should be evaluated on their performance of that. 
     responsibility. (All too often, of course, the official who 
     battles constantly with tribal governments has been seen  
     uncritically as the zealous champion of the state's 
     interest.) This approach is not so seductively simple as the 
     concentrated Indian super agency or the ineffectual Indian 
     desks dispersed throughout state government. But, 
     unfortunately, there is no effective substitute for simple 
     executive accountability. 
     
                Open-ended or Single-Issue Discussions?  
                ---------------------------------------
     
          There are two basic types of processes for improving 
     tribal-state relations. One is a process which begins as an 
     open-ended and relatively unfocused discussion of the 
     intergovernmental relationship which later narrows to a 
     discussion of specific coordination issues. The second 
     focuses from the outset on a single issue or a specific 
     agenda of issues. The type of process chosen should depend 
     upon the nature of the existing relationship between the 
     governments.  
     
          The advantage of a focused or single-issue process is 
     that it can be structured more easily and it can be 
     evaluated readily by its outcome. It is analogous to many 
     diplomatic or labor negotiations in that each party 
     presumably has a list of goals to achieve in the process and 
     maintains its participation as long as there remains a 
     possibility of achieving some. if not all, of these goals. 
     An additional advantage of a focused process is that it is 
     more likely to attract the personal attention of the top 
     governmental leadership -- the offices of the governor and 
     tribal chairman, the attorney general and tribal attorney, 
     executive agency heads, and legislative committee chairmen.  
     
          If a limited agenda focus is preferred, governments 
     should not attempt to force a premature focus to a process. 
     The first step always should be a discussion between state 
     and tribal governments regarding the scope of the process to 
     be undertaken. During this preliminary step, as throughout 
     the process, both sides should remain flexible and keep an 
     open mind. If one government insists upon focusing on issues 
     that the other government does not want to discuss, it gives 
     the impression that there is a hidden agenda on the part of 
     the government taking the initiative. Forcing one's own 
     priorities onto the agenda may breed so much suspicion that 
     the process never has a chance to succeed.  
     
          The advantage of an open-ended process is that it 
     allows maximum flexibility by enabling both governments to 
     avoid negotiating a specific agenda which may, in fact, be 
     impossible early in the process. One might expect this type 
     of process to be most useful where the historic tribal-state 
     relationship has been poor and there appears to be a need 
     for basic communication between state and tribal governments 
     to lay the groundwork for more specific discussions in the 
     future. But the generality of this type of process is also 
     its disadvantage. It may be viewed as a waste of time by the 
     very top leadership whose commitment is vital to the success 
     of any process and it may suffer from their lack of  
     participation. If the open-ended process does eventually 
     produce specific recommendations for action, the absence of 
     policy makers from the process may signal difficulty in 
     getting the recommendations approved and implemented.  
     
          Several additional possibilities should be considered 
     with respect to an open-ended process. First, it may be 
     advisable to agree upon a time limit by which a more 
     specific agenda will be developed rather than to permit 
     extended general discussion to substitute for the more 
     difficult task of solving specific difficult problems. 
     Second, both governments must demonstrate their dedication 
     to the process by committing the time and attention of top 
     leadership. If it is unrealistic to expect major time 
     commitments of the tribal chairman and the governor or 
     agency heads they should make a commitment to be briefed 
     periodically on progress. The work plan should specify their 
     participation at certain points in the process, and specify 
     the level of staff people who will meet in the interim for 
     data-gathering, issue analysis, and the drafting of 
     recommendations.  
     
          There should come a point in each unfocused process 
     where generalities have been passed by and a realistic 
     relationship -- including appropriate but not blind trust -- 
     has been established. Specific issues will have emerged, 
     different expectations will be appropriate and a greater 
     involvement of top people will be necessary. The test of an 
     unfocused process is whether this point is reached within a 
     reasonable time or whether one government or the other seems 
     to have decided to limit its participation to a process 
     which aims only at "promoting better understanding."  
     
