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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