                           The Participants 
                           ----------------
     
          Frequently, both states and tribes wish to identify 
     clearly who can negotiate and what they can negotiate for 
     each government. It is fruitless to attempt to arrive at a 
     comprehensive list of such people and the scope of their 
     power to negotiate, given the comprehensive nature of the 
     tribal-state relationship. Such questions have meaning only 
     in a specific situation and depend upon the expectations of 
     both parties, the political context and the intended outcome 
     of negotiations in addition to such obvious factors as the 
     legal power of the individuals involved.  
     
          Both states and tribes are often unnecessarily 
     preoccupied with the formal negotiating process conducted 
     between negotiators with specific portfolios. In such a 
     process, negotiators are instructed in advance as to the 
     commitments they are authorized to make on behalf of their 
     principals and the degree to which they can compromise their 
     government's ideal goals in order to reach an agreement. 
     Highly structured tribal-state processes such as these 
     certainly have their place, but the full range of the 
     intergovernmental relationship is much more complex and 
     demands a greater variety of approaches.  
     
          There is a need to assure an orderly, coordinated 
     process of intergovernmental relations. At the same time, 
     given the vast range of possible agreements between the 
     governments, to concentrate unduly in too few hands the 
     authority to discuss mutual problems can only retard the 
     growth of the relationship. The fundamental control on the 
     officials of both governments is the limitation on their 
     legal authority. Coordination efforts within each government 
     should be directed at keeping abreast of discussions and 
     ensuring that no official is exceeding his authority.  
     
          As an official of one government receives an offer from 
     an official of the other to enter into discussions, the 
     basic questions to be asked are: How far can he go? How far 
     am I authorized to go? The answers to these questions will 
     dictate the scope of the discussions. When the limits of one 
     official's authority are reached and the nature of the 
     discussions seems to require additional authority, that is a 
     signal to seek the involvement of higher officials. But 
     neither government should insist at the outset on talking 
     only with officials of the other government with authority 
     to make the broadest and most binding commitments regardless 
     of the subject to be discussed.  
     
          A helpful tool of analysis is to define a desired 
     outcome -- the goal -- of a particular process from one's 
     own government's point of view and to work from there back 
     to a definition of the scope of the negotiations and the 
     appropriate level of government at which the negotiations 
     should be conducted. Both tribal and state governments are 
     limited by federal law and their own constitutional and 
     statutory provisions as to the commitments they can make. If 
     the goals as defined necessarily entail the amendment of a 
     federal statute or a tribal or state constitution, it is 
     wise to re-examine the goals and try to achieve many of the 
     same results without the complex, expensive and possibly 
     unsuccessful attempt to make major changes in the 
     fundamental law governing the tribal-state relationship. 
     Often when the participants have concluded that the only 
     solution to a problem requires changes in a federal  
     statute, a state or tribal constitution, they have 
     approached the problem too simplistically. Less drastic 
     alternatives may involve the amendment of state or tribal 
     legislation. These results will be easier to achieve than 
     constitutional amendments or the amendment of federal  
     statutes. In these cases a political judgment must be made 
     as to the ability of the negotiating party to deliver. A 
     tribal chairman or state governor, despite his best efforts, 
     may be unable to assure passage of controversial 
     legislation; in other cases the support of an agency head 
     alone may be sufficient to secure passage of a legislative 
     amendment.  
     
          If after a full analysis, the only solution to the 
     problem is such a drastic alternative, the parties must 
     remember that the negotiators can only commit themselves to 
     recommend and work for these changes. Each side must make 
     its own judgment as to the value of such a commitment and 
     the likelihood of its success. But joint tribal-state 
     support, founded on mutual benefit, may be crucial to the 
     success of such an attempt.  
     
          Subtle political judgments must be made by both 
     governments on the questions of what a negotiating party can 
     commit to, what constitutes a reasonable scope for a 
     particular negotiation, and what is the likelihood that a 
     negotiating party can and will deliver. It is obvious that 
     when someone commits him-self beyond his area of discretion 
     or authority, all he can promise is that he will take a 
     certain position and advance it to the limits of his power 
     and ability. There are many circumstances in which a sincere 
     commitment of this type is the most politically realistic 
     outcome to be achieved. Seeking anything more would be to 
     ignore the political realities of the other government's 
     process.  
     
          Most government officials, however sincere they may be, 
     will be reluctant to act even within their authority in a 
     way that may needlessly bring them political problems. Thus, 
     for example, an agency head with the power to amend 
     regulations may be reluctant to promise to implement an 
     agreement throughout the exercise of this power unless he is 
     confident he can deal with any opposition which may arise 
     within his system. Because of this, judgments must be made 
     frequently as to which individuals and institutions to 
     include at certain points in the process to assure that 
     implementation of an agreement is politically possible.  
     
          Because of the legal limitations on the authority of 
     any negotiator, the governments should not indulge an undue 
     fascination with the idea of "commitment" of a government as 
     a necessary outcome of a negotiating process. Certainly, 
     binding commitments are often desirable. But it is often 
     sufficient in the circumstances to work incrementally toward 
     long-term solutions. In such cases the promise of a 
     government official to advocate certain policies or to 
     discharge his responsibilities in a certain way may be a 
     desired outcome of a negotiating process. Within the limits 
     of his authority and with the understanding that the process 
     includes full communication with his superiors, it might be 
     worthwhile as a beginning phase to encourage any public 
     official to meet with representatives of the other 
     government in the interest of defining issues and outlining 
     a process.  
     
          This approach may seem vague. It is certainly 
     unstructured. But it must be remembered that the basic 
     tribal-state relationship is widely perceived to be a 
     negative one. A lower level official may be able to explore 
     issues in a general and tentative way with less political 
     risk in the beginning, with the expectation that higher 
     level officials may become interested and involved in the 
     process if a politically acceptable solution seems possible. 
     The fundamental rule is this: rather than impose an 
     unnecessarily rigid structure upon the tribal-state 
     relationship, both governments should remain flexible as to 
     the process and realistic in their expectations of a 
     particular negotiating effort.  
     
                            Linking Issues 
                            --------------
     
          "Linkage" is a phenomenon which is related both to the 
     scope of a negotiating process and to the interplay between 
     stated and unstated goals of governments. Linkage can be 
     defined for this purpose as the practice -- either formal or 
     informal -- of making two issues dependent on each other in 
     a negotiating process, so that a government's willingness to 
     agree on one issue depends upon reaching agreement on the 
     other. The practice of linkage can be fair or unfair, wise 
     or unwise depending upon the circumstances and depending on 
     one's point of view. Linkage is impossible to avoid 
     completely in a negotiating process involving two entities 
     with so complex a relationship as that between a state and a 
     tribe.  
     
          In one sense, the process of agreeing on the scope of a 
     negotiation is a form of linkage: it involves agreeing on 
     the number and types of issues which will be considered 
     together. Where there is some rationale for linking issues, 
     the process of defining the scope of a negotiating process 
     should not be overcomplicated by focusing on this issue. The 
     process itself will develop an internal logic which will 
     tend to indicate whether a particular grouping of issues is 
     appropriate. And each process should be flexible enough to 
     allow for the scope to be adjusted by adding or dropping 
     issues from time to time. Improper linkage occurs when one 
     government seeks to link issues which are clearly unrelated: 
     e.g., "we will discuss a law enforcement agreement when you 
     are ready to accept our position on water rights." It isn't 
     always clear when linkage is appropriate but, as tribes and 
     states gain experience in dealing with each other, each will 
     develop notions of the limits of fair and sensible linkages 
     among issues. Until then, because both sides must agree on 
     the outcome of a negotiation, there seems to be little point 
     in stalling the process on the early question of the scope 
     of the agenda.  
     
          There are controls on the improper linkage of issues, 
     both within and outside of the process. Within the process, 
     a government may simply refuse to move forward until an 
     issue is dropped from or added to an agenda or until the 
     other government agrees to consider issues separately. The 
     external control lies in a government's accountability to 
     its constituency. For example, linking a law enforcement 
     agreement to concessions on water rights could well 
     stimulate a response from the residents of a community 
     poorly served by the existing law enforcement system. Their 
     immediate interest in improved law enforcement outweighs 
     their interest in water rights. They might well denounce the 
     attempted linkage as an unnecessary complication which 
     threatens a straightforward solution to their law 
     enforcement needs. It is conceivable, too, that a segment of 
     the general public would react to some efforts at linkage 
     simply on humanitarian grounds or on the ground that their 
     government is acting foolishly, short-sightedly or too 
     harshly. 
     
          There are advantages to this public dimension of the 
     tribal-state relationship. The scrutiny of press and public 
     takes an intergovernmental relationship which is now vaguely 
     perceived as antagonistic and gives it form and structure, 
     enabling the public and all observers to understand, to 
     judge the details, to look at the merits of both positions 
     and, in effect, to keep score. Ideally, both governments 
     will believe that it is to their advantage to have their 
     positions understood by their own and the other government's 
     constituency.  
     
          Finally, linkage may be implicit rather than explicit. 
     A government may, for any number of reasons, play a guessing 
     game and be unwilling to state the fact that agreement on 
     one issue is linked to others. This possibility exists in 
     any negotiating process and each government should be aware 
     of its potential. The judgment of whether to reveal the 
     suspicion or existence of a "hidden linkage" is one tactical 
     judgment among many to be made throughout the process. Those 
     judgments must be made in light of a government's own 
     strategic considerations and its obligation to be candid 
     with its constituents. 
     
     
                        C H A P T E R   F I V E 

                           THE FEDERAL ROLE 
     
          Confusion over the federal role in the tribal-state 
     relationship is common and forms a major barrier to improved 
     and expanded tribal-state relationships. Much of the 
     confusion stems from a basic misunderstanding of the tribal-
     federal relationship. Federal recognition of an Indian tribe 
     is essentially an acknowledgement of the political existence 
     of the tribe within the American system. Among other things, 
     recognition broadly preempts state power over that Indian 
     political entity, its lands and those subject to its 
     jurisdiction. But federal recognition does not of itself 
     constitute the same kind of broad limitation of tribal 
     power. To be sure, the tribal-federal relationship does 
     involve limitations of two kinds on tribal power: 
     limitations based on specific treaty and statutory 
     provisions (Indian tribes may not alienate trust land 
     without the approval of the Secretary of the Interior or the 
     Congress); and limitations inherent in the tribes' status as 
     domestic dependent nations (tribes lack the power in 
     domestic American law to conduct foreign relations 
     independently or to exercise criminal jurisdiction over non-
     Indians).  
     
                          Federal Preemption 
                          ------------------
     
          The federal constitutional "Indian power" preempts 
     state power over Indian tribes, not state power to make with 
     Indian tribes arm's length agreements which are within the 
     competence of both governments. The Indian Reorganization 
     Act specifically confirms in the tribes which have organized 
     under it or accepted its provisions the power to negotiate  
     with state and municipal governments. Similar provisions are 
     included in many tribal constitutions as well. It is 
     unlikely the Congress would confirm the tribal power to 
     negotiate agreements if final agreements could not be made.  
     
          This does not mean that tribes and states are free to 
     negotiate and conclude agreements on all subjects. Rather, 
     it means that the limits on tribal and state power to 
     negotiate agreements must be found in their usual sources: 
     limitations in federal treaty, statutory and constitutional 
     law; tribal and state constitutions; tribal and state 
     statutes  (unless amended to accommodate an agreement).  
     
          The erroneous assumption that the federal government 
     controls all tribal affairs is so strong in some quarters 
     that there is a danger that federal, tribal and state 
     officials alike will assume that all tribal-state agreements 
     must be approved by the Bureau of Indian Affairs or ratified 
     by Congress. Some state and tribal officials have even 
     expressed the view that tribal-state negotiations cannot 
     even begin with out federal permission. The reality is quite 
     different. The commission has already identified a wide 
     variety of valid tribal-state agreements, many of which give 
     no indication of any federal involvement.  
     
          Agreements which would transfer jurisdiction from one 
     government to another are governed by the 1968 Indian Civil 
     Rights Act and require a tribal referendum if tribal 
     jurisdiction is to be ceded to the state. Other agreements 
     which might purport to change the legal relationship between 
     states and tribes would likely require new statutory 
     authority from the Congress. Neither of these expedients is 
     likely to be necessary for the solution of most tribal-state 
     coordination issues, however. 
     
          Agreements which would affect Indian trust property 
     rights would require, at a minimum, the approval of the 
     Secretary of Interior or his representative. If such 
     approval is beyond the power of the Secretary, Congressional 
     ratification may be required. Again, these issues -- while 
     subject to wide public attention -- are relatively rare in 
     the total tribal-state relationship.  
     
                   Involvement of Federal Officials 
                   --------------------------------
     
          Regardless of whether an agreement requires federal 
     approval, it may be advisable to keep appropriate federal 
     officials informed of the progress of negotiations or even 
     to involve them as observers. The recent Presidential veto 
     of the Papago water settlement act passed by Congress 
     teaches that, if the federal government is expected to 
     assume a part of the financial burden for implementing an 
     agreement or if federal policy and practice must be 
     coordinated with those of the tribe and the state in the 
     implementation of the agreement, federal officials should be 
     involved throughout the process. Where federal participation 
     is strategically desirable but not legally required, 
     protocol and courtesy would seem to suggest that such a 
     decision be a tribal prerogative. But some states, no doubt 
     in a sincere effort at caution, have proposed in legislation 
     authorizing state agencies to negotiate with tribes that  
     federal participation and approval of any resulting 
     agreement be mandatory. Such a requirement could prohibit a 
     state from participating in an otherwise legal agreement. It 
     would not affect the desired result because state 
     legislative action cannot confer to the federal executive  
     an approval power which Congress has not chosen to give it. 
     
          This issue -- the involvement of federal officials -- 
     is another of the many instances where a simple knowledge of 
     human nature and the ability and willingness to understand 
     another's point of view are important. It is only natural 
     that some federal officials, who have historically seen 
     their role as the "protector" of tribal interests from state 
     encroachment (and who continue that role in many respects), 
     would be skeptical about a state-tribal cooperative 
     arrangement which was developed without their approval and 
     participation. Bluntly stated, the rule of thumb might be 
     said to be to invite appropriate federal participation 
     without losing sight of the fact that the parties are the 
     tribe and the state, and the parties cannot surrender 
     control of the process.  
     
          It must be remembered that, despite the federal trust 
     responsibility to Indians, the federal government is a third 
     party with distinct interests of its own and separate 
     relationships with both tribal and state governments. There 
     may be instances in which the effective tactic will be for 
     the state and the tribe to reach agreement between 
     themselves, presenting d united front to the affected 
     federal agency. Both the Congress and the Executive should 
     give great weight to tribal-state agreement on the best 
     solution to a problem. States and tribes are, after all, 
     closest to the situation. If they have reached an agreement 
     the rationale for federal control of their affairs is 
     reduced. Such a tactical judgment involves practical and 
     political risks, however, and should be made with those 
     risks foremost in mind.  
     
                The Responsibility of Federal Officials 
                ---------------------------------------
     
          Despite the reality of the federal role in tribal-state 
     relations the exaggerated view of that role is likely to 
     persist. That simple fact places serious responsibilities on 
     federal parties in a position to affect these negotiations. 
     No less than the tribal and state participants in the 
     negotiations, federal agency officials must have -- and must 
     reflect in their actions and attitudes that they have -- a 
     clear-headed and accurate view of the situation. If federal 
     officials -- seeking to narrow their responsibilities or 
     force an agreement -- indicate that they believe the tribe's 
     position is weak, that they lack enthusiasm for  their 
     duties as trustee, or that they are eager for a tribal-state 
     agreement to relieve them of the need to support the tribal 
     position, they irresistibly tempt the state to delay 
     negotiating in the hope and belief that the tribe's position 
     will collapse. By taking the lead in a clumsy and 
     unprofessional manner, federal officials may discourage the 
     very tribal-state cooperation they seek. On the other hand, 
     by vigorously exercising their trust responsibilities, 
     federal officials may encourage cooperation.  
     
          There is a corresponding danger on the other end of the 
     scale. In seeking to discourage states from holding to 
     unrealistic positions, neither federal officials nor the 
     tribe's attorneys should mislead tribes into thinking the 
     tribe's legal position is stronger than in fact it is. A 
     tactic of unwavering support for any tribal position, 
     intended to bring the state to the bargaining table, may 
     have the effect of discouraging the tribe from negotiating. 
     The burden on all parties -- and their responsibilities to 
     their constituents -- is to represent their legitimate 
     interests effectively and sensibly and to recognize a fair 
     and effective settlement when it is presented. 
     
          State and tribal officials frequently turn to the 
     federal courts or to Congress in an effort to change an 
     existing jurisdictional balance or to "clarify a 
     jurisdictional ambiguity." The federal government, because 
     of its powers over Indian affairs, offers the "once and for 
     all" illusion which has caused many tribes and states to 
     postpone dealing with their own relationships in the hope 
     that the federal government will settle their problems for 
     them.  
     
                       The Limits of Litigation 
                       ------------------------
     
          There are several characteristics of the judicial 
     process which make it unsuited for resolving every problem 
     which arises between the tribes and states. Any litigation 
     is costly, but litigation which must be taken to the Supreme 
     Court is prohibitively expensive. Tribes and states 
     represent two societies locked in a complex relationship 
     which involves a bundle of treaties, agreements, statutes, 
     previous court decisions and other legal paraphernalia. By 
     their nature and by constitutional principle, federal courts 
     can only resolve the specific case or controversy which is 
     before them, leaving other tribal-state relationships 
     subject to the continuing uncertainty which inheres in the 
     process of interpreting judicial opinions and applying them 
     to different fact patterns.  
     
          To a large extent, the litigation in the tribal-state 
     relationship has become a game in which each side pursues a 
     case which seems favorable to its cause. When the case has 
     been finally decided, the losing side rarely applies the 
     principles of that case to analogous situations in its own 
     relationship. Instead, it characteristically looks for an 
     analogous case with a slightly different set of facts in the 
     hope that the new case will:  
     
          -- bring about a reversal of the previous decision;  
     
          -- suggest a principle which severely narrows the 
             application of the principles of the previous 
             decision; or 
     
          -- offer a principle which conflicts with the previous 
             decision in such a way that a new area of ambiguity 
             -- and therefore maneuver ability -- can be 
             established.  
     
          Both tribes and states have highly skilled and highly 
     paid lawyers at their command and it is the essence of a 
     lawyer's role to seek to limit the effectiveness of 
     precedents which hold against his client's position. 
     Therefore, the so-called finality of a specific case or  
     controversy before the federal courts is illusory because, 
     in some ways, the states and tribes are litigating specific 
     cases only incidentally as a way to establish a new general 
     rule of law. The real object of the process goes far beyond 
     settling the specific case. It involves the use of the 
     federal judicial process to attempt to obtain a broadly 
     stated principle which will control the entire tribal-state 
     relationship in favor of one client or another.  
     
          On the one hand, each tribal-state relationship is 
     unique because of the unique legal circumstances of the 
     particular tribe and state. At the same time, general 
     principles of federal law have been developed which seem to 
     define tribal and state powers generically. Because it is in 
     the nature of the historical process that troubled 
     situations are the ones litigated, an additional risk of 
     litigation as a means of solving tribal problems is that a 
     judicially-mandated solution for a unique tribal-state 
     problem may produce a legal principle which is taken to 
     govern the tribal-state relationship generally, sometimes 
     disrupting effective relationships.  
     
          Litigation in federal court will always be one of the 
     tools for adjusting the tribal-state relationship. But 
     tribes and states should realize that they themselves have 
     more flexible tools than federal courts to work out a 
     balance between tribal and state governments which is suited 
     to the situation. And their own solution can proceed on a 
     trial and error basis and be adjusted on their own motion 
     inexpensively and with relative ease.  
     
               Federal Legislation -- an Imperfect Tool 
               ----------------------------------------
     
          The federal legislative process contains similar 
     disadvantages as a method of adjusting the abstract tribal-
     state relationship. It is possible for the Congress to 
     legislate with respect to a particular tribal-state 
     situation, but it would be impractical to think that the 
     Congress, with its great workload of truly national issues, 
     would be able to do so effectively. Instead, the Congress 
     often attempts to deal with the tribal-state relationship by 
     passing general legislation that affects the jurisdictional 
     balance, but that achieves generality without  achieving the 
     desired result in particular situations.  
     
          One ironic conclusion that has emerged from the 
     Commission's fact-finding is that the tribes and the states 
     each tend to believe that the other side has easy access to 
     and great influence upon the Congress and that it must 
     struggle merely to have its side heard. Certainly, when the 
     Congress legislates on a tribal-state problem the result is 
     influenced by members of Congress whose constituents do not 
     face the problem themselves and do not have to cope with the 
     result. That is, of course, one of the principles of a 
     federal system: to remove certain types of problems from the 
     exclusive control of the people and governments affected by 
     them on a daily basis. But the view that should be 
     encouraged among tribal and state governments is that, while 
     the Congress has the ultimate responsibility in this area, 
     it should allow. tribes and states to work out mutually 
     acceptable relationships which are consistent with the 
     overall federal trust responsibility. Above all, both tribes 
     and states should abandon the view that the support of 
     Congress is a prize to be captured, useful for forcing one 
     government's views on the other.  
     
          Frequently, federal statutes of general applicability 
     have complicated the tribal-state relationship by 
     inadvertently creating jurisdictional problems. Federal 
     rules of statutory construction generally hold that Indian 
     rights will not be narrowed or abolished by implication, 
     that the Congress must specifically manifest an intent to 
     abrogate a treaty right, narrow the scope of tribal self-
     government, or extend the scope of state power over a 
     reservation. Yet recent federal environmental legislation, 
     for example, has purported to use state enforcement 
     mechanisms without a clear indication of how tribal 
     enforcement powers will be integrated into the overall 
     regulatory scheme. In other instances, states are given 
     powers to administer service programs, funded in whole or in 
     part by federal funds, without the power to license 
     providers or to enforce accountability on the reservations.  
     
          It seems clear from the legislative history of such 
     statutes that the congressional committees are largely 
     unaware of the confusion that they are creating among the 
     states and tribes affected. There are numerous remedies for 
     this problem. Individual congressional committees could 
     become more aware of the need to create manageable schemes 
     suit able for the tribal-state relationship. The Senate 
     Select Committee on Indian Affairs and the House Committees 
     on Interior and Insular Affairs and Education and Labor 
     could be more assertive of their Indian affairs interests 
     with respect to the impact of general legislation on Indian  
     affairs. The Bureau of Indian Affairs, the Indian Health 
     Service, the various federal agencies' Indian Desks and, 
     above all, the Office of Management and Budget, should be 
     much more diligent in pointing out in the administration's 
     report on general legislation the impact on Indian affairs 
     and the tribal-state relationship. And finally, the major  
     lobbying organizations for state and tribal governments 
     could develop unified positions on such legislation which 
     would assist the committees and recognize the legitimate 
     interests of both state and tribal governments.  
     
          Plainly stated, then, tribes and states should not view 
     the federal role in Indian affairs as a barrier to tribal-
     state cooperation for it decidedly is not. Neither should 
     they view the prospect of some ultimate congressional or 
     judicial intervention as an excuse for failing to work out 
     intergovernmental problems between themselves. It is both  
     appropriate and inevitable that the Congress will continue 
     to legislate, and the federal courts to adjudicate, in 
     Indian affairs. But neither the courts nor the Congress can 
     be as flexible or as responsive to a given complex situation 
     as the tribes and the states themselves. And no one is 
     better equipped to craft appropriate solutions to specific 
     intergovernmental problems than the two governments 
     involved. 


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